News

News

How will a family lawyer help me?

June 1st, 2021

Family lawyers assist people considering or experiencing separation in more ways than you might think.

We will advise you on the law as it applies to you; that part is fairly obvious.  But what isn’t is just how many legal issues family lawyers have to consider.  They include:

  • separation and divorce;
  • de facto and matrimonial property settlements;
  • spousal maintenance applications;
  • parenting issues;
  • applications by grandparents and other significant people in children’s lives;
  • child support;
  • child protection;
  • domestic violence,

and the list goes on.

Family lawyers in and out of court

Family lawyers assist separated people both within and outside of the Family Law Court system.  The majority of matters can be resolved by consent without the need to apply to court for orders.  This saves the parties the stress, costs and emotional toll of being involved in court proceedings.

A settlement outside of court is most commonly achieved through lawyers conducting negotiations on your behalf, or if necessary, via mediation or settlement meetings.  Your family lawyer can then take the necessary steps to make the settlement legally binding.

If your matter can’t be settled outside of court, or is urgent, your family lawyer can prepare the court material to commence the court application.  Your lawyer will advise you every step of the way, represent you in dealings with the other party and their lawyer, the Judge and relevant court experts.  Your lawyer will appear for you at court events including court mentions and hearings and court-ordered mediations.

Going to court

There is still a very high chance that even if your matter proceeds to the courts, it will settle along the way.  Only about 5% of matters actually proceed to a trial at which a Judge makes the decision.  This is good news.  Even if you require the court to assist you to resolve your matter, statistics tell us that there is still a very good chance that you and your former partner will, in the end, be able to reach agreement on settlement.

Initially however, the real value in consulting an experienced family lawyer comes from their ability to analyse your particular situation and the applicable law and create a separation plan with you.  For example, if you have children, property investments, insufficient income to support yourself and are in the process of separating, the laws relating to divorce, matrimonial property settlement, spousal maintenance, children’s matters and child support are all relevant to your situation.

Feeling overwhelmed?  You needn’t.  An experienced family lawyer who specialises in the practise of family law can advise you and map out the way forward.  This can usually be achieved during a 1 hour initial consultation.

Our job is to take a complicated situation and make it as SIMPLE as possible.

If you are separating or divorcing or considering it, feel rest assured we are here to help.   Contact me or one of our experienced family lawyers today on 07 4036 9700 to book your no-obligation consultation.

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Are you in a de facto relationship?

April 6th, 2021

The answer to this common question is not as simple as you might expect.  A person will be considered to be in a de facto  relationship if, looking at all 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.

It is important to know that a couple can be living together for less than two years and still be considered to be in a de facto  relationship.  Most commonly, this happens where the couple have a child together, or 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 their partner will automatically be entitled to  a share of their assets.  This is not true.

Even if you are considered to be in a de facto relationship, your partner is not necessarily entitled to a share of 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 family lawyers today.

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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.

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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.

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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.

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When do children get to decide which parent they will live with?

July 4th, 2019

One common misconception that parents often have following separation is that their child will get to decide who they live with and how much time they spend with the other parent.

The living arrangements for children after separation is a decision to be made by both parents, not the children.  If parents cannot agree to the living arrangements for their children, they are required to attempt mediation to see if they can agree with the assistance of an independent third party.  If there is still not agreement after mediation, then ultimately either parent may need to commence court proceedings asking the court to decide on the arrangements for the children.

The next obvious question is—If children do not get to decide who they will live with, do they get a say in the decision at all?  The answer to this question will depend on the circumstances of the particular family.

For example, we are commonly now seeing that parents who agree to attend a mediation to discuss and try to reach an agreement on the arrangements for their children are adopting one of the two following practices to ensure their children also have a voice in the decision:

  1. Attend a child inclusive mediation.

Unlike the suggestion of the name, the children do not actually attend at the mediation with their parents.  Whilst mediations are run differently by different mediators, generally the mediator will spend time with the children prior to the mediation.  The mediator is trained to create a comfortable and safe environment for the children to share their views on the issues to be discussed at mediation.  Those views can then be brought into the mediation through the mediator.

