If you are reading this article, chances are you or someone you know, has a lot on their plate right now. You are likely to be the person coordinating and communicating with other family members, you’re likely to be fielding many phone calls and are in need of some clear tips about what needs to be done after someone passes away. For that reason we have compiled them here to help you as you navigate this process.
Determine if there is a will
What is important to determine first is if there is a will. Where there is no will, then the Court must appoint an administrator to deal with the deceased’s assets, usually the next of kin. 
If there is a will there’s usually one or two people named as Executors. The Executor has a key role in administering the deceased’s estate and applying for a Grant of Probate, if it is required. They will be responsible for organising the payment of the deceased’s debts and afterward, the distribution of assets according to the terms of the will. If you are not familiar with the contents of the will, it will set out the deceased’s wishes in relation to the distribution of the assets.
Related: Grant of Probate – who needs it?
Probate vs Letters of Administration  
What to do after someone dies – the legal process
Notify these people and organisations
Outside of a list of family and friends, there are a number of people and organisations that need to be notified of the deceased’s death. The Department of Human Services have put together a very helpful checklist that can be found here.
Before the funeral
While you are likely to already be in contact with a funeral director, it is wise to determine if there are any funds available to pay for the funeral. If the deceased belonged to a trade union, club, pensioner association or superannuation scheme they may have funeral benefits. If they were in receipt of Centrelink benefits, you may be eligible for a bereavement payment. Further, they may have also had a prepaid arrangement or funeral insurance policy which may be discovered via their bank account transaction history if you are not immediately aware if they have such a policy in place.
There may also be benefits to contribute to funeral expenses through private health, sickness or life insurance policies so it is worth investigating. Discovering if they belonged to any of these groups may prove very helpful and reduce some stress in the short-term.

Close Social Media accounts
Deactivating the social media accounts of the deceased can be a priority for many. Most platforms offer assistance via their ‘Help’ sections of the site but you will need the death to have been registered in the state where the deceased died.
Related: Australian Government – Births, Deaths and Marriages registry links
Facebook has the ability to ‘memorialise’ someone’s profile (allowing family and friends to share memories) or have it deleted if you can prove you are an immediate family member and have a verified account.
Look after yourself
Regardless of however involved you are in the process, it can be helpful to seek support from your GP. Now is a good time to tap into a professional support network even if you feel you are coping well. Lifeline and Beyond Blue have a range of services that you and others who are grieving can access at no cost and many are accessible 24 hours a day, 7 days a week.
How can a lawyer help in this process?
We give advice about whether a Grant of Probate or if Letters of Administration are needed. Sometimes working out the form of the application requires technical expertise, reading of the will and understanding the circumstances of the person who has died to make sure that the right person is making the application.
Probate forms are available online and sometimes people wish to fill these out themselves however the advantage of having a specialist to do this is that having someone to work through the process with you, reduces the stress and workload in what is an already difficult time. Additionally, there is often complexity that exists when it comes to the interpretation of a will, or if there are questions about who should be applying for probate or letters of administration, whether consent of any other person is required and we investigate whether any other searches need to be carried out.
In terms of assisting with estates generally, we give Executors advice about interpretation of the will as well as advice about any questions, issues or disputes that may arise with any of the beneficiaries. If required, we also assist by dealing with the asset distribution such as transferring of properties, closing bank accounts, transferring or selling shares and instructing accountants in relation to tax terms. We also advise executives on protecting against any risk and making sure they are protected from any possible liabilities.

The DDCS Wills and Estate planning team are highly experienced and specialise in helping people navigate difficult processes like these. To discuss your circumstances confidentially, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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Mistakes to avoid when separating
For most people going through a separation, it is their first time, so it is not unusual to have no idea of the process to follow. It can be difficult to know if you are making the right choices and what the consequences of your actions might be in terms of coming to a fair property settlement between you and your ex-partner. 
Separation is hard enough on its own, you do not want to add more to your plate by making some common mistakes that could have been easily avoided. Being aware of some of the ways that a separating couple can prepare themselves is the first step in the right direction.
In this article, we explore some of the common mistakes we have seen come up time and again in our time as family lawyers. We also explore how you can avoid making the same mistakes.
Mistake 1 – Delay seeing a family law specialist
For people considering a separation, one of the most important things to do first is to seek legal advice. Ideally, you should do this discreetly and it is possible to do this before you actually separate. This may mean you have to find a way of paying lawyers discreetly if you have joint bank accounts. The reason it is so important you seek legal advice before you actually separate is so your lawyer can advise you on everything you must take into consideration. 
A family lawyer will be able to give you an insight into crucial matters that you need to be aware of before you make a decision to separate. They will confidentially help you to prepare for what is ahead should you chose to separate. They will also be able to refer you to other appropriate  professionals to assist you during this difficult time. We may need to discuss the impact of separation on your safety and give you advice about the steps you may need to take to ensure yours and your children’s safety. 
When a client comes to us and indicates they are considering a separation we will go through with them all of the key issues about whether or not there should be a physical departure by either party from the home. This usually does not make a difference to the ultimate entitlement, but it can make a significant difference in how quickly a matter resolves. If parties are separated under the same roof there is often a common interest in achieving an earlier settlement.
Mistake 2 – Not having documentation
By coming to see a lawyer before deciding to separate, we can give you a significant checklist of all the information you need to bring to us at the time you do separate. This information can often be gathered discreetly. You are entitled to this information and there is nothing illegal about copying this type of information which is within the family home.
Examples of financial documents a lawyer might need from you:
Contracts of SaleLoan DocumentsBank BalancesCopies of WillsSuperannuation documentation 
Preparing sufficient documents that your lawyer will need, can help to move your settlement along much faster. A family lawyer will know, after speaking with you, what you do and don’t need.
Mistake 3 – Withdrawing of funds
Another mistake a lot of people make when separating is for one or both parties to access or redraw significant funds in a bank account. This is something you need to see a lawyer beforehand about, so they can give you advice and explain the risks. 
Be very careful about  clearing out bank accounts because there are emotional and tactical impacts of doing so. What you can do though is to make sure steps are in place to ensure that if you or the other party wish to do so, then accounts require both signatures before any major withdrawal.
It is also important not to go on a spending spree using joint funds prior to separating because doing so will bring about distrust and hurt making the way forward difficult for all parties. This can cause the settlement to drag on and cost both parties more in legal fees.
Additionally, what we have seen from many family law cases we have handled is that secretly withdrawing significant funds makes the separation process go from bad to worse. Speaking to your lawyer about what to do beforehand will provide you with reassurance about what will happen in terms of your funds. This peace of mind can be crucial to ease anxiety and prevent you from spending or withdrawing funds out of fear.
You want to go through your separation as smoothly and timely as possible and avoiding any unnecessary conflict along the way can help achieve this.

Mistake 4 – Not having records of other valuable assets
Where there are a lot of high-value assets in the family home such as jewellery, artwork or significant collectables, it is wise to take a numbered photographic inventory of each item. This is because one party might say the piece is worth significantly less than what the other person believes it is worth. If it is not catalogued it may be (accidentally or deliberately) omitted from the pool and therefore can fall off the radar in terms of being able to be valued for the purpose of settlement.
Aim to get records of insurance valuations to prove the value of certain goods. Valuations of valuables can help you to have a good inventory that will prove helpful in preparation for negotiation and settlement. From my experience, by providing a thorough inventory, you can move faster with your overall settlement.
Mistake 5 – Expectations about legal entitlements from a separation
There are a number of common misconceptions about property settlement outcomes in the community. Many people are told by family and friends that they should expect a certain outcome. Their understanding of what their legal entitlements are is often incorrect. While receiving well-meaning advice from friends and family, it is important to understand that each situation is different 
Individual factors of your matter are what will determine what you are entitled to. The age of any children you have, who has the responsibility of the children and the care arrangements all play a role in determining how the asset pool should be divided.
What you may not know about speaking with a family lawyer is that the first conversation we have is not about encouraging a separation. As family lawyers we are compelled, under the Family Law Act to do what we can to promote relationships being maintained. When people come to us who are considering separation, we have a duty to explore what we can do to help. 
We often help with recommendations for individual or relationship counsellors or other assistance. I personally hope that people who speak to us can manage to get their relationship back on track and I take a lot of joy if people can reconcile a strained relationship. A lot of people in the community go through counselling and manage to find their way back into a happy relationship. 
That being said, if a person decides to separate at some point, if they have sought specialist family law advice they are aware of what they need to think about and do before separating.
If you are thinking about separating or are going through a separation, taking the steps above will help you to get through the process as smoothly as possible. By avoiding these mistakes, the process becomes as straight forward as possible, ultimately saving you significant stress, money and time.

DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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The Family Court of Australia has experienced a 39% increase in urgent applications since COVID-19.
It is well documented that the Court is already stretched in terms of its resources however yesterday the Chief Justice, in his new practice direction, detailed that there is now in effect what is called ‘The COVID-19 List’ for family law matters that are urgent and directly linked to the pandemic. 
It will mean that where there are serious concerns about children’s safety or where parents are being denied time with their children, family violence or the breakdown of the children’s arrangements , all arising out of the pandemic, they will be able to get in front of a judicial officer quickly and have the matter dealt with.
What this new direction will mean, as the Chief Justice has said, is that he will be able to call on a judge that has availability, for example a Judge who is based in Cairns, and allocate them a matter that needs attention in Canberra. This is an excellent response to this sharp increase in applications.
This new direction has certain criteria. Firstly, there must be an obvious link to the issue having arisen as a direct result of the pandemic. Secondly, there must be urgency. Examples of urgency are that somebody is at risk, children have not been returned to who they should be living with, or there are major disputes about whether the children should or should not be going to school. Other urgent matters include border restrictions or medical related issues.
Other instances that can be considered urgent include where the current parenting arrangements involve supervised contact and the contact centre is closed or the supervisor is unable to be present. Further examples can be found on the Federal Circuit Court National COVID-19 List page.
These issues are not only for long term separated or divorced parents. We are currently seeing clients, some of whom were in intact relationships prior to this pandemic who find themselves in these significant disputes about matters such as children going to school.
How to apply for the COVID-19 List
To apply for this fast-tracked process and be put on the list, the application must be accompanied by an affidavit. An affidavit is evidence to support the application and must demonstrate that the parties involved have attempted to resolve this issue but have not been successful.
Most parenting matters are filed in the Federal Circuit Court. Usually only very complex matters are filed in the Family Court such as where there are very serious allegations of sexual abuse of children, where there are multiple parties involved or there has been previous intervention of a state authority such as the Department of Community Services.
The Family Court has information and an affidavit template that can be found here.
The Federal Circuit Court of Australia has information and an affidavit template that can be found here.

How to maximise your chances of your matter being fast-tracked
While people can apply for this list and use the affidavit template available on the sites above, it is important to sufficiently fulfil the criteria to be considered for this list. If the registrar determines that your application has satisfied the criteria then your matter will be allocated to a Judge. If not, your matter is put aside for more urgent matters.
Seeking the assistance of a family lawyer who specialises in parenting matters, to properly put the evidence before the Court and satisfy the criteria so it can proceed to the registrar who assesses it, is key. 
Your application and affidavit must meet the criteria to convince the Court that either new orders be made or current orders need to be changed or enforced.

The flip side of this is that you might be defending one of these cases and you might actually want to put your position before the Court about why the matter ought not be dealt with urgently or that your evidence about what is happening in the family is properly put before the Court so that children are not disadvantaged. 

What will Court look like if your matter gets on The COVID-19 List?
When you go in front of the court, the lawyer appearing for you puts your case to the Judge, we explain your case to the judge and make representations on your behalf about why your application is urgent and why whatever orders you are seeking should be made at that point in time. In most cases, lawyers will do those orally. In some cases, some judges insist on written submissions, but in an urgent context, a lawyer would be there making representations to the Judge about why your request to the Court should happen. 
The process can be intimidating and stressful.
For our team who are regularly before Judges in the Court, we have much familiarity and comfort in this context. We are experienced family law advocates..
While The COVID-19 List is a fantastic response, what will be pivotal for people applying is whether their  application is put together in a way that means it has a chance at being successful. And if it is, the success of the subsequent Court hearing is the next hurdle. The support of a specialist family lawyer might be the difference between being successful or not. Further, it could well be a very important juncture in any existing matters that are already before the Court, or even if this is the first time before the Court, depending on what the particular circumstances of the problem are at that time.
At the end of the day, if your safety and your children’s safety is of concern, then you absolutely want to get the best outcome that you can. These types of matters are what we work with every day and we understand the court’s processes and the landscape of family law .

DDCS Lawyers specialise in all aspects of family law including domestic violence and parenting matters. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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Can the drafting and signing of wills, powers of attorney and Court cases proceed during this pandemic?
The answer in short is yes, albeit with significant changes in processes and protocols.
We have seen a surge in enquiries for wills to be drafted and revised since the advent of this health crisis we have found ourselves in. What has been challenging is the way in which we have had to adjust the approach to Court hearings, having wills signed and witnessed as well as powers of attorney while complying with social distancing requirements.
How we’re getting wills in place during this pandemic
Prior to COVID-19, the standard practice when receiving instructions from someone wishing to revise or draft a will was that we would meet in person. This was done for a number of reasons, including creating an environment where the person detailing their wishes was under no influence or duress from any other person.
We are finding that people are more than happy to engage in a process that takes place online by video conference. Before we meet online we ask our clients to fill in an online form that covers much of the information that is required in the lead up to the live,online meeting. This form process also assists in the structuring of our online meeting and makes the meeting more productive and efficient..
What I am finding is that the online meetings are not dissimilar to our in person meetings in that we continue to have face-to-face contact. It is still possible to assess the capacity of the will-maker and in general the ability for my team and I to take instructions is as good as it ever was in-person.  

One of the things we do religiously, particularly with the elderly, is ensure that they are alone with us when taking instructions in relation to a will. In regular, non-pandemic situations, it is not uncommon for an elderly will maker to be transported to the appointment by a child or other family member. The child or other family member is excluded from the meeting with the willmaker when instructions are being taken. Similarly now online when a client who is aided in the conference call set-up by someone else, once everything is set up and the will-maker is comfortable to commence, we ask anyone else present to leave the room. We confirm with the willmaker that they are alone before taking instructions and providing advice to ensure thta tey are able to express their wishes and provide instructions free from influence.
Related: When superannuation doesn’t end up with the people it was intended for: blended families & government super
Why you need to check your superannuation death benefit nominations
Signing and witnessing of wills protocol
In New South Wales legislation has passed that has enabled regulations to be made in relation to amending the way in which documents can be signed and witnessed in a post Covid world, including the signing and witnessing of wills and powers of attorney. We are awaiting the making of the relevant regulations, so at the moment it is still necessary for the will to be signed by the willmaker in the presence of two witnesses who are present with each other and the willmaker at the same time as they witness the signature. All three people need to be physically present. We are hopeful that the appropriate regulations will be made in the near future so that the need for face to face meetings to sign documents will be overcome.
In the meantime, we have two solutions in play.
I have signed people up to their wills over the last few weeks and we have completed the process in our office, in a boardroom that has a very large board table that allows for a distance of at least two metres between the witnesses and the will-maker. We go through the hygiene processes of wiping down the table with sanitiser and everyone present is required to wear gloves. I stand a few metres behind the willmaker and direct the will-maker where to sign and observe the signing.  The other witness stands on the other side of the boardroom table observing from a distance. Once the will-maker has completed signing the will with gloves on, the document is then passed to the other witness for signing and the process is repeated as I sign to witness the will.
The alternative method is that we have the will-maker sign the will in the presence of two other witnesses while we give instructions and talk people through the process step-by-step via phone or observe via an online video conference call.
Powers of Attorney
For enduring powers of attorney, one of the witnesses is required to be qualified to sign as a witness. This creates another level of complexity so doing it remotely is more problematic. If people require powers of attorney to be put in place during this health crisis and while social distancing requirements exist, we will need them to come into the office and follow the same in-person protocol as mentioned above with will-makers.
Court hearings
To provide some context about our current work, we have a five-day court hearing coming up in Sydney where we will represent four clients that live in different locations. Also involved in the hearing is a Barrister based in Sydney, my assistant lawyer who is in regional New South Wales, the Judge in the Courtroom in Sydney and myself in Canberra. Each of us will be in separate locations connecting via the Court video conferencing platform.
To have conversations with our clients and team we will have separate conferencing software in use so we have the capacity to speak privately with each other outside of the Court online conferencing platform. Additionally we will have printing and scanning capabilities so when cross-examining, if we wish to present a document that is not part of the Court evidence, we can digitally forward that document to a witness and to the Court. 
From a practical point of view, if we weren’t to proceed with this matter now, our clients wouldn’t be likely to get a Court date until late 2021. 
So for people who wish to have their will made or revised, powers of attorney put in place or wish to proceed with an estate dispute matter, these matters can progress throughout this pandemic. 
While this has required process adjustments to will-making, powers of attorney and Courtroom hearings, we have developed, along with others, processes and protocols that allow us to continue to provide these services for our clients.

