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Family Law and social media publication of court proceedings

Any matters discussed during Court proceedings, or documents created for the purposes of proceedings in either the Family Court of Australia or Federal Circuit Court of Australia are not made available for consumption in the public domain and should not be used for any other purpose, which is not related to the family law proceedings.
In furtherance of that objective, parties in family law proceedings provide an implied undertaking that any information they discover during the family law proceedings will only be utilised in those family law proceedings and not for any other purpose.
Additionally, the Family Act 1975 imposes a restriction on all persons publishing in a newspaper, radio, or television broadcast, or otherwise “…disseminating to the public, or a section of the public” by any means, any part of any proceedings, which may identify a party to the proceedings, a person related to, or associated with, the proceedings, or a witness in the proceedings. Any persons who breach this restriction commits an indictable offence, which is punishable by up to one (1) year imprisonment.
Family Law Court proceedings not available on social media
The restriction on newspaper, radio, or television is self-explanatory, so will not be explored any further. But what about, otherwise disseminating to the public or a section of the public any part of the proceedings which may identify parties to the proceedings, or relatives and associates of parties to the proceedings?
Is a conversation with a Psychologist, Doctor, Counsellor, or trusted friend disseminating to the public, or a section of the public? The short answer is no, but if that conversation takes place over one of the publicly available social media platforms, the answer will be yes.
The Courts have examined this issue at length and the phrase “disseminating to the public, or a section of the public” should be read as widespread communication, with the intention of reaching a wide audience. Widespread communication will no doubt include, statements on Twitter, Instagram and Facebook, which we will get to later.
There may be instances where releasing information or documents created specifically for the purposes of family law proceedings serves the interests of justice. For example, if you are defending a criminal, or libellous allegation and a party, or witness in family law proceedings has made prior inconsistent statements in the Family Court, which bear direct relevance to the proceedings of another Court, then it is highly likely that, on application, the Family and Federal Circuit Courts will authorise the release of that information and relieve a party of their “implied undertaking of silence”, for the purposes of mounting the best available prosecution, or defence available to them. The “credit” of a witness in Court proceedings is an issue of the utmost importance in most litigation and where witnesses have made prior inconsistent statements, they should expect to be cross-examined about such statements.
There are other instances where statements on websites, Twitter, Instagram and Facebook are referred to the Court for further action and in one of these examples, the names of witnesses, children and parties in family law proceedings found their way on to a website. The mother filed an application with the Court seeking an injunction against the website and suspected that the father was involved in the creation of the website, but there was insufficient proof to support these allegations. The Judge issued an injunction against those behind the website restraining them from continuing to have the material identifying parties and witnesses, accessible on their website.
It is noteworthy that Judges in the family law jurisdiction do not have any authority to punish persons who breach those provisions of the Family Law Act, they are limited to referring alleged breaches to the Australian Federal Police for further investigation. If the AFP conclude there is enough evidence to prosecute a person, they need to seek the Director of Public Prosecutions written consent before they commence proceedings.

Child Support for grandparents

Are you caring for a grandchild or grandchildren, under 18 years of age? If so, you may be eligible for child support payments from one or both parents by applying to the Child Support Agency for a child support assessment.
There are occasions when children are cared for by grandparents, instead of their biological parents. On those occasions, grandparent carers can apply for a child support assessment if they have care of a child under the age of 18 years, for 128 or more nights per year (equivalent of 35% or more care).
The all too common reality of “grandparent care”, is that the biological parents’ or parent/s capacity to care for their children has been compromised in some way and the grandparents have intervened, or been asked to intervene, to ensure that the child/ren receives the most appropriate care. It may come as cold comfort then, to learn that any child support you are paid as a grandparent, is calculated on the combined income of the biological parents, as well as the level of care you provide. This obviously helps make sure that both parents are contributing towards the ongoing costs associated with raising their children, but it does raise the obvious problem – if the parent/s capacity to care for their child/ren is compromised, it is highly likely that their capacity for gainful employment is equally compromised, so any child support you receive as a grandparent carer will be a reflection of that situation.
If the biological parent still provides some overnight care for the child/ren, the amount of care will also be considered by the CSA when they are calculating the amount of child support payable to the grandparent. The greater the level of “grandparent care”, the greater the costs associated with that care and the greater the level of child support the grandparent will receive. If the biological parent/s still provide substantial care for the child/ren, the grandparent can expect that the level of child support will be reduced accordingly.
The principle of parents contributing to their children’s care is consistent throughout the child support framework, but as you can see, there are practical limitations for grandparents who are being relied upon to fill the void left behind by a parent, who cannot care for their child/ren.
If you are a grandparent and have any questions about whether you are eligible to claim child support, please contact one of our Gold Coast Family Lawyers to discuss your eligibility.

What do I have to do before I can go to Court to resolve my financial matters?

