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The Role of Mediation in Family Law Matters

By | Family Law

Mediation has become an increasingly popular way to resolve disputes in family matters for some very good reasons.

Going to court for decisions about parenting, custody, maintenance and the splitting of financial assets might at first appear an easy course, but usually involves lengthy delay, high financial costs, and stress.

By contrast, mediation provides a far more informal and less costly means by which two now estranged people (and sometimes extended family) can reach an agreement they can both live with, and thereby move forward with their lives. Better yet, the process empowers each side of the dispute to mutually reach a satisfactory resolution, with the assistance of a trained, expert mediator.

In most cases, you can also seek the advice and guidance of your trusted legal representative before, during and after the mediation process, but it should be stressed that mediation is not an opportunity for lawyers to negotiate in an adversarial way outside of the courtroom. In mediation, the role of your legal representative is far more about advice and support in the quest for a workable solution to the dispute.

How mediation works

Under Australia’s family law system, mediation or dispute resolution is now a compulsory requirement for separated parents before they can apply to the court for parenting and/or financial settlement orders.

The only exemptions to this requirement are where:

  • The parties are formalising an agreement between them through the court via ‘consent orders’;
  • where family domestic violence or child abuse is present;
  • when you are responding to an application to court by the other parent;
  • a party is unable to properly participate due to, for example, incapacity or geographical location; or
  • a person has contravened and shown a serious disregard for a court order made in the last 12 months.

Under the Family Dispute Resolution (FDR) process, a neutral and impartial accredited FDR practitioner assists the separated couple to create their own parenting plan setting out parenting arrangements going forward. Part of the mediator’s role is to assess whether the FDR process is suitable for a particular family, taking into account any issues relating to family violence, safety, risks to children, the psychological health of the parties and any other issues which may make dispute resolution unsuitable in this instance.

The mediation environment is designed to facilitate a calm, civil atmosphere where both parents can discuss the issues in dispute, raise individual concerns and consider a range of options, underpinned by the primary consideration of the best interests of the children.

This process can involve one or more sessions in which the ex-couple come together in an appropriate, neutral setting to discuss the issues in dispute. ‘Break-out’ rooms are usually also available in which each participant can consult with their legal representative, should they have them present, and/or utilise ‘shuttle’ negotiation, whereby the mediator can go back and forth between two separate rooms with proposals from each party with the aim of achieving a mutually agreed resolution.

Where there are safety or family violence concerns, the mediation process can even be conducted via videolink or telephone. In these COVID-19 times, with the demands of social distancing, these options are generally more favoured for the foreseeable future.

Where children from the relationship are older or demonstrate a certain maturity, it’s possible for them to be included in the FDR process. This may involve the presence of a child psychologist or consultant who discusses the issues with the children and supplies their views back to the parents during mediation.

What happens after mediation

In the best case scenario, both parents can reach an agreement they can each live with and which also preserves a civil and polite basis for their ongoing relationship in raising their children.

The agreement can be recorded as a parenting plan which must be in writing, then dated and signed by both parents. This document can also include details on how anything agreed to can be changed in the future, as well as how to resolve disagreements or non-compliance with the agreement’s terms. It’s possible to revisit and renegotiate a parenting plan some time in the future if required.

If the mediation process itself does not result in an agreement, the discussion process may still result in a later informal agreement, or at least clarify and refine the issues to be discussed if the matter proceeds to court.

Where mediation does not result in an agreement, the FDR mediator can issue a ‘Section 60I’ certificate which allows an application to be made to a family law court. This certificate will attest to the fact that:

  • One party did not take part in the FDR process;
  • the parties attended and made a genuine effort to resolve the dispute;
  • the parties attended but one or both of you did not make a genuine effort to resolve the dispute;
  • the mediator decided the case was not appropriate for FDR; or
  • the mediator decided it was not appropriate to continue part way through the FDR process.

How legal advice can help

Speaking with family law specialists like Twohill Lawyers is highly advisable if you have recently separated and need advice on next steps. We have years of experience helping clients going through family separation, including advising on the suitability of mediation for their circumstances. We will simply and relevantly explain your rights and responsibilities in terms of the law, and assist you in resolving family and financial issues with your ex-partner without the need to go through the stress of the court process.

If you have any questions about mediation and how it can work for your family law matter, call us and speak to a member of our friendly team today on (07) 5562 0444.

Wills and Estate

Who Can Challenge a Will and What Grounds are Required to Do So?

By | Wills & Estates

While people make a will so that their assets and affairs are handled in an orderly fashion after their death, this ideal scenario does not always play out.

There are a couple of common reasons why an interested party may challenge or contest the terms of the deceased’s will. The first is that they query the validity of the will, and the second is that they do not believe they have been adequately provided for in the will.

Wills and estates can be a complex area of the law and the guidance of a professional lawyer in this area is crucial if you wish to challenge a will on either of the grounds above. In this article we’ll provide an overview of the grounds for challenging a will but do contact Twohill Lawyers if you need more detail on this subject.

Questioning the validity of a will

There are a number of circumstances in which a person’s will may be invalid. These include:

  • Where a person contends that the will is not the final will of the testator (will-maker);
  • where the will was revoked by the testator;
  • where the testator lacked mental capacity to make a will;
  • where it’s claimed that alterations or additions were made to the will after it was signed by the testator.

In applying to the court for a Grant of Probate – which the will’s executor must obtain before being able to distribute the estate to the beneficiaries – the executor must attest to, and the court must be satisfied of, the validity of the will.

This means someone who wishes to contest the validity of the will must notify the executor as soon as possible after the deceased’s death and before the executor obtains a Grant of Probate from the court.

One way to do this if the executor is not required to give you notification that they are applying for the Grant of Probate is to lodge a caveat against the estate. By doing this an executor is forced to undertake contested proceedings for the Grant of Probate and the court must decide the validity of the will by fully investigating any of the circumstances listed above.

