News

News

How does domestic violence impact parenting arrangements?

October 15th, 2020

Domestic violence and parenting

It is important that children grow up in a safe environment where they feel secure, loved and protected.  Children who are exposed to domestic violence are far more likely to develop physical and/or mental health problems and, as adults, to become victims or perpetrators of domestic violence themselves.

If you are a parent who is a victim of domestic violence and you have a child who has been exposed to domestic violence, you can make an application for a protection order that not only protects yourself from domestic violence, but also protects your child.  Whilst the terms of domestic violence orders do vary, at a minimum, all protection orders ensure that the parent against whom the order is made, must be of good behaviour towards you and any children named in the order.

When applying for a protection order it is possible to seek additional protections which, for example, restrain the other parent from approaching your residence or place of employment, approaching you in a public place, or at a place associated with your child, such as a day care or school.  What orders will provide the necessary level of protection will depend on your individual situation.  We recommend that advice is sought prior to making an application for a protection order.

Protection orders

Whilst a protection order is made to protect those named in the order from domestic violence, it does not deal with the living arrangements or the authority to make decisions for your child.  Parents must carefully consider the following:

  1. if there is no existing agreement in relation to the living arrangements for a child named in an order, whether or not a meaningful relationship between the child and parent (against whom the order is made) can still be maintained, taking into consideration the need to reduce any risk of harm to the child; and
  2. if there is an existing agreement in place in relation to the living arrangements for a child named in an order, whether these arrangements need to be modified in light of the protection order, for the safety of the parent and child, and to ensure that a continuation of the existing arrangement does not lead to a breach of the protection order.

We recommend that parents obtain expert legal advice on their situation, as allegations of domestic violence, and the making of a protection order, adds an additional layer of complexity to parenting matters and need to be carefully navigated.  Parents should not assume that the making of a protection order enables them to withhold the child from the other parent.  Likewise, parents need to be careful that they do not facilitate any care arrangements that may place their child at risk. Parents who have had an order made against them should seek advice on options available to them to spend time with their child.

Domestic violence – next steps

Our experienced Cairns and Mareeba family lawyers are here to help, you can contact us on (07) 4036 9700 for expert advice on parenting and domestic violence matters.

More

Is your ex entitled to property that you acquire after separation?

August 20th, 2020

Updated 20 August 2020

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

More

Separated but living under one roof? Here is what you need to know

May 26th, 2020

One impact of Coronavirus may be that more people find themselves separated from their spouse, but continuing to live together for a period of time.  In family law this is coined “separation under one roof” and there are important consequences to be aware of.

The most important thing about separating under one roof, is determining the actual date of separation.  This is typically the date where one spouse has the intention to separate, and that intention is clearly communicated to the other spouse.  There are many ways in which an intention to separate may be communicated and relevant factors include:

  • details of any conversation about separating between the spouses;
  • separating finances, including opening personal accounts and ceasing use of joint accounts;
  • a change in sleeping arrangements and living arrangements;
  • communication of separation to friends and family;
  • living separate social and public lives;
  • cessation of performing household duties for each other;
  • cessation of a sexual relationship; and
  • notifying government departments that you are separated, such as Centrelink.

It is also important to consider whether there has been any reconciliation of the relationship after the date that separation has initially been communicated.  Whether or not reconciliation has occurred can be a grey area requiring specific advice based on your circumstances.

The date of separation is very important as it triggers the following time limits for family law matters:

  • For married couples: You are only eligible to apply for a divorce 12 months after the date you separated. Once a divorce order is obtained, a further 12 month time limit is triggered for resolving all property division and spousal maintenance matters.
  • For de facto couples: You have two years after the date of separation to finalise both the division of your property and any spousal maintenance matters.

If property and spousal maintenance issues cannot be agreed to and formalised according to the requirements of the family law legislation, within the above time limits, then it may be necessary to commence court proceedings prior to the time limit expiring to protect your interests.

We recommend that you diarise the date that you have separated, including details of the separation and obtain independent legal advice as soon as possible after separation.

Our experienced family law team is here to help and can be contacted on 07 4036 9700 or enquiries@millerharris.com.au.

More

COVID-19: The impacts of Coronavirus on family law and parenting

April 28th, 2020

Co-parenting can be difficult at the best of times.  The additional uncertainty and significant changes in response to the global pandemic will see parents face new challenges.