Separation can be a confusing and stressful time for all parties, especially when people have their finances intermingled. It can be overwhelming to deal with this at separation, but it is imperative that you are careful with these matters. The Family Law Rules 2004 sets out pre-action procedures which apply in financial cases.
Genuine effort to attempt to resolve  disputes
Before making an application to the Court to resolve financial issues pursuant to the Family Law Act, any party is required to make a genuine effort to attempt to resolve the dispute and/or narrow the issues that require a Court to decide. This means by giving notice to their estranged spouse or former partner and exploring alternatives to Court proceedings to settle the dispute, such as mediation or arbitration.
Exceptional circumstances
However, the most important thing that you need to remember is every marriage, every relationship is different and there are exceptional circumstances which may apply. The circumstances in which the Court may accept that it is not possible for the “pre-action procedures” to apply are:
1. If your matter is urgent;
2. If there are allegations of child abuse or an unacceptable risk of child abuse;
3. If there are allegations of family violence or a risk of family violence;
4. If there has been fraud by either party;
5. If there are genuine intractable economic dispute between the parties;
6. If there is an undue prejudice or a party may be adversely affected if the other party is given notice of an intention to commence proceedings; or
7. Where a limitation period is due to expire.
Pre-action procedures do not apply to divorce, child support or applications regarding bankruptcy.
The objectives of pre-action procedures
The benefits of the parties complying with the pre-action procedures can save the parties significantly in legal fees. The objectives of the pre-action procedures are:
1. To encourage early full and frank disclosure through exchange of documents, statements and other information about that parties case;
2. To resolve matters quickly and to avoid legal proceedings – in turn, this limits legal costs of both parties;
3. Where there cannot be agreement, to limit the issues that need to be litigated in a Court;
4. To provide insight to the parties and to encourage them to seek orders that are realistic and reasonable.
When a party commences an application, the Court may consider whether the pre-action procedures have been complied with and met. If not, then the Court may make orders for a non-complying party to pay cost for the other party, or may take non-compliance into account at a final hearing. This however, very rarely occurs.
So, what do you have to do?
Essentially, there are five main steps to follow.
Step 1: Invite the other party to participate in dispute resolution, such as a mediation.
Step 2: Agree on type of dispute resolutions and schedule a date and time to attend.
If the parties agree to attend a mediation, then both parties should agree to make a genuine effort to resolve the dispute. If an agreement is reached, then the parties can finalise the agreement by way of Consent Orders or a Financial Agreement.
Prior to parties attending a mediation or dispute resolution, parties should exchange full and frank disclosure of all information relating to the issues in dispute and any documents that support either parties case. This should enable the parties to prepare a schedule setting out their assets, liabilities and incomes. In property settlement matters, the Court will most likely order the following documents to be exchanged:
1. the party’s three most recent payslips or other documents evidencing income, such as contracts of employment;
2. the party’s three most recent taxation returns and assessments
3. documents about any relevant superannuation interest, including:
a. the completed Superannuation Information Form
b. for a self-managed superannuation fund, the trust deed and the last three financial statements
c. the value of the superannuation interest, including how the value has been calculated and any documents working out the value
4. for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
a. financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years
5. for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
a. any Business Activity Statements for the 12 months ending immediately before the first court date
6. for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution
7. for any trust, the trust deed
8. for any partnership, the partnership agreement, including amendments, and
9. unless the value is agreed, a market appraisal of any item of property in which a party has an interest
Step 3: If there is no dispute resolution service available or a party refuses to attend, then you should provide written notice of issues pertaining to your matter and future intentions. If you have attended a mediation and there was no agreement reached, you should also provide written notice of your intention to commence proceedings setting out the issues in dispute and orders that you are seeking. It is important that you allow the other party a reasonable time to reply to your notice, such as 14 days.
Step 4: If you receive notice from the other party that they intend to commence proceedings, it is important to seek urgent legal advice and reply within the time frame stated. If you do not respond, the other party’s obligations to follow the pre-action procedures ends and they can reply on this notice to support their application.
Step 5: Where there is no agreement reached after reasonable attempts, then it may be necessary to file an application in Court.
If you need help to navigate the pre-action proceedings, please feel free to call MCG Legal and speak with any of our Gold Coast Family Lawyers on 07 5591 2222 and set up a free consultation to talk to one of our experienced lawyers.

Same-sex couples and Child Support

Same-sex couples, who are recognised as parents under the Family Law Act 1975 can apply for child support, on separation.
How do you become recognised as a parent under the Family Law Act 1975?

If a child is born to a woman, as a result of an artificial conception procedure (IVF, donor insemination, or home insemination) while the woman is married to, or in a de facto relationship with another woman, and both parties agreed to the conception procedure, the mother is a parent by virtue of her having given birth to the child and the de facto/wife is a parent, by virtue of her relationship with the mother.
If a child is born to a woman, who was commissioned by another person, or persons to be the surrogate, the other persons, or persons will be recognised as a parent, when a surrogacy parentage order has been issued by a State or Territory Court of appropriate jurisdiction. Presently, only the ACT Supreme Court has the authority to issue such an Order. So, surrogacy arrangements are only recognised for child support purposes in the ACT.
By adoption, which can be achieved if you are in a de facto relationship with the parent of a child and adopt their child, or adopt a child together, although same-sex couples are only able to adopt a child in WA, ACT, and in limited circumstances in Tasmania.

Once the Child Support Agency has determined that you are a recognised parent under the Family Law Act, any child support payable by a separated parent is calculated using the normal method – i.e. annual income of both parties, nights of care for both parties and age of the child. If you do not agree with the assessment made by the Child Support Agency, you can formally object to their decision and ask for it to reviewed.
If you were involved in a same sex relationship and the relationship produced a child via artificial conception, adoption, or surrogacy as described above, please contact one of our Gold Coast Family Lawyers to discuss your eligibility to claim child support.

Understanding Binding Child Support Agreements

Child support is a payment made by one or both parents to the other, or a third party to help with the costs associated with caring for children. Child support is regulated by the Commonwealth of Australia (in particular the Child Support Agency) and occasionally the Federal Circuit Court and Family Court of Australia will deal with child support matters upon Application being commenced before them.
If parents don’t agree about the amount, frequency, and method of child support payments, they can ask that the Child Support Agency conduct an assessment of the other parent. The Child Support Agency, will then determine how much and how often a parent is required to pay the other parent child support. Unfortunately, this method of payment is mostly limited to money transferring from one parent to another and options, such as paying for costs associated with children’s schooling, medical expenses, and other extra-curricular activities play a limited role in any child support assessment.
The Child Support Agency manages the assessment and collection of child support.
When assessing how much child support is payable, the Child Support Agency considers:

The parents’ income – both sole and joint income
The number of nights the child spends with each parent
The child’s age and if more than one, each child’s age.