A court can refuse the Grant or revoke an existing grant if they find the will is invalid.

Family Provision Applications

Where a person believes the testator has failed to make adequate provision for their needs from the will – in layperson’s terms, they didn’t get the share they felt was owed to them – then an eligible person can make a Family Provision Application (FPA).

In order to make an FPA you must be classified as an eligible person. This includes a spouse, child or a dependant of the deceased person. ‘Spouse’ includes a husband or wife, de facto partner, a dependant former husband or wife, or civil partner. A child of the deceased encompasses natural children, stepchildren and adopted children, while a ‘dependant’ includes any person who was wholly or substantially maintained or supported by the deceased at the time of his or her death and who is: a parent of the deceased; or the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years.

If you are assessed as eligible, an FPA requires you to give evidence as to your income, assets, liabilities and expenditure, as well as any medical, educational and lifestyle needs.

The court will also consider whether you have engaged in any disentitling conduct (such as drug and alcohol abuse, or criminal conduct, for e.g.) which justified the will-maker’s decision about what they left – or didn’t leave – to you in the will.

If the evidence supports your contention that the will inadequately provided for you as a beneficiary, the court will also take into account the size of the estate and the needs of the other beneficiaries of the estate in determining your provision from the estate, which it could order paid as a lump sum payment or a period payment such as an annuity.

Contesting on the grounds of what the words in the will mean

One further ground for contesting a will may arise where the terms of the will are unclear. This can happen where, for example, a testator makes a gift to “my niece, Julie” when in fact, the deceased had more than one niece called Julie.

In these situations, the executor or a person interested in the estate can ask the court to make a decision on the specific meaning of the terms in the will. These applications must be made within six months of the date of death of the testator.

Speak with the professionals

In most of the situations described above, statutory time limits exist within which a person who wishes to contest a will must make an application. As mentioned, the administrative work involved in challenging a will on any of the grounds above can be complex and time-consuming. By calling Twohill Lawyers today on (07) 5562-0444 for an initial free consultation, we can help assess your case and give you a firm idea of your chances of success in contesting a will.

Property Settlement

What Happens if a Party Dies Before the Finalisation of a Property Settlement Matter

By | Family Law

When a couple separates for good, it’s not uncommon for legal and financial professionals to encourage both parties to formalise the split sooner rather than later… and there are good reasons for this.

One of those reasons is the situation where one half of the ex-couple dies before a property settlement can be reached. If mediation or court proceedings leading to a property settlement have not been commenced before the death of one party, it may prove impossible for the surviving ex-spouse to be provided for from the deceased person’s estate. This can be particularly distressing if the deceased person was the major breadwinner during the relationship or retains most of the assets.

Other options such as a family provision application seeking a share of the deceased’s estate may still be available but again, time is of the essence as time limits to commence an action apply.

This situation can end up being quite complex, legally and financially, and so the counsel of an experienced legal professional is advised.

The case of Alagiah v Crouch

The 2015 Supreme Court of Queensland case of Alagiah v Crouch is a stark illustration of the situation where one party dies before a property settlement is reached.

Mrs Alagiah and her former husband were married for 22 years and had no children. They separated in 2006 and divorced in May 2012. The husband then suddenly died in early 2013.

After separating the parties had attempted to reach a property settlement, but no agreement had been reached at the time of the husband’s death and neither party had filed proceedings in the court. As a result, Mrs Alagiah had limited options to make a claim on a share of the assets from the marriage.

Mrs Alagiah then sought to make a family provision application for adequate provision for her proper maintenance and support from her former husband’s estate. The court found, however, that she was not a ‘dependent former wife’ who was receiving, or entitled to receive, maintenance from Dr Alagiah prior to his death. After their separation, Mrs Alagiah had no longer been supported by the deceased.

Her application was also well outside the statutory time limit for such applications – made 18 months later than the time limit of nine months after the death when a family provision application should be made.

The take-outs

Mrs Alagiah’s case demonstrates a number of important considerations for people who separate but have yet to negotiate a property settlement. Key among these is that once a couple separate, the parties should move quickly to finalise a property settlement or binding financial agreement. While property settlement applications must be made within 12 months of divorce, failure to lodge court proceedings before this time may place you in Mrs Alagiah’s position if your former spouse dies.

Had court proceedings been filed before his death, Mrs Alagiah would likely have been able to continue her property settlement matter against her former husband’s legal personal representative (i.e. the executor).

Having divorced, and not relied on her former husband for financial support, Mrs Alagiah could not then make a family provision application for provision from his estate.

If you are going through a separation and divorce, consulting with a legal firm that specialises in the issues around property settlements and wills and estates is vital. At Twohill Lawyers, we understand your situation and will provide the right advice in order to secure your rightful share from the former relationship. Contact us today on (07) 5571 1450 for an initial discussion.

Property Settlement

My Ex Won’t Disclose Their Financial Position For Our Property Settlement – What Should I Do?

By | Family Law

It’s a sad fact that once a relationship ends, it’s quite common for one party to hide or misstate their true financial details so that certain assets don’t become part of a property settlement made to finalise the split.

But what the party who does this sometimes fails to realise, or chooses to ignore, is that as soon as a separating couple begins to discuss a property settlement, each party has an ongoing duty of disclosure. This means that they must provide each other with all the information and documents relevant to their case, and this duty continues until the settlement is reached.

Of course, if you become aware an ex-partner is hiding or misrepresenting details about their finances you should immediately seek legal advice to see what options are open to you to gather the information you need to negotiate a fair and equitable property settlement.

What can you do when a partner hides money and assets?

Once discussions about a property settlement commence, each party to the settlement may complete a  Financial Statement that details all of their assets, liabilities and financial resources, whether held solely, jointly with any other person, a third party (such as a new partner), a company or a trust.

