I am routinely asked what rules apply to the use of married and maiden names following separation. Interestingly, around half of separated women choose to revert to their maiden name at some stage following separation.

There is often some very good reasons for retaining your married name. These include maintaining professional reputation, and the benefit of being known by the same name as your children. Obviously, in some instances there is a desire to distance yourself from a previous relationship, or establish a new-found independence by reverting to a maiden name. I am unaware of any case where a party has been prevented from the ongoing use of their married name by injunction, and I query whether a Court would find jurisdiction to make such an Order. Ultimately the decision is a personal one.

Technically, as a married woman you have a right to be known by both names, you only `lose’ the right to revert to your maiden name, if there was a need to change your name by formal registration (often called `deed poll’) in order to effect the change (something routinely required where marriage has taken place overseas). A formal name change will be required in that instance to revert to your maiden name.

Where you have simply assumed your married name (which occurs in the majority of cases), you can revert to your maiden name prior to divorce with the use of your birth certificate and marriage certificate (documents which effectively establish the origin of the previous name change and the basis for the reversion). There may be some institutions that will require a divorce order before facilitating any change, but the Australian Passports Office, Medicare and Queensland Transport will not require proof of divorce. As three core identifying documents, most other institutions will thereafter alter your name on their records upon production of your passport, drivers licence or medicare card (or alternatively simply your birth certificate).

Extracts from your birth and marriage registration can be requested from your local Magistrates Court (who in turn will liaise with the Registry of Births, Deaths and Marriages). To notify each organisation of your name change, simply call them or go to each institutions website in order to determine what is required by the agency. If documents are to be lodged by post or fax, please ensure that copies of your original documentation are certified by a Justice of the Peace or Legal Practitioner.

If you have any queries about your individual set of circumstances, contact our team of expert Toowoomba divorce lawyers for a free, no-obligation discussion.

Immunising a child is often a very personal, and for some, a very difficult decision. The Family Law Courts are routinely faced with parental dispute around whether a child should be immunised against some or all of the diseases the subject of the National Immunisation Schedule. This dispute, like any other pertaining to a child in this jurisdiction, is to be determined in accordance with the best interests of the subject child.

The nature in which a child has been parented, and decisions made early in the child’s life, may bear upon the attitude taken to a parent that is now voicing an objection to immunisation.

In many instances these cases have involved detailed evidence from a range of health practitioners, often culminating in the need for a Court to assess the risk to a child of immunisation as opposed to the risk of not immunising a child (both to that child and any children reasonably affected by the failure to immunise).

In many instances the birth of a new half-sibling will prompt an insistence upon immunisation.

In a number of cases the Court has heard from specialists in homeopathic and natural medicine in considering the evidence of Immunologists. The Court has previously allowed for testing to determine natural immunity before imposing immunisation in some instances. Similarly, where concerns arise for a parent in the imposition of multiple immunisations on one day, the Court has allowed for some restructuring of same, assuming there is credible medical evidence to support such an approach.

Similarly, and whilst making no findings as to the benefit of same, the Court has indicated a willingness to allow a parent to couch immunisation dates in care from alternative health practitioners, including chiropractic and naturopathic care. Where immunisations have been rendered medically invalid by the child’s age, the Court will similarly show a preference for avoiding unnecessary medical intervention.

There appears to be a very genuine concern from the bench in relation to the risk of an adverse reaction in a child, the understandable fears of a parent and the repercussions of such an adverse reaction for a family. This risk though has been considered in many instances to be outweighed by the risk posed by the failure to immunise. A brief survey of the published decisions relevant to this issue reflects a clear preference for immunisation, but a willingness to consider each case on its own unique facts. The most important consideration in preparing your opposition to immunisation is to ensure that your concerns and proposed orders are premised in valid medical evidence.

A relocation dispute in the context of parental separation, is often one of the most painful areas of litigation. Almost consistently both parents are committed, and loving parents, whom simply are pulled by life and circumstance in two very disparate geographic directions. Whether it is to another town, state or country, relocation can have profound effects on all parties involved, including most importantly a child. In 2005 the Standing Committee on Legal and Constitutional Affairs tabled a report on changes to the Family Law Act. The report, entitled Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 dealt with many issues, one issue of considerable concern was relocation. Chief Justice Bryant gave evidence before the committee, where her Honour noted:
Relocation cases are the hardest cases that the court does, unquestionably. If you read the judgments, in almost every judgment at first instance and by the full court you will see the comment that these cases are heart-wrenching, they are difficult and they do not allow for an easy answer. Internationally, they pose exactly the same problems as they pose in Australia. I have heard them described as cases which pose a dilemma rather than a problem: a problem can be solved: a dilemma is insoluble
What is Relocation?
Many parents following a separation will move to another town, city or even country  There is very little restriction, per se, on the rights of an adult to live where they choose. A `relocation’ dispute emerges where the relocating parent believes that the child of the relationship is best placed with them in the new location, and the other parent disagrees. Whilst often referred to as a specific category of case, the Family Law Act (the Act) does not specifically address relocation as a concept. Accordingly, relocation is dealt with under the general principles guiding the resolution of parenting matters in the Act.