There are a range of options available when it comes to the collection of child support. Collection can occur privately or through the Child Support Agency. If the party paying child support, fails in their obligations to make the assessed payments then the child support has enormous powers regarding collection and can in cases garnish wages.
What if I want a private child support agreement?
If parents agree about what child support costs should be paid by whom, they can exclude the involvement of the Child Support Agency and execute a legally enforceable agreement about the amount, frequency and method of child support payments after separation, called a Binding Child Support Agreement.
These types of private agreements allow parents to include periodic and non-periodic payments (i.e. payments for health insurance, sporting activities, piano lessons, school fees etc.) into their child support arrangement.
There are two types of Binding Child Support Agreements:

Limited agreements
Binding agreements

Child support agreements, which have been properly negotiated between parents can often produce long term sustainable outcomes, which better suit each parent, but they should not be entered into lightly. They are legally enforceable agreements that, and in some cases, can only be changed by future agreement between you and the other parent or by making a complicated application to the Court
You are required to obtain independent legal advice about the advantages and disadvantages of signing a Binding Child Support Agreement before you sign the document. You are not required to get legal advice before signing a Limited Child Support Agreement, but you should always get legal advice before you sign any Agreement, whether you are required to or not.
What if the other party lives outside Australia?
If the other party is living outside of Australia, they may still be eligible to pay child support. At MCG Legal our Gold Coast Family Lawyers can assist you to better understand your entitlements or liabilities in relation to child support.
The article is written by MCG Legal. Our Gold Coast Family Lawyers offer simple explanations to frequently asked questions about child support agreements. This article is not legal advice and should not be relied upon as same as it does not answer questions specific to your situation.
Please contact us at MCG Legal for a free family law consultation.

Wills and probate

If you are named as executor in a Will, you are responsible for carrying out the terms of the Will when they die. This may involve applying for a grant of probate, or letters of administration.  A grant is the formal process of the Court recognising that the Will is legally valid, and you are authorised to deal with the assets of the estate.
Types of Grants
There are three main grant types:

Grant of probate —where a valid Will was written, and an executor named in the Will is applying;
Grant of letters of administration of the Will —where a valid Will was written and someone other than an executor named in the Will is applying (e.g. the Executor has died, or no longer wants to perform their role). The person applying for letters of administration will be the authorised person to deal with assets;
Grant of letters of administration on intestacy —where no valid Will was written. The person applying for letters of administration will be the authorised person to deal with assets.  The estate is administered according to the intestacy rules.

You may also need to reseal a grant of probate if another state grants the probate but assets are found in Queensland.
You are not required by law to apply for a grant —but there are certain circumstances when you may need it.
Do you need a grant of probate?
You may need a grant of probate because a person or organisation holding estate assets will not release them without sighting a grant of probate. You should ask the organisation involved (e.g. financial institution) whether you need a grant of probate. You may not need one if:

the value of the assets is relatively small (e.g. a small bank account)
the real estate is to be transferred to a beneficiary named in the Will
you have to sell real estate.

You should not need a grant of probate if the only estate asset is the family home and the title is held in joint names because ownership transfers to the surviving joint owner upon death.
Applying for a Grant
The process for getting a grant to administer an estate can be complicated and it may be preferable to engage a solicitor to guide you through the process and apply for you.  There are five basic steps to apply for a grant of probate, grant of letters of administration of the Will and grant of letters of administration on intestacy.
Step 1: Advertise your intention to apply for a grant in the Queensland Law Reporter (QLR).  The correct wording of the advertisement is important and pre-formatted documents can be found on the Supreme Court website.
Step 2: Give a copy of the notice to the Public Trustee, by post, fax, email or deliver the notice in person. Wait until seven (7) days after the Public Trustee receives the notice to file your application (e.g. if you serve your notice on Friday 8 May, don’t file before Monday 18 May.)
Step 3: Give people time to object
Wait fourteen (14) clear days after your notice appears in the Queensland Law Reporter to enable people to object to your application.  You can file your application on the 15th day, but if the registry is closed that day, file on the next day the registry is open (e.g., if the notice appears on Friday 8 May, you can’t file before Monday 25 May.
Anyone claiming to have an interest in the estate can file a caveat (objection).  If they have evidence, the Court won’t make the grant of probate until the claim is resolved.
After a person files a caveat, you should seek legal advice as examination of the estate stops until the caveat process is completed.  The registrar will send a notice of same to the person lodging the caveat and the applicant.
Step 4: Prepare the documents for your application
This normally involves the following documents:

Notice of Intention to apply for probate
Application for grant of probate
Affidavit in support of application for grant of probate
Affidavit of service and publication

The documents must comply with the certain legal requirements and it may be beneficial to seek legal advice about this if you are unfamiliar with the rules.
Step 5: File at the Supreme Court
Once all the above steps are completed, you can file your application and supporting document at the Supreme Court, either in person or by post.  Filing fees of $722.60 apply.
Once you have filed your application, court staff examine the documents and, if everything is in order, issue the grant in approximately four (4) to six (6) weeks.

