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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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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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It’s not just the purchase price – costs to consider when buying a house

January 10th, 2019

One of the most important questions for buyers to ask when considering purchasing a house is – can I afford it?

When purchasing a property and planning your budget, it is more than just the purchase price that you should anticipate.

You should keep in mind the following costs:

  1. Transfer duty (stamp duty)

If you are buying a property for the first time, or buying a property to live in, there are concessions available for transfer duty.  However, in many instances duty will be payable on the transaction and it is not cheap!

You can calculate a cost estimate of how much duty you will need to pay using the online calculator from the Office of State Revenue.  This will tell you how much you should be setting aside.

The calculator can be accessed here.

  1. Bank fees and charges

It is common for banks to approve a loan and then take their fees from the amount of the loan.  This means the amount they will actually provide for you to purchase the property, may be less than the amount you have been approved for.

Loan fees vary from bank to bank and can depend a lot on what type of loan you are taking out.  You should ask up front for an estimate of the bank fees associated with the loan to make sure you have enough to cover all the costs at settlement.

You may also be required to pay for a valuation for the property.  In some instances your bank may require a valuation to decide whether they will lend you money for the purchase and how much they are willing to provide.

  1. Land registry fees

The Queensland Government charges a fee (which changes based on purchase price) to register the change of ownership of a property and to register a mortgage.  This fee is paid by the buyer so don’t forget to factor this in to your budget as well.

You can calculate the lodgement fees here.

  1. Adjustments

Usually in a conveyancing matter, the outgoings for the property, such as council rates, body corporate levies, rent and water usage, are apportioned at settlement.  For outgoings already paid, this means the buyer makes a further payment to the seller (by way of an adjustment at settlement) to cover their share of costs.

Depending on the time of year you are purchasing and the particular outgoings, this could add a few hundred dollars to the overall amount required for settlement.

  1. Insurance

Under most contracts, the risk in the property passes to the buyer from the day after the contract is entered into, not when settlement actually happens.  This means that buyers need to take out insurance as soon as the contract is signed, not when it’s time to move in.

This is another upfront cost that is important to remember.

  1. Legal fees

We always recommend that you engage a lawyer to assist you with the conveyancing process.  While this is an additional cost, buying a house is often the biggest financial investment you will make in your life, so it pays to engage a professional to assist you through the process, so it is done right.

At Miller Harris Lawyers we have an experienced property law team that can assist you with the conveyancing process.  Please feel free to contact us for further information.

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BIF Legislation has commenced!

December 20th, 2018

A reminder that chapter 3 and chapter 4 of the Building Industry Fairness Act 2017 (“BIF”) commenced on 17 December 2018.  BIF now applies to all payment claims for construction work, regardless of the contract date.  BCIPA only applies to claims made before 17 December 2018.

Key changes:

  1. No requirement to include the words “This is a Payment Claim under the… Act”; an invoice or a ‘request for payment’ which describes the construction work and states the amount sought will be a valid payment claim.
  2. A respondent who receives a payment claim must either:
    • pay the claim in full by the due date; or
    • issue a payment schedule by the due date.
  1. A fine may be imposed for a failure to respond or pay.
  2. No ‘second chance’ to issue a payment schedule.
  3. New time limits for payment schedules and adjudication applications.

A snapshot of the important timeframes:

Payment schedule

Payment due date

The earlier of the period in the contract or 25 business days.

As provided for in the contract[1] or 25 business days.

Adjudication application 1. Payment schedule less than payment claim:  30 business days from payment schedule.
2. No payment schedule: 30 business days from the later of payment due date or payment schedule due date.

3. Failure to pay full amount scheduled: 20 business days after due date.

Particularly around the Christmas period, take care to calculate your dates correctly by checking your contract and the definitions of a business day in BIF.

For further details or assistance with giving or responding to a payment claim, or making or responding to an adjudication application, please contact our Senior Associate, Rowan Wilson on 4036 9700.

[1] Caution : A provision in a construction management trade contract or subcontract providing for payment of a progress payment later than 25 business days (QBCC Act 67U), or a provision in a commercial building contract providing for payment of a progress payment later than 15 business days (QBCC Act 67W) will be void, making the due date for payment under BIF 10 business days.

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Exclusive use areas in community titles schemes

December 13th, 2018

We have seen a few examples recently of buyers not being aware of the truth about garden areas, balconies and the like which are exclusive use areas associated with their unit or townhouse.  Areas such as these are often overlooked in the negotiation of the sale, or worse still, the buyer assumes that they are included or is given incorrect information by the real estate agent.  They can have a big impact on the use and enjoyment of the property, and its value.

