All Posts By

Twohill Lawyers

Moving House With The Kids?

By | Family Law

Packing up and moving is seldom easy. For parents, packing up and moving with the kids following separation or divorce can be especially challenging. One of the most serious considerations is whether you have to get the other parent’s permission to do so. Here’s what you need to know about this important issue.

Reaching consensus on the move

In accordance with Australian law, you must get your former spouse’s (or former partner’s) permission to move with a child you had together. Ideally, the two of you will still be on good terms at this point. If so, you might be able to reach an agreement on your own about your relocation with the kids. Once you’ve done so, you should consider taking appropriate steps to formalise the agreement.

If you can no longer communicate with the other parent effectively by the time you are considering a move, there is always Family Dispute Resolution (FDR). In this forum, a neutral third party facilitates the conversation while allowing each of you to have a say about specific aspects of the agreement.

In a best-case scenario, FDR will work. If it does, you must then decide how to formalise the agreement. This is usually done through either a written parenting plan or a consent order. The key difference is that a parenting plan is not legally binding, but a consent order is. Although you may not think you need a legally binding agreement, it is always best to consult a qualified lawyer before signing any legal document.

When court intervention is warranted

But what if you’re not on good terms with the other parent, you’ve tried FDR and it didn’t work? In this situation, court intervention is warranted, and you must submit an application requesting Relocation Orders. Once you have filed it, the court will determine whether or not you can move with your child.

To reach its decision the court must consider whether relocation with you is in the best interests of your child or children. There is no guarantee that the court will allow it. Specific factors the court will usually take into account include:

  • Whether the proposed arrangements would allow your child/children to have or develop a meaningful relationship with both of you (and in particular, the parent who is not relocating).
  • The child’s/children’s opinion(s) (if they are capable of expressing them).
  • The child’s/children’s bond with each of you (and any other significant people in their lives) and how separation is likely to affect them.
  • The logistics (including cost) of the child/children spending time with each of you (again, in particular, spending time with the parent who is not relocating).
  • Your ability to communicate and foster a meaningful relationship for the child/children with each parent.
  • Any other relevant factors.

You should be prepared to explain the reasons for your relocation (such as a new job, to be closer to family, or the need to escape an abusive relationship). You should be prepared to provide documentation, keeping in mind that the other parent can also seek court intervention to prevent your move.

Relocating to another country

One of the most common concerns parents have about this topic is distance. As it stands, there are no legal restrictions on how far a parent can move with the children following separation or divorce. Theoretically, this means you could move to another country with them. However you could only do with permission from the other parent or the court.

With that being stated, remember that the court could deny your request. Specifically, it could do so if it determined that the distance would greatly inhibit the other parent’s  ability to have a meaningful relationship with the children.

On a similar note, you will also need the other parent’s permission to take your children abroad for even a short holiday. Additionally, both parents must provide written consent for a child to get an Australian passport.

Without written consent, you can still apply for a passport for a child but you must request that special circumstances be considered. Any such application should be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade.

If this application is also denied, you can seek a court order allowing your child to travel internationally. However, absent the other parent’s consent, the court will only issue such an order if it deems that permitting the child to travel is in their best interest.

The consequences of moving without permission

If you and your children move to another part of Australia without a court order or the other parent’s consent, the court will likely intervene. Specifically, it may order that you return to your previous residence until the case is decided. If there is a current court order that you have violated by moving, the other parent can ask the court to have it enforced.

In this context, you should also be aware that if you move overseas without proper authorization, you may be subject to a Hague Convention Application for the return of the children. However, this will only happen if you relocate to a country where the Convention is applicable.

When to seek legal assistance

We recommend seeking competent specialised legal advice about relocation well before you move. This is because it can sometimes take the court months or even years to reach a decision and you need to know the consequences of your actions before you make them.

There are also times when urgent advice is needed. Please contact us immediately if:

  • you anticipate that the other parent is considering relocating with your children and wish to prevent the move; or
  • the other parent has already relocated without proper authorization or consent.

Call us on (07) 5571 1450 or contact us by email admin@twohilllawyers.com.au to schedule an initial consultation with an experienced member of our family law team.

Recovery of Children

What are the Issues Around Recovery of Children?

By | Family Law

The worst nightmare of any parent going through separation or divorce is that your ex-partner might ‘take off’ with your kids, within Australia or overseas. Perhaps it has already happened. In either case, you have legal rights. Here’s what you need to know about the recovery of children in family law.

Common reasons for moving without consent

Australian law mandates that a parent must have the other parent’s consent to move with a child following separation or divorce. Alternatively, they must have a court’s permission to do so.

In a child recovery case, the first task is to ascertain why your former partner and the kids relocated without the consent of yourself or the court. Common reasons include but are not limited to:

  • The need to be closer to family (especially for mums with young children);
  • involvement in a new relationship with someone who lives elsewhere;
  • the need to escape violence and/or abuse.

Based on your circumstances, we can provide legal advice about your ability to make an urgent family court application for a recovery order.

What is a recovery order?

When your former partner moves with your child/children without your consent, the Family Law Act 1975 (Cth) allows the court to issue a recovery order. This type of order requires that your child/children are returned to the care of:

  • A parent; or
  • anyone with a current order for the child to live with, spend time with or communicate with; or
  • a person who has parental responsibility for the child.

In this context, you should be aware that this type of order is applicable regardless of whether or not you have current court orders for the child’s care arrangements.

Something else to keep in mind is that a recovery order actually serves two purposes. First, it allows law enforcement to intervene. This is important because the police are best equipped to find the child/children and ensure they are placed in appropriate care. Secondly, it prevents any recurrences of unauthorised relocation.

Who can apply?

If someone other than a parent has concerns about the unauthorised relocation of a child, the question then becomes, who can apply for a recovery order?

A parent is not the only person who can legally do so. A grandparent or anyone else who is involved in the child’s care, welfare and development can also apply for the order.

Applying for a recovery order

The way in which you can apply for a recovery order depends on your situation. If you have pending or existing parenting orders, you can request a recovery order by lodging an application with the appropriate court. If you don’t have current parenting orders or a pending application for them with the court, you should file an application for both.

In either circumstance, you must file an affidavit in support of your request for a recovery order. This is because these orders are only granted at the court’s discretion and they will need to understand your situation.

Based on the information provided, the court decides what is best for the child. As part of this process, it considers whether the child should be sent back to their original place of residence and what living arrangements should be made.

Child recovery from other countries

To this point, we have detailed the child recovery process when relocation occurs in Australia. But what happens if your ex moves to another country and takes the kids without permission?

In such cases the Australian Central Authority within the Federal Attorney-General’s department is the legal forum for seeking the return of abducted children. However, the Central Authority can only process an application for the return of a child who has been taken overseas if:

  • He or she is less than 16 years of age;
  • you have “rights of custody”;
  • you were exercising such rights when your child was illegally removed from Australia or kept in another country;
  • your child was living here continuously immediately before he or she was illicitly taken out of Australia or kept overseas;
  • he or she was taken to, or retained in, a country where the Hague Convention applies; and
  • your child was removed from Australia or kept in another convention country without your consent, or without a court order.

You can find the application to be completed with the Australian Central Authority here.

Keep in mind that you may need to attach certain documents to your application. These may include:

  • A certified copy of the child’s birth certificate;
  • photographs of the child and the person who took him or her out of Australia;
  • a certified copy of existing parenting orders;
  • copies of your Certificate of Marriage and Divorce Order (if applicable).

In most cases, time is of the essence if your child has been taken overseas to a Hague Convention Country without your permission. This means you should submit your application to the Central Authority as soon as possible.

A last resort

Most of the time – in about 80 percent of cases – the failure to return a child to you as scheduled stems from miscommunication or misunderstanding. Accordingly, a simple text message or phone call from you should hopefully resolve the matter. Alternatively, if you and your ex aren’t on speaking terms, a phone call or text from a mutual friend may prompt a quick return of your child.

This means that seeking a court order for the return of your child or filing an application with the Central Authority should be considered a last resort.

If you are going through separation or divorce and have questions about this or any other related issues, we are here to help. Simply phone us on (07) 5571 1450 or contact us by email admin@twohilllawyers.com.au to schedule an initial consultation with an experienced member of our family law team.

Estate

How to Prevent Someone from Receiving Part of Your Estate

By | Wills & Estates

No matter what you do, it’s unlikely that you’ll be able to keep your family from bickering over your will. Inevitably, a family member will be upset about what they did or didn’t “get”. Things can be even more complicated if you’ve left an eligible recipient out of the will altogether. This is because there’s no way to keep someone from receiving part of your estate.

Making reasonable provisions for eligible persons

Laws throughout Australia give certain relatives the ability to make a claim against an estate, but only in limited circumstances. To bring a claim, the person who wishes to do so must be an eligible applicant and prove that:

  • they are a qualified applicant under the law;
  • they have bona fide financial needs;
  • the deceased should have made actual/additional provision for them in the estate.

