News

News

Doyles List

December 7th, 2017

Miller Harris Lawyers is proud of our family law team, who were again voted by their clients and colleagues into the prestigious Doyles List of Leading North Queensland Family & Divorce Law Firms, recognising their expertise and experience as family lawyers.

We are also pleased to congratulate Special Counsel, Michael Keogh and Senior Associate, Julie Hodge, who were also, once again, included as Leading Lawyers in the Doyle’s list of the Leading Family and Divorce Lawyers in North Queensland.

Check out the 2018 Doyles Lists here.

Well done Michael and Julie!

Michael Keogh, Special Counsel Julie Hodge, Senior Associate

More

National recognition of domestic violence protection orders

December 7th, 2017

All states and territories have now passed legislation to facilitate the national recognition of domestic violence protection orders. 

These changes affect persons who have a current protection order in place and future applications for protection orders.  Summarised below are the things you need to know:

  1. Any domestic violence protection order made by a state or territory court on or after 25 November 2017 will be automatically recognised in all other states and territories in Australia.
  2. Those in our community who have a current protection order that was made before 25 November 2017 can register their protection order and obtain a declaration that it is nationally recognised and enforceable.
  3. Nationally recognised protection orders can varied by application in any state or territory court.

These reforms address some of the previous gaps within the system.  Prior to these changes, a named person in a protection order would need to make an application in each state or territory which they required protection in as an order was only enforceable in the state or territory in which it was issued.

If you are not sure what this means for you, or have any questions about your current situation, please contact our friendly Family Law team.

 

More

Co-parenting through the chaos of Christmas time

December 5th, 2017

Having assisted countless families over more than a decade as a family lawyer, I have observed that Christmas time can be a particularly stressful period for separated parents.  Not only are there the usual stresses – buying the perfect gifts, arranging a festive get-together, handling overexcited and often overtired children, as well the constant stream of visitors, but for separated couples, this time can be very emotionally draining and logistically challenging.

Put simply, Christmas time can be a challenge and if not handled well, it can cause long-term damage to the co-parenting relationship and the family unit.

Below are some tips to help separated couples survive the chaos of Christmas, and the particular challenges co-parenting can pose during this festive time of year:

  1. Respect any arrangements made as to the shared-care of your children over the Christmas period. Try to avoid requests to change the parenting arrangements at the last minute, as such requests during this sentimental and emotional time of year, often cause stress and conflict.
  2. If you have not yet agreed on the parenting arrangements for your children at Christmas time, start communicating with your former partner pronto, to try to agree on these arrangements. Seek the assistance of a mediator if necessary, and consider whether the agreed arrangements should be documented in a parenting plan or as part of a consent order for the sake of clarity and certainty.
  3. Avoid communicating with your former partner about a contentious issue when you are overtired, stressed or emotional. If possible, wait 24 hours and then re-consider initiating communication.  Proof-read all written communications to your former partner before sending them.  If you are unsure whether the content of your communication will be well received, consider communicating verbally instead, or have a trusted confidant proof-read the communication for you, and edit it as necessary before proceeding.
  4. If you and your former partner are not on good terms, do not force a shared family Christmas on your children; your children do not need to be in the same room as each of you to enjoy Christmas, particularly if that room is filled with stress and tension.
  5. Encourage your children to communicate with the other parent on Christmas Eve and Christmas Day. Often small gestures such as this go a long way to creating goodwill between separated parents.
  6. If you and your children are comfortable doing so, make a Christmas card for the other parent from your children. Again, small gestures such as this can reap long-term benefits.
  7. Remember that Christmas time can be stressful and emotional for everyone, and particularly separated parents (and their children), so be kind to one another and avoid conflict as much as possible. Be merry and remember that Christmas is about your children and they can sense stress and tension, even when no harsh words are being exchanged.

If you or someone you know requires advice about parenting or any other family law issue, please contact our office to speak with one of our experience family law solicitors.

More

The Ghost of Christmas Past

December 4th, 2017

Estrangement from a child may still entitle them to more than just a lump of coal from your estate

Christmas is a time when we reflect on the year that has been; we celebrate our triumphs and acknowledge our tribulations.  It is often a time for forgiveness and new beginnings.  That being said, Christmas can also be a sad time for many.  Financial pressures and the social ideology that Christmas is an occasion which is best spent with your family may often leave people feeling lonely or isolated, especially if they are suffering the loss of a loved one, due to their passing or years of lost contact.  With the New Year around the corner, people become mindful of their experiences (whether good or bad) over the holiday season, which sometimes impact on their decisions when they decide to sort out their affairs come January/February.

“Estranged” is often a word used by many when explaining why they are not providing for someone in their will, or providing them with a minimal gift.  I often hear the frustration clients have when I explain to them that estrangement alone does not necessarily preclude, for example, a child from making a claim for provision from an estate.  The weight and relevance of estrangement in a family provision claim is different for every matter, as it involves careful consideration of totality of the relationship (who caused the estrangement) and each party’s individual circumstances.

The case of Wright v Wright [2016] QDC 74 illustrates the impact of estranged relationships in family provision applications.