What is an exclusive use area?

An exclusive use area is a part of the common property of the community titles scheme which has been designated for the exclusive use of the owners and occupiers of a particular lot, through the by-laws of the scheme.  The by-laws will usually specify which lot has the benefit of the area, for what purpose, and any conditions or other requirements which apply to the use.  Examples of areas which are often the subject of exclusive use by-laws are:

  • car parks;
  • courtyards;
  • gardens;
  • balconies or patios; and
  • roof top areas.

Such areas are not always exclusive use areas – often they will be “on title”, and form part of the legal, freehold title to the lot.

How do I know whether an area is an exclusive use area, part of the lot, or neither?

You cannot tell, either from a title search of the property or from a physical inspection of the property what areas are included on the title, what areas are exclusive use, and what are just general common property.  It is not uncommon for an area of yard to be fenced off for a particular unit, or even for a deck to be built over it, but with the owner having no legal title or exclusive use of the area.

The only way to know what areas are included in the title to the lot, and what areas are exclusive use for the lot, is to obtain a copy of the registered survey plan and community management statement.  The survey plan will show where the boundaries of the lot are.  The plan may show that the lot is made up of several areas in different parts of the building – such as the residential unit on one level and a car park on another.  The community management statement contains the by-laws for the scheme.  If there are any exclusive use areas, they will be recorded here, in a by-law and on a plan showing the location and boundaries of the area.

Is exclusive use as good as the area being part of the lot?

No, not quite.  An owner of a lot with an exclusive use area does have the right to stop others from using the area, and the exclusive use right cannot be taken off them without their written consent, so it is quite secure, but it is not the same as owning the area.  Here are some of the advantages and disadvantages of exclusive use compared to legal title:

Advantages: 

  • Flexibility – provided the body corporate is co-operative, it is relatively easy to change the size or shape of an exclusive use area, or to transfer it to another owner or swap areas with another owner in the complex (particularly handy in the case of underground car parks).
  • Easy to create – new exclusive use areas can be created and allocated without having to mess around with the title to the lot or pay stamp duty.

Disadvantages: 

  • You do not own it – The area is still common property and still owned by the body corporate, so you will normally need permission from the body corporate to make any substantial changes or improvements – such as installing a storage shed or swimming pool in a yard.
  • You can only use it for the purpose for which it was granted – car parks can only be used as car parks and not for storage or building a shed. Private yards can only be used as yard, and not for adding another room to the villa.
  • You still have to maintain it – ultimately your rights will depend on what the relevant by-law says, but in most cases the person who has the exclusive use of an area is also obliged to maintain it. That will include an obligation to maintain gardens, trees, walls, decks and pergolas etc in the area.

What can go wrong?

As mentioned above, exclusive use rights are quite secure, so the main area where things can go wrong is where the reality of them does not match up with a buyer’s (or owner’s) intentions and expectations.  For example:

  • Is a fenced off yard around a unit or townhouse actually exclusive use for that unit or townhouse?
  • Is the car park being used by the seller the correct car park allocated to the unit? Sometimes car park numbers do not correctly correlate to the exclusive use allocations in the by-laws.
  • Is that nice, big garden around the unit exclusive use for the unit, or can anyone use it? If it is exclusive use, are you prepared to maintain it (including any large trees), or do you expect the body corporate to do so?
  • If you want to put a pool, shed or garage in the yard, can you do this, or will you need body corporate permission?

Not having exclusive use of an area which you thought would be included can adversely impact on your ability to use and enjoy the area, as well as the privacy of your lot, and ultimately its value.  On the other hand, being saddled with the care and maintenance of an exclusive use area which you do not really need can be an unwanted burden.

There is nothing in the standard contract used for community title lots which identifies whether there are any exclusive use areas allocated to the lot, or the extent of them.  At Miller Harris, we always do a search of the survey plan and community management statement to identify exclusive use areas.  Some other lawyers do not.  However, even if the searches are done, a lawyer is not going to know what you expect to be included unless you tell them, and it can be difficult to terminate a contract due to an unmet expectation with regard to exclusive use areas, except in very clear cases.  It is better to check them out and get it right before the contract is signed.

What should buyers do?