We are assisting people with their wills, power of attorney and representation during this pandemic while observing all social distancing obligations. The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.
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The global COVID-19 pandemic is creating significant stress for many families who are juggling new work from home arrangements, altered child care and schooling arrangements and uncertain financial times. Children are facing disruption in their daily lives as their parents seek to manage these uncertain and concerning times. It is important for children to continue on in their daily routine and that includes seeing and spending time with each of their parents pursuant to orders of the Family or Federal Circuit Court.
Recently, the Chief Justice of the Family Court of Australia announced  guidelines for parents and Family Law professionals while acknowledging that this is a highly unusual and very stressful time. His overarching message is that any parenting orders that currently exist should be complied with, except for when people cannot comply given to changes as a result of this pandemic. 
Examples where parenting arrangements or orders that may not be able to be upheld is in circumstances where one parent, or someone in close contact with that parent has been exposed to COVID-19 and therefore the safety of a child could be compromised. Another instance may be where parents live across borders that are closed or handover locations such as schools are closed .
While you can read the statement in full here, I have summarised the key messages for you in this article. I will also cover what you need to do first as well as next steps if you and your children’s other parent cannot come to an agreement.
What should be done first?

Avoid acting on any heightened levels of anxiety you are experiencing that are contrary to your parenting orders. 
Where there are orders that stipulate that contact with a parent is to happen at a designated contact support or handover centre, check the centre’s website for updates or phone ahead of time to determine what their most recent procedures are. Where a second person must be present during a parent’s access to a child, this presents as challenging given the recently revised rule permitting no more than two people together at a time. Commonsense would provide for that person to be present where an order or usual long standing or agreed  arrangement provides for their presence at a handover. Social distancing measures need to be in place.
In situations where the pick up arrangements of your children have been at a park, fast food venue or school and those places are closed, if it is safe for you to communicate with the other parent, it is vital for you to attempt to reach new or revised arrangements.
If you are in disagreement about revised arrangements or where it may be impossible for one parent to have access, you must endeavour to facilitate contact between your children and the other parent via video calls, social media or if that is not possible, via phone.
If you can reach an agreement about the new or temporary parenting arrangements, this agreement should be in writing. Email, text message or WhatsApp communications are the three methods mentioned as suitable by the Chief Justice during this COVID-19 pandemic.
If you have concerns about orders not being complied with, document some sensible suggestions and communicate the alternatives to the other parent. The Court is still operational so if you wish to have consent orders revised, applications can be filed electronically with the Family Court. You can also enter into a temporary Parenting Plan to amend in writing the arrangements during the pandemic phase.
Related: Family Court of Australia:Information for Parents – questions and answers
Federal Circuit Court of Australia: Information for Parents – questions and answers
What if we can’t agree?

There are a number of major services that can be approached for support such as Relationships Australia, Conflict Resolution service, as well as private family dispute practitioners. Most of the mediation services around Australia are still available via phone.
If you cannot come to an agreement, you need somebody who can help you communicate with the other parent and guide you about what is appropriate given your circumstances. As family lawyers, we may be able to help you find a solution sooner. Throughout this pandemic we are available to facilitate discussions and mediations, even remotely. We are using technology to conference effectively with our clients and other lawyers and continue to help parents and their children. Currently we are seeing existing clients as well as some past clients who are returning to us for some sensible, calm advice about what their next steps should be.
While it might be hard, above all stay calm and avoid any one-sided decision making at this time, particularly in circumstances where you have Court orders or a long standing arrangement.
DDCS Lawyers specialise in all aspects of family law and can help guide you through changes to your parenting arrangements and consent orders. Reach out to our team on (02) 6212 7600 to book a consultation.
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When you are the high-income earner in a relationship that is breaking down, a common question is ‘What expenses do I have to continue paying?’ and ‘Will I have enough money to continue to pay for everything?’ 
On the other hand, if you earn much less than your former partner, you might be worried about the level of support you can expect to receive once the relationship ends. 
Spousal maintenance is particularly relevant in the separation process when there is a disparity between the incomes of a couple. The disparity often arises during the relationship, as a result of the different roles people adopt during their time together. A common example is when one person continues in paid employment while the other person maintains the home, looks after young children or is unable to engage in paid work for some other reason (for example, poor health). 
In this article, we explain what spousal maintenance is, why it exists and when you might need to think about spousal maintenance. 
What is spousal maintenance?  
Spousal maintenance is the financial support of a former spouse after separation. There are two things that have to be present in order for spousal maintenance to apply: 
a former spouse must be unable to support themselves adequately (because they are caring for children, are incapable or working or for any other adequate reason); and
the other party has the capacity (from their income or other financial resources) to financially support their former spouse. 
Spousal maintenance is particularly relevant in families where one party is the primary income earner (and meets the big ticket household expenses such as mortgage repayments, car repayments and health insurances etc) and the other party cares for young children in the home, or doesn’t earn as big an income for some other reason. 

There is no fixed rule, formula or scale to turn to when working out what someone’s spousal maintenance obligations might be. As each family is different, each family’s financial needs and outgoings are different, and spousal maintenance can take many different forms. The most common characterisation of spousal maintenance includes things like periodic payments of a set amount (for example, $250 per week or $800 per fortnight), payment of specific expenses (for example, continuing to pay the mortgage or particular loan repayments or insurances) or a set, capital amount (for example, $20,000).
How common is spousal maintenance?
The anecdotal evidence is that spousal maintenance is underused. Naturally, most people prioritise achieving financial independence from their former partner, and are focused on selling the home and splitting superannuation to effect a clean financial break following the end of a relationship. These things are important, but the missing piece of the puzzle is what happens in the meantime, or what happens after you have agreed on your property settlement.  It’s easy to forget that spousal maintenance is an important economic tool for ensuring that people’s exit from relationships are as financially equitable as possible. 
Spousal maintenance is particularly important in the early stages of separation, and while two people work out a final property settlement. The law expects that if someone leaving a relationship is unable to adequately support themselves, and the other party has the capacity to be financially supporting them, those arrangements continue in some form. 
Seeking the advice of a lawyer can be beneficial to ensure you continue to meet your obligations after separation, and to ensure that you understand when spousal maintenance might apply in your case. If you were to just stop paying for the costs of living you had been providing during the relationship (or if you start paying less than what you had been), then your former partner could seek court orders to invoke urgent or interim spousal maintenance.  
Similarly, if you find yourself high and dry with limited or no income after separation, and the expenses your partner was meeting are no longer being met, then consulting with a lawyer can help you gain clarity on what support you are entitled to (or what a Court could order the other party to pay).  
Understanding what your obligations and entitlements are – and what a family law judge would do in your matter – will help you properly assess your financial situation, and make sensible, strategic decisions. This is the conversation you should be having with a specialist family lawyer.   
I hope this article has cleared up concerns you have regarding about whether spousal maintenance will apply in your case. As the main income earner, you may have a goal to not be supporting your former partner over the long term. If you are someone who is not earning an income, knowing what to expect from your spouse’s salary will ensure you are not disadvantaged. 
DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.

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Imagine discovering that you do not have control about who your superannuation will go to upon your passing, even though you have documented your wishes in a will. A nasty surprise and it is occuring more than you might think.

I regularly have couples before me who are unaware that this is a condition of the super scheme they are a member of. This article is to make more people aware of these scheme conditions so that plans can be put in place to work around the structure of these specific superannuation schemes and have your intentions go to plan upon your death.

If you or someone in your family has a superannuation policy with one of the Australian Government defined benefit super schemes, read on to learn about the limitations.

Perception vs Reality

Most people believe that any superannuation payout is automatically dealt with through the actioning of the deceased’s will. This is not the case. It depends on what type of super fund they were in and whether or not there are nominations in place as to how a person’s super will be paid after death. Let me explain further…
For Government, military and defence employees there were a number of defined benefit superannuation schemes set up before compulsory superannuation came into existence.