Claims are often made because the person who made the will failed to make sufficient provisions for the applicant, or elected not to make any provisions for them at all. This is usually because the will-maker no longer had a meaningful relationship with the applicant for any number of reasons. Although the will-maker probably thought that he or she was well within her rights to exclude the applicant under the circumstances, the law tends to favor the ostracized person.

To determine whether the applicant has a valid claim against the estate, the court weighs:

  • the applicant’s financial and personal situation;
  • the type and extent of his or her relationship with the deceased;
  • whether there are any other applicants;
  • the financial and personal circumstances of any other applicants (if applicable);
  • the legitimate responsibility the deceased had to provide for the applicant(s).

Misconceptions about will provisions

A lot of people are confronted with tricky family dynamics when making their wills. In this situation, it’s easy to see why some of them try to take the easy way out. For example, some people may think they can accommodate a child (or another relative) that they’ve fallen out with by making a token provision for him or her in their will. That way, they hope, the recipient won’t pursue a claim against the estate.

Unfortunately, this could well have the opposite effect, and the recipient may very well make a claim. What’s more, he or she will prevail if the court finds that what they initially received doesn’t meet the standard for a ‘reasonable provision’.

Another misconception is that a will-maker can lessen the chances that his/her children will pursue a claim against the estate if each of them receives equal provisions. By taking this approach, the testator may honestly believe that he or she is being ‘fair’. But this doesn’t necessarily mean the recipients won’t contest the will. And it doesn’t mean the court will find that the provisions are ‘reasonable’. Remember, the court’s decision is based on all of the criteria detailed above.

With all that being stated…

Having said all of that, a good lawyer can help you devise a plan to ensure that your assets are distributed in accordance with your wishes. A key component of this is identifying ways to make these distributions through means other than your will.

a. Open a Joint Bank Account or Transfer your Property into a Joint Tenancy

Depending on your specific circumstances, one strategy may be to purchase property as a joint tenant. This way, when you die your share in the property is transferred directly to the surviving tenant, eliminating the need for any reference to your will.

If you want some of your money to go to a certain person after you die, opening a joint bank account with them could be a good way to ensure that will happen. This is because, under the law of joint bank account survivorship, the benefit or ownership of the joint bank account is usually transferred directly to the surviving joint account owner upon death. This also eliminates the need for any reference to the will or the estate.

b. Make a Binding Nomination with your Superannuation

If you are concerned about the allocation of the proceeds from your superannuation or life insurance policy, you can choose the person you’d like to receive these payments by making a ‘binding nomination’. Bear in mind, however, that there are strict criteria for nomination of a beneficiary. It is also critical that the binding nominations are executed correctly, and that you make sure your insurance policy allows you to nominate someone.

Finally, you may also want to consider transferring some or all of your assets before you die. This way you can make sure that you are fully in control over who gets them and when it happens. However, if you pursue this option without the proper legal and financial guidance, it could have an adverse effect on your pension. There may also be tax implications in terms of capital gains.

c. Get Legal Advice in relation to a Testamentary Trust

In certain circumstances, a testamentary trust might be suitable to ensure that your estate is held on trust to the exclusion of certain people, or for the benefit of specific people without those people actually owning the asset. Testamentary trusts are useful to protect your assets from bankruptcy, divorce, and other nasty legal proceedings.

In summary, the best way to prevent an eligible family member from making a claim against your estate is to make a reasonable provision for them in your will. A highly skilled wills and estates lawyer can quickly assess your personal and family situation to determine what this may be, and draft your will accordingly.

An experienced lawyer can also provide advice about the allocation of your assets by means other than your will. This can help ensure that your assets are allocated as per your wishes.

Twohill Lawyers offers professional, problem-solving, reassuring advice in this vast area of law. For help drafting your will or with any similar legal matters, contact us today on (07) 5571 1450 or email admin@twohilllawyers.com.au.

testamentary capacity

How Do I Know if My Parent has Testamentary Capacity to Update their Will?

By | Elder Law, Wills & Estates

Learning that your parent wants to update their will can be a source of consternation and concern. This can be especially upsetting if you find out that your mother or father now wants to exclude you. Maybe you are concerned that your parent wants to change their will because they’re under duress. Perhaps they’ve had a stroke, or they were recently diagnosed with Alzheimer’s Disease. In any case, it begs a question: How do you know if your parent has Testamentary capacity to update their will?

The four-pronged test used to determine Testamentary capacity

In general, lawyers use a four-pronged test to determine whether someone is capable of making or changing a will. Specifically, the lawyer must determine whether the person wishing to make or update a will:

  1. Fully comprehends what they want to do (make or update a will) and the ramifications of doing so.
  2. Is aware of certain details regarding the ‘property’ they are distributing through the will (such as the type of property and how much of it is being allocated).
  3. Has a solid understanding of who he/she should make provisions for in the will, and why.
  4. Is of ‘sound mind’, meaning that he or she is not suffering from mental illness or any other medical/psychological condition that could impair his or her decision-making.

What happens if the lawyer can’t reach a conclusion about your mother or father’s testamentary capacity based on conversations with your parent and observing his/her behaviour? In this case, the lawyer will request a report from your parent’s doctor. Depending on your mother or father’s circumstances, this may be a general practitioner or a physician specialising in geriatric practice. The lawyer will then make a decision regarding your parent’s ability to make or change his or her will.

An interesting bit of legal history

As legal professionals and historians know, the precedent for the four-pronged test detailed above dates to the 19th Century. More specifically, it dates to an Old English case from 1870, called Banks v Goodfellow (1870) 5 QB 549.

In that particular case, the validity of the will was challenged after the person who made it passed away. The question was whether the person who made the will was capable of doing so. This question arose because the will-maker was experiencing delusions before his death. Specifically, he thought his butcher was trying to kill him, even though this butcher had been dead for more than a decade.

To reach a decision, the court in Banks first created the following criteria as a basis for testamentary capacity. Accordingly, someone was legally capable of making a will if:

  1. the person making the will understands what it does;
  2. they are aware of the type and how much property they have;
  3. they are aware of who they should make provisions in the will for and why;
  4. such people receive proper consideration;
  5. the person has not or is not experiencing delusions about anyone who would reasonably expect to benefit from the will.

Ultimately the court in Banks decided that the person who made the will was capable of doing so. Its reasoning was that the delusions weren’t relevant because the will-maker was having them about someone who wouldn’t have ordinarily benefited from the will.

Fast-forward to today

Fast-forward to 21st Century Australia, where many families are concerned about how ageing and dementia affect testamentary capacity. As the law now stands, dementia does not automatically preclude someone from being able to make a will.

For example, in Apice v Gutkovich – Estate of Abraham (No . 2) [2010] NSWSC 1333 (22 November 2010), a New South Wales court had to decide whether a 93-year-old woman was legally capable of making a will. In this particular case, the elderly woman had been experiencing delusions for several years. She was also under Guardianship Tribunal Orders when she made one of her wills. These were orders for someone else to take charge of her financial and lifestyle decisions, because disability rendered the elderly woman incapable of doing so herself.

In all, the person in question made four other wills and amended existing wills in the 15 months prior to making her final will. In some of those cases, her doctor indicated that she was incapable of making or changing a will. However, her health subsequently improved, leading both her lawyer and her doctor to conclude that she regained testamentary capacity. In the end, the court also agreed.

In summary

Even if you haven’t lived with them for years or don’t get a chance to see them all that often, chances are that you still know your parents better than someone outside the family. So there’s nothing wrong with asking questions if your mother or father suddenly decides to make or change their will.

It is especially important to seek legal advice or intervention if the behaviour seems out of character, or if your parent has been diagnosed with dementia. Keep in mind, however, that even if they have dementia or a similar cognitive condition, they may still have testamentary capacity.

Twohill Lawyers are specialists in legal matters related to the elderly.  If you have any concerns about your personal or financial affairs as a person in your later years, or as the nearest and dearest of an elderly person, contact us today on (07) 5571 1450.

Spousal Maintenance

What is Spousal Maintenance and How Do I Get It?

By | Family Law

As family lawyers, we often get questions about spousal maintenance. Clients who have heard about it from family or friends sometimes have misconceptions about what it is. Sometimes they are unsure whether they are eligible for maintenance, or they aren’t sure how to go about getting it. In this post, we’ll address some of those questions and concerns.

What is spousal maintenance?

Spousal maintenance is an entitlement afforded to a legal or de facto spouse under the Family Law Act in certain circumstances. The law allows someone to claim spousal maintenance after separation if:

  • There was a significant disparity in income between the parties at the time of separation; and
  • the person who makes more is capable of providing financial support for his or her former partner; and
  • the person who is seeking financial maintenance can’t support himself or herself for any ‘adequate reason’, or one of the reasons detailed below.