This financial statement is a prescribed family court form and acts as an affidavit if filed in Court, meaning it must be sworn under oath or affirmed before a prescribed witness. If a party provides false information, even by mistake, the credibility of that party’s case may be affected and penalties for swearing false evidence may also apply.

Under the duty to disclose, you can request documents from your ex-partner provided they are relevant to the property settlement. These might include tax returns; bank statements; pay slips; superannuation statements; Centrelink documents; Child Support Assessments; Certificates of Title; mortgages; land appraisals or valuations; leases; loan applications or agreements; insurance policies; share certificates; trust deeds; and business, partnership or company documents.

It should be noted that the duty also includes details of any sale or gifting of any assets made in the year immediately prior to separation, or since separation.

What to do next if you believe your former partner is hiding financial details

If your ex-partner refuses to provide full disclosure, you have few options other than to commence proceedings. It’s highly advisable to seek legal advice to assist with identifying whether the disclosure you have obtained  (if any) has inaccuracies, inconsistencies or items that require further examination.. Your ex-partner’s financial statement may highlight discrepancies and it is important to remember that parties may be cross-examined on their financial statement during court proceedings.

If you remain suspicious or concerned that full disclosure has not been provided the following can be implemented:

  1. Seek orders from the Court that specific documents be provided; and/or
  2. Subpoena the party or a 3rd party, i.e. banks, employers, financial advisers and any other relevant organisation that may be in possession of financial records relating to the property settlement, to provide the document to the Court.

If certain documents have already been requested for disclosure but the other side has refused to provide the documents, the non-disclosing party may risk an order by the Court to pay the costs associated with obtaining the order for further disclosure.

Further, a Court may not allow for a document to be relied on or used if the document has not been previously disclosed. If a Court finds the non-disclosing party has assets that have not been disclosed, the Court has the discretion to be more generous to the other party in the property settlement.

Finally, it’s possible to serve an ex-partner with a Notice to Admit Facts. This notice would ask direct questions on issues directly relevant to the property settlement. The responses to these questions can be subject to cross examination in court, and any inconsistency between the answers in writing and those given in court can result in an adverse outcome for the non-disclosing party.

Failure by one party to comply with any of the steps set out above can result in a court order that prevents the person from relying on the document/s at a later date; or contempt of court charges and court costs; or dismissal of the case.

Forensic accounting

One course of action often employed by people whose property settlement involves assets of substantial value is to employ the services of a forensic accountant. Forensic Accountants are specialists in examining financial records for evidence of assets hidden or sold to avoid then becoming part of a property settlement. This is generally a costly option in order to discover whether a former partner has been hiding assets and one that should only be undertaken after seeking legal advice as to whether you have reasonable grounds for your belief that your ex has concealed or understated assets.

The value of expert legal advice

One of the first casualties of a relationship break-down is trust between the former partners. This situation is exacerbated where one party conceals their true worth so as to prevent their ex accessing an equitable share of the assets in a property settlement.

Unfortunately these situations can be fraught with conflict, deceit, and a ‘he-said, she-said’ battle. Availing yourself of expert legal advice to help guide you through some of the options outlined in this article is a wise thing to do.

Family law professionals Twohill Lawyers have proven experience and expertise in matters such as this. We’ll provide relevant, effective and confidential advice to assist you towards the best property settlement for you, thereby helping you move on with your life. Contact us today for a no-obligation initial consultation on (07) 5571 1450.

Parenting Orders

What Can I do if My Ex Does Not Comply with Parenting Orders

By | Family Law

Unlike parenting plans where two people whose relationship has ended decide between themselves the best way to raise their children, parenting orders are handed down by a court and have an altogether difference consequence if they are not complied with.

For a start, parenting orders create legal obligations and are legally binding. If either parent contravenes a parenting order, there are penalties within the Family Law Act that apply. Depending on the severity, frequency and intent with which a parenting order is disobeyed, sanctions can vary from being made to attend a parenting program through to a prison term for repeatedly breaching the orders.

There are also ‘reasonable excuses’ a parent in contravention of a parenting order can cite. Parenting orders can also be changed or varied with the agreement of both parents if an order/s from the original decision later proves impractical due to the living situation of either party changing.

In any of the circumstances discussed above, legal advice should be sought to ensure you are taking the right course of action. When an ex-partner fails to comply with parenting orders, it can frequently become a flashpoint that revives old enmities and domestic battles at a time when you’re trying to move on with your life.

What are parents’ obligations under parenting orders?

Parenting orders made under the Family Law Act relate to:

  • parental responsibility for a child;
  • living arrangements for a child;
  • time spent and communication with a child; and
  • any other aspect of the care, welfare or development of a child.

Once orders are handed down by the court, both parents must take all reasonable steps to ensure that the order is put into effect. This means, for example, that where the order sets out the times and dates that the children must spend with the other parent, you must not only make sure the children are available to do so but also positively encourage the children to comply with the orders.

When one or both parents’ circumstances change – they may move, or gain a new partner, or a new child – and the current parenting orders become impossible or impractical to comply with, then parents can seek a variation to the orders. But a parenting order remains in force until a new parenting order changes it and so any ‘one off’ agreements to depart from the orders should be recorded in writing. Otherwise, the failure to comply with the orders will be construed as a contravention when one parent subsequently seeks to enforce the orders.

What you should do if a former partner contravenes parenting orders

There are three basic options where the other party fails to comply with parenting orders, depending on the seriousness of their breach.

If their contravention is minor, such as missing a time set for return of a child by 30 minutes or so, it may be best to just record the breach in case it is required as evidence at a later date should the breach become a habit. If there is a more substantial or repeated breach of disagreement about the parenting orders, the services of a family dispute mediator may be required. They can help both of you find a solution that avoids the need to go to court, though you do both need to pay for the mediation. If neither of the first two actions is sufficient, you may need to seek the Family Court to enforce the orders by filing a Contravention Application  and an Affidavit detailing your grievances. The other party will also be able to respond before the court hearing.