They are:

CSS – Commonwealth Superannuation Scheme
PSS – Public Sector Superannuation Scheme
MSBS – Military Superannuation and Benefits scheme
DFRDB – Defence Force Retirement and Death Benefits

In addition, some State Government employees are members of State-based defined benefit schemes. 

These schemes operate very differently to other accumulation-style superannuation funds in that they do not allow a beneficiary to be nominated. That is, there is no ability for the member to control who will receive the benefits upon their passing. Even if their will provides a direction otherwise, it is not able to be directed due to the way the scheme was established.

So, where do those super benefits go upon my death?

For people who have children from a previous relationship but have entered into another relationship, then it is likely that a significant portion of their death benefit will be paid to their current partner. If their children are over 25 or under 25 and not studying, then the children will receive no benefit from the scheme if they had a partner at the time of their passing.

While this is troublesome for blended families, it is also problematic for people in an intact relationship who wish for their super to go to their children instead of their partner.

So who will receive my death benefits?
While these defined benefit superannuation schemes are now closed to new members, the conditions of each scheme still apply to existing members. If you or a family member is a member of one of these schemes, to be confident about who death benefits will go to, it is important to seek specialist legal advice.

It is critical that you are aware of how the super death benefit will fit in with what you are doing with your will and any other assets. It is wise to seek out a specialist estate lawyer who can help you understand how death benefits are likely to flow based on your specific circumstances and then provide you advice about the best way to achieve your objectives and provide for everyone you would like to look after, even where the defined benefits of these schemes are inflexible.

Share this article with people you know who may need to be aware of the limitations of these super schemes.

The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.

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For most separating parents their primary concerns include their children’s wellbeing and fear about the legal process. Consequently, the first few questions I am usually asked are these:

“How do I tell the kids we’re separating?”
“I don’t want to have to go to court to get things sorted. Can you help?” and;
“If we’re separating, what needs to happen first?”

These questions reflect the natural fears held by anyone who is embarking on something as significant as a separation.  So I’d like to offer you some initial thoughts about these questions which will hopefully assist.

How to tell your children you are divorcing

For most parents their greatest concern is how a divorce will impact their children. While I have outlined a few suggestions for you below, my first recommendation to clients is usually this: seek out a family consultant or child psychologist for support and to help you work out how to best deliver the information to your individual children. As you know, each child will react differently so these specialists will ask you about your children, and take into account their unique needs. They will provide age-appropriate recommendations for when and how you might deliver the news of separation to your children.

From my many years of helping families work through the process of separation and divorce, it is usually best if parents can agree on the message to be delivered to the children and often (not always) it is better for the parents to be together when the children are informed. It is important to be truthful about what is happening but without too many graphic details. Reassure your children that they are loved and that the decision to separate is in no way their fault. 

The main goal is to keep the explanation simple, clear and future-focused about the new family arrangements.

Once you have delivered the news, it is important for both parents to continue with a supportive approach. Some parents in their grief or transition criticise or belittle the other parent in front of their children which can prove damaging. Some parents reply on their children for emotional support. We also know that it can also be problematic for children, even older teenagers, when they are asked to pass on messages to the other parent or to report back or ‘spy’ on the other parent.

For anyone going through this difficult time, two final key points are to avoid exposing the children to ‘conflict’ and to ensure that the children feel supported in maintaining their relationship with the other parent.

Will I end up in Court?

While this is a significant concern for most people, the reality is that most parents do not end up in court. Only 3% of parents end up going to court to finalise their parenting orders. My fellow Partner at DDCS, Di Simpson recently wrote an article about the findings of the Australian Institute of Family Studies’ report in late 2019 that elaborates on the evidence that families are avoiding conflict and court in divorce.

In our firm we find that most people prefer not to obtain Parenting Orders. Most are looking for an informal agreement such as a parenting plan that serves as a broad agreement the parenting arrangements.

As professionals who spend our days helping families as they go through the separation process, we do not encourage anyone to go to court. It is usually far better to negotiate an agreement than have a Judge, a stranger to your family, make a decision for you. Of course, in an intractable dispute or where children are being exposed to unacceptable conduct, such as family violence, it is usually appropriate to commence proceedings. Delays in commencing proceedings in these circumstances will potentially expose children to further abuse and may prejudice a satisfactory outcome of court proceedings. Seeking immediate legal advie in these circumstances is essential.

Related: Family Court of Australia Parenting Fact Sheets

We’re separating. What needs to happen right now?

As with any significant life event, seeking out expert advice early in the piece can be the difference between a positive and a disappointing outcome. A consequence of not seeking early advice is that you may diminish your negotiating power, making it difficult (and costly) to obtain an outcome that is in the best interests of the children. Getting specialist advice early can help set the scene for what happens in the longer-term.

A common misconception is that some parents believe that they should equally share the parenting of their children upon separation. That is not what the law says. There are many considerations that are taken into account such as the children’s needs at their particular age, the attitude of each parent to foster and maintain the children’s relationship with the other parent and the particular circumstances of the family.

An agreement for parenting arrangements should be created in a way that means it is practical for all involved. It should be manageable and make sense for the children at their particular age. It should also provide stability for the children but ideally allow some degree of flexibility.

Co-parenting success

With specialist Family Law advice and the support of a family consultant most parents are able to reach agreement about the future arrangements for their children. In most cases Court proceedings about parenting matters can be avoided.

The best outcome for children is usually determined by their parents maintaining a respectful relationship with each other and supporting the children to have a meaningful relationship with the other parent.

If you would like recommendations for family consultants and child psychologists in your area, do get in touch. DDCS Lawyers specialise in all aspects of family law and can help guide you through the difficult process of separation. If you need assistance, contact our team on (02) 6212 7600 to book a consultation

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Christmas time can bring great joy but for separated families, it can also bring significant challenges. For those of you who are experiencing your first Christmas as a separated family, this holiday season may look very different from last year. 

To help you as you approach the festive season I have some tips that I recommend you consider for yourself, your former partner, your children and your extended family as well.
First things first: have a plan
If you have not reached agreement with your former partner about who will have the children when, that is your priority. Set aside some time to create a plan about what is going to happen. Making a decision about who has the children on special days can be difficult but for all concerned, creating a plan is a priority.
For You and Your Former Partner
Each family often has its’ ‘special occasion’. For some families this falls on Christmas Eve, for others it is Christmas morning or lunch. If you are both in the same geographical region on those days, start by thinking about what you both want for the children including sharing time with your respective families.
If you know that you and your former partner are likely to have difficulty regulating your own emotions on the day, then take steps to protect the children from your angst. For example, determine a handover location that you both agree to and also discuss the need to be mindful of what the children are exposed to at these times. Sharing your children over the holiday period can be stressful so having some clear guidelines on how you both plan to conduct the handover can help minimise stress for the children,
In making your plans for the children, particularly on those more ‘planned’ days like Christmas Eve, Christmas Day or New Years’ Eve, an agreed ‘run sheet’ detailing the timeline of who has the children when, and everything in between can help. Start with a timeline from Christmas Eve through to Boxing Day or New Year’s Day. Detailed planning is particularly important where there is travel involved. If you are travelling, factor the travel time into your plan allowing for delays so that any last minute changes are minimised. The goal for both of you (and importantly the children) is to minimise confusion and reduce the opportunity for conflict.
For Your Extended Family
Sometimes extended family’s expectations about Christmas can prove challenging, especially if it is ‘their turn’ to host Christmas and they are wanting the grandchildren to be present. It is important to encourage your family to be flexible and considerate of the necessary changes associated with your separation. Communicating what has been agreed upon to extended family members ahead of time can prove helpful in reducing your stress and facilitate the children’s enjoyment of the holiday celebrations..
If your family typically opens presents Christmas morning but you have the children later in the day, suggest that your family open presents when the children arrive. Discussing these needs with your family early will make for a more pleasant and less stressful lead up to Christmas.
For Your Children