The deceased, Keith Arthur Wright passed away in 2013 at the age of 73 years.  He was survived by his two children, Casandra Wright aged 47 years and Peter Wright aged 50 years.  Casandra and Peter were estranged from their father and had barely seen him since they were young children.

At the time of his passing, Mr Wright’s estate was worth over $1.8 million. In his last will, he left the proceeds of a superannuation policy to the Royal Children’s Hospital Foundation and the residue of his estate to be divided between his siblings, Trevor Wright and Lynette Roberts (“the respondents”).

Casandra and Peter made an application for provision from their late father, Mr Wright’s estate.

As no provision was made for Casandra and Peter in the will, the court needed to assess whether this was inadequate provision for the proper maintenance and support in all their circumstances, including Casandra and Peter’s financial positions, the size and nature of the estate, the ‘totality of their relationship’ and the relationship between Mr Wright and others who have legitimate claims.

In looking at Casandra’s circumstances (financial and non-financial) it was noted by the court that:

  1. Casandra was married once before and was separated from her second husband.
  2. She had twin daughters to her first marriage, aged 18 years. One of her daughters lived with her.
  3. Casandra was employed as a dental assistant by Queensland Health.
  4. She periodically took second jobs to assist with her finances.
  5. Casandra owned a car, some furniture and had $28,000.00 in savings. She did not own a home.
  6. At the time of the hearing, she was living with her mother and her mother’s partner.
  7. She was in reasonable physical health, but suffered from psychological disorders including depression, anxiety and an eating disorder.

In looking at Peter’s circumstances (both financial and non-financial) it was noted by the court that:

  1. Peter was married once before and had two children, aged 21 and 24.
  2. Peter was casually employed.
  3. He had a car worth $4,000.00, approximately $800.00 in the bank, furniture and personal items.
  4. Peter had an overdue child support balance of nearly $50,000.00 and a credit card debt of $3,500.00.
  5. Peter was in reasonable health.

The respondents (Mr Wright’s siblings) both suffered from ongoing health problems, however had modest financial standing and a close relationship with their brother.

In looking at the ‘totality of the relationship’ between the children and Mr Wright, evidence was presented that Casandra and Peter’s relationship with their father stopped in 1979, some three years after Mr Wright’s separation from their mother.  Casandra and Peter were aged 10 and 13 years at the time.  From that point on Mr Wright did not maintain contact with Casandra and Peter, nor did he acknowledge their birthdays or give Christmas gifts.  Casandra explained to the court that she felt abandoned by her father, and said “I couldn’t understand why he didn’t want to continue seeing us”.

Both of the children gave evidence of seeing Mr Wright at their grandfather’s funeral, some 24 years prior to Mr Wright’s passing.  They expressed their disappointment and hurt when their father saw them but then walked away.

Casandra also wrote to her father on two occasions after the birth of her twin daughters, sending photographs of herself and her daughters.

Peter felt abandoned by his father however he did not make any attempts to reach out to him.

The respondents, in defending the claim, placed a significant amount of emphasis on the fact that Casandra and Peter had been estranged from their father for a very long period of time, over 30 years.

In looking at the relevance of estrangement the court looked at the decision of Wentworth v Wentworth, Estate of GM Wentworth (Unreported 14 June 1991), which included the following:

‘I do not regard a state of estrangement or even hostility as necessarily bringing an end to any moral duty to make provision for an eligible person ….’;

‘A whole view of the relationship and the character and conduct of both parent and child should now be undertaken, and the influence of character can be complex.’ 

Whilst the court noted that the lengthy period of estrangement is relevant to the decision, Casandra and Peter’s conduct did not disentitle them to the benefit of an order for provision in the estate.

In reaching a decision District Court Judge, His Honour Devereaux SC stated:

“I am satisfied the applicants have demonstrated that inadequate provision was made in their father’s will for their proper maintenance and support in all the circumstances. They had a claim on their father’s estate, whether it be described as moral, natural, legitimate or by some other term.”

The court awarded Casandra, $400,000.00 and Peter $350,000.00.  Casandra was awarded more than Peter, due to her attempts to contact and reach out to their father.  His Honour explained that the amounts were designed to provide sufficient equity for each child to borrow the balance to purchase a modest property while keeping an amount aside for contingencies.  This left approximately $1.1 million (not taking into account the costs of the proceedings) to be distributed proportionally according to Mr Wright’s testamentary wishes.

Would things have been different if the estrangement was caused by the children? (For example, had Mr Wright wanted to maintain a relationship, but his children pushed him away?)

Generally, where estrangement has been caused by the child for a significant duration of time, with no reconciliation prior to the parent’s passing, any provision made to the child will be a modest one.  However, where estrangement has been caused by the parent, the court is not likely to consider the estrangement to be a mitigating factor which would impact on a child’s claim.

Family provision claims involving estranged relationships and, on the other hand, strategic planning to protect your estate from these claims is a complex area of succession law.  If you feel that you have been unfairly left out of a will, or would like advice on ways to help reduce the risk of such a claim being made against your estate, please do not hesitate to contact me so that you can start 2018 with the peace of mind in knowing that your affairs are in order or being looked after.

For more information about this issue and all will and estate planning matters, please contact our Associate, Bianca Stafford on 07 4036 9700.

More