Legally, someone can claim spousal maintenance if they need financial support due to their age, health, or mental illness (if any). Someone who has primary care of a child/children from the marriage can also claim spousal maintenance if they can’t support themselves and the child/children without help.

Spousal maintenance is payable in regular instalments or in one single payment based on the specific circumstances of each case.

Methods for obtaining spousal maintenance

Hopefully, you and your former spouse can reach consensus on spousal maintenance on your own. If that isn’t possible, the only way to get spousal maintenance is to file an application for it in the Federal Circuit Court. Along with the application, you’ll have to provide supporting documents detailing your finances, including your income and expenses. The person you’re seeking spousal maintenance from is also required to provide similar information in response to your request.

In this context, one of the most common questions we get is whether the Court uses a specific formula to determine how much the applicant should get. The answer to this question is, “no”. Instead, it assesses the applicant’s ‘financial need’, and the ability or financial capacity of the person with the greater income to meet it. Based on that, the Court then uses its discretion as to what constitutes a reasonable payment.

Relevant criteria

Specific factors taken into consideration include the following:

  • The age and health of both spouses;
  • each of your incomes, property, financial resources and ability to work;
  • who, if anyone has the care of a child;
  • whether one or both of you are responsible for supporting any other person;
  • whether one or both of you qualify for any social security or superannuation benefit;
  • what constitutes a ‘reasonable standard of living’;
  • how much you, as the applicant, have contributed to the other party’s financial resources;
  • the length of your relationship and the extent to which it has affected your earning capacity as the applicant;
  • any current or future liability for either of you in terms of child support payments;
  • any financial agreements between the two of you;
  • any other circumstances the Court deems worthy of consideration in accordance with Section 76 of the Family Law Act.

The purpose of spousal maintenance

There are also a few more things you should keep in mind. The first is that spousal maintenance is not meant to keep you in a lifestyle that you’ve become accustomed to. In other words, you can’t seek spousal maintenance just because you’re used to living in a luxurious home and driving an expensive car, and you won’t be able to afford it on your own.

Secondly, you, as the applicant for spousal maintenance, must take steps to secure work and become financially self-sufficient. The only exception to this requirement is if you have primary care of young children. This is because you are allowed to assume that role as long as your children aren’t yet in school. In other words, you don’t have to deplete all of your marital assets prior to making an application for spousal maintenance. However, you will probably be required to take the same steps towards financial self-sufficiency as any other applicant once the children are old enough to go to school, unless you can provide a viable reason for being unable to do so.

Deadlines for applying for spousal maintenance

The deadlines for applications for spousal maintenance depend on the nature of your relationship. If you were married, you must file your application within 12 months of the date of your divorce. But if you were in a de facto relationship, you must make the application within two years from the date of final separation.

Failing to meet these deadlines does not necessarily preclude you from making an application. This is because you can request special permission from the Court to file an application after the deadline. However, the Court probably won’t accommodate your request unless you can provide a good reason for failing to file within the original time limit.

Summing up

To conclude, spousal maintenance is a basic entitlement legally afforded to a spouse in a marriage or de facto relationship after separation. Eligibility is based on certain criteria. If you and your former spouse are unable to reach an agreement about spousal maintenance payments, you can apply for it through the Court. In either situation, it is always best to get proper legal advice from a qualified family lawyer before proceeding. Contact us to learn more about how our family law team can help you get the spousal maintenance you deserve on (07) 5571 1450 or admin@twohilllawyers.com.au

international divorce

What You Need to Know About International Divorce

By | Family Law

From both an emotional and a practical standpoint, getting divorced is seldom easy. It can be especially challenging if you and your spouse are from different countries, however, or if one of you lives abroad. Here’s what all Australians should know about international divorce.

First things first: is your marriage recognised here?

If you got married in another country but you want to get divorced in Australia, the first legal issue that must be addressed is whether your marriage is recognised here. Although a marriage that occurred overseas can’t be registered here, you should still have a foreign marriage certificate. That can be used as proof that the marriage occurred.

In the context of Australian divorce proceedings, any overseas marriage certificate written in another language must be translated into English. Furthermore, this must be done by a registered translator. Finally, both the marriage certificate and translation should be attached to an Affidavit.

In general, a marriage that occurred abroad will be recognised here if you can provide the proof detailed above and:

  • It is deemed legal in the country where it took place;
  • it would have been considered valid under Australian law had you been married here.

However, any of the following conditions bar recognition of a foreign marriage in Australia:

  • if either of you were still in another, legally recognised marriage when you married each other;
  • if either or both of you are domiciled outside of Australia and younger than 16 years of age;
  • if the two of you are closely related (to an extent that marriage is legally prohibited) or there is no mutual consent (one of you has been forced into the marriage).

Eligibility for a divorce in Australia if you or your spouse are living abroad

Assuming you got married abroad and your marriage is recognised here, filing for divorce in Australia is relatively straightforward – as long as both of you are currently living here. But what if one of you now lives in Australia and the other lives overseas? You can still apply for a divorce in Australia if either one of you:

  • Considers Australia as your home and intends to live here indefinitely;
  • is an Australian citizen by birth, descent or by grant of Australian citizenship;
  • usually lives here and has done so for 12 months prior to filing for divorce.

Keep in mind, however, that you must still provide proof that you and your spouse have  lived separately and apart for at least 12 months. Furthermore there must be no reasonable possibility of reconciliation and resumption of married life. Remember, it is possible to live together in the same home and still be separated.

Deciding where to get divorced

Now that we’ve established when you can file for divorce in Australia, the next question is whether this is the best option for you. The answer is, it depends on your unique circumstances. Generally speaking, however, there are serious legal and financial issues to consider when making this decision.

Let’s say, for example, that you’re trying to decide whether to file for divorce here or in a European country. What are the legal pros and cons?

Well, to begin with, Australian law recognises de facto and same-sex couples. It also allows for the division of property when a relationship fails. By comparison, European countries tend to have fewer rights for de facto partners regarding the division of property when a relationship is no longer viable.

Secondly, Australian courts make binding property orders pertaining to any property held by the parties. This means any such orders would apply to property in Australia and abroad. While some European countries also do this, others don’t. In fact, many European courts limit property orders to property located in their country.

Finally, premarital agreements in some European countries may be considered binding. As such, courts may not have jurisdiction or authority to change the terms of the agreement. This may be true even if:

  • The terms are grossly unfair;
  • one party did not seek independent legal advice prior to entering the agreement;
  • a sudden change in one or both of your personal circumstances rendered the agreement unfair or unjust.

Other issues of concern in this context are how courts in European countries handle financial disclosures and spousal maintenance.

Giving you the information you need to make an informed decision

One of the most important things we do as family lawyers is giving our clients the information and tools they need to make informed decisions. If you have questions or concerns about international divorce, our family law team will provide comprehensive legal advice tailored to your situation. Depending on your unique circumstances, we can address:

  • Tax implications associated with international divorce;
  • how long it will likely take to get divorced in another country;
  • whether or not the courts in another country can grant protective orders;
  • the extent to which foreign divorce laws could adversely affect someone of a specific gender or someone in a de facto relationship;
  • the extent to which the laws in some European countries may influence where divorce proceedings are filed.

If you need advice or guidance about how we can help facilitate your international divorce, contact trusted divorce and family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au.

Separation

10 Things You Must Do Following Separation

By | Family Law

There are few experiences more traumatic in life than a relationship break-up with a long-term, much loved partner. For some people, the emotional stress of such an event can have considerable and lasting effects on their finances, on their health, and on their lifestyle.

Naturally enough, the bust up of a relationship can also seriously impair your thinking in the weeks and days after it happens. Arguments and continuing conflict have the potential to overwhelm your ability to make the essential decisions that you need to make in order to move on with your life.

That’s why we’ve come up with this list of 10 things you should keep front of mind if and when a separation happens. Paying attention to some of the things on the list will make ‘life admin’ – made necessary as a consequence of changing living circumstances – a lot easier to deal with.

1. Consider Counselling or Mediation

Either for yourself or, if they agree, with your ex-partner, visiting an objective third party to discuss your relationship breakdown and its implications can be an effective way of externalising the pain and trauma involved. It is also a way to avoid the destructive arguments that can envelop ex-couples post-break-up, which sometimes prevent them from effectively sorting out important issues such as children, finances and living arrangements.

2. Seek Legal Advice

While a separation does not require you to see a lawyer, if you were married and plan eventually to divorce, you’ll need to be properly separated for 12 months. Even if you don’t have an immediate plan to divorce, a chat with a lawyer who has family law experience can help clarify what needs to be done in the days and weeks after separation. They will help you prioritise the documentation you will need in order to later finalise arrangements such as divorce, custody arrangements, property settlements, etc.

3. Talk to Your Children

Children are clever and will always know when things are not right between parents. Be honest and upfront with them about the separation. Invite and do your best to answer their questions on living arrangements and other implications of the separation. Ensure they have what they need to feel safe and secure. Avoid criticising the other parent in their presence – this will not stand you in good stead in any latter family law proceedings. Again, consider a counsellor or family dispute resolution service to help the children understand what’s happening.