The old principle of “buyer beware” applies, so:

  • ask questions of the selling agent about what is included in the lot, and any exclusive use areas, when you inspect the property;
  • be aware that agents do not always get it right, so ask to see the plan and community management statement, or better still, get your solicitor to check these out before you sign;
  • if you have specific plans for the property, such as making extensions or additions to it, discuss these with your solicitor before you sign; and
  • even if you have already signed a contract, tell your solicitor if you expect any exclusive use areas to be included with the lot, especially if they were important to your decision to buy the property.

If you are looking at purchasing a unit or townhouse and need advice about exclusive use areas please contact Nigel Hales, Accredited Property Law Specialist and partner at Miller Harris Lawyers on 4036 9700.

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Self managed super funds – not just another trust

December 4th, 2018

Self managed superannuation funds (“SMSF”) have become quite popular investment vehicles in recent years.  It is, however, important to remember that they are not a “set and forget” investment, nor are they like other investments or even other trusts such as family discretionary trusts. The superannuation legislation imposes stringent restrictions on what a SMSF can and cannot do, and also requires a much higher degree of record keeping, auditing and reporting than other forms of trusts.  It is important that trustees of SMSFs keep on top of these obligations and seek professional support to ensure compliance with them.

A recent example of SMSFs trustees not paying any regard to his obligations, essentially treating the SMSFs as his own (or at least as being a financial resource for his family), and coming spectacularly undone as a result is the case of Hart v Commissioner of Taxation.  That case involved a review of a decision by the Commissioner to disqualify Mr Hart from acting as a trustee, investment manager, custodian or officer of a trustee of a superannuation entity. The Commissioner was alerted to the issues by the fund’s auditor issuing a contravention report to the Commission in relation to one aspect of the SMSFs conduct.  The list of the contraventions of the superannuation legislation which were alleged by the Commissioner, and upheld by the Administrative Appeals Tribunal, were extensive and included:

  • failure to lodge annual tax returns for four years;
  • mixing super assets with personal assets;
  • transferring a property from related parties in circumstances where it was not permitted;
  • transferring the property at less than market value;
  • failing to register the property in the name of the trustee;
  • transferring the property subject to an existing mortgage;
  • making several cash payments to super fund members;
  • granting a rent free lease over the property to a related entity;
  • a dodgy investment in an overseas company, related to the tax payer;
  • providing money to allow a related entity to build a shed on the property;
  • the fund ceasing to be a SMSF because it at one stage had five members, when only four are permitted;
  • failing to ensure that the SMSF had the sole purpose of providing retirement benefits to members.

The tribunal found that the breaches were established, and the Commissioner’s decision to disqualify Mr Hart was correct.  We shudder to think what the tax implications of all this might have been, but it no doubt involved reassessments of tax payable by the fund and by the beneficiaries of it, with significant additional tax, and probably penalties payable.

The lesson to heed from this is that if you have a SMSF, do not treat it like your own money, or even like any other trust, ensure that your accountants are on top of the reporting requirements, and seek advice before you enter into any significant transactions, even if (or perhaps especially if) they are only “in house” transactions with related parties.

For more information, speak with our SMSF legal expert Nigel Hales.

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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 solicitor Rochelle Ryan on 07 4036 9700.

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What rights do grandparents have with respect to their grandchildren?

November 9th, 2018

Parenting matters under the Family Law Act focus on the principal consideration of ‘what is in the best interests of the child’.  The Act facilitates children having a meaningful relationship with both parents and other significant persons in their lives, such as grandparents.

The relationship between a grandparent and a grandchild is precious.  It is not uncommon for grandparents to experience difficulty in spending time with their grandchildren after parents separate.  This can be made more painful where the grandparents have spent significant time with the child prior to separation.

Grandparents are able institute court proceedings to seek orders that their grandchild spend time with them.  The court will focus on whether making orders for the child to spend time with their grandparents is in the best interests of the child.  In making this decision the court will consider a variety of factors including:

  1. the time the child has previously spent with their grandparents;
  2. the relationship between the child and their grandparents;
  3. the practicality of the child spending time with the grandparents;
  4. whether the parents are opposed to the child spending time with the grandparents; and
  5. whether the relationship between the parents and grandparents is such that it is likely to have a negative impact on the child if contact is ordered.

If you would like more information on your right as a grandparent to spend time with your grandchild, contact our expert Cairns family lawyers to find out how we can help you.

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New decision sheds light on international child abduction/ relocation

November 2nd, 2018

A recent decision of the Full Court of the Family Court of Australia has examined the application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), in the context of a child being abducted or unilaterally relocated from another country to Australia.

By way of background, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is the mechanism by which Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction are enforced.