You and your former partner may opt to share some elements of Christmas with your children. For others, that may not be appropriate. Regardless of what your plans are, be careful not to overdo things. Sometimes we see people becoming competitive with gifts and experiences around Christmas so while it is important for Christmas to remain special for your children, having a discussion about keeping gifting-giving and other activities within the range of what your children have previously experienced, is important. Also discuss when you each intend unwrapping presents with your children, (either separately or together) and let the children know as well so they head into Christmas with some certainty about how things will unfold for them.
Let your children know when they can expect to see the special people in their lives such as grandparents, aunts, uncles and cousins. If they are at an age where they are aware of your separation, inform them of who they will see during the holiday season. Being aware of what to expect will be reassuring for your children as their family life changes.
Another consideration are the family expectations about the Christmas meal. If children are facing a large meal in two locations, that can be challenging. It can also prove disappointing for the parent who has the children later in the day. Consider this in your planning
Also consider travel time. For example, avoid having your children spend most of Christmas Day or Boxing Day travelling. It may be better for one person to have the children for those two days and the other parent have them for two days after that, and agree to do that in reverse the following year. 
If you know that you and the other parent are likely to experience animosity during handover of the children, create a plan to minimise the opportunity for that. Decide on a neutral handover location and agree to be mindful of what the children are exposed to at these handover times. 
If you are on friendly terms, consider giving your former partner a small gift at the handover. For children who are nervous about you coming into contact with each other, or with another family member, this can be reassuring in addition to being a gesture of goodwill and can set the tone for future negotiations and parenting arrangements if they have not yet been agreed upon.
At this traditional family time, your children are likely to miss their other parent at times over the holidays. Recognise that, acknowledge it and although this is your time with them, allow them to connect with the other parent, whether it be on the phone or via video chat. Dismissing your child’s desire to connect with the other parent because it is ‘your time’ may exacerbate your child’s sense of ‘loss’.
If you cannot reach an agreement in in your planning discussions with your former partner, arrange an appointment with a family consultant or experienced family lawyer sooner rather than later. You will want to come to an agreement as soon as possible.
My final piece of advice, as someone who works closely with families experiencing significant relationship change in their lives: As hard as it may be, aim to be flexible in your negotiations with your former partner. While you may not have the children for Christmas Day this year, you can negotiate other days around that day and make those days equally special with your children. The end goal is always that your children have a fond experience of this special time.

“While you can never control what others do, you can control how you behave.”

DDCS Lawyers specialise in all aspects of family law and can advise you on shared parenting matters to help you reach the best outcomes for your children. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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Should I be concerned about having to go to Court to finalise parenting arrangements?
There is significant misinformation in mainstream media about “the family law system” and what happens if people end up in court – especially with the backdrop of the ongoing policy debate about the merging of the specialist Family Court with the lower-level Federal Circuit Court.
Some of the stories being published in newspapers and on television are about lawyers who are described as “self-interested”, pushing families unnecessarily into the Family Court system and exploiting them financially. Those reports do not describe the lawyers I know nor the world we work in. So when the AIFS – The Australian Institute of Family Studies – recently released their findings about parenting arrangements after separation (with a sample of 6000 separated parents) showing that only about 3% of families used Court to have their parenting matters resolved, it made clear what experienced family lawyers know – most people experiencing separation don’t go to Court.
Who are the AIFS? Why is this research credible?
The AIFS is the Australian Government’s key research body about families, which was created to provide information to government and those involved in the field about what is working for, and what is happening to, families in Australia. They do longitudinal studies to track, better understand and inform policy about the protection of the family as the fundamental group unit in society.
What else does the research tell us?
We know from earlier AIFS research, that of separating couples in Australia, about 70% manage to work things out themselves – that is, they make decisions about children and property without going to formal dispute resolution processes or seeing  lawyers. Some people engage a little in getting help from mediators or lawyers to nut out some parts of their settlement and see lawyers to help make documents to finalise their deals.

So who does end up going to Court to settle parenting arrangements?
Of those 30% who end up seeking help to work things out (and who might see lawyers at that time) only a small percentage of them end up in Court, due to the complexities in their circumstances. The AIFS studies tell us that these “extra complications” can include issues of domestic violence, alcohol or other substance addictions, mental health challenges and sexual abuse allegations.  Sometimes the relationship dynamic is pretty fraught too and getting to an agreement is harder, without the help of someone else. So, the cohort of people who end up turning to family lawyers have more complications in their lives, their needs are more complex and they need help from lawyers to protect their interests or those of their children.
This recent AIFS research shows that of parenting cases, there is only a really small percentage of people who need to take their parenting matters to Court. Most parenting disputes are being settled independently, with the advice and negotiation skills of lawyers, with the support of dispute resolution processes and considerably fewer require the intervention and structure of Court responses.
There still persists for many,  a perception that the Family Law Courts are biased against men. The AIFS research challenges that complaint. Of the small proportion of parenting matters determined by the Courts, orders for “no contact” between children and their father occurs in only 3% of cases, compared to 9% in the general separated population.
In my experience, with over 27 years in Family Law, there are so very few cases where parents do not get access to their child. It is reserved for those cases where the Court has compelling evidence that there is an unacceptable risk of harm to these children if contact was to occur. It is (appropriately) rare.
We also know from our experience (and backed up by research) that of the families who start a Court process, very few go all the way to a final hearing. This recent AIFS study reinforces that less than 5% of cases started in the Family Law Courts will go all the way to trial.
Overall, this AIFS research reinforces that the Court remains a pathway of last resort and that most people are able to work things out. Lawyers want to help their clients find a settlement (and encouraging options for dispute resolution is one of the duties we hold under the Family Law Act). Yet, it is hardly the narrative being played out in mainstream media and in Parliament.
Who seeks the advice of Family Lawyers then?
The consistent message from the AIFS research is that most separating people will work things out themselves; some will need a bit of help from dispute resolution providers; and a smaller number again will need the help of lawyers. About 13% of  parents trying to sort out the care arrangements for their children will engage the support of counselling, mediation, family lawyers or other dispute resolution service, to help them come to an arrangement. Going to a lawyer does not mean going to Court – many settlements occur because of and with the assistance of experienced family lawyers, who advise about and guide reasonable and realistic expectations of outcome.
This AIFS research reinforces that family lawyers are helping people to come to settlements by the application of our knowledge of the law and negotiation skills, to  facilitate sensible and timely outcomes. Lawyers are regularly engaged to help parties to work through things and to find the right process to settlement, with expert knowledge of the legal framework and risks and benefits of different approaches. Negotiating within the framework of what a court might do, if you took that pathway, is essential. Setting realistic expectations of what might be achieved, and how to get to that outcome, is important, while maintaining, as far as possible, the framework for a co-operative parenting relationship into the future.
Why see a Family Lawyer?
Many people make contact with us because they are either considering separation, part-way through their negotiations or are starting to think about starting negotiations. In the context of parenting, people seek our advice about how to approach these discussions and appreciate guidance about the framework in which to manage those discussions. 
Sometimes people have concerns that they need clarified and see value in obtaining advice to assist their thinking and how to shape their own direct discussions. This is usually a good investment in the success of their own long-term successful negotiations. 
In other situations, where the challenges are more complex or the power imbalance greater, a person may need an advocate, to engage and persuade on their behalf.  Being supported in ongoing negotiations can help enormously in ensuring your voice is heard. Lawyers bring a depth of understanding of the complex legal, social and other considerations and implications of particular choices that routinely arise in family law matters.  
The goal is to reach an agreement that is good for our client and their children. Using experienced family lawyers with specialist dispute resolution training to bring about those outcomes is highly effective.
We routinely advise and assist our clients to think about and engage in different dispute resolution pathways – without a lawyer or lawyer assisted. We help put people in touch with mediation or counselling providers for themselves and or their children and also help them understand what to expect of the process. Importantly, we also help them understand the importance of, and the different ways of documenting or formalising their parenting arrangements.
DDCS Lawyers specialise in all aspects of family law and can advise you on shared parenting matters to help you reach the best outcomes for your children. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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For our wills and estates team, receiving eight Doyle’s Guide Awards is a wonderful reward, mostly because the awards are voted on by members of the legal profession and external professionals such as accountants and financial planners who see the impact of the work we do. It is a recognition for the area of law we specialise in. 
 
In estate planning and estate litigation in particular, there are quite a number of practitioners who claim they do this work and do a less-than-satisfactory job of it. There are fewer that specialise in the area than practice this area of law and as the people who vote are in some cases our competitors, we are proud to be recognised for our expertise.
 
In September 2019, our Wills and Estates Planning practice earned these Doyle’s Guide awards:
 

DDCS Lawyers ranked as one of only three firms named as a first tier practice in Leading Wills, Estates & Succession Planning Law Firms – Canberra, 2019.