4. Assess Your Financial Position

Chances are that being in a relationship meant your finances were enmeshed with those of your now ex-partner. Now that you’ve split, you will need to consider opening a new bank account, applying for a separate credit card, or withdrawing funds from an existing redraw facility or jointly held account, particularly if you’re the one who has to move out of the family home and find new accommodation. Separation can be an expensive event. If the split was particularly acrimonious, there is also the need to guard against the chance your ex will withdraw all funds from any joint account.

5. Stay Off Social Media

This is sage advice in an age when people feel the need to share everything about their lives on social media platforms. But talking about your ex, or showing evidence of your post-relationship lifestyle, can all have negative consequences when it eventually comes time to divorce, conduct a property settlement, apply for child custody and all the other unfortunate consequences of relationship break-ups.

6. Update Your Will and Enduring Power of Attorney

First up, if you don’t have a will, you probably should make one ASAP after separation as if you die without a will but remain married, your ex-spouse could inherit your whole estate against your wishes. If you have an existing will and enduring power of attorney which nominates your ex-spouse as your executor, beneficiary and/or attorney, you should update these documents to reflect your new status. Failure to do so leaves a lot of power in the hands of your estranged spouse in the event you die or become incapacitated.

7. Collect Important Documents

Following on from points 2 and 6, it’s wise to gather up all important legal and financial documents, including your marriage certificate, bank statements, tax returns, superannuation policies and loan documents, and keep them in your possession as you will need to provide detail on your assets and liabilities from the relationship when it comes time to proceed to a property settlement.

8. Review Other Important Policies, such as Superannuation

As with your will, if your ex-spouse is nominated as a beneficiary within your superannuation policy, life insurance or other death benefits, you may wish to update these details after separation. If there is no nomination in place, if you were to die the trustees of your super fund would likely pay any superannuation and death benefits to your former spouse. If money in the fund is for the benefit of your minor children, consider paying these benefits to your estate upon trust and nominating a trustee in your will to manage these funds until your children have reached adulthood, otherwise the surviving parent (your ex-spouse) – as the children’s guardian – will be in control of this money.

9. Update Other Information

Like finances, a relationship means lots of other ‘life admin’ matters are joined together. On separation, it’s time to contact various government agencies (Centrelink, etc.) to update your situation. Consider opening a new post office box and redirecting important mail from the former family home. Set up a new email account and change passwords to any personal media, internet banking and other accounts in case your ex-partner knows your former passwords.

10. Stay Calm

All of the above requires some clear thinking and a rational process, yet you’re being asked to do it during a highly emotional time. As best as possible try and keep high emotion out of the things you need to do to separate your life from your ex. Speaking regularly with a counsellor and engaging a family lawyer with a clear view of your priorities at this trying time will greatly help you navigate your way forward.

If you need advice or guidance on any of the issues raised in this article, contact trusted divorce and family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au

Family Report

What is a Family Report and How Do We Prepare For One?

By | Family Law

In the sad event that a family breaks up, family reports have become important documents in court proceedings about the living arrangements of the children.

A family report can be ordered by a judge, or agreed to between the parents, and is conducted by an experienced psychologist or social worker with specialist training in assessing future parenting arrangements for families who’ve separated.

The report makes recommendations to the court advising on the parenting arrangements the report writer believes will be in the best interests of the children. While these recommendations are in no way binding on the court, they are likely to be persuasive on the decision of the judge about the future living arrangements for the children. The family report recommendations can also be used to assist and encourage the parents to reach an agreement and form a parenting plan to avoid court action.

What does the process entail?

A family report is based on interviews conducted by the expert, independent consultant with each parent, the children and anyone else who has a direct and significant connection with the children’s lives, such as grandparents or new partners of either of the parents. The report will include the findings gleaned from age-appropriate interviews with the children, as well as observations of each parent with the children and – if the case has gone to court – a review of any court documents, including any subpoenaed documents.

The interviews will generally be conducted at the offices of the consultant psychologist or social worker and parents should be aware they will need to set aside most of a day to partake in the process. Arrangements will likely need to be made for the children in terms of their absence from school in order to be interviewed, or their care during the time either or both parents are being interviewed. If younger, pre-school children are involved, the consultant’s office will generally have toys and books to keep them occupied.

How should you prepare for a family report?

  • Stay calm and remember that this process is designed to work out what is in the best interests of the children. Emotional outbursts or score settling are not going to help your cause.
  • Be truthful as an experienced report writer will easily spot inconsistencies in any account of the family situation, particularly as they also interview the other parent.
  • State clearly what you personally wish to happen in terms of the parenting arrangements, including how your wishes impact on the children both positively and negatively.
  • Show understanding of the other parent’s proposal for parenting arrangements and have a view on how it would work should their proposal be the one ultimately accepted.
  • Avoid relying too heavily on written information as personal recollections and accounts of family life – your actual thoughts and feelings – will be far more genuine. Having said that, if affidavit material has already been filed in court proceedings, you should be familiar with it ahead of the report. If there are any concerns about the affidavit, take a note of them during the family report Interviews.
  • Answer questions directly; avoid tangents and unnecessary detail. The report writer will ask for further details if required.
  • Nothing you say to the report writer is confidential. Anything could end up in the report.

How should you prepare your children for a family report?

This is especially difficult, given the children may not have experienced an interview setting before and most likely do not know the consultant. The process can be scary and daunting for them, particularly at a time they already feel insecure. Obviously any preparation needs to take account of the children’s ages. Specific advice on preparing children of different ages for interviews with a family consultant can be found here on the Family Court of Australia website.

The simplest advice is:

  • Keep the process simple and straightforward for children. Be clear about what is going to happen on the day and what is expected of them, without either exaggerating or minimising their role in the process.
  • Under no circumstance should you coach them about what to say or not say. If this is detected by the report writer or, later, the judge, it can adversely affect your chances of securing the parenting arrangement you desire, opening yourself to challenge from the other parent.
  • Ask them to be honest and answers questions directly.

In some cases an Independent Children’s Lawyer is appointed to help represent the interests of the children. In these cases, the lawyer should speak with the children ahead of the family report interviews. In some cases the lawyer may also help answer the questions for the children during the interview.

Other issues to note

If there is a Protection Order in place between the parties, this should be made known to the independent consultant so that the parties are kept separate in terms of appointments for conducting the family report.

If you need emotional support on the day of the interview, it’s generally acceptable to bring a close friend or relative along but it’s highly unlikely and also inadvisable that they will be allowed to sit on the interview. Avoid bringing anyone who has an acrimonious or contentious relationship with the other parent involved as this is inviting unnecessary conflict should their paths cross.

Once the interviews are conducted, the family report can be delivered any time from seven days to 21 days. If it was ordered by the court, the completed report will go to the judge first, who will then release it to each party via their lawyer (should you have one). If the report was agreed to privately between the parents, the consultant will release it to your legal representative or, if you don’t have a family lawyer, to you and the other parent directly. Remember that the report’s contents are confidential and not to be shared or distributed with family or friends.

The advice and guidance of a legal professional experienced in matters of family law, including the family report process, can be vital in these difficult circumstances. If you have questions about any of the issues raised in this article, contact trusted family law specialists Twohill Laywers today on (07) 5571 1450 or admin@twohilllawyers.com.au

Buying a House

7 Things to Consider Before Buying a House on the Gold Coast

By | Conveyancing & Property

Buying a house on the Gold Coast isn’t just about paying what’s on the property’s price tag.

1. Who’s Buying it?

If you’re reading this, it’s probable that you are considering buying a house or property. But how? Will you buy it in your personal name? Under a company? Maybe through a trust? Before you decide, it’s important to know the benefits and consequences of each.

  PositivesNegatives
You

  • May be entitled to certain concessions, such as the first home buyer grant, stamp duty concession, reduced rate mortgages etc.

  • Full access to any negative gearing benefits, eligibility for a full CGT discount (for Australian residents) and possible land tax savings.

  • Simple

  • Exposure risks for bankruptcy or claims made against you.

  • If the property is for an investment and is positively geared, that income must be declared, which will be on top of your ordinary wage or salary.

You & Partner

  • access to the home and tax benefits.

  • You can both service the loan to purchase something more expensive (compared to buying on your own).

  • Simple



  • If you break up, may be forced to sell the property, or otherwise service it by yourself.

  • consider whether to own it jointly or as tenants in common.

  • Joint Tenant: if you die, your half will automatically pass to your partner.

  • Tenant in common: if you die, your half will pass in accordance with your will.

HINT: If you ever separate, best to hold the property as tenants in common.
Company

  • Increased asset protection.

  • positively gearing: the income tax payable is capped at 30%.

  • forego any home concessions or future capital gains exemptions.

  • not eligible for the 50% CGT discount available to individuals.