The message from the courts is that where possible parents should continue to comply with existing court orders.  It is not clear at this stage, what the courts will consider a reasonable excuse for not complying with a parenting order in the context of the pandemic.  Parents are being encouraged by the courts to use their common sense and to act reasonably as new challenges present as a result of the pandemic.  Communication will be crucial as parents navigate through the temporary restrictions in place, particularly in relation to travel and quarantine.

If orders cannot be complied with, or parents seek to change arrangements during the pandemic, parents should, in the first instance, try to reach an agreement in writing with the other parent about what is to occur, including consideration of makeup time if time is not proceeding in accordance with orders.  Parents are being reminded by the courts that they should always prioritise the best interests of the children, their health, safety and wellbeing.

If you are in a situation where you believe that you are unable to comply with court orders and the other parent does not agree, and the issue cannot be resolved between you, you should seek legal advice.

Parents should attempt to work through issues reasonably and sensibly to prevent any more distress during this time.  They should keep each other informed about any health issues or concerns as they arise.  If issues arise that cannot be resolved, they may be able to be negotiated through lawyers or through alternative dispute resolution services, such as mediation which continue to be offered remotely.

Travel restrictions

The latest direction from the Queensland Chief Health Officer permits persons to cross the border for the following purposes:

  • to continue existing arrangements (such as parenting plan arrangements) for children under 18 years to have contract with their parents and siblings who they do not live in the same household with (but contact with vulnerable groups, such as persons over 70 years, is not permitted);
  • to provide care or support to an immediate family member; and
  • to attend any court of Australia or to comply with court orders (including parenting orders).

The courts and the government are continually reviewing and updating travel restrictions, so it is always best to obtain advice on the current arrangements that apply to your situation.

Our lawyers are continuing to advise clients on all family law matters.  Please do not hesitate to contact us on 07 4036 9700 if you have any questions or concerns regarding your family law matter during this difficult time.

More

Am I in a de facto relationship?

March 17th, 2020

As a family lawyer, I am regularly asked the question – am I in a de facto relationship?

The answer to this question is not as simple as you might expect.  A person will be considered to be in a de facto relationship if, having regard to all of the circumstances of the relationship, they have a relationship as a couple and are living together on a genuine domestic basis.

The most well-known test for determining whether two people are in a de facto relationship, is whether they have been living together as a couple for more than two years.  However, a couple can be living together for less than two years and still be considered to be in a de facto relationship.  Other factors that need to be considered include:

  1. the duration or length of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence, interdependence or financial support between them;
  5. ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship was registered;
  8. the care and support of children; and
  9. the reputation and public aspects of the relationship.

The most common situations in which people may be found to be in a de facto relationship, despite not living together as a couple for more than two years are where:

  1. the couple have a child together; or
  2. the couple have intermingled their finances, such as by purchasing a property together.

A lot of people want to avoid being in a de facto relationship because they believe that this will automatically entitle their partner to a share of their assets.  It is important to note that even if you are considered to be in a de facto relationship, this does not necessarily mean that your partner is entitled to a share in your property or assets.  The court must first determine whether or not an adjustment of property between the spouses is necessary to do justice between them, based on their respective contributions to the relationship and their future needs.  In some circumstances the court will not intervene if the property interests as they stand are just and equitable.

If you would like to discuss your relationship, property settlement or obtain advice on your family law matter, contact one of our Cairns and Mareeba family lawyers today.

More

What you need to know about spousal maintenance after separation

January 13th, 2020

You have separated, and are yet to agree on a property settlement, but you need access to money.

When a couple separate, it places an enormous strain on their finances.  Where previously the family income was only required to support one household, the same income is usually then required to support two separate households.  For the spouse who earns less or has been out of the workforce, this can be particularly challenging.

Often clients will tell us that they simply cannot afford to obtain legal advice or seek to settle their property matters after separation.  This in turn creates further problems associated with delaying a property settlement, including a continuation of financial strain on both parties.

If you are struggling to financially support yourself following separation then there are options available to you.  One of those options is spousal maintenance.

Spousal maintenance can be in the form of a lump sum payment or periodic payments for a period of time (for example weekly or fortnightly payments).  Spousal maintenance is financial support paid to the spouse who is in a weaker financial position and needs financial assistance, by the spouse in the stronger financial position who can afford to assist the other person, for a period of time to enable that spouse to recover from the separation.