Shared Care and COVID-19

In January 2020, COVID-19 started infecting Australians and this virus has the potential to impact on all separated parents who have an arrangement (via Court Order, or otherwise), whereby they share care of their children.
The most important principle is that parents, always, should act in the best interests of their children. If it is in the children’s best interests to remain at home and not spend time with their other biological parent, because a real and present danger of transmission of the virus exists, then the children should stay at home. If a real and present danger does not exist, then the children should spend time with the other biological parent as agreed, or ordered by the Court.
An example of a “real and present” danger is, you have recently returned from overseas travel, been in contact with someone who has recently returned from overseas travel, are unwell, or recently been in contact with someone who is unwell. If that is the case, then the child’s best interests must be paramount and your post separation shared care arrangement should be suspended, until you have been tested for COVID-19 and cleared.
Travel from one house to another in the same State to effect a “changeover” of the children has not been restricted, or prohibited. If you effect changeover at a contact centre, and that contact centre is now closed, then it is expected that you make a reasonable, sensible and practical alternative arrangement to effect the changeover.
If you are subject of a Court Order, then you should make every reasonable effort to comply with the Order. If you contravene a Court Order, you should consult with one of our Gold Coast Family Lawyers and have a good explanation for contravening the Orders. If you are not subject of a court Order, then agreed shared care arrangements for the children, should continue as they were prior to the virus arriving in Australia.
But, what happens if you have contravened a Court Order and your explanation is that travel isn’t safe because of the virus? The Court has recently decided a case whereby the mother of a young child lived in South Australia and the father lived in Darwin (and later Brisbane). In 2018, Orders were made that the child live with the mother and spend time with the father no less than 4 days per month, some additional time over Christmas and time to increase as the child grew older.
The child did not spend time with the father as ordered by the Court, for two consecutive months, in March and April 2020, which caused the father to bring a “contravention application”. The mother relied on COVID-19 and claimed that she had a reasonable excuse for not delivering the child to the airport as required. The Judge determined that the mother had contravened the Court Orders, but that she had a reasonable excuse for doing so and no punishment was delivered on that front.
After examining the circumstances of the case and the various Government directions, the court determined that the mother’s concerns about the travel exposing the child to a greater risk of being infected by COVID-19 were reasonable and agreed with the mother when she raised the defence that her behaviour was necessary to protect the health and safety of the child.
The father’s application failed, but the Court made allowances for the fact that the child had “missed” time with the father, and varied the orders to allow for “make-up” time to be spent in Adelaide and further time in Adelaide, when the risk of community transmission of the virus has reduced.
It is important to understand that this case was decided in early May 2020 and examined the concept of “cross border travel”. The risk of community transmission has greatly reduced since that time and the mother’s behaviour may not have been excused by the Court, if she was travelling from one suburb to another in the same State.
It may be necessary to use common sense and alter previous arrangements, or Court Orders, for a short time, because of the virus. If that is the case, try to make sure that any modification to previous arrangements, is in writing, to avoid any confusion. It is important that any such changes do not offend the “spirit” of the previous arrangements. For example, if the previous arrangements were one week with one parent, the next week with the other, it would be difficult to justify a change such as 10 days with one parent and 4 days with the other.
If you cannot resolve a dispute that has arisen because of the virus, then you should book an appointment with one of our Gold Coast Family Lawyers for legal advice. There are also opportunities to approach the Court electronically and seek a variation of the Orders.

When can a child decide which parent to live with?

The law in Australia is that the best interests of the child are the paramount consideration. Children are entitled to enjoy a meaningful relationship with both parents. The law also describes that children need to be protected from being subjected to, or exposed to physical or psychological harm. Ideally, your parenting arrangement will incorporate all these concepts, but there are times when it is not in the best interests of the child to spend time with a parent.
The law is described in the Family Law Act 1975 and it is gender-neutral, making no assumptions about who performs what parenting roles.
A presumption of ‘Equal Shared Parental Responsibility’ exists, when parents separate, with children under 18 years of age. However, equal shared parental responsibility is not the same as equal time.
Equal shared parental responsibility means that both parents share the responsibility for making decisions about major long-term issues, such as schooling, major health decisions, and religious observance. A Court can decide that it is in the best interests of the child to remove parental responsibility from one or both parents.
A child’s age is not one of the determining factors in deciding where the child will live. Notwithstanding that, the older a child gets, the more weight their voice carries. The Court does take into account:

the child’s maturity
their level of understanding of the situation
whether their opinions are well informed
whether there is evidence the child has been unduly influenced

The role of an Independent Children’s Lawyer
In some situations, the Court will appoint an Independent Children’s Lawyer to represent the children. The ICL will gather information from sources including teachers, doctors, psychologists, counsellors, police and child welfare authorities before deciding whether to interview the child or not.
This appointment will often be made in cases where:

there are allegations of physical, sexual or psychological child abuse
there is ongoing conflict between the parents
the child is alienated from one or both parents
there are cultural or religious differences affecting the child
there is a proposal to separate siblings into different households or take a child overseas

The article is written by Gold Coast Family Lawyers, who practice in the area of Family Law and is intended to offer simple explanations to frequently asked questions about whether children’s voices are heard in family law proceedings. It is not legal advice and should not be relied upon as it does not answer questions specific to your situation.

What is a Family Report?

