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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.

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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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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.

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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

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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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How to separate your property and finances following separation

June 12th, 2019

One of the first questions that we are often asked by clients going through a separation is, how do we separate our property and finances and protect ourselves?

It is important for separating couples to understand that there are only two ways in which you can finalise your financial relationship, so that it is binding and recognised by the courts, namely:

1. by court order; or

2. by entering into a binding financial agreement.

Separating couples are able to obtain a court order to record any agreement they reach by consent, by submitting an application for consent orders. This is a relatively inexpensive way to formally end your financial relationship. Consent orders will only be made if the judge considers that they are just to both parties. A court order may also be made during court proceedings, if one party commences proceedings because the parties are unable to reach an agreement. The majority of our matters are resolved through negotiation or mediation and then finalised through the consent order process.

The other option is a binding financial agreement, which must be drafted and executed in accordance with the family law legislation and regulations.

If you do not formalise your property settlement using one of the methods mentioned above, then the Family Courts will not recognise your agreement and it will not be binding. This is true even if the agreement has been recorded in a deed or statutory declaration or other alternative legal form. For this reason it is important that you have an experienced family lawyer assist you in formalising your property settlement agreement. There are other benefits for couples in finalising their property matters, including receiving an exemption on paying transfer duty on the transfer of any property between spouses.

If you are going through a separation and require assistance in separating your finances and property, contact our expert Cairns and Mareeba family lawyers today on 07 4036 9700 or 07 4092 3555 to book in for an initial consultation where we will discuss how to finalise your property matters and the four step approach used by courts when determining the overall division of your assets and liabilities.

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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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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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