The most common form of spousal maintenance, is an interim agreement for periodic payments until a property settlement can be reached.  Spousal maintenance may also continue for a period of time after a settlement is reached in some circumstances.

To be eligible for spousal maintenance, you need to be able to establish that your income is insufficient to adequately support yourself.  This will require an examination of your income and reasonable and ordinary expenses.  If you can establish that you have a need for spousal maintenance, the next step is to consider if the other spouse has the capacity to pay spousal maintenance, taking into consideration their income and own reasonable living expenses.

If you would like further information on spousal maintenance following separation, or other options to relieve financial stress, contact our Cairns and Mareeba Family Lawyers today on 07 4036 9700.

More

3 tips for separated parents to make the most out of the Christmas holidays

December 10th, 2019

  1. Communicate and plan ahead

After separation parents often put in place a routine for their children.  In some situations the children’s routine will not initially include arrangements for school holidays and special occasions such as Christmas Day.  If you fall into this category, then it is time to start thinking about the upcoming holidays.

Christmas is for many people a very special time, to be shared and celebrated with family.  Christmas is often a challenging time for separated families.  The first Christmas after separation can be particularly difficult due to changing family traditions.

The key to reducing stress and the impact of separation on your children is early and respectful communication.  Give careful consideration as to what annual arrangements, particularly for Christmas Day will suit your family, and enable your children to celebrate with both parents and extended family members.

One of the most common arrangements for Christmas, is for the children to spend Christmas Eve and Christmas morning with one parent and Christmas evening and Boxing Day with the other parent, and alternate these arrangements each year, this ensures the children get to see both parents on Christmas Day.  However, this might not be suitable for every family, for example, families that have traditionally travelled away from home to spend Christmas with family.

Once you have considered what arrangements you think are in your children’s best interests, discuss with the other parent as early as possible and try to reach an agreement.

If you do agree on what the arrangements will be each year, or each alternative year, then it will reduce the need for you to discuss the topic annually.  Consider whether you should formalise your agreement by either a parenting plan or consent order.

If you are considering taking time off work and travelling or camping with your children over the holidays, these plans should also be discussed with the other parent beforehand, and as early as possible.  You should also make sure the other parent is aware of any festivities that your children may be involved in, for example school concerts and plays.

Planning ahead will enable your children to have the best day possible and will reduce the risk that your children will feel ‘caught in the middle’ this festive season.

If you cannot reach an agreement, you should consider inviting the other parent to a mediation so that you can more carefully discuss and focus on putting in place arrangements for the holidays, with the assistance of a mediator.  Mediation is difficult to arrange on short notice, so the earlier you start discussing the holidays, the better.

  1. Gift giving

Consider coordinating your gift giving with the other parent.  It is not uncommon that during the relationship one parent will take responsibility for Christmas shopping.  Now that you have separated it is likely that you are both out hunting for the perfect present for your children.  Consider discussing with the other parent what you are thinking of buying before hitting the stores, to avoid duplication.

If your child brings along with them a gift that they have received from the other parent, be positive and encouraging.  Remember Christmas is about the children. It is also a good idea to ensure your child returns with the gift the next time they see the other parent.

Remember what the Christmas spirit is all about.  Whilst you may envisage gifting your former spouse a lump of coal this year, consider how assisting your children to pick out a small present for the other parent, may help and support them to adjust and feel more comfortable with the changing family dynamic.

  1. Celebrate Christmas Day

After separation, Christmas Day will not feel the same for anyone in your family.  That doesn’t mean that you cannot enjoy Christmas (you may just need to adjust your expectations and make some changes).

For many separated parents, Christmas Day can feel very lonely.  Especially if you find yourself waking up alone Christmas morning or you are not putting the kids to bed Christmas night.  This can be particularly hard where you are used to certain family traditions.

Surrounding yourself with loved ones and family can reduce some of the feeling of emptiness.  Consider making arrangements to stay with loved ones and continue to celebrate and enjoy your traditions.  You may also consider creating new traditions based around the time the children will be spending with you.

If you would like to discuss your parenting arrangements with one of our Cairns and Mareeba family lawyers, contact us today on 4036 9700.