In a dispute involving children, a Family Consultant is often appointed.  The Family Consultant is appointed by the Court to interview and observe relevant parties; prepare reports about their interviews and observations, and make recommendations about the most suitable future co-parenting regime.  They provide an independent voice, helping Judges make decisions about arrangements for the child/ren.  In the process, they may also help the parties reach an agreement.
In preparing the report, the Family Consultant considers the family’s circumstances, explores issues relevant to the case, and recommends arrangements that will best meet the child/ren’s future care, welfare, and developmental needs.  The child’s best interests are always of paramount importance.
The report is confidential and cannot be shown to anyone other than parties to the Court proceedings and their legal representatives.  It is an offence, to publish or disseminate to the public, or a section of the public, any part of proceedings under the Act that identifies a party, a witness, or certain other persons.
What is a Family Consultant?
Family Consultants are qualified social workers or psychologists, with skill and experience in working with children and families.  They are appointed by the Court to help parents and Judges achieve the best outcomes for the children. Family Consultants are recognised as experts in relation to children’s matters.
How much does a Family Report cost?
A Family Report can occasionally be ordered and paid for by the Court, where the parties are under financial hardship, so there is no cost to either party.  Alternatively, the Court may order that the parties equally pay for the costs of the report, which costs between $4,000-$5,000.
What happens after a Family Report is ordered?
One of our Gold Coast Family Lawyers will contact you advising you of your appointment times and in preparation of the interviews.  Interviews may be conducted in the Child Dispute Services Section of the Court, or at the Family Consultant’s office.
What information will the Family Consultant need to prepare the Family Report?
The Family Consultant may contact teachers, doctors or other relevant professionals for more information about your child/ren. The Court may also direct that the Family Consultant has access to material that has been subpoenaed.
Generally, the Family Consultant will gather information about:

the issues in dispute
past and present parenting arrangements
the parenting capacity of each party
your child/ren’s relationships with significant people
your child/ren’s wishes and views, and
any risks to the child/ren.

Is the information provided to the Family Consultant confidential?
The information provided to the Family Consultant is confidential to the Court proceedings, but all information gathered by the Family Consultant is admissible in Court.  The Family Consultant is required to include relevant information in the report and may also be required to give evidence in Court.  So, others not involved in the Court proceedings will not know about the contents of the report, but all those involved in the proceedings will.
What if the recommendations of Family Report are unfavourable to me?
The Family Report is only one source of evidence that the Court considers in making its decision, but their views are very persuasive.  The Court is not bound by any recommendations made in the report and you can challenge the contents of the Family Report, by cross-examining the report writer at a trial, although very few cases proceed to trial.

Family Law Duty of Disclosure

In Family Law matters, there is a positive and ongoing duty of disclosure. The duty requires all parties to Court proceedings to disclose to the Court and each other all relevant information. This includes, but is not limited to, information and documents that the other parties may not know about. This duty starts from the moment you start negotiations and continues until the case is finalised.
There are two broad categories of cases in family law matters – cases that relate to property matters, and cases that relate to children’s matters. Occasionally, the categories will be intertwined, an example of this is children’s expenses. What you are required to disclose depends on the circumstances of the case.
Disclosure in financial cases
In these types of matters, both parties are required to provide all information about their financial situation. The types of documents required in financial cases include but are not limited to:

Payslip/income statements
Bank account statements
Taxation returns
Superannuation statements
Valuations and appraisals of assets
Details of any financial resources and supporting documentation
Details or interests in any company and/or trust and supporting documentation
Details of assets disposed of leading up to separation and since separation

When preparing for financial discussions that involve children, you should collect receipts for expenses such as:

School fees
Childcare fees
Health care costs
Any other expenses such as music, sport or other activities

Disclosure in parenting cases
Parties are also required to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. For example, they may include:

Medical reports about a child or parent
The amount of time a child spends in a parent’s care
School reports
Letters and drawings by the child
Photographs
A diary

Penalties
If you fail to disclose or file an undertaking or file a false undertaking, the Court may:

Refuse to allow you to use that information
Award a greater portion of the property pool to the other party as compensation
Postpone or dismiss all or part of your case
Order costs against you
Fine you or imprison you on being found guilty of contempt of Court for not disclosing the document or for breaching your undertaking

The article is written by Gold Coast Family Lawyers, who practice in the area of Family Law and is intended to offer simple explanations to frequently asked questions about disclosure and what practical impact if any, non-disclosure has on the division of matrimonial assets. It is not legal advice and should not be relied upon as same as it does not answer questions specific to your situation.

I had all the money, do I get to keep it in a divorce or separation?

This is a phrase often heard by Gold Coast family lawyers when considering divorce or separation. In many cases, one party has started the relationship in a significantly stronger financial position than the other party, and therefore it is the expectation of the financially stronger party that they retain what they entered the relationship with.
In such a case the initial funds that are bought into a relationship are considered a contribution to the relationship or marriage. In determining any financial matter between parties, all of the contributions made by the parties must be properly considered, and this runs hand in hand with the facts of the relationship or marriage.
Contributions can be financial or non-financial to the acquisition, conservation or improvement of any property. Contributions are also those made by either of the parties to the welfare of the family. There is no exhaustive list of contributions that must be considered. Every case turns on its own set of facts and must be properly considered.
In matters where the initial financial contribution by one party is overwhelming, the Court considers the contributions of the parties in totality, not just the initial funds brought into the relationship.
Assessing financial contributions in a divorce settlement
In one example, a couple commenced a relationship with the husband bringing just shy of five million to the relationship and the wife half a million. There were two children to the marriage and the marriage lasted nine years. The children lived with the father and spent time with their mother on weekends and holidays. The property pool at the time of trial was worth nearly $13 million, inclusive of superannuation. The decision was that the contributions of the parties were equal throughout the marriage but for the funds that were bought into the marriage. Contributions were assessed overall as 80/20 in favour of the husband. There was a further adjustment in favour of the wife of 10% on what is referred to as section 75(2) factors giving a result of 70/30 in favour of the husband.
The husband’s appeal that his initial contributions should be given greater weight failed.
So in summary, your initial contributions will be assessed as part of the totality of all contributions made by both parties to the relationship. There is no family law formula that guarantees that you walk away with what you brought in.
At MCG Legal we have Gold Coast family lawyers ready and willing to help you assess your circumstances and advise and assist you in resolving financial matters arising from the breakdown of your relationship. Contact us today.