Section 70NAC of the Family Law Act sets out the circumstances in which a party contravenes a parenting order, where they:

  • intentionally fail to comply with the order; or
  • make no reasonable attempt to comply with the order.

If you are alleging your ex has breached the parenting orders you must have kept detailed evidence of the instances of breach and you must meet the standard of proof set out in Section 70NAF of the Act.

Most contraventions will be assessed on the ‘balance of probabilities’ where your evidence must show the other parent more likely than not contravened the orders.

For serious and repeated breaches, such as the indefinite removal of a child to another location or overseas, the higher standard of ‘beyond reasonable doubt’ is required. The court must be satisfied that a reasonable person would not have cause to doubt that the contravention occurred.

Under Section 70NAE of the Act, the parent alleged to have breached the parenting orders can cite the following reasonable excuses for the court to consider in their defence:

  • They did not understand the obligations imposed by the order;
  • They believed on reasonable grounds that the actions were necessary to protect the health and safety of the person (including the other parent and the child);
  • They believed on reasonable grounds that not allowing the child and the person to spend time together or communicate together was necessary to protect the health and safety of a person (including the other parent and child).

A court’s decisions and penalties

The court has wide powers to ensure parenting orders are enforced where they find one party has not complied with them. The court may find that the alleged contravention was not established; that it was established but there was a reasonable excuse; that there was a less serious contravention without reasonable excuse, or that there was a more serious contravention without reasonable excuse.

If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Where a parent disobeys an order multiple times, or the court thinks that parent is ignoring the parenting order, more severe penalties may apply.

The penalties are listed in Division 13A of the Family Law Act and can include:

  • Varying the primary order;
  • ordering you to attend a post-separation parenting program;
  • compensating for time lost with a child as a result of the contravention;
  • require you to enter into a bond;
  • order you to pay all or some of the legal costs of the other party or parties;
  • order you to pay compensation for reasonable expenses lost as a result of the contravention;
  • require you to participate in community service;
  • order you to pay a fine;
  • order you to a sentence of imprisonment.

A court may also adjourn the case to allow you or the other party to apply for a further parenting order.

The importance of good legal advice

As mentioned at the outset, parenting orders are legally enforceable obligations. If you believe the other parent is in contravention of the orders, you should seek expert legal advice to inform you of your legal rights and responsibilities before taking any other action.

Experienced family legal professionals such as Twohill Lawyers can provide confidential, understanding and relevant advice which can help save you time and money in ensuring that the other parent meets his or her obligations under the parenting orders. Contact us today for a no-obligation initial consultation on (07) 5571 1450.

Grandparents

What Rights do Grandparents Excluded from Seeing their Grandchildren have?

By | Family Law

Perhaps one of the saddest consequences of family breakdown is when relations between parents become so strained that grandparents on either side are excluded from seeing their grandchildren. Either or both parents may ‘forbid’ their parents-in-law from interacting with the children for any of a multitude of reasons.

Under the Family Law Act 1975, grandparents lack any express or automatic right to maintain a relationship with their grandchildren when a family splits up, but under the Act’s guiding principle of “the best interests of the child”, a child maintains a right to see their grandparents. This means that when the family court makes an order in a parenting dispute, it takes into account whether it’s in the best interests of the child to include or exclude a grandparent in the child’s life.

The Act also allows grandparents to apply for access to their grandchildren, as well as be included in parenting plans, parenting orders by consent, and a parenting order made by the court, which we’ll explain further below.

Where a parent or parents demonstrate they are unwilling, unable or lack the capacity to care for their children, grandparents may also apply to the family court for custody of their grandchildren. If there is clear evidence of abuse or neglect, the court is more likely to grant the grandparents full custody of the grandchildren, otherwise the court needs to be satisfied that the parents are unable to meet the needs of their children.

More detail on avenues of access for grandparents

Where separating parents wish to avoid going to court – often the case where relations between the ex-couple remain polite and civil – they may create a parenting plan dealing with issues around where the children live and when, as well as visitation arrangements with grandparents. These plans are voluntary agreements, usually achieved through a mediation or dispute resolution process.

The flexibility of parenting plans mean there is nothing stopping a grandparent from asking for their needs in terms of seeing their grandchildren to be considered when a separating couple makes such a plan. But the fact these plans create no legal obligations and can’t be enforced means grandparents can be left in a vulnerable position if there is a later disagreement between the parents.

For this reason, some people may choose to apply to the court to have their parenting plan formalised by the court and turned into enforceable ‘consent orders’. Parents are legally obliged to comply with these orders, including any provisions about the visitation rights of grandparents. Should they not comply, as an aggrieved party a grandparent can apply to the court for it to make a ruling on the parent’s non-compliance, including any penalties.

In situations where parents need the court to decide on parenting arrangements, the court will take into account the terms of any previous parenting plan, including the inclusion of time for grandparents to see grandchildren. But a grandparent is also entitled to apply to the court for visitation rights. In deciding on this application, which will result in an order that is enforceable, the family court will consider:

  • The views of the child, including whether they really want to spend time with the grandparent/s;
  • whether the child considers the grandparent a significant part of their life;
  • whether there is any risk of neglect or violence;
  • an objective assessment of the relationship with the grandparents;
  • what amount and sort of interaction the child has had with the grandparent/s up until now;
  • whether the grandparent/s have the capacity to care for the child;
  • whether the child’s parents have been unable to adequately parent the child due to family violence or neglect;
  • the practical difficulty and expense, and any other factor the court considers relevant.

Grandparents applying for custody of grandchildren

In situations of family violence or neglect, as mentioned above grandparents may feel they also need to apply for custody of their grandchildren.

The court will again take a “best interests of the child” approach before making an order in favour of a grandparent for custody. This approach considers:

  • Protecting the child’s psychological or physical safety;
  • the likely benefit of a meaningful relationship with the grandparent/s;
  • effects of the change in living arrangements on the child;
  • what type of relationship the child has with both the parents and grandparents;
  • how the child is, and will be, financially maintained;
  • the evidence of any family violence; and
  • the views of the child, depending on their age and maturity.