More

Drug Testing in Family Law Matters

October 15th, 2019

Drug and alcohol use is a rising social issue both in Australia and worldwide.  The National Drug Strategy Household Survey[1], conducted in 2016, produced the following alarming statistics:

  1. 1 million Australians, aged 14 years and older, had used illicit drugs in the 12 months prior to the survey, which equates to roughly 16 per cent of the population at the time;
  2. 1 in 5 Australians who reported meth/amphetamine use, also reported using the drug at least weekly;
  3. 4 out of 10 Australians either smoked daily, drank alcohol in risky quantities or used an illicit drug in the 12 months prior to the survey;
  4. 10 per cent of drinkers drove while under the influence of alcohol in 2016;
  5. 1 in 20 had misused pharmaceuticals in the 12 months prior to the survey; and
  6. 1 in 10 Australians aged 14 years and older had been a victim of an illicit drug-related incident in the previous 12 months.

These statistics will shock many.  As a family lawyer it is not uncommon for parents to raise concerns regarding the other parent’s use of illicit substances, alcohol intake or dependence on pharmaceuticals.

In parenting disputes, the paramount consideration is “what is in the child’s best interests”.  In determining what is in the child’s best interests, there are two primary considerations:

  1. “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. “the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.”

Substance use is directly relevant to the court’s responsibility to protect a child from harm.  Substance use will typically have a significant impact on the parenting orders that a court will make.

Where allegations are raised, it is common for the parent who is the subject of the allegation to undergo drug testing.  If the parent wishes to defend the allegation, they may submit to drug testing willingly.  If the parent does agree to undertake drug testing, then the court has the power to require that parent to undergo testing.

When making orders for drug testing, the court must consider, among other things, the type of testing, the frequency and process for requesting a test, the timeframe in which a test is to be undertaken, chain of custody issues, the process for obtaining a sample and the consequences of a negative test result.  As a result, the drafting of drug testing orders has become very technical.

The different types of drug tests

When an allegation of illicit substance use, misuse of prescription medication or pharmaceuticals or alcohol dependency is raised, consideration needs to be given as to what type of testing is appropriate and will most likely capture use.  Different tests will be more suitable depending on the frequency, duration, quantity and timing of usage.

The most common types of testing include the following:

  1. Urine analysis: which can detect prescription and illegal drugs as well as alcohol. This testing, is limited in that it can usually only detect use a few days prior to the test and the accuracy of detection depends on the individual being tested and level of usage;
  2. CDT testing: (for alcohol) which can detect high alcohol usage for a period of up to two weeks. The reliability of detection will vary depending on the individual and the quantity and frequency of use during the detection period;
  3. EtG testing: is a type of hair follicle testing which can test alcohol use for up to three months; and
  4. Hair follicle testing: which can detect a variety of illegal and prescription drug use for up to three to six months depending on the length of the hair sample.

Which test, or combination of tests is appropriate, will depend on the alleged substance used, the timing of the use and the pattern of consumption.

If you require assistance with your family law parenting matter, or have concerns regarding your children or the other parent that you wish to discuss, please do not hesitate to contact one of our Cairns and Mareeba family lawyers today on 07 4036 9700.

[1] https://www.aihw.gov.au/reports-data/behaviours-risk-factors/illicit-use-of-drugs/overview

More

Should You Formalise The Parenting Arrangements For Your Children?

September 5th, 2019

Formalising the parenting arrangements for children after separation has many benefits for both the parents and children.  A formalised agreement provides a predictable and stable routine, reduces the chances of conflict, and reduces stress and the likelihood of the other parent acting contrary to the agreed arrangement.

There is no one better placed to make decisions about what parenting arrangements are in the “best interests” of children, than their parents.  However, an experienced family law practitioner can provide very useful, and sometimes critical advice, to assist parents to agree on, and formalise, all necessary parenting issues for their children.