  1. Obtain a family report prior to mediation

A family report is written by a family report writer, who is usually a social worker or psychologist.  The purpose of the report is to provide recommendations on what parenting arrangements are in the best interests of the children.  In making recommendations, the report writer gathers information through interviewing both parents and significant others, the children (if they are old enough) or observing the children with their parents (if they are not old enough to be interviewed).

A family report is often ordered by a court in parenting proceedings to assist the court in gathering evidence as to what arrangements are in the best interests of the children.  Increasingly however, parents are choosing to obtain a family report privately to assist them in making decisions for their children outside of the court process.

A family report is another way in which children can have their views heard by both parents and is an asset in a mediation. However, ultimately it is the parents or court who have the final say in the children’s care arrangements.

It should be noted that how much weight is given to the views of children will depend on the individual circumstances of the case, and in particular, the age of the children and their maturity.  Whilst children do not get to decide their own care arrangements, the more mature and older they are, the more weight that will usually be given to their views.

The recent High Court decision of Bondelmonte confirms that even children who are mature and approaching the age of 18 are not able to decide their care arrangements.  In that case, the children who were 15 and 17 at the time, were ordered by the court to live with their mother, despite both children expressing that they wanted to live with their father.

If you are going through a separation and would like to discuss your parenting matter, contact one of our family lawyers today on 4036 9700 to find out about our fixed fee initial consultations offered in both our Mareeba and Cairns offices.

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Changing your child’s name after separation

April 30th, 2019

After separation, it is not uncommon for one spouse to change their name back to their maiden name as opposed to keeping their married name.  But what about changing a child’s name?

As family lawyers we are often asked about the process for legally applying to register a change of a child’s name.

Section 17 of the Births, Deaths and Marriages Registration Act 2003, provides that:

  1. the parents of a child may apply to the Registrar for registration of a change of the child’s name; and
  2. an application for registration of a change of a child’s name may be made by one parent if the applying parent is the only parent named in the registration of the child’s birth (on their birth certificate), or there is no other surviving parent, or a Magistrate approved the proposed change of name.

This essentially means that if both parents are registered on the child’s birth certificate they must agree to the name change.  If both parents do not agree, then the only way to register a name change is if an application is made to the court and the court makes an order for the name to be changed.

When considering whether or not a name change is in the child’s best interests, the court will have regard to, among other factors and the particular circumstances of the matter:[1]

  1. any embarrassment likely to be experienced if his or her name is different from the parent with residence or care and control;
  2. any confusion of identity which may arise if his or her name is changed or is not changed;
  3. the effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
  4. the effect of frequent or random changes of name;
  5. the contact that the non-custodial parent has had and is likely to have in the future with the child;
  6. the degree of identification which the child or children have with their non-custodial parent; and
  7. the degree of identification which the child or children have with the parent with whom they live.

This article focuses on the legal process to register a change in name.  A child’s name can be informally changed through use of a different name.  You should seek legal advice before informally changing your child’s name, especially if there are court orders already in place.

If an informal name change is made through use, the other parent can make an application to the court for the child to only be known by their legal name.

If you are wanting to change your child’s name we recommend that you first obtain legal advice.  Please do not hesitate to contact one of our experienced Cairns family lawyers today to discuss your matter.

[1] Reagan & Orton [2016] FamCA 330.

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Family Law Judges are not mediators, or are they?

March 7th, 2019

In another surprising development in the ever-changing landscape of Australian family law, Judges in the Federal Circuit Court of Australia can now act in certain cases, as mediators.  “Judicial Mediations” as they are called, are an entirely new service now being provided by Judges of the Federal Circuit Court of Australia; Judges who, it is well-documented, are already overburdened by huge case loads.

The rules surrounding Judicial Mediations are set out in Practice Direction No. 1 of 2019 which commenced on 1 January 2019 and is available on the Federal Circuit Court website.