The benefit of legal advice

These are complex and sensitive matters. No grandparent really wants to interfere in the life and parenting ability of their child, but nor do they wish to be excluded from the lives of their grandchildren. In more serious situations of domestic violence or parental incapacity, grandparents may have to take on the role of the parent.

Seeking the advice and guidance of a legal representative with wide experience in this area is a wise course of action. They can help identify your rights as a grandparent and advise you on the best way forward in protecting those rights. At Twohill Lawyers we deal every day with family law matters such as parenting agreements, custody, children and domestic violence. Call us today on (07) 5571 1450 for a confidential and understanding appraisal of your situation.

Domestic Violence

What to Do If You’re Frightened to Leave a Situation of Domestic Violence

By | Family Law

The horrendous murder of Hannah Clarke and her three children by her former partner in Brisbane in February 2020 has focused attention yet again on the terrible toll domestic violence takes in Australia.

While men are also the victims of domestic violence, Australian women are nearly three times more likely than men to experience violence from an intimate partner. Since they turned 15 years of age, one in three Australian women has experienced physical violence and one in five has experienced sexual violence. One in four women has experienced emotional abuse by a current or former partner. On average, one woman a week is murdered by her current or former partner.

These are horrific statistics and highlight the fear and intimidation many people experience when they realise they should leave an abusive relationship but feel they are unable to. Below we try and provide some useful advice on how to deal with domestic violence if, for whatever reason, you feel you can’t just immediately leave.

What constitutes domestic violence and why don’t people just leave?

Domestic and family violence can comprise physical, psychological and emotional abuse. Pushing, slapping, hitting, punching, biting, pinching or the aggressor putting their hands around your throat is pretty obviously physical abuse. An abusive partner may also threaten harm to you, your relatives, friends, pets or colleagues. They may also threaten self-harm as a way to control you.

Other abusive behaviours include controlling who you see and talk to, damaging domestic property to intimidate or cause fear, controlling household money, constantly criticising, humiliating or insulting you, following you outside of the home, and monitoring your phone and social media usage.

The circumstances around an abusive domestic relationship can be complex, particularly where children are involved. A person experiencing abuse at the hands of their partner will have many and varied reasons for remaining where they are, even if they feel they should leave. A few of these include:

  • Fear for their life and those of their children should they leave.
  • Having no where else to go, or believing the abuser will find them should they leave.
  • Fearing they will end up homeless, with no money for food or accommodation.
  • Remaining because friends and family have advised them it’s their best option.
  • Believing their partner’s remorse for their actions and promises not to do it again.
  • Religious and/or cultural beliefs about marriage.
  • Shame and embarrassment about the domestic situation.
  • Fear they will lose their children in a parenting dispute should they leave.

Create a safety plan

Domestic violence experts advise victims of abuse to make a safety plan in situations where they fear for their safety and that of their children. This plan can help you think clearly in the midst of a dangerous domestic situation, and assist you to be more confident and independent if you need to leave. There are a number of domestic violence organisations, such as DVConnect in Queensland, who can help a person experiencing abuse to create such a plan.

A safety plan should address a number of key priorities in case you need to leave due to an escalation of domestic violence.

Firstly, the plan should identify the home of a family member/s or friend/s that will provide a safe place. This may involve creating a code word to use with friends, family, or neighbours that will alert them to the fact you are in danger and include a secret location where you can meet them in order to escape the abuser.

If possible, have an alternate mobile or another means of communication with family and friends that is not known to the abuser. Try and memorise important numbers or other contact information in case your abusive partner cuts off all means of communication.

Your plan should also include a list of things to take if you need to leave suddenly, including your main ID documents and those of your children, any cash and any small items of significant sentimental value such as pictures. If possible, consider also taking any evidence you have of your partner’s abuse or violence, such as threatening notes or old copies of police and medical reports about previous domestic violence.

Domestic Violence Orders

Where domestic violence poses a real threat to the safety of you and your children, a domestic violence order (DVO) may be necessary. Obviously if the danger is immediate you need to call the emergency services on 000. A DVO is an official document issued by a court designed to stop further threats or acts of domestic violence by the abuser. It makes illegal certain behaviour by your abuser and it is a criminal offence for them to disobey the order.

If the danger to you is immediate, you or the police can apply to a magistrate for a temporary protection order to protect you and your children until the time a magistrate can decide whether a full protection order is required.

Protection orders to protect those in domestic and family violence situations can be in effect for up to five years, or for shorter or longer periods depending on what the court deems appropriate.

A DVO sets out specific rules the abusive person must follow, such as not approaching you at home or work, not approaching friends or relatives, or preventing them going near your children’s school or daycare. You can nominate extra conditions for the court to consider including in the order when you make the application for a DVO.

Both you and the abuser will get a copy of the DVO once it is made. It’s crucial to keep this document safe so you can produce it to show police should the abuser breach any of its conditions.

How we can help

At Twohill Lawyers, we are specialists in the area of family law, including helping people through the terrible experience of domestic violence.

Whether you are concerned about ongoing physical and emotional harm, how you should go about leaving an abusive relationship, or your financial and legal position should you choose to do so, we can help you make those first steps to a safe and secure future.

Call us to today on (07) 5571 1450 and we will discuss your case with compassion and understanding.

Other important contacts

  • DVConnect Womensline 1800 811 811
  • Mensline 1800 800 636
  • Child Safety After Hours Service Centre (07) 3235 9999, or freecall 1800 177 135, 24 hours a day (Queensland only)
  • 1800RESPECT 1800 737 732
property settlement

What is a Property Settlement?