Issues we commonly advise separated parents about include:

  1. the various parenting arrangements parents might consider such as week-about, a shared week arrangement, and alternate weekend routines, including arrangements for special occasions such as birthdays, Christmas, Mother’s and Father’s Day;
  2. how to “make legal” the agreed parenting arrangement to reduce the risk of the other parent absconding with, or holding over the children, or making threats to do so;
  3. whether to enter into a parenting order – which is legally binding, or a parenting plan – which is not legally binding, but which has other benefits, including flexibility;
  4. how to ensure the parenting arrangements still maintain a degree of flexibility where needed. This can be critical where one parent works on a fly-in, fly-out (FIFO) arrangement, does shift-work, or lives in another city;
  5. other parenting issues such as domestic and international travel with the children, passport arrangements, choice of schools and medical providers;
  6. concerns relating to who will care for the children when they spend time with the other parent;
  7. what to do when a child is refusing to spend time with the other parent;
  8. how parents can keep in touch with their children when they are living with the other parent;
  9. concerns regarding alcohol, illicit substances and family or domestic violence; and
  10. how to communicate with the other parent regarding a parenting issue about which they do not agree.

The feedback we commonly get from our clients is that formalising the parenting arrangements:

  1. reduces stress for the children by providing a stable routine;
  2. reduces anxiety and conflict for the parents by removing the need to communicate on a weekly basis with the other parent about what time the children will spend with each of them;
  3. enables parents to plan their time with their children, including holidays and special occasions such as birthday and Christmas celebrations;
  4. reduces their level of fear that the other parent may abscond with their child, refuse to return their child or otherwise act contrary to the formal parenting arrangements; and
  5. reduces their level of fear that the other parent may make a court application seeking for the children to live with them or to move away.

It is strongly recommended that, in the initial stages of a separation, parents obtain legal advice from experienced family law practitioners about:

  1. the law surrounding parenting issues and arrangements under the Family Law Act 1975(Cth) as relevant to the particular family;
  2. the various parenting options, arrangements and issues they should consider;
  3. whether a parenting arrangement should be formalised through a parenting plan or court orders;
  4. the services available (some of which are free), to assist parents to discuss and agree on parenting arrangements; and
  5. how they can make the agreed parenting arrangements “legal”.

At Miller Harris Lawyers, our experienced Cairns and Mareeba family lawyers are available to provide you with advice on general parenting matters and the application of the Family Law Act 1975 to your family situation, and specific parenting issues, to assist you to amicably resolve the arrangements for your children.

If you would like more information about how we can assist you to amicably resolve the parenting arrangements for your children, please feel free to contact our Cairns and Mareeba Family Lawyers on 4036 9700.

More

Debunking 4 common family law myths

July 30th, 2019

There are many misconceptions or “myths” in family law that can lead to separating couples making poor decisions that are not in their best interests.  We debunk some of these common myths below.

Myth 1: I am not married so I don’t need to have a property settlement”
Not true; save for very limited exceptions, all de facto and married couples are required by the Family Law Act to formally end their financial relationship through a property settlement within a specific time period.  If in doubt, it is always best to seek advice on whether a formal property settlement is required.

Myth 2: “Property acquired after separation is not relevant”
This is also incorrect.  Whilst the inclusion of assets acquired post-separation will always depend upon the circumstances surrounding the acquisition of the asset, as a general rule, the asset will usually be included in the property pool.  For example, in a recent court case, the court made a decision to include in the property pool, an inheritance of $715,000.00 received by the husband five years after separation.  This is a classic example of why property should be divided and a property settlement formalised soon after separation— not years later.

Myth 3: “If my ex and I agree on the division of our assets, we do not need a lawyer”
Once an agreement is reached, it is important that it is formalised in one of the two ways recognised as binding and enforceable by the family courts.  The parties can apply to the court for consent orders or they can execute a binding financial agreement in accordance with the family law legislation and regulations.  It is important that legal advice is sought in the drafting of these documents.  If a property settlement is not formalised in one of these ways, the family courts will not recognise that a property settlement has occurred, which may leave parties vulnerable to a later court application seeking a further adjustment of property interests.  There are additional benefits in formalising a property settlement including eligibility for an exemption on transfer duty on any property transferred between spouses.

Myth 4:  “Most property settlements are 50/50”
This is another common misconception.  What percentage of the property pool a spouse is entitled to is calculated by applying complex legal principles and precedents.  It includes consideration of many factors.  We encourage clients to obtain legal advice as to their entitlements before discussing the division of their property with their former spouse.

At Miller Harris Lawyers, we understand that separation is stressful and emotional.  We work with our clients to provide strategic legal advice which empowers people to make informed decisions about the future and to move forward with their lives.  If you are going through a separation, contact our expert family lawyers today on 07 4036 9700 to enquire about our fixed fee initial consultations offered at both our Mareeba and Cairns offices.

More