Despite the specific proposals of the parties, the Court is at liberty to consider any arrangement for the child assuming that, on the evidence available, the outcome is in the best interests of a child and reasonably practicable. Whilst a Court cannot necessarily require a parent to remain living in a specific location, in many respects the Court will engineer such an outcome by refusing permission for a child to live with the relocating parent should they move away.

Going to Court

If one parent wishes to relocate with a child and both parties cannot come to an agreement, the court will ultimately have to make a decision in regards to the child’s living arrangements. Like any parenting dispute, the Court will be required to make findings relevant to what proposal most aptly accommodates the best interests of a child.

We strongly recommend that you give due consideration to the following issues in the context of mediation before proceedings are initiated:

Is there a way of maintaining the current significance of time spent between residences in the context of the change in residential location of one parent ?
Could the `left behind’ parent potentially consider relocation with the other parent and child ?
What impact will any change having upon the child ?
 Is it realistic for the child to potentially live with the parent not relocating?
 Is the child of an age where they have specific wishes which should be afforded weight ?
What are the reasons for the parent wanting the move ?
What is proposed by way of a new school, and living arrangements ?
Is there potential for an agreement to a short term relocation ?
How can the difficulty and expense of travel between new residential locations be mitigated, and will the cost prohibit time ?
How strong is the relationship between the child and each parent now ?
What capacity will the child have to communicate by electronic means, including telephone, messaging, and skype ?
What attitude have both parents taken to the facilitation of time and meeting the responsibilities of parenthood in the past ?
Is it reasonably practicable to require a parent to remain living where they are ?  Will they emotionally and financially be able to cope ?

It is our experience that where parents have positively facilitated each other’s relationship with the child in the past, permission to relocate a child is more likely. The Court is likely to have significant concern as to the capacity of a parent to facilitate a relationship whilst living a significant distance apart from each other, if the relationship has not been promoted whilst living in the same town.

The High Court has ruled that in addition to considering whether an outcome would be in the best interests of a child, the Court must consider whether it is reasonably practicable to require a parent to remain living with a child in a location against their wishes.  In considering issues of practicability, the High Court pointed to some of the considerations set out above, such as the availability of affordable and appropriate housing, employment and family support, as well as the impact of an Order to remain in the location upon the emotional and mental health and wellbeing of each of the parents.

Seek Legal Advice

Relocation cases are particularly difficult and given their complexity representation is often essential. Best Wilson Buckley Family Law can act on your behalf if you wish to negotiate your relocation, or if you wish to seek the residence of a child where the other parent is moving away.

Call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or Best Wilson Buckley Family Law Brisbane on (07) 3210 0281.

By Stephanie Wilkinson
A recent Federal Circuit Court of Australia decision has highlighted an area of the Family Law Act that few outside the family law fraternity know about, the liability for childbirth maintenance. 
Childbirth Maintenance

Section 67B of the Family Law Act outlines that the father of a child who is not married to the child’s mother is liable to make a proper contribution towards:

The maintenance of the mother for the childbirth maintenance period;
The reasonable medical expenses incurred in relation to the pregnancy and birth of the child; and
Any expenses in regard to the death of the child or mother if death occurs as a result of the birth or pregnancy.

Childbirth Maintenance Period

The Family Law Act provides that the maintenance period will always cease 3 months after the birth of the child and will always begin on the day 2 months prior to the date that the child is due. This period may be extended if:

The mother is employed; and
The mother is advised by a medical practitioner that she should cease working for medical reasons directly related to the pregnancy; and
The mother stops work prior to two months before the child is due.

Should these three conditions be met, the maintenance period will begin on the day the mother ceases work.

Proper Contribution

In proceedings for childbirth maintenance, a court will have regard to:

The income, earning capacity, and property and financial resources of both the mother and father of the child;
Commitments of the mother and father that are necessary in order to support themselves or any other child or person to whom they have a duty to maintain;
Special circumstances of the parties that, if ignored, would cause injustice to any person.

When taking into account the first bullet point, the court will disregard any entitlements a mother may have to a pension, allowance or benefit. This is particularly relevant in the example below.

Practical Example

Abrahams v Simm [2014] FCCA 67 was a recent case before the Federal Circuit Court of Australia that dealt with a childbirth maintenance application.

