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Doyles List

December 7th, 2017

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

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

Check out the 2018 Doyles Lists here.

Well done Michael and Julie!

Michael Keogh, Special Counsel Julie Hodge, Senior Associate

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National recognition of domestic violence protection orders

December 7th, 2017

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

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

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

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

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

 

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Co-parenting through the chaos of Christmas time

December 5th, 2017

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

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

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

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

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

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The Ghost of Christmas Past

December 4th, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Major reform of labour hire in Queensland

November 30th, 2017

The time has come for many businesses to prepare for the introduction of the Labour Hire Licensing Act 2017 (QLD).

This Act breaks new ground in regulation and is a first for any Australian jurisdiction.  The Act has the potential for very broad application.  It applies to anyone who provides labour hire services.  A party will provide labour hire services if, in the course of carrying on a business, the party supplies, to another person, a worker to do work.  The Act is broad enough to include any worker outsourcing, including secondment.

The Act was passed on 13 September 2017. It has not commenced operation.  The existing proclamation anticipates that the Act will commence operation on 16 April 2018.  The Act provides for a 60 day transitional period after commencement to allow for parties to make application to become licensed.  The penalties for operating an unlicensed labour hire business are significant ($378,450 for a corporation).

The chief executive may grant an application for a licence only if the chief executive is satisfied that:

1.           each of the following persons are fit and proper persons to provide labour hire services;

a.           each applicant;

b.           if a proposed nominated officer for the application is a person other than an applicant—the proposed nominated officer;

c.           if an applicant is a corporation—the corporation and each person who is an executive officer of the corporation; and

2.           the business to which the application relates is financially viable; and

3.           the business will comply with its legislative requirements, including the Work Health and Safety Act and the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The term executive officer, is very broadly defined.  It means any person (by whatever name called, and whether or not the person is a director of the corporation) who is concerned, or takes part in, the management of the corporation.  It suggests that businesses need to think very carefully about both the structure of their business, and compliance management.

In deciding whether a person is a fit and proper person to provide labour hire services, the chief executive must have regard to the following matters:

1.           the person’s character, including, for example, the person’s honesty, integrity and professionalism;

2.           whether the person—

a.           has a history of compliance with relevant laws; or

b.           is able to demonstrate an ability to comply with relevant laws;

3.              whether the person has previously held a licence that has been cancelled or suspended, or for which conditions have been imposed under section 29(1);

4.              whether the person has been convicted of an offence against a relevant law or another law that affects the person’s suitability to provide labour hire services;

5.              if the person is an individual—whether the person has been an insolvent under administration;

6.              whether a corporation has been placed into administration, receivership or liquidation while the person was an executive officer of the corporation;

7.              whether the person has been disqualified from managing corporations under the Corporations Act;

8.              whether the person is under the control of, or substantially influenced by, another person whom the chief executive considers is not a fit and proper person to provide labour hire services; and

9.              any other matter the chief executive considers relevant in deciding whether the person is a fit and proper person to provide labour hire

There are a many issues to think about here. Any business that may be affected needs to begin planning, including making application for a licence. It is expected that licences will be for a term of only 12 months, and may cost as much as $5,000 (for a corporation).

If you need assistance with this process, please let us know.

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What does the ‘Yes’ vote mean for family law?

November 16th, 2017

Yesterday marked a significant milestone in Australian history, with the result of the Marriage Law Survey being released.  Once same-sex couples are legally able to marry there will be minor ripple effects in family law practice.

It will make property proceedings for married same‑sex couples who are separating more simplified as they will no longer have to establish that they satisfy the criteria of being in a de facto relationship.  It will also allow same‑sex couples who were married in another country to apply for a divorce in Australia once they can establish that they have been separated for the threshold time limit of 12 months.  Previously it was not possible for same‑sex couples married in another country to be granted a divorce order in Australia which created many problems.

 

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Attorney-General commissions a comprehensive review of the Australian Family Law system

November 14th, 2017

Attorney-General the Honourable George Brandis QC recently commissioned the Australian Law Reform Commission to comprehensively review the Australian Family Law system

Professor Helen Rhoades has been appointed to lead this comprehensive review, which will focus on various issues faced by separated families including long delays in the court system and the financial burden of family law disputes, as well as how best to deal with the families of today and the issues they face; noting the Family Law Act 1975 was brought in over 40 years ago.