By | Family Law

Working out how to divide property and assets when a relationship ends can be a very difficult time. Emotions are high and yet a sober, clear-minded approach is required in order to formalise an agreement between yourself and your ex to ensure each of you achieves the best outcome for your situation.

A property settlement can be made between ex partners with or without the help of the court to formalise the division of assets, liabilities and other financial resources after separation.

There is often some confusion over what is considered ‘property’ in making a settlement. Some of the things generally considered to be included are:

  • the family home;
  • jointly owned assets;
  • savings and investment accounts;
  • investment properties;
  • cars;
  • superannuation and shares;
  • business interests;
  • family trusts and other trust interests;
  • debts and any other liabilities.

While the above items are usually considered as ‘common’ assets from the relationship, other assets can also be considered as part of a settlement. These may include one partner’s interest in a company; property owned in only one person’s name; funds or interest over which a partner has influence or control; inheritances; and assets owned before the relationship, during the relationship and acquired after separation.

Making a property settlement without going to court

Property settlements can be complex to negotiate and ideally require the guidance and advice of an experienced legal professional, particularly if you and your ex-partner want to avoid going to court by coming to an agreement between yourselves.

Methods outside of the court process such as mediation and conciliation are often helpful in reaching a property settlement between estranged partners, facilitating a fair and equitable outcome for each of you and maintaining a civil basis to your future relationship with your ex.

If both parties can agree on the terms of a property settlement, your legal representative will advise you to have the agreement finalised either by applying to the court for a consent order or by making a financial agreement.

Financial agreements can be made before, during or after a relationship. They resemble a contract and provide the terms for how property is to be divided if and when you decide to go your separate ways.

Before signing any such agreement, each party must receive independent legal and financial advice. If formal requirements have not been met the agreement will be invalid and the court may set it aside.

Consent orders recognise an agreement has been reached and that each of you abide by its terms. The court approves the order to give it legal effect. It’s possible to apply for a consent order without having to attend court.

Court-ordered property settlements

As mentioned at the outset, it’s an emotional time when a couple separates and often the rawness of the split means the parties cannot reach an agreement on the complicated issue of dividing assets and debt.

In this situation they may need to apply to a court to make an order on their behalf to resolve the issue. At this point people often make the mistake of thinking property will be divided equally between the ex-partners, but in fact each case is different and the court will assess the total assets, liabilities and financial resources of the couple, the financial and non-financial contributions made by each person during the relationship, and each person’s future financial needs, before making a decision on the equitable division of property.

A court will also only make an order if it is “fair and reasonable” to alter the parties’ property interests. A number of steps are then taken to work out how to split the property assets between the parties, including:

  • Identifying and valuing the property pool to be divided, including assets, liabilities and financial resources.
  • Determining the direct and indirect, financial, and non-financial contributions (such as salary, care of children and homemaking) made by or on behalf of each of the parties, on a percentage basis, during the relationship.
  • Considering the future needs of each party (including care of children, health, financial resources, ability to earn).
  • Considering whether the division will provide a just and equitable result in all the circumstances.

Where one party is worried their ex-partner will sell property before a settlement is reach, they can lodge a caveat to prevent this happening. The caveat is then lifted and the value of the property split once a settlement is reached. Seek professional legal advice promptly if you believe your former partner is attempting to dispose of property you believe you have an entitlement to.

Time limits

A married couple must make a property settlement within 12 months of their divorce being finalised, while a de facto couple has two years from the date of separation to make such a settlement. The court may grant an extension of time in exceptional circumstances.

Because some assets increase in value over time, it may be advisable for estranged partners to make a property settlement as early as possible after they separate.

At Twohill Lawyers we are experts in family law matters such as property settlements, either by avoiding the need to go to court, or by effectively advocating for you through the court process. Contact us today!

Can Your Ex-De Facto Partner Inherit Under Your Will?

By | Family Law

As qualified family lawyers, we often help clients facing challenging, if not devastating life events. These include the death of a loved one, and the end of a marriage or de facto relationship. In some cases, our clients are dealing with the effects of both. One question we sometimes get in this context is whether someone has the right to any inheritance made in his or her former de facto partner’s will. Here are a few things to keep in mind.

The legal definition of a de facto relationship

To begin with, it is essential to understand how the law classifies de facto relationships. As per the Family Law Act of 1975, this type of relationship:

  • Is one in which two people;
  • of the same or opposite gender;
  • have been co-habitating as a couple;
  • for valid reasons; and
  • for a specified period.

A relationship can be legally classified as de facto after two years together, or if the people involved have a child together. The legal classification of a de facto relationship may occur sooner if: 1) one of the people involved has made significant contributions to the relationship; and 2) if failure to recognise a de facto relationship would create significant injustice.

The Succession Act 1981 (Qld) (“the Act”) also stipulates that:

  • The  people involved;
  • lived together as a couple;
  • on a “genuine domestic basis”;
  • for an uninterrupted period of no less than two years;
  • at the time when one of them passed away.

Relevant legal changes

So what happens if you and your de facto partner broke up before you passed away, but you never changed your will and now he (or she) is trying to claim his or her share of the inheritance? The answer may surprise you, because Queensland law has viewed de facto relationships the same way as marriages since June 5, 2017. Consequently, dissolution of the relationship results in automatic revocation of a de facto spouse’s appointment as executor of the will. The same applies to any gift made to them through the will.

However, it should be noted that even though they are now treated equally, there is still a key difference between how traditional marriages and de facto relationships are lawfully terminated. Accordingly, there is a key difference in how lawful termination of a traditional marriage and a de facto relationship affects an ex-spouse or ex-partner’s standing in a will. Contrary to popular belief, revocation of applicable provisions to a former husband or wife does not kick in when legal separation begins. Instead, it can only occur after a formal divorce order is issued by the Family Court.

But no formal order/decree is needed for the lawful termination of a de facto relationship.  Therefore, revocation of applicable provisions to a former partner in a will takes effect upon termination of cohabitation.