  • in QLD, if the value of the land surpasses $350,000, the company will be liable to pay land tax.

Trusts:
unit trusts (or “fixed trusts”)
discretionary trusts (or “family trusts”).


  • Increased asset protection from insolvency or claims.

  • Unit trust: potential to access negative gearing benefits (depending on the loan structure).

  • 50% CGT discount.

  • discretionary trust: can alter who receives the income of the trust.



  • Advice, set up and administration can be costly.

  • Negative gearing benefits / land tax exemptions are difficult to access.

2. Is it on the Water?

Firstly, congratulations – sounds like a beautiful home. With beautiful homes comes responsibilities, including:

  • an obligation to disclose the operation of Local Law 17 and how it affects the property;
  • maintenance of a certain type of structure (such as a revetment wall, platoon, jetty etc.) and obtain regular reports its condition.

The seller should include a special condition in the contract that discloses the operation of the local law.

However, Buyer beware – since June 2017, you cannot terminate a contract for the seller’s failure to comply with this requirement.

3. Is it New?

Or in other words – is GST payable?

A property is “new” if it has not previously been sold as residential property or is the construction of a new building (including replacement of a demolished building on the same land).

Examples include:

  • new apartments,
  • newly subdivided land lots; and
  • house and land packages sold under a single contract.

The Seller

The seller must give the buyer a notice at least 14 days prior to settlement which indicates whether GST withholding applies, how much, when it is to be paid and the seller’s ABN.

If GST withholding does not apply, the seller must give the buyer a notice that there are no withholding obligations. A seller can expect to incur a substantial financial penalty for failing to give a buyer the notice as stated above. However, since 2018, it has been the buyer’s responsibility to pay the GST directly to the ATO.

The Buyer

If GST withholding does apply, the amount of the GST will be 1/11th of the contract price or 7% of the contract price (if the margin scheme applies).

If the buyer does not withhold the GST amount at settlement, they may be required to pay the GST component of the sale. This may be a significant cost, so be sure to check with your conveyancer if you think the property is “new”.

4. Is it More than $750,000?

If you are paying more than $750,000 for a house, residency becomes relevant.

Your solicitor must obtain a Foreign Resident Capital Gains Withholding Clearance Certificate before settlement. If this certificate is not provided, and the seller is foreign, you will be required to withhold 12.5% of the purchase price to the ATO.

The foreign seller will only receive their entitled amount through a tax return.

5. Do I Need Any Special Conditions?

If you are buying a house or property, you want to ensure that you have your i’s dotted and your t’s crossed. Whatever your situation, there is a special condition that can help protect you if worst turns to worse. Here are a few examples:

  1. New contract is subject to sale of buyer’s current property being sold and going unconditional
  2. Subject to early release of deposit to seller prior to settlement
  3. Subject to pet being approval by the body corporate
  4. Subject to the sale of your current property
  5. Subject to buyer’s due diligence (i.e. body corporate search, flood search, town planning etc.)
  6. Subject to seller receiving a better offer (sunset clause)
  7. Agreement to sign the contract by way of electronic means & transmission
  8. Subject to inspections of property such as building and pest inspections
  9. Subject to payment of agent’s commission being released early
  10. Notice that the property is subject to local law 17 (maintenance of works in waterway areas)
  11. Subjection to seller allowing early possession of property
  12. Subject to approval of a current non-approved structure on the property
  13. Subject to the body corporate allowing a home business to be operated from the residence
  14. Subject to the buyer’s right to access property prior to settlement to start renovations
  15. Subject to the seller buying a new property
  16. If the buyer is a foreign person, subject to approval from the Foreign Investment Review Board (“FIRB”)

6. Is there a Pool?

If you are buying a house with a pool or spa, a pool safety certificate must be obtained from a licensed pool safety inspector prior to settlement.

It is the seller’s obligation to provide a pool safety certificate:

  • upon signing the Contract;
  • upon the building and pest date (if applicable);
  • if there is no building and pest date, 2 business days prior to settlement.

If there is no pool safety certificate, the seller must issue a Notice of no pool safety certificate either before entering into the contract of sale or before settlement.

If the property sells without the seller providing a certificate, you will have 90 days from the settlement date to obtain a pool safety certificate and you will be liable for any costs associated with achieving compliance.

Certificates are valid for:

  • two (2) years in private non-shared households, or
  • one (1) year if it is a pool within a body corporate.

Failing to register and certify your pool can result in an on-the-spot fine of $235.60 or a maximum penalty of up to $2,356 if a complaint is made.

7. Is there a Tenant?

Is the property currently subject to a tenancy agreement? And if so, which type?

  1. Periodic (weekly, fortnightly, monthly); or
  2. fixed term lease agreements (where the tenant has a specified time to lease the property with a start and an end date).

You must ensure that the seller gives appropriate notice to their tenants before settlement.

For fixed term agreements: Unless agreement between the parties, a tenant cannot be made to leave the property during a fixed term agreement without an order from QCAT.

For periodic agreements: If the agreement is periodic i.e. weekly, fortnightly or month to month, the seller can evict the tenants if they give them four weeks’ notice. The settlement date must accommodate for this period of time. Note: sellers often don’t give notice to their tenants until the Contract is unconditional.

More Questions?

This advice is general in nature and we recommend you seek the advice of an accountant and financial planner for a better assessment of your ideal structure. We like to take care of our conveyancing clients by giving them thorough, detailed and informed advice and competitive rates.

If you are buying a house in Queensland, we can help make this exciting decision a smooth transition. For over 20 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance in relation to buying or selling your property, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Enduring Power of Attorney

Who Should I Nominate As My Enduring Power of Attorney?

By | Wills & Estates

Appointing an enduring power of attorney should become an important part of any advanced care plan, particularly as you get older.

An enduring power of attorney is a legal document which authorises another person or persons to act on your behalf in managing your affairs, which can become particularly relevant as you age and potentially lose the capacity to make your own decisions as the result of a health issue such as, a stroke or Alzheimer’s disease.

There are two types of power of attorney, namely ‘general’ or ‘enduring’. The former is often used for convenience when you’re overseas, or on a long holiday or suffer from poor health and need someone to make decisions in your absence and lapses as soon as you lose capacity. An enduring power of attorney, in contrast, continues after you lose capacity. This is why it’s an important decision as to who you appoint in this role and that you make the appointment whilst you are still in good health and able to make clear-headed decisions about your future.

What can an enduring power of attorney do?

Your enduring power of attorney can make important decisions on your behalf about personal and health matters, as well as about your financial affairs, should you lose capacity.

Personal/health matters might cover decisions about where and with whom you live, whether to consent, refuse or withdraw consent to particular types of health care (such as an operation you might need), and even daily issues such as what you eat  and how you dress.

Financial matters might relate to income and investment decisions, managing your transaction accounts, buying and selling property, shares and other assets.

Who can be appointed as an enduring power of attorney?

An appointed attorney must be over the age of 18 years, must not be your health care provider (i.e. your doctor), must not be bankrupt, and must not be a paid carer (this does not include someone like a family member receiving a carer’s pension).

In general people will appoint a close family member (such as a spouse or child), a long-term friend or professional advisor (such as an accountant or lawyer) as their attorney.

Many specialists in this field will suggest appointing more than one enduring attorney to ensure accountability for decisions and as a check and balance to ensure your wishes are carried out. It’s also advisable to appoint someone who is already familiar with your affairs, is trustworthy and – given the power covers financial affairs – has some idea about managing money.

It’s important that the person you appoint approaches their role with the philosophy of ‘supported’ decision-making – that is, making decisions as if you would have made them yourself – rather than substituting in their own views about things when making decisions on your behalf. This is best achieved by detailed discussion on your wishes with your proposed attorney/s before you appoint them.

The contemporary prevalence of blended families and remarriage can sometimes raise difficulties in appointing close family members as your enduring power of attorney, particularly when it comes to children from an earlier marriage, in which case an independent but closely connected, highly trusted person might be a better option as your attorney.

How does the attorney’s power work?

In regard to personal and health matters, the power of your attorney to make decisions on your behalf does not begin until the time you have 1) become incapable of understanding the nature of, and 2) foreseeing the effects of a decision, and 3) being able to communicate that decision.

With financial matters, you can nominate when your attorney’s power begins. If you lose the capacity to make such decisions before the nominated date, the attorney’s power begins then.

What are the implications of not appointing an enduring power of attorney?

Should you become incapacitated without nominating a power of attorney, your affairs may end up being handled by the government, for a fee.

The Queensland Civil and Administration Tribunal (QCAT) will appoint an administrator on your behalf to authorise necessary transactions or when your family members can’t agree on decisions related to your welfare. All in all, this process means any wishes you had while you still had capacity may not be upheld.

What is the process of appointing an attorney?

As mentioned, making an enduring power of attorney is often done as part of an advanced care plan, including the making of a will.