The review process will involve public consultation as well as consultation with family law experts.

The report will be released in 2019 and is very much welcomed by the family law legal profession.

For more information, visit the Attorney General’s website:

For more information about this issue and all family law matters, please contact our Senior Associate, Julie Hodge on 4036 9700, or visit our website.

Julie Hodge
Senior Associate
Miller Harris Lawyers

Telephone:  07 4036 9700
Email:  juliehodge@millerharris.com.au

Voted into 2016 and 2017 Doyles list of leading Family and Divorce Lawyers

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Important deadline for those operating in the tourism industry

November 10th, 2017

The Best of Queensland Experiences program was launched by the State’s Regional Tourism Organisations and Queensland Tourism Industry Council to identify the best experiences available within Queensland for visitors.  Those who are accepted into the program may in the future feature in promotional activity.  It is also expected that the program will feature throughout the Commonwealth Games.

To be assessed for the program, you must ensure that your product listing and details are up to date on the Australian Tourism Data Warehouse before 13 November 2017.

More information is available here.

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High Court affirms difficulty in creating a binding pre-nuptial or post-nuptial agreement

November 9th, 2017

The High Court has allowed an appeal which demonstrates the difficulty faced by parties wishing to enter into a binding pre-nuptial or post-nuptial agreement that deals with their respective property in the event that the parties separate in the future.

The parties in this case met online through the use of a dating website.  The husband at the time was approximately 67 years old and was extremely wealthy (he had assets between $18 and $24 million dollars).  The wife was 36 years old, living in the Middle East and had no assets.

Prior to the relationship commencing the husband had told the wife that once he had met her, if he liked her he would marry her, but that she would be required to sign an agreement because his money was for his children.

After the parties had been together for around seven months, the wife flew to Australia to live with the husband and they started planning for their wedding.  Just prior to the wedding, after the wife’s family had already been flown to Australia to attend, the husband asked the wife to sign a pre-nuptial agreement.  Consistent with the requirements of the Family Law Act (“Act”) the wife obtained independent legal advice, which was to the effect that the agreement was the “worst agreement” the lawyer had ever seen.  On the advice of the wife’s lawyer minor amendments were made to the agreement but the lawyer still recommended that the wife did not sign the agreement.  Despite this advice the wife still executed the agreement.

After the wedding the wife also executed a post-nuptial agreement in substantially similar terms to the pre-nuptial agreement, which was required to be executed by a term in the pre-nuptial agreement.  Unfortunately after three years of marriage the parties separated and three years after separation, during the course of the trial, the husband passed away.

The High Court upheld the decision of the primary judge that the agreements were null and void finding that the wife effectively had no choice and was powerless against the husband because:

  • the wife lacked financial equality with the husband;
  • the wife was at a significant disadvantage having left everything behind to move to Australia without a visa to marry the husband, and had no way of returning home;
  • the wife relied on the husband to support her absolutely;
  • the wife was influenced by her emotional connection to the husband and the prospects of motherhood; and
  • the agreements were presented to the wife at a time just before the wedding when her family had already flown over to attend and the husband had made it clear that the wedding would be cancelled if she did not sign.

The above circumstances were held to amount to undue influence and unconscionable conduct by the husband.  The wife will now continue her application for property adjustment and lump sum maintenance in the Federal Circuit Court against the estate of her late husband.

Interestingly no submissions were made regarding the restriction in the Act which prevents parties from excluding a court from making a maintenance order if, when the agreement came into effect, the disadvantaged party was unable to support himself or herself without an income tested pension.

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Be Games Ready – Business Mentor Chats – Preparing for the Commonwealth Games

November 9th, 2017

Cairns is set to host the Commonwealth Games basketball heats in April 2018.

During the month of November the Queensland Government is offering free mentor chats with experienced business mentors to businesses operating in Queensland to discuss how businesses can make the most of the opportunities presented by the Commonwealth Games. More information and tips are available on the Queensland Government webpage.

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