The Corona Virus and parenting arrangements

In January 2020, a virus named COVID-19 started infecting Australians and tourists visiting Australia.  The virus has been the cause of many deaths in Australia.  As a result, the Australian Government has adopted some reasonably drastic measures in an attempt to save lives and limit its transmission around the country.
This virus has the potential to impact on all separated parents who have an arrangement (via Court Order, or otherwise), whereby the parents share the care of the children of that relationship. The question we are constantly being asked is, “Is it safe to continue shared care?”
The most important principle is that parents, always, should act in the best interests of their children.  If it is in the children’s best interests to remain at home and not spend time with their other biological parent, because a real and present danger of transmission of the virus exists, then the children should stay at home. If a real and present danger does not exist, then the children should spend time with the other biological parents as agreed or ordered by the Court.
An example of a “real and present” danger is, you have recently returned from overseas travel, been in contact with someone who has recently returned from overseas travel, are unwell, or have recently been in contact with someone who is unwell. If that is the case, then safety is paramount and your post separation shared care arrangement should be suspended, until you have been tested for COVID-19 and cleared.
At this stage, the Queensland Government has not restricted or prohibited travel from one separated parents house to the other, to affect a “changeover” of the children. Travelling to drop the children at the other parent’s house is not illegal. If you effect changeover at a contact centre, and that contact centre is now closed, then it is expected that you make a reasonable, sensible and practical alternative arrangement to affect the changeover.
If you are the subject of a Court Order, then you should make every reasonable effort to comply with the Order. If you contravene a Court Order, you should have a very good explanation for doing so. If you are not subject of a Court Order, then agreed shared care arrangements for the children, should continue as they were prior to the virus arriving in Australia.
It may be necessary to alter previous arrangements, or Court Orders, for a short time, because of the virus. If that is the case, try to make sure that any modification to previous arrangements is in writing, to avoid any confusion.  These changes may later be used as evidence in a Court. It is also important that any such changes do not offend the “spirit” of the previous arrangements, for example, if the previous arrangements were one week with one parent, the next week with the other, it would be difficult to justify a change such as 10 days with one parent and 4 days with the other.
If you cannot resolve a dispute that has arisen because of the virus, then you should seek legal representation and we here at MCG Legal are Gold Coast Family lawyers working throughout Australia and can provide that advice to you
The guidelines about self-isolation and effective medical treatment, are ever changing and this article is not intended to provide anyone who reads it with medical advice, but it will provide separated parents with guidance regarding the legal position on shared care parenting arrangements, as it relates to COVID-19.  If you would like to know the most recent Government medical recommendations you should access www.health.gov.au, or see a Doctor.

The connection between Domestic Violence and asset distribution

The Domestic and Family Violence Protection Act was introduced in 1989 and further strengthened in 2012. The Act now more accurately reflects contemporary understandings of domestic and family violence.
Gold Coast family lawyers, practicing in family law are increasingly providing consultations on domestic violence matters, more than ever before, as the new Act catches a greater range of relationships, including same sex relationships and even “one night stands”, where the “one night stand” produces a child. The Act expands the definition of Domestic Violence and increases the safety, protection and wellbeing of people who fear or experience domestic violence.
So, what is domestic violence? Domestic violence can be abuse that is physical, sexual, emotional or economical. It also includes coercive, threatening, or controlling behaviour, or any other type of behaviour that causes a person to fear for their safety or well being.
Domestic violence only occurs within the context of a relevant relationship. A relevant relationship includes spousal relationships, family relationships (a relative), or an informal care relationship. The first two are self explanatory, but an informal care relationship exists between two persons, where one person depends on the other for help in an activity of daily living.
In non life threatening situations an “aggrieved person” (the victim) can apply for a protection order under the Act by attending the nearest Court and completing an application, detailing the allegations of domestic violence. In more serious cases where police are called to a house after a report of domestic violence, the Act requires the police to investigate the incident and provides them with the authority to detain a “respondent” (the perpetrator) for up to eight (8) hours while they complete an application for a protection order.
Where an application for protection under the Act has been granted, it affords the following protection to aggrieved persons:-

orders the respondents to be of good behaviour toward you;
prevents further acts of domestic violence to you or your associates (family, friends etc.) by making a breach of the order a criminal offence with more severe punishment;
prevents a respondent from attending certain premises, or places;
provides the police and/or the Court with the power to evict a respondent from their home temporarily or until the Court proceedings are finalised; and
any other orders as the Court see fit with the safety, protection and wellbeing of victims of Domestic Violence of paramount importance.

So, how is domestic violence connected to family law and the inevitable division of assets when relationships breakdown? The Courts generally adopt a “no fault” policy, so ordinarily, it doesn’t matter why you have broken up, it just matters that you have.
As you may have already read in our article about property settlements (insert hyperlink here), the Courts consider the contributions each party makes to the preservation, or acquisition of relationship assets. There are occasions where a party’s conduct in a relationship makes the other party’s contributions more arduous than they ought to have been e.g. one party assaults another party regularly, causing them to have time off work, a party cleaning up and fixing broken property damaged in a violent outburst by the other party. Or, a party protecting the children from the violent outbursts, by removing them from the violent outburst. It does not extend to incidents of infidelity.
If you are unsure whether you are a victim of domestic violence you should contact one of our Gold Coast family lawyers immediately or if your situation is life threatening call 000.
The article is written by MCG Legal, Gold Coast family lawyers. This paper is intended to offer simple explanations to frequently asked questions about Domestic Violence and what practical impact, if any, domestic violence has on the division of matrimonial assets. It is not legal advice and should not be relied upon as same as it does not answer questions specific to your situation.