While you can do these things yourself or through the Public Trustee, provided all documents are correctly witnessed and signed, for convenience and peace of mind it’s highly advisable to consult a lawyer with specialist experience in this field for guidance on the best way to proceed. They will help you complete, witness and submit the necessary enduring power of attorney documents and provide more detail on some of the issues raised above as to who is best to appoint and what they’re able to do on your behalf.

De facto

What Are My Legal Rights in a Breakdown of a De Facto Relationship?

By | Family Law
Intimate relationships can take many forms these days. It’s very common for people to live together and share nearly everything in life without ever feeling the need to get married… but what is the definition of a de facto relationship, and what are your rights and entitlements should such a relationship breakdown?

In Australia, de facto couples can call on most of the same rights as a married couple in the event of a break up, including:

  1. LGBTQ couples;
  2. Married couples who start up a de facto relationship with another person;
  3. Blended families.

Depending on the circumstances of the relationship, de facto couples often reach similar settlements as married couples. With sound legal advice, people who suffer from the breakdown of a de facto relationships may seek to obtain a:

  1. suitable property split,
  2. spousal maintenance arrangement,
  3. parenting plan,
  4. regular child support payment; and/or
  5. superannuation split.

How is ‘de facto’ defined?

People who live together and are in sexual relationship are – believe it or not – not necessarily in a de facto relationship.

A de facto relationship is defined as a domestic relationship of not less than two years, but a court will make a more careful judgement of this based on an assessment of ‘genuine domestic basis’. This assessment will consider, among a number of factors:

  1. The length of the relationship and whether it is of a sexual nature;
  2. the financial dependence or independence of each party;
  3. whether the relationship include joint assets;
  4. whether there is a child or children from the relationship;
  5. the extent to which both parties are committed to a shared life.

Couples who do not live together all the time may still be considered to be in a de facto relationship, particularly if their finances are enmeshed. The Family Law Act even recognises the fact that a person can be in more than one de facto relationship at a time, even if they’re also married.

What am I likely to get?

Firstly, be aware there is a time limit of within two years of the break-up to apply for financial orders regarding your former de facto relationship.

Before the court can determine any financial dispute, you must satisfy the court you were in a genuine de facto relationship (as above) and that at least one of the criteria below is met:

  • The period for the de facto relationship was at least two years;
  • there is a child from the relationship;
  • the relationship is or was registered under a prescribed law of a State or Territory;
  • that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice.

Do I have a right to some of their superannuation?

Yes, de facto couples may make a claim against the other partners superannuation either by agreement or Court Order. This can be a complicated exercise that involves ticking the boxes of strict policy requirements for each superannuation fund.

What if I can’t afford to be by myself?

If you are experiencing financial hardship as a result of your breakup, your ex may be obliged to help you make ends meet (if only for a temporary period). The success of such an application will depend on the ex-partner’s capacity to pay, as well as the applicant’s age, other income, ability to work, standard of living and whether the former relationship impaired their ability to earn an income.

What will I need to provide?

In order to get an accurate picture of your circumstances, a legal professional will likely ask you to: provide proof of:

  1. the value of all assets, liabilities and superannuation in your individual and your joint names;
  2. the value of any property held by businesses, companies or trusts in which you have an interest; and
  3. what your ex-partner earns, including all benefits and employment entitlements.

Important

If you’re unsure about whether you’re in a de facto relationship, or what you might be entitled to, we recommend you call for free legal advice before going any further.

It is very easy to run up legal fees before you even know where you stand. You will find yourself in a worse position than when you started.

Our firm will give you an indication of your legal position in one phone call, and we won’t charge you a cent.

For over 30 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Power of Attorney

What Happens When There is No Enduring Power of Attorney in Place?

By | Wills & Estates
Appointing someone you trust with power of attorney is likely one of those things many of us dismiss as unimportant, or more likely put off as something we can always do another day.

But the consequences of not making someone you trust as your power of attorney can have costly and complicated consequences for your family should you become incapacitated and unable to express your wishes or make decisions for yourself.

What is involved in appointing a power of attorney?

Power of attorney generally falls into two categories –

  1. a general power of attorney and
  2. an enduring power of attorney.

A general Power of Attorney is usually used for short-term purposes – someone you trust is given the power to make financial and legal decisions for you if you’re away overseas, or temporarily incapacitated by illness. The power lapses immediately should you die or choose to revoke it.

An enduring power of attorney, by contrast, continues if you become unable to make your own decisions, for example as the result of a stroke or the onset of Alzheimer’s disease. By nominating someone as your enduring power of attorney while you’re still healthy and coherent, you can protect your interests and direct your affairs for a time when you may no longer be able to.

In Queensland, someone with an enduring power of attorney can make – should you empower them to – decisions on your behalf both on

  1. financial matters and
  2. personal/health matters.

This could include everything from buying or selling real estate, selling shares or other assets, operating your bank accounts, deciding where you live, how you’re fed, and what types of health care you receive.

An enduring power of attorney must be someone over 18 and someone you trust, such as a close family member, long-time friend or trusted adviser. There are certain other restrictions as well, such as the person not being bankrupt or your health care provider.

The consequences of no enduring power of attorney

As is clear from the above, these are very important life decisions to be made by someone else should you no longer have the capacity to make them for yourself.

There are, therefore, some problematic consequences should you become incapacitated with no legally appointed enduring power of attorney. Most commonly, it will fall to the government to handle your affairs because you no longer can… and they will charge a fee.

Queensland Civil & Administrative Tribunal

In the absence of an enduring power of attorney, ideally a family member will step forward to try and help order your affairs. But they will need to apply to the Queensland Civil and Administration Tribunal (QCAT) to be appointed as your:

  1. administrator (to make financial decisions) and/or
  2. your guardian (to make personal decisions).

This process can be protracted and frustrating and made even more complicated if there is disagreement and dispute among your family members about who should rightfully take these roles. It can take three months or more for QCAT to make these decisions and related fees can run into the thousands of dollars.

The Public Trustee

If there is no-one to take on the role of your administrator and/or guardian, the Public Trustee will step in as Administrator to manage your affairs or the Office of the Public Guardian (OPG) will step in to make personal decisions for you. The Public Trustee may charge between $5,000 to $15,000 per year for this service.

For family members or close friends who wish to nominate as either your administrator or guardian, there are a number of conditions to be met which are not dissimilar to those for an enduring power of attorney. More importantly, there are extensive forms and a detailed affidavit required by QCAT in order to make a determination on your administrator or guardian.

These can be complex and time-consuming matters and so consulting a legal professional with wide experience in estate planning is highly advisable. If you have questions about appointing an enduring power of attorney, the consequences if you do not, or about the process for becoming an incapacitated relative’s administrator or guardian, contact us now.

Family Court

Private Family Court

By | Family Law
Talk to anybody who’s been to Family Court for a family matter and you’ll quickly realise it’s not the answer. It’s draining, unpredictable and very expensive.

Time

If you haven’t done so already – check out our article on The Court Process.

The Federal Circuit and Family Court are so overcrowded today that you’re unlikely to get a decision on your case for up to 2 or 3 years from the time you file your first application.

No thank you!

Expensive

I spoke to a Barrister the other day who said she had been back to Court a record number of six times. SIX. TIMES. Before the client was actually able to have their case heard by the presiding Judge.

Each and every one of those attempts cost her client over $30,000 in solicitor’s fees, “barrister’s fee”, travel fees and accommodation.

What’s $30,000 x 6?

= $180,000 down the gurgler before you even get a decision.

So not only are you delayed an answer but you’re also paying for it.

Arbitration

Arbitration is Private Court.

I like this phrase because it’s akin to the medical industry – like private vs public health care. If you had the choice, would you skip the queue?

If you need an answer quickly and a resolution FAST – opt for Arbitration.

Arbitration is:

  1. Booking a date that’s convenient;
  2. Selecting the Judge (barrister or ex-Judge experienced in Family Law);
  3. Getting a decision within 14 days of the Hearing.

What’s the catch?

POSITIVES of Arbitration:

Arbitration is quick, reliable and results in a Court Order.

So why do people still opt for the public Court system?

NEGATIVES of Arbitration:

  1. The parties bear the cost of appointing a judge for the day (arbitrator).
  2. It’s only for Property matters. They can’t make decisions about parenting matters.
  3. You need a solicitor willing to engage in the Arbitration process.
What is a Will

What is a Will and Why Do You Need One?

By | Wills & Estates
A will is one of the most important and practical legal documents you will create in your lifetime. By making a will, you ensure a number of things will happen once you pass on – specifically, that your property and assets will be distributed after your death in the way that you want them to be, and also to provide certainty and clarity for your loved ones in terms of their inheritance from you.

When should you make a will?

When you’re young it’s easy to put off the idea of making a will. You don’t have dependents, you don’t have many assets and you may not yet have a partner. But as you get older you will likely gain some or all of these things and it becomes essential to detail what should happen to the things you leave behind in the event of your death. In truth, it’s advisable for anyone over the age of 18 to consider making a will, particularly once they start working. This area is commonly referred to as ‘estate planning’.