A brief summary of the main rules of Judicial Mediations is as follows:

  • a party to a case before the Federal Circuit Court may make an oral or written application for Judicial Mediation;
  • the “docket Judge” who the parties ordinarily appear before, determines, according to certain criteria, whether the case is suitable for Judicial Mediation;
  • in considering whether a matter is suitable the docket Judge will consider a list of suitable matters provided for in the practice direction; however he or she may determine that another matter not provided for in that list is still suitable;
  • suitable matters include:
    • those where both parties are legally represented;
    • those where one or both parties are self-represented and the docket Judge determines the matter is suitable for judicial mediation;
    • property disputes;
    • parenting disputes where there is no  allegation of  serious risk and/or family violence;
    • appropriate child support matters;
    • compliance with orders for a prior unsuccessful private mediation; and
    • a risk that the costs and time of the trial will be disproportionate to the subject matter of the dispute;
  • it is expected that all mediation alternatives (including private mediation with a family dispute resolution practitioner) will be exhausted prior to a Judicial Mediation;
  • if ordered, a new Judge will be appointed as the Judicial Mediator so the case is not mediated by the docket Judge or the trial Judge (who is usually one and the same);
  • significant preparation is required for Judicial Mediation, similar to that required for a trial; and
  • all parties and any legal representatives must attend the Judicial Mediation.

How frequently Judicial Mediations are ordered and how effective they are, remains to be seen.  It is hoped that this new service will not significantly increase the already large case loads being handled by Federal Circuit Court Judges, and in the process increase waiting times being experienced in the courts.

For more information about Judicial Mediations or any other family law issues, feel free to contact Julie Hodge, family lawyer & Senior Associate on 07 4036 9706.

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4 tips to survive Valentine’s Day after your separation

February 13th, 2019

If you have recently gone through a separation, you might be dreading the upcoming annual “celebration of love” Valentine’s Day.

If you are anything like me and you are reading this article, your mind is probably already turning to the scene from Bridget Jones’s Diary where she is in her onesie pyjamas, by herself, drinking wine and eating chocolate and screaming the lyrics to Celine Dion’s classic, “All By Myself”.  Or you might be thinking about other movies that you have seen with exaggerated scenes of couples swooning in public on Valentine’s Day that make everyone feel uncomfortable.

My advice to you is to take charge and own this Valentine’s Day and plan ahead and adopt these few simple tips so that you might find yourself looking forward to Valentine’s Day, rather than dreading it:

  1. Don’t spend the day or night alone. I can almost guarantee that there are other loved ones and significant people in your life who would love to spend this time with you.  Get in touch with them now and lock them in for a celebration of your own.
  2. Now that you know who you are going to be spending Valentine’s Day with, plan something to do, that you will look forward to. This might be as simple as going to see a movie, having a movie marathon or games night at home, going to your favourite restaurant or that new place that you have been wanting to try.
  3. Treat yourself. After separation, a lot of people forget to do things for themselves, including appreciate themselves.  Reflect on something that you can give to yourself that will make you feel good.  It might be indulging in some food that you would not always eat, or it might be buying something that you have wanted for quite some time now.  Treating yourself doesn’t have to be expensive, it just needs to be rewarding to you.
  4. Treat others. As you have made the solid decision not to spend Valentine’s Day alone, why not treat the people who you are sharing it with?  As Valentine’s Day falls on a weekday this year, it may be as simple as baking or treating your colleagues to morning tea at work, writing a small thank you and appreciation card to those people who have been there and supported you during what has probably been one of the worst emotional times in your life.  You may also decide to write Valentine’s letters and place chocolates in your children’s lunch boxes.  There are many different ideas.

At Miller Harris Lawyers we care about all of our clients.  We understand that separation is emotional, stressful and complicated.  We are passionate about getting to know you, understanding your family and priorities and assisting you to reach an agreement so you can move forward.

If you require assistance through your separation, please contact one of our Cairns family lawyers to discuss your situation.

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Australian Federal Police uncover child stealing ring in Australia

November 29th, 2018

Child abduction has recently been in the spotlight after the Australian Federal Police made a number of arrests in relation to the involvement by individuals in a child stealing ring that has been operating in Australia.