We are also ranked as one of only two first tier firms in Leading Wills & Estates Litigation Law Firms – Canberra, 2019.

In addition to this, each member of our Estates team was individually awarded for their expertise in wills, estates, succession planning and estate litigation.

Phil Davey, Partner

Preeminent – Leading Wills & Estates Litigation Lawyers – ACT 2019Leading – Leading Wills, Estates & Succession Planning Lawyers – ACT 2019
 
Estate Litigation is Phil’s area of specialisation. Phil moved into Estate Law after specialising in the property and commercial aspects of Family Law and also achieved Specialist Accreditation in Family Law. In his Family Law work Phil discovered a need for better estate planning services in Canberra and rural New South Wales. The family law team had been referring clients out who needed estate planning but saw that clients were getting mixed results. 
 
As Family Law clients have a need to revisit their estate planning after separation and divorce, Phil began focusing on developing the Wills and Estates practice at DDCS and went on to complete his Masters in Law, specialising in dispute resolution. In this work Phil assesses client’s situations, determines the key issues that need to be resolved and gathers information and resources to then strategise how to resolve the dispute. With so much crossover between Family Law and Estate Law, having those two areas of specialisation and bringing perspective across both areas allows him to see a broader picture when providing advice and representing his clients. While Phil’s focus is dispute resolution, if required, Phil believes ‘There’s no point in being a dove if your opponent is a hawk.’
 
Rebecca Tetlow, Partner

Preeminent – Leading Wills & Estates Litigation Lawyers – ACT 2019Leading – Leading Wills, Estates & Succession Planning Lawyers – ACT 2019Recommended – Leading Wills, Estates Litigation Lawyers – Australia, 2019
 
Rebecca is Canberra’s only Accredited Specialist in Wills & Estate Law. Rebecca started in Estate Law over 12 years ago, and particularly enjoys estate planning as it is people-oriented, unlike some other areas of law. Rebecca asks questions to understand her clients’ individual family circumstances or their business arrangements and helps them unpack the specifics of what they are looking to achieve as a result of undertaking this process. It is then Rebecca’s focus to identify any potential risks and work alongside clients to problem solve, provide strategic options and advice that takes into account the legal outcomes but also addresses her clients’ longer-term objectives. In this work there are often ‘sticking points’ for clients that they don’t know how to work through. Rebecca especially likes helping people with complex needs or situations and seeks pragmatic ways to resolve matters when they arise. 
 
Connecting with her clients on issues that are so deeply personal is what Rebecca sees as a privilege. Witnessing clients who have walked in with significant worries who can later walk out visibly lighter and feeling confident about what has been put in place, is what Rebecca finds incredibly rewarding.
 
Theresa Dowling, Senior Associate

Recommended – Leading Wills, Estates & Succession Planning Lawyers – ACT 2019
 
Practicing for over 10 years, Theresa specialises in estate law and succession planning. Theresa works with clients who have complex probate and administration matters and finds helping warring executors resolve their differences a very rewarding part of her role.
Theresa advises clients with highly complex business structures in their succession planning, in particular multi-entity business or trust structures and inter-generational farming clients.
 
But why should these awards matter to you?
 
In the estate litigation space we see badly drawn wills that have the consequence of requiring court intervention. This can arise from a number of causes sometimes due to insufficient attention being paid to the possibility of a family provision claim, or sometimes because more than one executor has been appointed who are incompatible. Another issue we see arise is when elements of a will are unclear and there are doubts as to what was intended. This sometimes leads to needing to go to the court and ask for the will to be construed (interpreted). While a lot of these disputes are resolved at mediation that is often at a significant and avoidable cost and, if people in dispute are on the receiving end of poor advice and poor representation, then matters aren’t resolved as readily as they could be.
 
“…if people are on the receiving end of poor advice and poor representation,
then matters aren’t resolved as readily as they could be.”
 
These awards are a recognition of our team’s expertise and area of specialisation. We our proud of our team and the skills they bring to our clients daily.
 
DDCS Lawyers specialise in wills, estates planning and estate litigation. If you need assistance, contact our team on 02) 6212 7600 to book a consultation.