In this application, the Mother sought the sum of $27,061, which comprised of $15,610 for maintenance during the childbirth maintenance period, and $11,451 in regards to the reasonable medial expenses of the pregnancy and birth.

In his decision, Judge Neville excluded some of the claimed medical expenses, such as the expense for a Doula birthing partner and a settling swing. Judge Neville also partially excluded some of the claim for private health insurance cover. Judge Neville also excluded the “Baby Bonus” of $5,000 from being considered a financial resource of the mother for the purpose of assessment, as it is an allowance or benefit. The Father had also already paid a sum of $3200 by way of financial support.

Ultimately the court conceded that as a general proposition, the Father should be responsible for half of the costs and expenses. Taking into account the income, earning capacity and financial resources of both parties it was ordered that the Father was to pay $7,000 in relation to the maintenance of the Mother for the childbirth maintenance period, and a further $7,000 for reasonable medical expenses incurred as a result of the pregnancy and birth of the child.

Looking for Help?

The general principles in Abrahams v Simm should be thoroughly considered, however their implementation should not be considered typical. Personal circumstances weight heavily in a courts decision, and also in an individuals choice to mediate or litigate. The best person to advise you on how your personal circumstances and the law intersect is a lawyer.

Best Wilson Buckley Family Law can provide you with current and relevant legal advice, taking into account your personal circumstances and the courts probable decision. For assistance, call Best Wilson Buckley Family Law on (07) 4639 0000 for our Toowoomba Office, or (07) 3210 0281 for our Brisbane Offices.

By Kara Best

Registering Your Relationship

A registered relationship is a legally recognised relationship between 2 adult individuals in Queensland. A registered relationship is normally considered when marriage is undesirable or unavailable, such as where a couple is opposed to marriage, or of the same-sex.

A registered relationship completely replaces the previous provision for a civil partnership under the Civil Partnerships Act. Any leftover references to civil partnerships or civil partners in Acts or documents are taken to be a reference to a registered relationship or partner, context permitting.

Requirements

To register a relationship, both partners must:
1. Not be married,
2. No be in another registered relationship,
3. Not be in a prohibited relationship (such as a relationship with a lineal ancestor),

And at least one of the proposed partners must:
1. Be living in Queensland at least six months prior to the application.

Registration takes place through the Department of Justice’s Registry of Births, Deaths and Marriages. There is no fee associated with registering your relationship, however a fee is charged if a relationship certificate is requested.

Once the registrar receives an application, they must hold the application for 10 days prior to lodging and registering the application. This in referred to as the registration period.

Important Changes

A registered relationship not only provides state recognition and approval to a relationship, but it also provides certain changes to the legal status of both partners.

It is important that prior to registering a relationship, both parties seek legal advice. Parties to a registered relationship are treated as spouses, and as such registration impacts areas such as:

• Property Law
• Payroll Tax
• Personal Injury
• Guardianship
• Succession and Intestacy

As such it is important that both parties seek to be informed of their new legal status and how it might impact their current situation.

Child support is the means by which money changes hands relative to the financial needs of a child. In some instances it is determined by agreement between separated parents, more often by application of a child support formulae administered by the Child Support Agency (“CSA”) (which is within the Federal Department of Human Services) and very occasionally by Order of the Court. 

A recent article by the Courier Mail highlights however that nationally more than a billion dollars is owed in child support payments, $287 million of which is owed by Queenslanders.

There is a clear means by which an assessment made by the Agency can be challenged if premised on incorrect information. Accordingly if no challenge is made, or the assessment upheld after a challenge, then the presumption is that the support is properly payable and any failure to pay is deliberate and actionable. 

The Federal Government, through the Department of Human Services, can enforce payments in a variety of ways.  Some of these methords include:

Employer Deductions The Department can ask employers to make employer deductions from an employees pay to account for money owed. In these situations the employer will make child support deductions directly from a parents pay to the Department.
Taxation Deductions  All child support parents are required to lodge a tax return unless they are exempt by the Australian Taxation Office (ATO). This allows the ATO to update the Department of Human Services on each parent’s income, and ensure that his or her assessments are correct. Furthermore, the ATO advises the Department before paying out a tax refund to eligible child support parents. The Department may take this refund to meet outstanding support payments. By intercepting tax refunds $116 million in owed payments were recovered  by the Agency in 2013.
Travel Restrictions.   The Department of Human Services is able to issue a Departure Prohibition Order against parents that are planning on travelling outside of Australia, have outstanding child support payments owed, and are refusing to make those payments. This order prohibits the person from leaving Australia until the order is lifted. The order is lifted once the overdue child support is paid, or a satisfactory payment plan has been arranged. Such an order does not require court approval to issue. Last year $7 million in outstanding child support was paid due to Departure Prohibition Orders.
Court Related Remedies.  As a last resort, the Department can seek a court order to collect outstanding payments. Last year $4 million worth of property was seized as a result of court orders.  The Department may also initiate criminal proceedings where there is evidence of criminal fraud, or other criminal activities by one parent in relation to child support payments.