Once you’ve made a will, it’s recommended you review it every five years to ensure it accurately reflects your current circumstances.

What are the consequences of not making a will?

Should you die without having made a valid will, you are said to have died ‘intestate’ and your estate will then be subject to the laws of intestacy such as Queensland’s Succession Act 1981. This can mean your estate is not distributed as you had intended – even your sentimental belongings may not go to the loved ones who you wished to inherit them.

The lack of a will can lead to a messy and potentially costly situation for your family if they then wish to seek to assert their rights in relation to your estate.

Things to consider in making a will

As the maker of a will you are known as the ‘testator’. You must also appoint an ‘executor’, a person or persons who will be responsible for managing and distributing your estate when you die, and therefore someone in whom you have implicit trust. This is because the executor/s role is an important one which can be both time consuming and complex, given they possess unique powers to deal with your estate.

In assessing the ‘estate’ you detail in your will, it’s important to remember that it is the sum of your assets minus your liabilities. Assets might include real estate holdings, cars, shares, super, life insurance and any money owed to you, while liabilities might include things such as outstanding tax debts, mortgage debts, household and medical bills.

It’s not always clear, at the time of your death, what will constitute either an asset or a liability and this is where a legal professional with experience in estate planning can assist at the time you make a will.

The importance of advice

While there are many DIY kits available which aim to defray the costs of making a will, people who use such means should be aware that legislation relating to wills in each state contains specific provisions governing the process.

In making their own wills, people often make fundamental mistakes such as:

  1. Not detailing the full name and relationship to a person mentioned in the Will, i.e. a father and son might have the same name, or a person might inherit a surname after marriage;
  2. signatures in different coloured inks which indicate testator and witnesses were not present together at the signing;
  3. making later amendments to the will after it has been signed, which can render it invalid; and
  4. even storing the will incorrectly, so that it’s obvious paperclips or staples have been removed to add or remove pages.

Even these basic examples indicate the importance of consulting an estate planning expert when it comes time to either make or update a will. Contact us today to discuss creating this important life document.

Testamentary Trust

What is a Testamentary Trust and Why Should I Consider One?

By | Wills & Estates

An unavoidable fact of life is that, someday, we all die. While many avoid thinking about this particular reality, it doesn’t change the fact of the matter and by putting off issues around death entirely, many place themselves or their loved ones in a position of risk when the time finally does come. One way to protect yourself, your estate, and your family is to tackle these issues head on and engage in various types of estate planning. By going beyond just executing a will, you will be able to provide yourself and your family peace of mind when the inevitable does finally come to pass. For additional benefits, consider a testamentary trust.

A Trust Is: First, it might be helpful to know what a trust is. A trust is a legal arrangement between three parties. The first party (the trustor) transfers property (assets) to a second party (the trustee), who holds these assets for the benefit of the third party (the beneficiary).

A Testamentary Trust is: A testamentary trust is a trust that is created through a will and only comes into effect after the death of the person who created the will (the testator). In short, when the testator dies, the assets will go into the trust rather than be distributed through the will. The reason that these assets are not considered to be part of the estate as defined by the will is that the trustees are not beneficiaries of the estate and do not control asset distribution.

Benefits to a Testamentary Trust

Tax implications: Trustees of a testamentary trust will have the discretion to distribute and divide the capital gains of the trust however they choose in order to minimize the tax implications on the beneficiaries. On the other hand, if a beneficiary inherits directly, they will be forced to pay taxes on that income based on their personal marginal tax rate.

Asset protection: Due to the fact that the trust assets are not considered part of the deceased’s estate, these assets will be protected from the claims of third parties, such as creditors or ex-spouses. Similarly, if a beneficiary is involved in a property settlement, the assets will not be accessible as they technically belong to the Testamentary Trust and not to the beneficiary themselves.

Types of Testamentary Trusts: There are two common types of testamentary trusts.

Discretionary Testamentary Trusts: This is when the executor grants the beneficiary themselves the option to place all or part of their inheritance into a testamentary trust. In this scenario, the named primary beneficiary has the ability to appoint or remove a trustee as they see fit and are even allowed to manage their inheritance within the confines of the trust. This is more common with competent adult children or spouses.

Protective Testamentary Trusts: This occurs when the executor does not allow the beneficiary to choose and the beneficiary is forced to take their inheritance via testamentary trust. Additionally, the beneficiary will not have the power to appoint or remove trustees. This is more common when the beneficiary needs guidance due to age, responsibility, or disability.

Including a testamentary trust as a part of your estate plan may be a good idea for a lot of reasons, many of which have been outlined here. However, if you or someone you love has any questions about planning ahead for the financial wellbeing of their estate, contact an experienced lawyer today and receive personalised guidance.

Power of Attorney

What is a Power of Attorney and Why Might You Need One?

By | Wills & Estates

Though we may not like to think about it, accidents happen every day. Some accidents or unplanned events may leave you or the ones you love unable to speak for yourselves. In fact, the only certainty in life is getting older, which also carries the possibility of losing the capacity to make your own decisions regarding health care, finances, and more. On a more positive note, you may want to spend some time travelling overseas where you are not reachable to conduct your own business. No matter the circumstances, you are faced with the very real possibility that, at some time in your life, you may be unable speak for yourself. If this happens, you should prepare through the legal document known as Power of Attorney.

What is a Power of Attorney?

A Power of Attorney operates during your lifetime to direct your affairs and can either be ‘General’ or ‘Enduring’.

General: A general power of attorney is usually used for temporary absences. For instance, if you were to go on a vacation and want to grant someone the power to sign documents in your absence, you could give them a general power of attorney and their power to act on your behalf would end when you returned. A general power of attorney will also come to an end if you were to lose capacity for some reason.

Enduring: On the other hand, an enduring power of attorney will enable your appointed  agent to be able to continue to act on your behalf in the event that you lose capacity. They will be the ones to make decisions about your care and conduct your affairs if you develop a cognitive medical condition like Alzheimer’s, or are in a coma. In the absence of an enduring power of attorney, the government will appoint someone to make decisions on your behalf, and sometimes this will draw a fee.

What decisions can be made under the Power of Attorney?

You may grant the power to make decisions regarding your personal matters, health matters, or financial matters.

Personal & health matters: These two go hand-in-hand because while who you live with may seem personal, your healthcare needs will likely play a large role in who will be the best choice for you to live with. Same goes for whether you are able to work, attend school, receive training, obtain a driver’s licence, and the mundane issues of day-to-day life (clothing, food, etc.). These powers will also include decisions about what care to pursue, accept, or refuse (like surgery or medication).

Financial matters: These powers will include distribution of income, investments, purchases, sales and real estate transactions, as well as the management of assets, bank accounts, and using the money for your care.

Definition of capacity

A Power of Attorney will protect your interests if you lack the capacity to make your own decisions any more but in order to grant the power at the outset, you need to be an adult who is capable of making your own decisions. In order to have ‘capacity’, you must be able to understand the nature of your decisions and their effect, free and able to make said decisions, and be able to communicate your decisions. If you are unable to meet these criteria, it will be determined that you lack capacity.

For over 30 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Mediation

Mediation or Going to Court: Which is the Best Option in Family Law Matters?

By | Family Law
As the old saying goes, love hurts. And that’s what makes certain decisions in family law matters so difficult. One of the toughest decisions a couple has to make as their partnership or marriage breaks down irrevocably is how to end things in a legally appropriate manner. Should you try do so through mediation or just go to court? Here’s what you should know in order to make an informed decision.

An adversarial process

If you’re bitter or angry, taking your partner or spouse to court may seem like the best option. This may also seem like the best choice if you are convinced that you’re entirely right and the other person is entirely wrong. In this case, you may mistakenly believe that the judge will simply take your side and you will get everything you want.

However, you should be aware that decisions made in haste or anger may have unintended consequences. In court there is no guarantee that either one of you will get everything you want, so you may very well end up disappointed if you pursue this option. Furthermore, appealing the court’s ruling is difficult, time-consuming and expensive.

Another point to consider is that going to court is a largely adversarial process, pitting one of you against the other (or your lawyers against each other) and leaving little room for negotiation and constructive dialogue. So even if you don’t resent the other person to begin with, you may end up feeling resentful and hostile towards them in the end.

Having said all of that, there are some situations in which going to court is the only option. This is the case when:

  • you are requesting parenting orders from a family law court;
  • you are using ‘consent orders’ to formalise the arrangement;
  • there is a history of family violence or child abuse;
  • you are responding to an application to court;
  • one of you is unable to engage in meaningful participation for various reasons;
  • one of you has acted against or ignored a court order issued within the past year.

Why opt for mediation?

Flexibility is one of the biggest benefits of mediation. Even the term itself has several definitions. Mediation within the context of family law can be defined as informal discussions facilitated by friends or relatives; or a more structured process facilitated by someone with special training called a mediator.