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Many grandparents play an integral role in the lives of their grandchildren, spending time with them and developing a unique relationship.
But in the case of separation or family breakdown, this relationship can be affected. This might happen where the parents of the children are not on good terms, or where a parenting arrangement makes spending time with grandchildren difficult.
What rights do I have as a grandparent?
The Family Law Act recognises the importance of children spending time with their grandparents. Under the Act “children have a right to spend time on a regular basis with and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.
Whilst the law focuses on the rights of the child, it is not blind to the distress loving and supportive grandparents experience when they lose contact with their grandchildren. For this reason, under the Family Law Act, grandparents may be parties to parenting plans and can apply to the Court for parenting orders. The Court can consider grandparents when making orders and when determining a child’s best interests.
What happens if I can’t see my grandchildren?
If you’re being prevented from seeing your grandchildren, either as a result of separation or a relationship breakdown with the parents, there are steps you can take.
Mediation is the first step to try and come to an agreement, whether through organisations such as Relationships Australia or the Family Relationships Centre, or a private mediator. This may assist parties to reach agreement on parenting matters without the need for litigation.
If you come to an agreement, they can enter into a Parenting Plan. Parenting Plans are written agreements which deal with issues such as where the child lives and who the child communicates or spends time with. A Parenting Plan can include a grandparent or other relative of the child, but the plan must be agreed to and signed by both parents, so grandparents can only be included if all the parties, including both parents, agree.
Parenting Plans are not binding or enforceable, but they can be taken into account if a matter does end up in court.
If there is no agreement, grandparents can apply to court for orders that their grandchildren live with or spend time with them. This can be done whether the parents of the children are together or separated.
This can be a difficult process, especially if a relationship breakdown has caused the extended family to be alienated. It’s recommended that grandparents in this situation get support and advice from the outset.
DDCS Lawyers specialise in all aspects of family law and can advise you on your rights as a parent, grandparent or relative to meet the best interests of the children. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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By Theresa Dowling
Those in the Australian agribusiness sector know that the rewards of life in primary production are many and varied. A family farming business can deliver exceptional gains including financial growth and success, autonomy, an enviable lifestyle, and, in some cases, the satisfaction of creating a legacy that can be passed on through generations of your family.
Successful producers also understand the value of risk management. Just like insurance, a carefully considered and prepared succession plan is a critical tool in ensuring the transfer of the family farming business to the next generation.
Failure to plan properly can leave farming businesses financially impaired and family relationships torn apart by conflict.
While succession planning be complex, here are a few tips for a succession plan that works.
Start now
There is no ‘right time’ to begin farm succession planning. While major life events are often the trigger for a family to begin succession planning, the best time to start is now.
A good succession plan can be adapted to changing circumstances, but a poorly thought out or non-existent plan can create unintended consequences or even result in costly litigation. This can have devastating financial and emotional consequences for the people you leave behind and could result in the failure of the farming business.
Communicate, communicate, communicate
Involve the entire team – ideally, this includes off-farm family members. Don’t assume you already know what your family members want or need. Arrange a dedicated meeting of all stakeholders in a neutral place, if possible.
You may also consider bringing in a facilitator to help with discussions and ensure everyone feels included. A legal team such as DDCS Lawyers can assist you with this process.
Ensure you have the right advisors
Specialisation is very important when it comes to estate planning. Don’t rely on your conveyancing solicitor to assist you with your business succession plan.
Although there are many lawyers who offer will drafting services, your best bet is to proceed with a lawyer or law firm who focuses on and specialises in succession planning. They will work together with your accountant and financial planner to ensure that no loose ends are left untied.
Look for lawyers and firms who have been recognised for their quality work in a peer-review guide such as Doyle’s Guide, who have accredited specialisations, or who hold further educational qualifications such as a Master’s degree in Wills and Estates.
DDCS Lawyers work together with other professional advisors to help create an effective business succession plan that can assist to mitigate any potential worry and conflict that often accompanies change. Call our expert team on (02) 6212 7600.
Theresa Dowling is a succession lawyer with over a decade’s experience practicing in the ACT and NSW. Theresa lives on her family’s wool-growing property near Gunning, NSW. She is dedicated to helping farming families avoid conflict, manage risk, and build sustainable farming businesses that span multiple generations.
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By Rebecca Tetlow
A will is a legal document that is intended to clearly set out a person’s wishes after they die. Among other things, a will may determine how your assets will be divided, appoint executors to administer your estate, name a guardian for any minor children, and make arrangements for the payment of obligations.
What is a legal will?
A legal will is one that has been properly executed in line with the legislative requirements for your state or territory.
There are a number of requirements that must be met to properly execute a will. These include that the will is in writing, that it is properly signed by the testator and witnessed by two adults who aren’t beneficiaries of the will.
What happens if I don’t have a legal will?
Generally, someone who passes away without a legal will is said to have died intestate. In this case, the Court will appoint an administrator to determine how the assets should be distributed. This can be a costly exercise and may not reflect the individual’s actual wishes.
However, it is possible to take into account a person’s wishes, even if they haven’t been included in a legal will. In some cases, the Court can consider statements made by the testator as part of an ‘informal will’.
What is an informal will?
To be approve an informal will, the court must be satisfied that: (a) there is a document; (b) the document sets out their testamentary intentions, ie the wishes of the person about the division of their assets after death; and (c) the person intended that document to be their will.
The definition of ‘document’ is broad and is more than just a piece of paper. Examples of documents that have been accepted as informal wills include: a video of the person saying who they wanted to leave their estate to; an unsent text message on a mobile phone; notes on an iPhone; and a word document called ‘will.doc’ on a home computer.
The process for applying for the court to approve an informal will is more involved and complex than an application for probate of a validly signed will. Given that it can have significant consequences for the beneficiaries, information needs to be given to anyone who may be affected by the outcome and having evidence that proves the deceased’s intentions is crucial.
In many cases, the estate will incur additional and unnecessary cost as a result of needing to apply for an informal will to obtain a Grant of Probate or Letters of Administration.
(You can read more about the difference between these in our article Probate v Letters of Administration).
Unfortunately, the number of informal will applications are on the rise as more and more people attempt DIY wills but overlook important legal requirements such as having it properly witnessed.
What happens if I find an informal will?
If you find a document that seems to set out a deceased person’s testamentary wishes, don’t disregard it simply because it is not properly signed or witnessed. It’s important to get expert legal advice about whether an informal will application should be made.
In most cases, if an executor is aware of a document that could be an informal will, they’ll need to notify the court even if an application for an informal will isn’t made.
DDCS Lawyers have experience in informal will applications and we can assist you with the process to administer an estate. Contact our team on (02) 6212 7600.
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DDCS Lawyers are delighted to be recognised once again as a top tier family law firm for the ACT in the 2019 edition of Doyle’s Guide.
Doyle’s Guide is an independent organisation that provides ratings based on interviews with lawyers and other professionals, both in the ACT and interstate. Family law firms were first included in Doyle’s Guide in 2013 and DDCS Lawyers has been recognised as a top family law firm each year.
“Having that consistent recognition as a top family law firm in the ACT is something we’re proud of,” said DDCS Partner Di Simpson. “This recognition shows the continual hard work of every person in our team, from our lawyers through to our support staff.”
As well as being rated as a leading family law firm in Canberra, a number of DDCS Lawyers are also individually named in the 2019 Doyle’s Guide.
Di Simpson is recognised as Market Leader for Family Law for the ACT, as well as a Leading Lawyer for Parenting, Custody & Children’s Matters.
Lois Clifford is noted as a Preeminent Family Lawyer for the ACT and a Leading Lawyer for Parenting, Custody & Children’s Matters.
Julie Dobinson is rated as a Leading Family Lawyer for the ACT by Doyle’s Guide and also a Recommended Family Law Mediator.
Alison Osmand is recognised as a Leading Family Lawyer and Leading Parenting, Custody & Children’s Matters Lawyer.
Phil Davey is rated as a Recommended Lawyer in the area of Family & Divorce Law.
In addition, Emily Tighe has been named a Rising Star in the area of Family Law in Canberra. This recognises the extremely high level of professionalism and ability Emily has demonstrated in her career.
Find the full Doyle’s Guide rankings for leading family law firms and lawyers via the links below:
Leading Family & Divorce Law Firms, ACT 2019 Leading Family & Divorce Lawyers, ACT 2019Leading Parenting, Custody & Children’s Matters Lawyers, ACT 2019 Leading Family Law Mediators, ACT 2019 Family Law Rising Stars – Canberra, 2019
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By Sage Leslie
One of the ways that separated parents may seek to determine the care of their children is through Parenting Orders. Parenting Orders are made by the Court, either by consent or after a contested hearing, and are intended to set out the care arrangements for a child until they turn 18.
While these orders are Final Parenting Orders, the reality is that this doesn’t have to always be the case.
How can Final Parenting Orders be changed?
While Parenting Orders are made after consideration of the best interests of the child, changes to living arrangements, new relationships, the birth of younger siblings, or a now teenaged child expressing  a strong opinion about where they live can mean the parenting arrangements set out in the Orders need to be revisited.
If all parents agree to an arrangement that is different from what is set out in the Parenting Orders, then you can come to your own informal agreement. But if one parent doesn’t agree to the proposed changes, then the Orders need to be followed. If one parent wants to vary the Orders and the other parent doesn’t, then the parent seeking a change may have to make an application to the Court.
An application to vary final Parenting Orders isn’t straightforward. The Court is reluctant to change Orders that have been put in place unless there has been a substantial change in circumstances since the Orders were made.
The principle for a substantial change in circumstances was set out in Rice and Asplund, a 1979 Full Court decision that established a threshold test that must be overcome before a Court will consider substituting new Parenting Orders when final Parenting Orders are already in place. This can be a high bar to meet.
However, if your circumstances have changed and you believe this warrants revisiting your Parenting Orders, we recommend speaking with a lawyer. There may be other ways to reach an agreement, such as mediation.
DDCS Lawyers specialise in all aspects of family law and can advise you on shared parenting matters to help you reach the best outcomes for your children. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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By Kiah Hanson
The decision to separate is never an easy one. Whether separation has been discussed previously or the announcement has come out of the blue, there are a lot of emotions involved.
Along with dealing with the emotional turmoil, the actual process of separation can feel overwhelming at the outset. While many things can feel out of your control, there are practical steps you can take to ease the confusion and secure your future during the early stages of separation.
Record your actual date of separation
This is an important date as there are some time limitations for applying to the court for a property settlement. Also, if you were married you are required to be separated for 12 months before you are able to apply for a divorce.
Mark the date in a diary, calendar or notebook, along with any key details about how the separation was communicated.
Secure your bank accounts and credit cards
As soon as possible, ideally prior to separation, ensure that you have access to money that cannot be cut off. This might include opening an account in your sole name and having any wages or payments directed to that account.
After separation, consider the risks or benefits of continuing joint accounts including credit cards. If you are the primary account holder on a credit card, consider cancelling any secondary cards to avoid debt being run up in your name.
For joint accounts that have significant amounts of money, or mortgages with re-draw facilities, it may be these cannot (or should not) be closed or quickly placed into a single name. If this is the case, ensure that your financial institution is aware of your situation and take steps to ensure one person can’t remove money without the other person’s signature.
Understand your financial situation
Have a good understanding of your financial situation – what you will need to make sure you are able to manage your household income and liabilities (for example loans, credit cards, mortgages, etc.). You will continue to be jointly liable for anything that is in joint name until resolved by way of agreement (which usually includes who will do what to be responsible for debt).
Make copies of important documents
This is especially important if you think there might be a dispute about property or if you have concerns that there may be attempts to ‘hide’ or dispose of income or property.
It may become important at a later stage to be in a position to prove something like the existence of particular bank accounts. Having copies of all tax records and bank account statements and other documentation at the time of separation can be useful in the event of a dispute.
Change passwords and consider your privacy
In some instances, the separation process can trigger a desire by one person to try to remain ‘connected’ to the other person. In rare circumstances, this can escalate to stalking, theft, and other criminal behaviours.
It’s important that you change your passwords and PIN numbers for everything. This should include, at a minimum:

banking and other financial institutions; all social media accounts (Facebook, Twitter, Instagram, LinkedIn etc.),
your email accounts; your mobile phone and computer, and
online shopping platforms (EBay, Amazon, iTunes, Paypal etc).