Human Services Minster Marise Payne has stressed that in a most cases parents do the right thing by their children and pay what is required of them but that reminds Australian parents that “It’s not acceptable for parents to actively avoid their child support responsibilities. There are no winners and often it is their own children who suffer as a result.”

Best Wilson Buckley Family Law is able to assist both liable and recipient parents in relation to difficulties with an Assessment,  enforcement of debt or the decision to reach an agreement outside of the formula. Contact our office in Toowoomba by phoning (07) 4639 0000 or Brisbane on (07) 3210 0281, or email us at [email protected].

By Kara Best

“It’s not about the content; it’s about the process”. This rather poignant remark was made by an expert psychologist, Mr. P in a recently reported decision of Justice Cronin in Delahunty & French [2013] FamCA 873.

Ultimately the sentiment was the foundation of his Honour’s decision in a highly conflicted parenting matter concerning a child aged 11 years.

The remark highlights that whilst the number of days enjoyed by a parent with a child may be in issue, in some cases what is more important to the wellbeing of the child is what they’re forced to endure and observe during those days.

His Honour commenced his judgment in the following terms:

Parallel parenting occurs for a child like 11 year old T (“the child”) when she lives in a divided world where her parents are involved in high conflict. In social science terms, the child contends with a split world and consequently, her psychological functioning is compromised. The expert psychologist, Mr P, says that, subject to a finding by the Court as to what is happening to and around the child, she lives in two worlds.
Absent some remedial relief, if the child gets to the point where she is unable to live in that split world, she is likely to reject one parent.
According to Mr P, some possible scenarios for the child are over-identification with a peer group which could be dramatically problematic depending with whom she mixes and the nature of the mentor relationship she seeks or in the alternative, she might just suffer the ongoing conflict. The latter generally leads to anxiety, depression, substance abuse. This is not the first time this dispute has been before the courts and although the apportioning of responsibility for the dilemma is superficially attractive, the reality is that not much has changed either for the child or the parents.
….
When questioned about the issue which seemed foremost in the parties’ minds and also that of the Independent Children’s Lawyer as to how many days should each parent care for the child, Mr P uttered the mantra which underpins my orders. That is: It’s not about the content ; it’s about the process. That is, the number of days may, but should not necessarily be, the issue but if the process of what happens to the child in those days is not addressed, the conflict will go on as will the split world.

Obviously, it is not uncommon for two parents following separation to resent, distrust or dislike each other. It is truly concerning however when that conflict spills over to significantly and negatively affect their children, whom they both care for and love.

The Court in Delahunty & French was told of many events where T was subjected to the intense conflict between both parents. The conflict constantly seemed to escalate, with each prior disagreement acting as a catalyst for the next. Conflict arose due to an overseas trip made without authorisation, arguments were had in front of the school principal, at birthdays, school concerts and more. The court also heard through the evidence of Mr. P of a school project written by T, that detailed the tragic story of a child trapped in a vicious conflict between parents.

His Honour found that no change to the orders in question were required, however a significant change needed to occur in the parents’ relationship with each other.

The orders of the court ultimately separated the parents from having contact with each other where possible. They also gave each parent full responsibility for both major long term and daily issues whilst in their respective care. The orders also made it clear that there shall be no contact between the child and the parent with whom the child is not living with at the time, unless the child organises it. Finally unless an emergency occurs, neither parent will communicate with each other until they agree in writing that they can be civil around the child.

Whilst the entirety of the orders are not detailed here, the general thrust of the orders is to separate the parents as much as possible, in an attempt to prevent conflict and repair the divided world of T.

It can be vitally important to the wellbeing of a child to consider not only the number of days that they will spend with a parent, but also how parents communicate with, and about, each other. Parents should also carefully consider the method in which care for a child is transferred, so as to minimise the potential of conflict and disruption to both parents and to the child.

Our team are routinely involved in matters such as that above where uncontained hostility will lead to a Court determining that the only means of protecting a child is to place that child with one parent, and limit any potential for conflict by limiting the other parent’s involvement in a child’s life. The gravity of such a decision often takes the parent facing such a loss by surprise. A parent can be responsible, appropriate and insightful, but if the Court is of the view that the parent cannot protect a child from the damaging impact of conflict, then a child will be protected often at the expense of one parent.