The individuals involved have been charged with criminal offences of conspiracy to defeat justice and child stealing, for their assistance in continually moving mothers and their children within Australia to avoid detection by authorities and prevent the return of the children to their extended family, in breach of court orders.

A recent decision of the Federal Circuit Court of Australia where a mother who went on the run in Australia with her children was imprisoned, as was the grandmother who assisted, shows that the courts are also cracking down on parental child abduction.

The Federal Government have recently amended the Family Law Act in relation to international parental abduction.

In light of the recent media attention, court decisions and upcoming legislative changes, it is timely to reflect upon how the law restricts travel with children after separation.

So what is child abduction? 

Child abduction occurs, broadly speaking, when one parent travels or relocates with their child:

  1. domestically in breach of court orders, or outside of their time with the child; or
  2. internationally in breach of court orders, or without the prior written consent of the other parent.

There are a variety of potentially serious consequences for making a mistake when travelling with your child after separation, including:

  1. If orders have been breached, the non-breaching parent may commence contravention proceedings seeking that the child be returned to them and then also seek an amendment to the orders in relation to the care arrangements for your child. The party in breach may also be found to be in contempt of court.  The court has a variety of powers to punish a person found in contempt, including order the payment of a fine or imprisonment.
  2. If there are no orders in place, court proceedings may be commenced for the return of the child and also seeking orders about the care arrangements for the child in favour of the non‑abducting parent.
  3. The Family Law Act makes it a criminal offence to travel with a child overseas in breach of a court order, or while there are current proceedings in relation to the child before the court or an appeal. If found guilty, a person faces up to three years imprisonment.  The new amendments to the Family Law Act that will come into effect from a date proclaimed or 26 April 2019 will also make it a criminal offence where a parent travels overseas with a child with the consent of the other parent, but fails to return the child to Australia as agreed or in accordance with orders.  These amendments also introduce a defence, where a parent abducts a child because they believe it to be necessary to escape family or domestic violence.
  4. There are also different state based criminal offences for ‘stealing’ and ‘abducting’ a child which not only the abducting parent faces, but also any other person who knowingly assists that parent.

The key lesson to be learnt is that the law on travelling with children after separation is complex and there are very serious consequences for getting it wrong.  You should obtain legal advice from an experienced family lawyer about your situation.  As a golden rule, written consent (by statutory declaration) from the other parent should be sought, unless there is a court order which allows the travel.

To understand what you should do if your child is not returned to you, ways in which you can prevent your child from being abducted and what to do if the other parent will not consent to travel, we have provided further information below.

What should you do if your child is not returned?

If your child is not returned to you, you should seek immediate legal advice about filing an urgent application in the court for the recovery of your child.

A recovery order permits the Australian Federal Police to recover your child and return them to you.

If the location of your child is not known, then there are other orders such as a location order, a Commonwealth information order and a publication order which can assist with locating your child.

If your child has been relocated outside of Australia, then you should contact a lawyer immediately.  Australia is a party to an agreement called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which permits the Attorney-General’s department to commence proceedings on your behalf in other countries who are also a party to the agreement to seek an order for the recovery of your child.  Such applications can be time sensitive.

Ways you can prevent your child from being abducted

If your child does not have a passport, then it is a requirement for the issue of an Australian passport that any person with parental responsibility consent to the issue of the passport.  However, an additional measure that can be taken is to lodge an alert with the Department of Foreign Affairs and Trade if you consider there is a risk that your child may be issued with a passport without your consent.

If your child does have a passport and the passport is not secure, or you are concerned that a passport may be issued by another country, an urgent application can be made to the court to secure the passport and also to place the child on the Family Law Watch List which will authorise the Australian Federal Police to prevent your child from being removed from Australia via air or sea at all departure points.

What if the other parent does not consent to international travel?

You cannot travel internationally with your child without the other parent’s written consent.  If the other parent does not consent to your child travelling with you, then you can make an application to the court seeking an order that your child be permitted to travel with you.

For more information about this issue and all other family law matters please contact our family law solicitors on 07 4036 9700.

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