The case concerned a young boy who was born in the Ukraine in April 2009.  The child’s mother was a Ukraine Citizen and the father was an Australian Citizen.  The child grew up in the Ukraine with both parents until they separated in late 2015/early 2016.  The child then lived with his father in the Ukraine until September 2016 when the father relocated the child to Australia, without the mother’s consent.

There were various unsuccessful attempts by the mother, including with the assistance of police, to recover the child from the father while the child was living in the Ukraine. When the mother realised that the child had been relocated/abducted to Australia, she approached local agencies within the Ukraine seeking assistance to have the child returned.  Eventually in September 2017, the Ukraine Central Authority applied to the Commonwealth Central Authority in Australia seeking a return order be made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  An application for the child’s return was subsequently filed by the Commonwealth Central Authority in Australia in December 2017.

The case focused centrally around the application of Regulation 16 which provides that,  if the application for the return of the child is made more than one year after the child was relocated, the court must make the relocation order, provided that the court is satisfied that the child has not settled into his or her new environment, and no other exception applies.

In these proceedings, the application was filed more than one year after the child’s abduction/relocation.  The father established that the child had settled into his environment in Australia and this was not challenged on appeal.  The Full Court of the Family Court of Australia held that in circumstances where the application is filed more than one year after the relocation/abduction and it is established that the child has settled into their new environment, the court must refuse to make the return order and that there is no discretion for the court to order the return of the child in those circumstances.

Importantly, the law is different with respect to applications filed within one year of the abduction/relocation, and the court is not required to satisfy itself that the child has not settled into his or her environment.  The outcome of this decision may have been different, had the application been filed within one year of the abduction/relocation.  This case serves as a timely reminder of the importance of filing an application with the court urgently after the unilateral relocation or abduction of a child.

If you require legal assistance with your family law matter, please do not hesitate to contact me to discuss your situation.

 

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The proposed overhaul of the Australian Family Law System – What is on the table?

October 30th, 2018

When it comes to family law in Australia, much change is on the horizon.  On 2 October 2018, the Australian Law Reform Commission (“ALRC”) released its discussion paper (DP 86) which raises some significant changes being contemplated to the Australian family law system.  The discussion paper is a result of an extensive review by the ALRC which commenced on 1 October 2017.

124 proposals for change are made, and 33 questions are asked about the Australian family law system.  Some of the proposed changes remedy what many agree are obvious deficiencies in the current system.  Other proposals will no doubt draw extensive comment from the community and the professionals who work in this sphere.

For example, the rollout of a national education and awareness campaign regarding the family law system (Proposal 2-1) and the establishment of Families Hubs where people can access advice and support services (Proposal 4-3) should greatly assist the masses of people navigating the system each year.  This in turn will hopefully alleviate some of the current pressures on the Family Law Courts.

Substantial redrafting of the Family Law Act 1975 (Cth) and other legislation is proposed to simplify that legislation and increase readability (Proposal 3-1).  In an area of law with a significant number of self‑represented litigants, such a proposal may be seen as worthy of further consideration.

The current “best interests test” in parenting matters is proposed to be reframed as “safety and best interests” which is in line with the primary considerations set out in the current legislation (Proposal 3-3).  Changes are also proposed to the way in which Judges assess what orders or parenting arrangements are in a child’s best interests (Proposal 3-5).

The current requirement to attempt family dispute resolution prior to commencing court proceedings regarding children’s matters is proposed to extend to property and financial matters, with specific exceptions (Proposal 5-3).  This is consistent with current best practise guidelines and, in the writer’s experience, the reality of most property matters.

“Specialist court pathways” are proposed including a simplified small property claims process, a specialist family violence list and the Indigenous List (Proposal 6-3).  A “post-order parenting support service” is also contemplated (Proposal 6-9).

The creation of a “children’s advocate” (Proposal 7-8) and the requirement to give a child the subject of Court proceedings the opportunity to express their views (Proposal 7-3) are two proposals which could reasonably be expected to draw support from a large sector of the community, particularly those who have experienced such litigation firsthand.  A children’s advocate would be a social science professional with expertise working with children who would, amongst other things, assist the child in expressing their views (should they wish to do so), keep the child informed about the proceedings and explain any decisions made (Proposal 7-8).

Following the discussion paper, the ALRC will prepare a final report recommending reform of the Australian Family Law System by 31 March 2019.  Read the discussion paper here.  To make a submission email info@alrc.gov.au.

For more information about the family law reforms or any other family law issues, please contact a member of our family law team.

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