Obviously, very few parents would ever deliberately do anything which could lead to their child developing lifelong mental health difficulties and addictions. A situation like that faced by the child above is a very real example of where an inability to contain negative emotion about a former partner can, and in all likelihood will, lead to that very damage to often the most precious person to both parents.

So where is the help? If the conflict is uncontained consider seriously examining the following:

What role do I take in the conflict, and what can I do personally to address my role and responses to my former partner?
Can we commit to doing something therapeutically to address the communication problems? (There are a number of powerful post-separation counselling programs and couple focused counsellors. Let us know if you’d like some details)
What can we do in the interim to protect any chance of our child observing or being aware of that hostility?  Can we shift changeover to a mode that does not involve us meeting or talking in front of our child?
What outlet can we give our child whilst we’re trying to make things better? Again, consider agreeing to jointly approach your child’s school, or a suitable counsellor or organisation to seek some therapeutic outlet.

It is not easy, and any separated couple will attest to how hard they’ve worked to build a positive relationship. The same couples will also genuinely tell you how proud they are of that achievement and what they’ve done for their kids. Further details about the above programs is available from our Office.

It is commonly appreciated that parenting disputes in the Family Law Courts are to be determined in accordance with the `best interests’ of a child, but what does this mean ?

The Family Law Act sets out a myriad of considerations when contemplating this question. We are referred by the Act to two primary considerations, with greater weight to be applied to the need to protect a child from harm arising from abuse, neglect or family violence over the other primary consideration, namely the benefit to the child of having a meaningful relationship with both of the child’s parents.

Whilst there is an abundance of more complex case law about what these terms mean, in many instances both will be satisfied by the competing proposals of a party. Attention then turns to the `secondary considerations’ which are wide ranging and include any views expressed by the child, the nature of the child’s relationship with important people in their life, the previous commitment shown to the obligations of parenthood (including financial contributions), any effect upon a child of a proposed change, the capacity of important people to meet the child’s needs, and considerations of culture, maturity and age.

Obviously there are two people in an ideal position to decide how the above considerations should dictate how a child lives and spends his or her time, hence there is a strong focus on empowering parents to reach their own agreement after exploring these issues through mediation. But what happens when agreement is beyond reach ?

Before contemplating proceedings, I strongly recommend you consider having a family report prepared privately. Such a report is generally prepared by an experienced psychologist or social worker, whom meets with the members of each household and importantly the kids too. No pressure is placed on a child about their wishes, but rather techniques are employed that are focused on identifying what will work best for a child, and if views are expressed, how much weight can be applied to those wishes.

The family report writer will then make some recommendations in writing around his or her observations and potentially the best way forward, or specifically what is likely to be the best interests of each child. Whilst sometimes expensive, it remains that the insight and guidance of a specialist should logically be sought before more expensive court proceedings are started. Certainly, seeking expert or specialist opinion is likely to be the first port of call when a child is physically ill, so it makes sense when a child’s emotional wellbeing is at stake. When faced with a serious dispute, it is almost inevitable that a Court will direct the preparation of a report. This is another good reason to avoid the court pathway and instead initially explore some expert opinion.

The Hague Convention on the Civil Aspects of International Child Abduction is perhaps one of the most well known international agreements. The multilateral treaty allows for the expeditious return of a child where the child has been abducted by a parent.

A court in a country subject to the convention is required to disregard any dispute in regards to the merits of a child custody arrangement where abduction is alleged. Instead the court is required to determine only where the matter ought to be heard, and make orders to facilitate that hearing. The court order does not return the child to the other parent, but to the appropriate member country. This prevents, amongst other things, a parent from taking their child to another country in the hopes of obtaining a more favourable order from a foreign court.

The treaty relies heavily on its signatories in order to provide a safety net against abduction. As such, the recent signing and ratification of the convention by Japan is an important milestone. The convention will enter into force for Japan on the 1st of April 2014. Other recent signatories also include South Korea and Kazakhstan in 2013. Australia joined the convention in 1987.

Best Wilson Buckley Family Law can provide advice on all aspects of family law. We have acted previously for parties seeking the assistance of the Central Authority to recover a child from an overseas destination and those that are defending an application in Australia to return to another country. Call Best Wilson Buckley Family Law Toowoomba on (07) 4639 0000 or get in contact with Best Wilson Buckley Family Law Brisbane by calling (07) 3210 0281.

Following exhaustive client and peer research, the completely independent, Doyle’s Review, has found Best Wilson Buckley to be one of Queensland’s best law firms and both Kara Best and Reagan Wilson, recognised individually as being among the state’s leading family lawyers.