Change the password to something that your ex-partner will not guess (so do not use an old password or a combination of the kids/ dogs names) or use a random password generator.
Also, consider setting up a mail redirection to a post-box for a period of time to ensure that your private details remain that way.
Be polite and avoid confrontation
While it might be difficult on occasion, do your best not to engage in any ‘slanging’ matches – either verbally or via text, email, Facebook or similar. Not only is it counterproductive to achieving as smooth a separation as possible, but these exchanges can sometimes turn up as evidence in later family law proceedings.
Get legal advice
This does not mean that you need to ‘lawyer up’. Many people wisely seek early advice on matters to do with property and children prior to entering into discussions with their ex-partner. You wouldn’t go and buy a car without having done some research into what you might expect to pay, nor should you enter into conversations about property settlement prior to having at least a general idea of what your entitlement might be.
For more on this, read: Should you see a lawyer before separation?
Seek out support
You may feel sad, guilty, or angry about your separation but how you conduct yourself in the early days after separation may set the framework for future discussions. Respectful engagement is especially effective, and where children are involved, it should be a priority. Things you say and do during this stressful time may end up as evidence a bit later on.
Don’t underestimate the value of counselling at this stage. While friends and family are willing to listen and provide support, an outside person can allow you to talk through your feelings without fear of judgement.
DDCS Lawyers specialise in all aspects of family law and estate planning and can help guide you through the difficult process of separation so you can move on positively with your life. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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The High Court has found that a man who donated his sperm to a lesbian friend is the father of the child. The matter highlights the myriad factors – other than biology – that determine if someone is a parent.
For the background on this case, read our previous article “High Court considers who is a parent under Family Law Act“.
A key factor in the arguments presented was whether state or Commonwealth laws should apply.
Ordinarily, section 60H of the Family Law Act (Cth) applies to children born as a result of artificial conception where the woman is married or in a defacto relationship with another person. This section says this in these circumstances a sperm donor is not considered a parent, despite the genetic connection to the child.
However, in this case, because the mother and her current partner were not in a defacto relationship at the time of the child’s conception, section 60H did not apply to exclude the sperm donor from being considered a parent.
Whereas the Full Court of the Family Court decided that s79(1) of the Judiciary Act would apply to “pick up” provisions of the NSW Status of Children Act – which would have the effect of excluding the father from being a “parent”, this approach wasn’t supported by the High Court.
In its summary of the decision, the Court outlined, whether or not a person was a ‘parent’ under the Family Law Act is a question of facts and degree, determined according to the “ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand”.
In this case, it was relevant that the man had provided sperm to a close friend with the intention of playing an ongoing role in the child’s life. As well as being named on the birth certificate, the child called him ‘Daddy’ and they enjoyed a close relationship.
This decision highlights that caution needs to be exercised when a sperm donor is known to the recipients and has an ongoing relationship with the child. It is possible that a genetic donor may at some time in the future seek parenting orders in relation to that child. Whether the application would be successful will depend on all the facts of the case.
Likewise, it is possible that genetic donors who develop a parental relationship with their biological child may later be found to be a parent under the law. This may deter donors who wish to have some involvement in their biological child’s life to do so, lest they are found to have some responsibility, including financial obligations, as it’s not clear the level of involvement that separates a donor and legal parent.
However, it’s important to note that this doesn’t mean is that anyone who has been a sperm donor can be considered a parent and acquire parental rights. Anonymous sperm donors wouldn’t be able to seek out parental responsibility after the fact.
Have a question about parenting matters or need to better understand your rights? The team at DDCS Lawyers are experienced in all aspects of family law. Call us on (02) 6212 7600 to arrange an appointment.
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The decision to separate from your partner isn’t easy. It’s likely you have to deal with emotional upheaval and the loss of the relationship. At the same time, there are also lots of matters to consider as you navigate the actual separation.
Separation can be a lengthy process and it helps to speak to a lawyer early on to fully understand what you might need to consider, along with the steps you can take to protect your interests.
Even if you believe your separation will be amicable and that you and your partner can come to an agreement yourselves, your lawyer can give you valuable advice about what you both need to consider, the legal process, and anyone else you may need to speak to. Expert family lawyers have good networks of other professionals to support you during this time, including counsellors, financial advisors, accountants and property valuers.
What’s involved in separation?
The legal process of separation applies to both married couples and people in a defacto relationship. Separation can involve a property settlement and parenting arrangements, along with divorce. Family law is complex and it’s important to see a specialist family lawyer, or ideally an Accredited Specialist, to get the right advice.
However, just because you speak with a lawyer doesn’t mean you have to use one throughout the process or go to court to resolve your separation. Many couples use mediation (with or without legal representation ) to negotiate and then engage lawyers to formalise their agreement with the court.
Separation and property settlement
When it comes to a property settlement, you are dealing with important decisions about your current financial circumstances and your future retirement income.
Early on, it is important to get advice about managing risk. For example, you will usually want to close your joint bank accounts and credit cards to establish your own pool of money and avoid any debt being accrued by your partner in your name. You should also obtain copies of any financial statements, property titles and statements so you have a clear idea of what assets you have together. This may be easier to do when you’re both still living under the same roof.
A property settlement can be complex involving: tax consequences; commercial law if you and your spouse have a business; property law; and superannuation compliance law if you have a self-managed super fund. Getting legal advice can help you prepare for what’s involved and ensure you’re getting the right advice at the same time.
In addition, a lawyer can help you understand the timeline for your property settlement. There are specific deadlines involved in seeking a property settlement related to the date of separation or divorce. And there are serious risks delaying a formal property settlement. You may risk assets acquired after separation, such as a new house, or you may miss an important deadline that makes it difficult to seek a property settlement later on.
Children and separation
If you have children, then their wellbeing during this time is of utmost importance. In most cases, your children can continue to have a close and significant relationship with both parents after separation. A specialist family lawyer will advise you about the options for the children’s living arrangements and the resources available to you and your former spouse to reach an agreement.
However, if you have concerns about your spouse’s reaction or you fear for your safety, seeing a lawyer before you separate means you can take steps to protect yourself and your children while making plans for the next stage. If you anticipate that your spouse will restrict your access to money or the children, then getting advice is vital to ensure you have put protections in place.
DDCS Lawyers specialise in all aspects of family law and estate planning and can help guide you through the difficult process of separation so you can move on positively with your life. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.
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By Alison Osmand
Family violence remains one of the most significant issues facing women and children in Australia especially in terms of the impact on their separation and their future going forward.
Family violence has a direct impact on a party’s ability to negotiate about their property settlement and make appropriate arrangements for their children. The ability to access the court system to seek assistance in circumstances where your personal safety and that of your children may be at risk should be a fundamental part of the Australian justice system.
The release of the Court’s Family Violence Plan is designed to address the issues of family violence. By engaging in a multifaceted approach, the Court hopes to effectively address and better understand the cause, dynamics and effects of family and domestic violence in family law proceedings.
Chief Justice of the Family Court of Australia, the Honourable Will Alstergren acknowledged the close connection between family breakdown and violence, and the detrimental impact on adults and children who live with family violence.
“The Courts take family violence very seriously and realise that we must continually strive to do better. This Plan identifies clear goals, actions to be taken and timelines in relation to protection from family violence; safety at court; and information and communication,” Chief Justice Alstergren said.
The plan provides guidance and a set of actions for administrative staff, decisionmakers, legal practitioners, service providers and others involved in the overall family law system. It also covers the review and updating of the Family Violence Best Practice Principles, a document designed to assist judges, legal practitioners and litigants understand the legal requirements for all matters in which family violence is alleged.
Along with the release of the Court’s Family Violence Plan, on 11 March 2019, the Family Law Act was amended by the Family Law Amendment (Family Violence and Cross-examination of Parties ) Act 2018 (Cth) which prohibits perpetrators of family violence from personally or directly cross-examining their former spouse in family law proceedings where the perpetrator is self-represented in the proceedings. The Family Violence and Cross-examination of Parties scheme will be established to fund legal representation for the purpose of cross-examination of the victim. That is, the perpetrator will need to apply for this representation or they may be prohibited from cross-examining the other party. The scheme will be administered by Legal Aid Offices in the states and territories.
The Judge can determine and make an order that the cross-examining party (the perpetrator) cannot cross-examine the other party personally and the cross-examination must be conducted by a legal practitioner.
This is a significant amendment to the Family Law Act that further demonstrates the Court’s commitment to protecting victims of family violence in family law proceedings.
If you are concerned about family violence at all, please call our us on (02) 6212 7600.
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