Challenging your will

Of course, all of this begs a question. Can your former de facto partner challenge your will? In Queensland, the answer is most likely, “no”. This is because Queensland law does not recognise a de facto partner as an “eligible person”.

But again, there is a catch. Section 40 of the Act stipulates that some of your “dependants” may be classified as eligible persons. In this context, a dependant is legally defined as someone that you were supporting in some degree up until the time of your death. Of importance here is that this definition also includes “the parent of a surviving child who is less than 18 years of age and who is also a child of the deceased.” This means that your former de facto partner could be allowed to challenge your will if the two of you had a child together who was a minor when you died.

Establishing the existence of a de facto relationship

If your former de facto partner is allowed to challenge your will and decides to do so, he or she may have to provide proof of the relationship. Specifically, he or she must be able to show that you were not legally married or related by family. Furthermore, he or she must be able to show that you lived together in a “genuine domestic relationship”.

To reach a determination about the latter, a court usually takes the following into account:

  • How long the two of you were in the relationship;
  • whether you had any children together;
  • the circumstances in which you lived together;
  • whether you engaged in intimate relations;
  • the extent to which you relied on one another financially;
  • property acquisition and ownership.

What if you want the provisions in your will to stand?

Not all relationships end on a bad note. In fact, a lot of former spouses or partners stay friends for years after their marriage or de facto relationship ends. If you and your former de facto partner have remained on good terms, you may want any provisions made for him or her in your will to remain in effect even though you are no longer together.

There is only one way to guarantee this will happen. You must make a stipulation in your will indicating that you want your former spouse’s appointment as executor to stand, and any gifts made to him or her to be allocated as per your wishes. Failure to do so will result in automatic revocation of any provisions/gifts made to your former spouse in your will when you split up.

If you have questions or concerns about this, or any related issues, don’t hesitate to contact the experienced family law team at Twohill Lawyers.

commercial leasing

Leasing Your Commercial Property? What You Need to Know About Commercial Leasing in QLD

By | Commercial, Conveyancing & Property

The relationship between a landlord and a tenant in a commercial setting is an obviously crucial one which in Queensland is governed both by legislation as well as contract law.

Commercial leases generally divide into either retail or non-retail leases. Places where goods and services are sold to consumers, such as shops, comprise retail leases while non-retail leases include warehouses, distributors and manufacturers which operate a business but don’t sell directly to consumers. Sometimes these lines can be blurred and so seeking expert legal advice if you’re unsure of the status of your lease is a wise course of action.

Commercial and retail leases have similarities but also some key legal differences. In Queensland, as in other states, retail leases are governed by the Retail Shop Leases Act 1994 (“the Act”). In contrast, non-retail commercial leases are governed by state-specific property and conveyancing Acts which, unlike retail leases, can be contracted out of. The reason for this is that it is generally assumed a retail tenant has unequal bargaining power when compared with a landlord (often a large shopping centre owner), while the law is less inclined to involve itself in the contractual arrangements between commercial land owners and tenants.

In essence, however, all commercial leases will include terms covering:

  • payment of rent;
  • rent increases; and
  • maintenance and repairs of the premises.

The remainder of this article will primarily focus on the basics of retail leases.

Retail leases

In Queensland, the Act covers retail leases unless the business is a service station; operates from a premises with a floor area of more than 1000 sq m and is leased by a listed corporation or a listed corporation’s subsidiaries; is a temporary business such as a trade stall; is a premises within a theme park or amusement park.

In order for a retail lease to be agreed in Queensland, both landlord and tenant must provide disclosure statements. The landlord’s statement must provide summary information about the terms of the proposed lease and be given to the tenant at least seven days before the commercial lease agreement is finalised. Failure to do so allows the tenant the opportunity to terminate the lease.

The landlord must also give the tenant a copy of the proposed lease in writing at least seven days before entering into the lease, and a certified copy of the signed lease within 30 days of the lease being signed. Failure to do so may result in a fine.

Tenants must also provide a disclosure statement to the landlord that includes information about their business history and experience, as well as any details of representations made by the landlord. Prospective tenants should note that providing misleading or false information on this statement can result in the payment of compensation to the landlord if they suffer loss due to the misrepresentations of the statement.

Additionally, tenants who operate fewer than five retail businesses must secure a legal advice and a financial advice report before signing a lease. This will require the tenant consulting a leasing lawyer such as Twohill Lawyers to receive advice on the lease’s terms and conditions. These reports must be provided by the tenant to the landlord before the lease commences.

Rent reviews, options and renewals

A commercial lease needs to specify how the amount of rent paid by the tenant is varied during the term of the lease. For example, rent might be adjusted up by a fixed amount or according to the Consumer Price Index. Rent may also be renegotiated at the end of a lease term and in the case of a retail lease, this may require the services of a Specialist Retail Valuer to determine the market rent of the premises. This process can be costly but the valuer’s rental figure is generally binding on the parties.

An option to renew a commercial lease is usually a specific clause within the lease document which entitles the tenant to renew the lease for a further term. If there is no option or all options under the lease have been exercised, a new lease is required.

If the lease is for less than a year, the landlord must advise the tenant at least three months before the end of the lease whether the landlord intends to allow the tenant to renew and on what terms. If the lease is for over a year, the landlord must advise the tenant within six months of the end of the lease as to whether or not they intend to renew the lease. The landlord is free to set any rental amount they wish in these circumstances. Unlike other states, Queensland does not have any minimum term for a lease to be considered a retail lease.

Disputes

Where a dispute about a retail lease arises between a landlord and a tenant, the matter will go to the Queensland Civil and Administrative Tribunal (QCAT) who will first ask the parties to attend a mediation on the dispute. If mediation is unsuccessful, QCAT will conduct a hearing on the dispute.