The research undertaken by Doyle’s Review is compiled on the back of extensive telephone and face to face interviews with clients, peers and relevant industry bodies.

Doyle’s go to great lengths to ensure their research is compiled on an independent basis. To avoid any potential conflict of interest between profitability and editorial independence they do not allow law firms, lawyers or barristers to advertise or engage in paid profiles or listings of any form.

The Family Court has previously held that if a party has made significant contributions that are over and above the norm due to the presence of a special skill, that settlement can reflect the difference in contributions and award that party a greater share of the assets. In a recent Full Court decision we are provided with a greater understanding of when and if these contributions are appropriate.

In the case of Kane & Kane, Mr Kane purchased $539,500 worth of shares, against the wishes of Mrs Kane. The shares experienced a rather significant success, and at the time of trial were worth $1.85 million, which brought the total of the couples superannuation fund to $3.4 million, and their total assets to $4.2 million.

Both Mr and Mrs Kane had agreed to split the $800,000 in other assets equally, however dispute arose over the distribution of the superannuation. Mr Kane argued that he was entitled to a greater portion of the fund due to his special contributions, namely his special skills in the selection and pursuit of the investment.

In the first instance, Mr Kane was awarded 2/3 of the superannuation fund which contained the extraordinary shares. However on appeal the Full Family Court of Australia found that there was no reason for such a significant award, and subsequently ordered for the case to be reheard before a new judge.

With regard to the special skills doctrine, Faulks DCJ states in his judgment:

“The Act does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments of the Full Court of this Court might be thought to have espoused such a principle in my opinion, they should no longer be regarded as binding.”

His Honour further stated that special skills are particularly difficult to determine due to external determinative factors. It was also mentioned that Mr Kane lacked any professional qualification or special knowledge in relation to the business in which he invested, he merely took a calculated risk that ultimately proved profitable.

Faulks DCJ makes particular mention in his judgment to a topic we at Best Wilson Buckley Family Law mentioned just recently, contributions by windfall and inheritances. His Honour maintains that in particular cases these may require specific and substantial acknowledgement as contributions. Contributions of such a nature are not affected by this judgment.

Following the successful appeal, a new judge will now hear the case. We await an indication of whether Mr Kane filed an application for leave to appeal to the High Court by the deadline in mid January 2014.

For a full explanation of contributions, including special contributions, you can contact family lawyers in Toowoomba for advice by calling (07) 4639 0000. Alternatively you may contact our Brisbane office by calling (07) 3210 0281.

Concern often arises around the weight given to past financial gifts or inheritances from family members when a decision is made to divide joint property.

In many cases, a couple are assisted significantly by money gifted for a house deposit, during difficult times or upon the birth of children. Similarly, one spouse may receive inherited funds. Certainly whilst the relationship remains on foot, these funds are routinely absorbed into joint finances and often spent on everyday expenses.

In the event of separation, it is not unusual for these gifts to suddenly be referred to as `loans’, repayable on demand but without the formality of any written documentation. This is often a calculated response, and it’s important to appreciate that the Court is unlikely to accept the suggestion of a loan in the absence of written agreement, and some evidence of repayment.

The law gives due recognition to these gifts by making an adjustment to the broader property pool in the favour of the spouse who has received the gift. This may not occur if there is evidence to suggest that the gift was to you both, or alternatively intended to compensate for some kindness, eg. Caring for an elderly parent in a family environment.

The nature and extent of the adjustment will depend upon the size of the gift relative to the broader property pool available for division, how long ago the gift was received, and what the gift was used for. It is fair to say that lump sum gifts or inheritances utilised for the acquisition of an asset, or payment of a specific debt is more traceable and more likely to attract a more definite adjustment.  Where funds are simply absorbed by a couple and spent on day to day expenses, it becomes more difficult to assert the significance of that gift some months later. Keeping good records is also important. Obviously in many instances the other spouse is likely to acknowledge the gift or inheritance, the benefit of the funds and the need for a corresponding adjustment.

If you wanting to gift funds to an adult child, but consider it important to ensure that the gift is recognised as one to your child personally, then consider drafting correspondence to accompany the gift which clearly states your intention.  If the funds are intended as a loan only then ensure that appropriate paperwork is drawn up, and a schedule of repayments entered into.

The summer holiday break is for many an opportune time to get away, relax and enjoy some time with your children.

Taking an overseas break with children can be a logistical nightmare at the best of times. But an overseas holiday can become particularly tricky when parenting orders are involved. When one parent wishes to take their child or children overseas, naturally the other parent will be concerned. Generally most concerns are twofold, firstly for the safety of the children, and secondly for the return of the children to Australia.