Family Provision Applications

If a person dies, with or without a Will and adequate provision is not made for the deceased person’s spouse, child, or dependent, then a Court may make an order for provision that it thinks appropriate under the circumstances, regardless of the deceased’s instructions.
There are several different aspects to contesting a Will and a claim that inadequate provision has been made is one of those. For you to be eligible to contest a Will based on inadequate provision you need to be a spouse, a child, or a dependant and any application for further provision must be made within 9 months of the date of death.
A spouse can be a husband, a wife, or a de facto. The concept of husband and wife needs no further explanation, but what is a de facto? A de facto is one of two persons who are living together as a couple on a genuine domestic basis for a continuous period of at least two (2) years at the time of the deceased’s death.
How do you know if you are living together on a “genuine domestic basis”? If you live in the same house; and have done so for in excess of 2 years; enjoy a sexual relationship; are financially dependent on each other; own property jointly; raise a child or children together; care and support each other; perform household tasks; and are viewed by friends and family as being in a relationship, then you are living together on a genuine domestic basis and have a de facto partner. It is not crucial that all these characteristics be present, but the more that are the more convincing your claim.
A child includes an adopted child and a stepchild. You are a stepchild if your biological parent married another person and their relationship with the deceased did not end before their death.
A dependent is a person under the age of 18, or a parent of a surviving child of the deceased, or a parent of the deceased, who is receiving substantial financial support by a deceased person prior to their death.
A person contesting a Will must be able to prove to the Court, or the Executor that they should have received more than they did. This is much easier, when a deceased person leaves an eligible person with nothing, but not as easy, if a deceased person leaves an eligible person with less than other eligible persons.
If you contest a Will, your own financial circumstances will be examined as well as the estate assets and liabilities. It would be difficult to justify a claim against an estate holding assets of $300,000, when your personal net financial position is $5,000,000.
If you believe that your spouse or parent/step-parent, has left you with insufficient financial support, please contact us for a free consultation and independent legal advice.
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Undue Influence

It is important that a Will maker be of sound mind and clear intention when drafting a Will. That is not possible when someone takes advantage of their position of power or trust to exert undue influence over or behave unconscionably toward a Will maker. If undue influence or unconscionable conduct is proven, any instructions benefiting a person proven to have exerted undue influence, or engaged in unconscionable conduct, will be invalidated.
So, what is undue influence? There are two types of undue influence – actual undue influence and presumed undue influence.
Actual undue influence is rare but occurs when a stronger party emotionally dominates another to the extent that the dominated party loses their ability to exercise their own free will and the dominating party profits from that behaviour. It is usually very hard to demonstrate to a Court that a person has been subjected to actual undue influence.
Presumed undue influence occurs when two parties have a pre-existing relationship which is such that it raises a presumption that the recipient of the gift has influence over the Will maker. For example, the Will maker gifts everything to his overbearing neighbour, when he has two surviving children, who are in regular contact with him. In situations like this the law will presume that that any gift occurred as a result of undue influence and the Court will overturn such a gift, unless the recipient can prove that the gift was a spontaneous act of the Will maker, exercising their own free will.
There are certain types of relationships, which the law recognises automatically raise a presumption of influence – Doctor/patient, Solicitor/client, Guardian/ward and Parent/child (where the child gifts to the parent). This is not a definitive list, but provides examples of the types of relationships, which should bear closer examination in Wills.
The critical question is ultimately, whether the Will maker understands the nature and consequences of the gift; and the decision of the Will maker was the result of the exercise of independent judgment, free from any undue influence of the recipient of the Will maker’s gift.
So, what is unconscionable conduct? Unconscionable conduct occurs when a person receives a gift from a Will maker who has a special disability in circumstances where retaining that gift would be inconsistent with equity or good conscience. In other words, taking advantage of someone who is disadvantaged in relation to the intended transaction, for your own personal benefit. A person is regarded to be at a disadvantage if their disability affects their ability to judge what is in their own best interests. Examples include, illiteracy, or a lack of education; sickness; age; poverty; and lack of explanation, where an explanation is necessary. The most common characteristic is that one person in a transaction is at a serious disadvantage to the other.
The difference between undue influence and unconscionable conduct is the existence of the special disability. Undue influence is exercised against a person who has no special disability and unconscionable conduct is exercised against a person who has a special disability.
The person receiving the gift need not know about the donor’s disability, but will know of certain facts, which should make them question whether the donor suffers from a special disability, and takes advantage of the transaction anyway.
Contact MCG Legal for any enquiries you have in relation to undue influence.
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Testmentary Capacity – capability to make a Will

We all work hard throughout our lives to accumulate assets. But what happens to those assets when you die? Everyone should be able to distribute their assets after their death in accordance with their wishes whilst they were still alive. Your executor can only distribute your assets according to your wishes if you have a valid Will. There are certain circumstances which can cause a Will to be ruled invalid. One of those circumstances is a lack of testamentary capacity.
What is testamentary capacity? Testamentary capacity is a legal phrase which is used to describe a person’s mental ability, or capacity to make and/or alter a Will. It is usually the case that a challenge to someone’s testamentary capacity happens in their older years when illnesses like dementia are taking effect.
It is important that when any person is making a Will, they fully understand what property they are disposing of, who they are disposing that property to and who is eligible to make a claim against their estate. If certain persons, or relatives are not considered equally, it is just as important for a solicitor preparing the Will to ensure that the person making the will has testamentary capacity and is not inhibited in any way at the time of making the Will.
If a solicitor is concerned that a person does not have testamentary capacity it will be necessary for that person to seek further medical advice about whether they have capacity to make the Will. This is usually evidenced by way of a medical certificate.
If you know somebody who is elderly and over 70 or vulnerable it is important that you advise them to attend upon our firm  MCG Legal, who is experienced in drafting Wills and taking instructions from the elderly and dealing with issues of testamentary capacity.
We look forward to hearing from you. Contact us today.
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The impact of relationships on Wills