In either case, mediation has the following goals and characteristics:

  • It is focused on constructive dialogue, healthy conversation and reaching consensus on key issues rather than finger-pointing and casting blame.
  • It is designed to help couples going through separation or divorce avoid costly and unpleasant court battles.
  • It allows you to have significant say in the outcome.
  • It allows and encourages creative solutions to reach consensus.

Mediation can be used to help  you reach consensus on key issues including:

  • The division of property (assets and liabilities);
  • parenting matters;
  • child custody and visitation;
  • spousal support and child support.

What is family dispute resolution?

Family dispute resolution or FDR is a form of mediation used only in certain circumstances. Specifically, it is used to help separating couples who are otherwise unable to agree on parenting matters reach consensus on future parenting plans. In this process, a specially trained FDR practitioner leads the discussions and ensures that the parents remain focused on the children’s needs.

Australian law mandates that separated parents try to reach consensus through FDR   before applying to a family law court for parenting orders. The only exceptions to these rules are those detailed above.

Families in need of FDR services can find them through Family Relationship Centres, Legal Aid Commissions and similar community-based organisations or government agencies. You can learn about the government-funded FDR providers in your area by calling 1800 050 321 or use the Find Local Help search to find one nearby.

Some FDR practitioners also make their service available privately. To find one, simply consult the Family Dispute Resolution Register. You’ll be able to to find information about private provider’s costs there as well.

Options for families in isolated areas include telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.

You can learn more about FDR here.

The bottom line is that traditional family mediation and FDR are both worthwhile alternatives to court in family law matters. Although FDR is only used when separating families are unable to come to an agreement on parenting plans, it has a lot of the same benefits as traditional family mediation. Both offer flexibility, allow for creative thinking and focus on constructive conversation. Both are facilitated by specially trained professionals and tend to be less expensive than protracted court battles.

To learn more about the use of different types of mediation in family law matters, contact us today.

Separation

Separation – What is Required to be Considered Separated Under One Roof?

By | Family Law
It may be a cliché but it’s also true: no matter how long you’ve been together, breaking up is hard to do. For married couples, coping with the fallout can be especially complicated – and that’s one reason why so many Australians continue to live together even after separation. But what’s required in order to be considered as “separated under one roof”?

Separation under one roof can be short or long-term

For some separated couples, continuing to live together is just “easier”, at least in the short term. It gives the person who is planning on leaving time to find another place to live, save some money for rent, or make other arrangements. It also gives someone who hasn’t held a steady job time to find one.

Then there are other couples that prefer to keep living together after separation for a longer period. In many cases, they choose to do so “for the sake of the children”, especially when the kids are younger. Although this is generally discouraged, supporters say it allows both parents to maintain ongoing relationships with the children. Depending on the situation, such as one in which the parents remained civil or even cordial, this may also provide some semblance of stability and normalcy for the kids.

Legal considerations

If you are considering separation but want to keep living with your former partner or spouse afterwards, you may also be concerned about the legality of doing so.

More often than not, it’s perfectly fine. The only time separation under one roof can be tricky from a legal standpoint is if you also plan on getting divorced, or if you and your ex have a disagreement that requires court intervention.

In fact, section 49 (2) of the Family Law Act specifically allows for separation under one roof. It states: “Parties to a marriage may be held to have separated and to have lived  separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household  services to the other.”

Seeking divorce after separation under one roof

To get divorced in Australia, you must be separated for one year (12 months). Living together for some or all of that time won’t prevent you from seeking divorce, but you must provide additional information along with your application.

Here are a couple of examples. First let’s say you’ve separated for a year, but you lived together for half that time. In this case, you must provide supporting evidence with your application.

But now let’s say you’ve been separated for five years. In this scenario, you stayed in the same home for the first three years, but lived in different homes for the last two. In this case you don’t have to provide any supplementary information.

What type of supporting material is required?

An affidavit is a sworn statement that you must file along with your application for divorce if you have been separated under one roof. In this document, you give a detailed account of your living arrangements demonstrating your separation during the 12-month period. Specifically, you must explain:

  • different sleeping arrangements (i.e. if one of you moved into the guest room);
  • changes in common activities;
  • specific divisions of household responsibilities;
  • establishment of individual bank accounts and changes in how household bills are paid;
  • the extent to which you informed friends, family and any other relevant people (such as your children’s teachers or caregivers) about the separation.

You should also be prepared to address any other significant issues in the affidavit, including:

  • Your reasons for staying in the same home after you separated and any forthcoming changes to the current arrangement (if applicable).
  • Any changes directly affecting or related to any minor children (those less than 18 years of age) that you have in common with your former partner/spouse while you were separated under one roof.
  • Which government benefits you receive (if any) and which agencies you notified about your separation. Copies of any relevant correspondence should also be submitted along with the affidavit.

Generally speaking, you won’t have to appear in court unless you made an individual application for divorce and you have a minor child in common with your former partner/spouse. This provision only applies as long as you fully explained your situation and submitted the required affidavits to the court. You may also be directed to appear in court or provide additional material if the court needs more information.

You are not alone

In summary, if your marriage can’t be salvaged and you are considering separation under one roof, you are not alone. Many Australians choose to live together after separation for a variety of reasons. Although this is legal, it can complicate matters if you want to get divorced. Therefore, it is important to get proper legal advice before making this decision.

To learn more about how we can help if you are considering this option, contact us today.

For over 20 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Inheritance

Is Your Inheritance at Risk of a Claim by Your Former Spouse?

By | Family Law
Historically the question of whether money is really the root of all evil has been a matter of debate but within the context of family law, there is no doubt that disagreements over finances frequently morph into something worse. There are many reasons these heated and bitter arguments over “who gets what” erupt when couples separate. In some cases, for example, fights begin when former spouses or partners can’t agree on what should happen to an inheritance.

Here’s what you should know about how the courts view a situation in which only one of you has received (or is soon likely to receive) the inheritance in question.

General Considerations

Because it is legally categorised as property, any inheritance you receive must be included in relevant negotiations. However, it is important to note that how it will be treated depends on your specific circumstances.

In general an inheritance will be treated as an asset that can be split between the two of you, or as an asset (financial resource or benefit) belonging only to the recipient. A cash inheritance will most likely be viewed as the latter. If it is, the court will likely determine that you (as the recipient) are in a better financial position than your former husband or spouse, and act accordingly.

In reaching its decision, the court may consider when you received (or will receive) the inheritance and how you used it. As an example, let’s assume you received a considerable inheritance while you were married. Now let’s also assume that you used the money for household expenses, family holidays, home improvements and so forth. In these circumstances, the court could reasonably find that this was simply your contribution to the marriage and issue an order accordingly.

On the other hand, let’s consider a scenario in which you inherited some money from your grandmother before you got married. Let’s say you weren’t living with the man or woman you eventually married, and he or she was aware of the inheritance. However, you kept the money in your own bank account and never used it for any relevant expenses or activities before or during your marriage. In this case, the court could reasonably find that the inheritance was always yours before the relationship, meaning you brought it in as an initial contribution. If you never used it and always kept it separate, depending on your partner’s circumstances, you may be able to keep it.

Other factors that the court may take into consideration are:

  • Value: The amount inherited or worth of the inheritance in comparison with the total asset pool.
  • Contributions: Whether the person who didn’t receive the inheritance contributed to it.
  • Purpose: The intended use of the money, as expressed in a will or any other specific instructions.
  • The extent of care: How much the person who did not receive the inheritance helped care for the deceased, if at all.

Relevant Cases

Of course the outcome in your case will be based on the court’s assessment of your specific circumstances. Having said that, here are a few summaries of relevant cases to help you understand how the court reaches various decisions.

First let’s look at a case called Elgabri & Elgabri. In this particular matter, the husband received an inheritance shortly before the couple separated and the judge excluded it from the general pool of marital assets. Upon further assessment of the evidence, the judge found that the husband and wife made equal contributions to the remaining assets. However, the judge also determined the wife should have an additional percentage of the assets because her husband’s inheritance gave him a financial advantage.

In another case called Elgin v Elgin, the court found that an inheritance received roughly one decade prior to the couple’s separation was insignificant in comparison to the value of the total asset pool. Specifically, it accounted for less than five percent of all available property by the time the couple separated. The judge in this case also decided that each spouse made equal contributions to marital assets. As a result, each person received an equal share of the assets.

Finally, in Sinclair v Sinclair, the wife received a considerable inheritance several years before she and her husband separated. However, the court determined that most of the assets weren’t related to direct contributions made by either person, and the wife received a significant percentage of the total assets.

In summary, it doesn’t matter whether you’ve received a small inheritance or you stand to inherit a fortune. If you are separated, it will be legally classified as property. Depending on your specific circumstances, you may be allowed to keep all of it, or it may be included in the marital asset pool. In any case, it is essential that you obtain clear legal advice on your specific circumstances.