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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.

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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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Yours, mine, and ours – The effect of marriage on a will and competing interests in a blended family

January 22nd, 2019

Being a member of a blended family can create some unique challenges.  There are very few families who conform to the “Brady Bunch” dynamic, where six children happily share two bedrooms and one bathroom and every problem is magically resolved within 30 minutes.

With sibling rivalry, competing needs for love and attention, and conflicting emotions being common themes in blended families, it is no surprise that these challenges often escalate when a spouse/parent (natural or step) passes away.  In the succession world, without a proper estate plan in place, the transition of wealth in a blended family environment can cause a myriad of problems.  The case Re Estate Grant, deceased [2018] NSWSC 1031 is a prime example of this.

Re Estate Grant, deceased 

The deceased, David William Grant (“Mr Grant”) died in December 2015, aged 55 years.

Mr Grant had been married twice at the time of his passing.  He was married to his first wife, Lisa, from October 1989 to November 2013.  Lisa had two children from an earlier relationship, Siegfried and Maximilian whom, for the most part, Mr Grant treated as his own, However, at the time of his passing, he was estranged from Siegfried.  Mr Grant and Lisa also had twin sons of their own, Jackson and Lewis.

Mr Grant’s second marriage to Katerina grew out of an extra marital affair which commenced in 2006 and continued until he and his wife Lisa separated in April 2012.  Mr Grant and Katerina commenced a de facto relationship in 2012.  He proposed to Katerina in June 2015 and they were married shortly after in September 2015.

Less than three months after they married, Mr Grant passed away from brain cancer.  Mr Grant and Katerina had no children of their own.

The will

Mr Grant made a will on or about 3 January 2014.  The will appointed Mr Grant’s brother Michael to be the executor of his estate and gifted the residue of his estate equally between Maximilian, Jackson and Lewis.

Mr Grant’s main reason for wanting to update his will, was to disinherit Siegfried and Lisa, and he wanted to reinforce their disinheritance with an express repudiation in the will.

The effect of marriage on a will

Section 12 of the Succession Act 2006 (NSW), similarly to section 14 of the Succession Act 1981 (Qld), provides that marriage of a testator (will maker) will revoke the testator’s will unless it is made in contemplation of marriage.

In the event that Mr Grant’s 2014 will was revoked by his marriage to Katerina in 2015, he would be considered to have died intestate (that is without a will) and the beneficiaries of his estate under the rules of intestacy would be:

  1. his wife, Katerina, who would be entitled to the deceased’s personal effects, a statutory legacy, and one-half of the remainder of the deceased’s estate; and
  2. Mr Grant’s twin sons Jackson and Lewis, who would be entitled to the other half of the remainder of the estate.

Maximilian would not benefit under the rules of intestacy because he is not a biological child.

Mr Grant’s estate was worth an estimated net value of approximately $4.4 million (not including personal effects) and a superannuation fund with an estimated value of $858,000.00.  Under the rules of intestacy set out above, Katerina’s share would be estimated to be approximately, $2.4 million and Jackson and Lewis’ shares were estimated to be approximately $990,000.00 each.

Competing claims

There were two competing claims brought before the court:

  1. Katerina claimed that the 2014 will was not made in contemplation of marriage and therefore their marriage in 2015 revoked the will and the rules of intestacy applied. Katerina also made a family provision claim to be considered in the event that the court determined that the 2014 will was in fact valid.
  2. Jackson, Lewis and Maximilian claimed that the will was made in contemplation of marriage, and requested that the court uphold the will as valid, so that they would receive their equal shares in the estate. Maximilian also made a family provision claim to be considered in the event that the court determined that the will was invalid.

Was the will made in contemplation of marriage?

The primary issue for the court to determine was whether the 2014 will was made in contemplation of marriage.

Maximilian, with the support of Jackson and Lewis, relied upon the following facts (and various others) in support of his contention that the 2014 will was made “in contemplation of marriage” to Katerina:

  1. Mr Grant and Katerina began their relationship as early as 2006, several years before the deceased gave instructions for the preparation of his will.
  2. When Mr Grant and Lisa first discussed separation in about 2010, Mr Grant started to discuss “long term plans” with Katerina, during which discussions on many occasions he told Katerina that he was going to marry her “one day”.
  3. When Mr Grant made such statements to Katerina in or about 2010, Katerina responded to the effect that she was willing to discuss marriage with him if and when he was in a position to marry her; meaning, that he first had to separate from Lisa, divorce Lisa and then ask Katerina to accept a marriage proposal.
  4. Via an exchange of text messages on 2 January 2011, Mr Grant sent Katerina a message to the effect “marry me”, to which she replied to the effect, “I will when you ask me properly one day”.
  5. In April 2012 Mr Grant and Lisa formally, and finally, separated, and Mr Grant and Katerina commenced their de facto relationship.
  6. At that time Mr Grant had a will that left his estate to Lisa and, if she predeceased him, favoured their four children (including Siegfried).
  7. In early 2013, on his own initiative, Mr Grant consulted a fertility clinic about reversal of a vasectomy procedure to which he had previously submitted.
  8. At about the same time, at the instigation of Mr Grant, Katerina also attended the fertility clinic to ascertain whether, if Mr Grant’s vasectomy were to be reversed, there was a prospect that she might conceive a child.
  9. On 26 October 2013, Mr Grant and Katerina attended the auction at which a property at McMahon’s Point was purchased in Mr Grant’s name (with a financial contribution by Katerina), an experience which she described in her evidence as a shared moment that signified the solidification of their future together.
  10. On 5 November 2013 the marriage between Mr Grant and Lisa ended in a divorce, preceded by a property settlement.
  11. In 2013 and 2014 (including on occasions before the McMahon’s Point property was purchased) discussions of marriage between the Mr Grant and Katerina took the form of “when we marry”, not “if we marry”.