In some circumstances a landlord can be made to pay a tenant reasonable compensation for loss or damage. This can occur if:

  • a landlord significantly restricts access to the tenant’s shop;
  • or significantly restricts or alters customer access or flow into the shop
  • or causes a substantial disruption to the tenant’s business;
  • or does not quickly rectify or repair building defects or breakdowns in plants or equipment;
  • or neglects cleaning, maintenance or repainting of the building;
  • or causes the tenant to leave the shop before the end of the lease so the landlord can refurbish or extend the building;
  • or makes an untrue statement or misrepresentation which causes the tenant to enter into the lease;
  • or fails to make the shop available for trading on the date specified in the lease.

If you’re a retail tenant who believes any of these circumstances apply to your situation, consult Twohill Lawyers for immediate advice and guidance on how to proceed. We have widespread experience in commercial law matters, including leases, whether you’re a landlord or a tenant. Contact us for a consultation today on (07) 5571 1450.

drink driving

Caught Drink Driving? What You Need to Know About DUI Charges in Queensland

By | Criminal Law

You would have to be living in a cave in Australia to have not seen and understood the implications of driving under the influence (DUI) of alcohol or drugs. Public campaigns across our media have highlighted the consequences of choosing to drive after drinking, which can range from fines, loss of licence, loss of your job and, for the most serious offences, imprisonment.

Unfortunately all the public education in the world does not deter certain behaviours and drink driving is one of them. In this article, therefore, we’ll outline the different categories of drink driving in Queensland, the penalties, and whether there are any defences to a charge of DUI.

Categories of drink driving charges

Low-range drink driving: Any drink driving offence ranging between 0.00 Blood Alcohol Concentration (BAC) but under 0.10 BAC will be classified as a low-range drink driving charge. People who hold a licence requiring a zero-alcohol limit obviously cannot have any alcohol in their system, while some licences allow up to 0.05 BAC in Queensland.

No alcohol limits apply to those holding Learners, P1 and P2 licences, as well as restricted licence holders (regardless of the driver’s age); and drivers of trucks, taxis, limousines, tow trucks and tractors.

Mid-range drink driving: Any drink driving offence ranging between 0.10 BAC but under 0.15 BAC is considered a mid-range offence.

High-range drink driving: A BAC of 0.15 or higher means you are “conclusively presumed” to be under the influence of liquor.

Offences and penalties

Understandably the higher the concentration of alcohol in your system, the harsher the penalty for the offence will be, given you pose a greater risk to yourself and the general public when operating a vehicle while under the influence.

Dangerous operation of a vehicle while adversely affected by alcohol or drugs is punishable by five years in prison. An aggravated offence, such as seriously injuring or killing a person while driving under the influence of alcohol or drugs, can result in a term of imprisonment up to 14 years.

Low-range: If you are charged with a first-time offence of drink driving with less than 0.10 BAC, your licence will be suspended for a period of at least 24 hours from the time you are confirmed as having exceeded the legal limit. Police will issue you with a notice to make the suspension clear to you.

If you are charged with a low-range drink driving offence but already have a drink driving charge pending, your licence will immediately be suspended.

As mentioned, for those who are on learner, probationary and provisional licences, there is a zero-alcohol limit in Queensland. The penalties for a first offence in this category includes licence disqualification for between three to nine months; a maximum fine amount of 14 penalty units (with a penalty unit set at a value of $130.55); a maximum term of imprisonment of three months.

For everyone else, BAC of over 0.05 but under 0.10 can result in licence disqualification of between one and nine months; a maximum fine amount of 14 penalty units, and a maximum term of imprisonment of three months.

Mid-range: A drink driving offence where your BAC is above 0.10 but below 0.15 will result in your licence being suspended until the time you have to appear in court.

The penalty can comprise licence disqualification of between three to 12 months; maximum fine amount of 20 penalty units (more than $2,600); and a maximum term of imprisonment of six months imprisonment.

High-range: A BAC of 0.15 or higher will see your licence immediately suspended until your court appearance.

The penalties that apply for a first offence in this category are minimum disqualification from driving for six months; a maximum fine amount of 28 penalty units, or more than $3,600; and a maximum nine-month term of imprisonment.

There are also separate offences if you refuse to take a breath test in Queensland when asked, or following being charged with an offence of dangerous operation of a motor vehicle while adversely affected. In this case your licence can be immediately suspended.

Driving while suspended and repeat offences

If your licence is suspended and you choose to drive again, the consequences can be considerable. Driving during the 24-hour suspension period can result in licence disqualification of up to six months, while driving when suspended until a court appearance can see you disqualified from driving for two years up to a maximum of five years.

In Queensland, repeat drink driving penalties can bring terms of imprisonment. If you come back to court on charge of driving under the influence of liquor, and have been convicted of two prior offences involving the same charge or certain other traffic offences within a five-year period, then imprisonment as all or part of the punishment becomes mandatory.

Work licence applications

Of course, many people are reliant on their vehicle for their livelihood. Disqualification from driving and suspension of their licence for DUI can have a serious impact on their ability to provide for their family. In these cases, you can make an application to the court for a work licence. It should be noted, however, that the criteria for eligibility is strict and the level of proof required to support the application is high. The expertise of an experienced legal representative is advised when making a work licence application.

The need for good legal representation

A conviction for DUI can affect a person’s life in tangible and permanent ways, including their current and future employment prospects, their reputation in society, their ability to travel and even their ability to deal with root causes such as alcohol abuse, depression or other mental health issues.

In recognition of this fact, a consideration for a magistrate in drink driving cases is whether to record a conviction on your traffic record or not. A magistrate also has the discretion to consider certain other penalties, such as probation and community service.

In short, there are many variables when it comes to DUI and its penalties and the assistance of a legal representative with experience in this part of the law can prove invaluable in helping you through the court process. At Twohill Lawyers we offer confidential and relevant advice on any DUI matter, including suspensions, disqualifications and work licences, as well as strong advocacy and representation in court. If you have any questions about a drink driving offence please contact us today on (07) 5571 1450.

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