Ideally these concerns will be settled amicably in private mediations or negotiations, but ultimately if a parent refuses to agree to the trip, the other parent may apply for orders from the court.

The court will consider whether the trip is in the child’s best interest. It will consider the safety of the child, the destination/s involved in the holiday, and any risks of the child not returning to Australia.

Getting Overseas 

The Australian Passports Act requires that for a child to be issued a passport the Department of Foreign Affairs and Trade must have the written consent of all persons who have parental responsibility over the child. Should one parent refuse to provide the consent, the only other available option is to seek an order from the court.

If you are concerned about your child being taken overseas without your knowledge, and you have an existing parenting order that deals with the living arrangements of the child, you may apply for a PACE alert with the Australian Federal Police. This alert will register the child’s passport and prevent it from being used at any international departure point in Australia.

Need More Information? 

If you require advice in regards to enforcing a parenting order, or how going overseas will affect an existing order, contact Best Wilson Buckley Family Law on (07) 4639 0000.

A recent article in the Herald Sun highlights the important role that grandparents play in the raising of children.

But what happens if you separate?

Grandparents can still play a pivotal role in the care and wellbeing of their grandchildren, but that role can change significantly where parties cannot agree on how to effectively and amicably divide time spent with the children fairly.

Negotiation and mediation are always the best starting points, but sometimes negotiation breaks down, or is simply not possible. If this occurs it may be necessary to apply to the Court. Grandparents that are affected by a family breakdown often seek one of two types of orders.

An application to spend time and communicate with their grandchildren.
An application to obtain parenting orders.

The role of a grandparent is too often ignored, pushed to the side, or simply not fully appreciated. But the Court recognises the pivotal role they play in the development, positive growth and care of their grandchildren, and provides avenues in which to pursue this role.

If you are in need of advice in relation to parenting orders, know about the grandparent’s rights or spending time with your grandchild, please don’t hesitate to contact Best Wilson Buckley Family Law on  (07) 4639 0000.

The Team at Best Wilson Buckley Family Law will take a break from midday on Friday, 20 December, reopening at 8.30am on Monday, 6 January 2013.

Please note that should you be an existing client of Best Wilson Buckley Family Law and encounter the need for emergency legal assistance, you can reach a member of our team on 0428 FAMILY (326 459) during the closure period.

We would like to take this opportunity to wish you a safe, and happy festive period and New Year.

Independent Children’s Lawyers, or the ICL, as they’re routinely referred to are appointed in Family Law proceeding to represent the interests of a child or children. Their role is somewhat similar to Counsel assisting an inquiry, they are treated as a party, obliged to secure and file evidence and in most instances will provide a recommendation to the Court in relation to the appropriate Order to be made for a child. The Court is not bound by the submissions or recommendation of the ICL, but will take all evidence and argument under consideration before making a decision.

The ICL will:

At the outset of their appointment seek a significant amount of information from both the Mother and Father relevant to the child’s health, household, schooling, siblings and other matters of importance;
Sometimes ask for parties to undergo drug testing or attending upon a family report writer or psychiatrist to participate in an assessment process;
Sometimes ask to meet the children, particularly if they’re of a more mature age to explain their role and the process;
Subpoena various third parties to obtain relevant information, such as the Police Service, Department of Child Safety, Doctors, Schools and other professionals;
Be funded by Legal Aid in most instances, with parties asked to contribute if their financial means allow;
Participate in negotiations with a view to reaching an agreement about arrangements for a child moving forward, and for this reason must be copied into all communication;
Take steps to secure the wellbeing of a child pending a final hearing if that is necessary; and
In most instances be discharged when a final Order is made, and is sometimes asked to explain to a child the outcome of the court hearing.

An ICL won’t:

Necessarily be in a position to articulate a view, or recommendation to the Court, until after evidence is adduced by each of the parties at a trial;
Interview your child, or render themselves a witness in the proceedings. Any contact with a child is intended to facilitate the child’s access to information and an understanding of the process;
Engage therapeutically with a child;
In every instance, make recommendations that strictly accord with what a child wants;
Necessarily correspond with a self-represented party as often as that party may have wanted.

ICLs are appointed by Legal Aid to a panel and that appointment is routinely reviewed. The process is arduous, and requires any Applicant to establish that they have the requisite experience, skill and understanding to undertake this role. Kara Best holds a position on the panel at the current time. The nature of funding for ICLs necessarily means that remuneration is limited for the experienced solicitors undertaking this important role. At Best Wilson Buckley Family Law, we consider the work of Kara to be important work, and part of our commitment to charitable and pro bono need in our community.

“Warring couples bent on revenge are resorting to increasingly “ludicrous” stunts”, or so writes Ainsley Pavey in her recent article for News Limited.