Katerina argued that:

  1. The deceased did not make a formal proposal of marriage to Katerina until 6 June 2015.
  2. At no time before then, and particularly at no time in the early discussions of 2010, did Katerina commit herself to marriage in advance of a proposal capable of acceptance.
  3. In the 2010 discussions, Katerina said no more than that she was prepared to discuss marriage with Mr Grant if and when he was able to make, and he did make, a proposal of marriage capable of acceptance.
  4. At the time he executed his will on 3 January 2014, Mr Grant did not have in contemplation marriage to Katerina, only freeing himself from his marriage to Lisa.
  5. The will was prepared in haste and, after procrastination on the part of Mr Grant, executed in haste as a “stop gap” will to be reviewed at leisure later at an unspecified time.

The decision

The court concluded that at the time Mr Grant made his will he was living a compartmentalised life, a life in transition. When the will was drafted, he was in the process of divorcing his first wife.  By the time he executed it, he had divorced her. He had made no commitment to marry Katerina and Katerina had made no commitment to marry him, if ever he were to propose. Both were free agents, free to marry somebody else, or not to marry at all.

The court noted that although Mr Grant and Katerina had an on-again/off-again relationship over an eight year period, including a period of cohabitation in 2011, they were not cohabiting full time. Their relationship was a work-in-progress. Although marriage was from time to time discussed it remained a matter of speculation until such time as Mr Grant might bring himself to propose marriage, at which time Katerina (however hopeful she might have been) reserved a right of refusal.

Mr Grant was focused upon extricating himself from a spent marriage (severing all connection with his wife, but maintaining relationships with favoured children of that marriage), unconcerned with any prospective marriage or family obligations arising from such marriage.

The court concluded that Mr Grant’s will was not made in contemplation of his marriage to Katerina and accordingly it was revoked by and upon his marriage to Katerina being solemised.  Therefore Mr Grant was declared to have died intestate with his estate to be administered pursuant to the rules of intestacy subject to any family provision order made in favour of Maximilian.  

Conclusion

This case highlights the complexities of blended families in the context of estate planning.  Estate planning is more than just drafting a will.  The preparation of an estate plan involves a review of the state of your personal, family and business affairs with a view to determining how you want your assets to be dealt with after you pass away. Further, an estate plan should be reviewed regularly or, at the very least, in the event of any significant life changes, like marriage or divorce.  Seeking advice from an experienced wills and estate lawyer from the outset and reviewing your estate plan regularly is crucial to ensuring that your wishes are carried out and your family is not left in disarray.

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Bon Voyage! Travelling overseas with your children after separation

June 6th, 2018

While it is not uncommon for a parent to want to travel overseas with their children following a separation it can sometimes be a point of conflict between parents.

Applying for a passport

The first hurdle for many parents will be applying for a passport for their child.  A passport will only be issued by the Australian Passport Office if both parents provide consent and sign the application form.  If one parent refuses to sign the application form then the other parent may need to apply to the Family Court in order for their child to be issued a passport.

Seeking consent from the other parent to travel

Regardless of whether a child has a passport, a parent who wants to travel with their child should obtain the consent of the other parent before taking the child overseas and prior to making any travel arrangements.

If the other parent does not consent to the proposed travel then the parent who seeks to travel with the child will need to make an application to the Family Court that the child be permitted to accompany them on a holiday.  The court will consider, amongst other things, the following factors:

  1. the length of the proposed travel;
  2. whether the travel will interrupt the other parent’s time with the child and if so, whether alternate make up time is offered;
  3. the destination country; and
  4. whether there is a risk that the child may not be returned to Australia.

Preventing a parent from travelling with a child

If a parent has concerns that their child may be taken overseas by their former partner without their consent, then immediate legal advice should be sought.

The Family Court has the power and discretion to:

  1. prevent a parent from travelling overseas with their child;
  2. require that a child’s passport be held by one parent or by the court; and
  3. place a child’s name on the Family Law Watchlist (previously known as the Airport Watchlist).

Our family law team has significant experience in assisting parents with issues concerning overseas travel.  For more information please contact one of our experienced family lawyers today on 07 4036 9700.

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