Everyone should have a valid and current Will, but what impact does a relationship change have on your Will? For example, if you have drafted a valid Will, whilst you were single and you are now in relationship, but the Will makes no mention of your partner, are they automatically entitled to a portion of your estate? If your partner meets the legal definition of a spouse and you have not provided for them in your Will, your spouse will be entitled to make a claim against your estate because you have not adequately provided for them.
So, what is a spouse? In Queensland, your spouse can be a husband, a wife, or a de facto partner. The concept of husband and wife needs no further explanation, but what is a de facto partner? A de facto is one of two persons who are living together as a couple on a genuine domestic basis for a continuous period of at least two (2) years at the time of the deceased’s death.
How do you know if you are living together on a genuine domestic basis? If you live in the same house, and have done so for in excess of 2 years, enjoy a sexual relationship, are financially dependent on each other, own property jointly, raise children together, care and support each other, perform household tasks, and are viewed by friends and family as being in a relationship, then you are living together on a genuine domestic basis.
The only crucial characteristic is that you must been in a spousal relationship for at least two (2) years. All other characteristics are established as guiding criteria. For example, you may not raise children together, but meet all other guiding criteria. If that is the case, you are a spouse. Each case is judged on its own circumstances, and you can apply your own circumstances to the characteristics described above to help you decide whether or not you are a spouse.
If you fail to meet the definition of a spouse, including recently separated spouses, then you will be ineligible to make a claim for inadequate provision. All circumstances of the relationship must be considered, and you should still seek our advice.
If you have provided for your spouse in your Will and then separate, is your spouse still entitled to a portion of your estate, if you do not change your Will? The answer is yes. For married couples, a divorce revokes the clauses of a Will which relate to your ex husband/wife, but you have to be separated for at least 12 months before you can apply for a divorce, and anything can happen during that period, so it is better to draft a new Will while you are waiting for the divorce.
If you were never married, but provided for your spouse in your Will, and do not change your Will to reflect the breakdown of your relationship, then your estranged spouse is entitled to what has been written in your Will, whether you still want them to receive those gifts or not.
As you can see, relationships have a significant impact on your Will, and you should always seek legal advice when commencing a relationship or separating from your spouse.
Contact our team of Gold Coast will lawyers at MCG Legal for more information.
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MCG Legal is proud to support Daffodil Day

MCG Legal was proud to support Daffodil Day on 23 August 2019. MCG Legal Staff member Bree spent the morning at Bunnings Southport volunteering for the Cancer Council selling fresh bunches of daffodils as well as a range of merchandise including pens, teddy bears and badges for this special cause.
Daffodil Day is Cancer Council’s most iconic and much-loved annual campaign that raises life-saving funds for world-class cancer research. It’s a time of hope; where we come together to show our support for the 145,000 Australians who are diagnosed with cancer each year.
Daffodil Day symbolises all Australian’s coming together in the fight against cancer. The money raised is used to support patients with cancer and their families, fund breakthrough cancer research and help reduce the incidence of cancer for our children and grandchildren.
The MCG Legal volunteers took their Daffodil Day spirit back to the office where staff joined in on a morning tea celebration to acknowledge the day.
The 2019 Daffodil Day was a great success and the Cancer Council raised over $4 million nationwide.
MCG Legal looks forward to volunteering again on Daffodil Day in 2020.
Thank you to everyone who supported Daffodil Day.

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Posting of Family Law Material on Social Media

With today’s connected society, the ease of reaching many people in such a short period of time and our changing habits of sharing our lives through social media posts, it is becoming more prevalent for parties to Family Law proceedings to post copies of documents on their social media with their accompanying comments. We have had quite a few of these examples over the last number of years. The posting of Orders sought, Affidavits filed and Orders of the Court which identified parties to proceedings potentially leaves that person at risk of prosecution.
Section 121 of the Family Law Act governs this type of behaviour. Section 121 states;
“A person who publishes in a newspaper or periodical publication, by radio broadcast or television, or by other means, or otherwise disseminates to the public or to a section of the public by any means, any account of proceedings, or any part of any proceedings, under this Act that identifies
a party to the proceedings;
a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
a witness in the proceedings;
Commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.”
The further parts to Section 121 go on to outline exceptions to this rule and also outline different ways a party can be identified.
The use of Social media is caught by the words “by other means” in Section 121 (1). The words “otherwise disseminates to the public or a section of the public by any means” places the use of social media open to being easily construed as disseminating information to a section of the public and therefore a breach of Section 121. There are a number of cases involving Facebook posts such as Lackey & Mae [2013] FMCAFam 284 just to name one.
Please think long and hard before using social media to air grievances and share Family Law related material and if you do, then one should expect repercussions.
If you need help with this or any legal matter, contact us for a free consultation.

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2019 Gold Coast Police Legacy Turf Club Race Day

On Saturday 25 May, the MCG Legal team joined over 700 others for a fantastic day out in The Dome at the 2019 Gold Coast Police Legacy Turf Club Race Day.
Guests were entertained by live music throughout the day as well as lunch & drinks and raffle prizes galore.
All funds raised went to the Queensland Police Legacy and the participants of the annual Wall to Wall Ride for Remembrance.
Read more about MCG Legal Gold Coast Community contributions.

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