There is often much amusement drawn by the media in general from the acts of bitterness and revenge that sometimes emerge from our clients. Countless movies have been made, and dinner party conversations stimulated by discussion of acts of vengeance. But what of the real cost and repercussions? Obviously, separations can hurt, the emotions are complex and sometimes the outlet of that emotion is limited and people do rash things. That said, there is generally always room for insight and a need to appreciate that the Court will take serious issue with acts of violence, vengeance and deliberate damage. Quite independently of the hurt, the damage to children and the financial loss, the credibility of the perpetrator will be irreparably compromised and the Court will generally take the attitude that any loss in value or waste brought about by the act will be considered property already received by the perpetrating party. So who really loses? Without doubt the party acting out of anger and without consideration, and the most vulnerable witnesses to these events, the kids. Often hurt, frustration and anger is dissipated by knowing where you stand legally, and having a therapeutic outlet. Assistance in both respects is readily available at a low cost in many instances, just speak up.

Judge Rules for Stepdad Over Grandmother in Child Custody Battle

The story of these three children is one of enormous tragedy, the first tragedy is the loss of their Mother in a car accident, the second and possibly the most avoidable tragedy is the inability of the remaining adults in their life to find a common ground. Judge Baumann made the following powerful observation in his final judgment:
These three children have suffered what, in many ways, is likely to be the hardest loss they will ever experience – the death of a loving and caring Mother. Surely all the adults in this complex family situation can begin to take steps to heal these rifts and all genuinely support these three children, as they deserve to be supported. If the adults cannot do so after this decision is made, the Court holds significant concerns for the emotional wellbeing and development of these special children.
Without doubt, the conflict between adults in the above case, and most cases, starts very early and is drawn from more than one event or emotion. In some cases, many of the grown-ups can rest in the knowledge that they have done everything to resolve the grown up issues, but that’s not always the case. Where the emotional stability and development of a child is in issue, the Court is increasingly asking adults to explain why they haven’t tried harder.

In order to ensure that you place yourself in the best position, consider completing a program devoted to better communication between you both, or alternatively one on one counselling with your former partner. It is rare to find a parent or carer that doesn’t love their child and want what’s best for them. That said, in many instances there is a difference of opinion as to what is best for a particular child. Whilst working on developing a common ground, consider collectively supporting a therapeutic program directed to supporting your child after separation.

The 14-year marriage of Rupert Murdoch and Wendi Deng has recently come to an amicable and peaceful end after Murdoch filed for divorce in June this year. Both parties agreed to a confidential settlement that was given court approval this week. The settlement will allow Murdoch and Deng to avoid the stress of litigation, and the public scrutiny that a trial would bring.

The settlement agreement includes arrangements for both parties’ significant financial affairs, and the custodial arrangements of their two daughters. Manhattan Supreme Court Justice Ellen Gesmer congratulated both parties on their amicable settlement, and wished them good luck in the future.

Both Murdoch and Deng were also subject to prenuptial agreements. In Australia such agreements are known as Binding Financial Agreements and they generally determine:

1. The assets and liabilities of each party prior to marriage.
2. Who is to retain the assets and liabilities obtained prior to marriage in the event of separation.
3. How property acquired during the relationship will be dealt with in the event of separation.
4. How inheritances, gifts and windfalls will be divided in the event of separation.

For a comprehensive guide on prenuptial agreements, check out one of our previous blogs here.

The team at Best Wilson Buckley Family Law are very excited to announce the appointment of both Rebecca Harding and Stephanie Wilkinson of our Office to the Board of the Family Law Practitioners Association of Queensland (“FLPAQ”).

Stephanie will represent the interests of regional members during the year to come, whilst Rebecca moves into her second year of service on the board in a general executive member capacity.   The Association is the preeminent representative body for family lawyers in Queensland, and the election of both Rebecca and Stephanie is both a great personal achievement, but also a very powerful reflection of the esteem with which they are held by their colleagues.  Congratulations Bec and Steph.

Collaborative Practice in South East Queensland continues to build momentum, no doubt partly due to the growing need for a less litigious, angry and disrespectful means of achieving property settlement.

The Toowoomba Practice Group is particularly strong, and we have recently published the enclosed brochure in an effort to make more in our community aware of the power of the collaborative process and the good things being achieved.

At Best Wilson Buckley Family Law, our Directors are trained collaborative professionals in providing the largest team of collaborative practitioners in this region. If you have a desire to explore the process please speak to one of the team, and consider providing one of the enclosed brochures to your former partner. Details of professionals that your former spouse or partner could attend upon are accessible here (http://www.qcl.org.au/)

Toowoomba and Surrounds Collaborative Practice Group Brochure