If a parent intentionally fails or makes no reasonable attempt to comply with a parenting order, the court can make a finding that they have contravened the order. Where it is found that an order has been contravened, the court has the power to make a variety of orders depending upon the seriousness of the contravention. Such remedies may include enforcing the parenting order, providing make up time to compensate a parent for time missed, imposing a fine against the contravening parent or potential imprisonment.
Requirements
A person is found to have contravened an order, where they have either:

intentionally failed to comply with the order; or
made no reasonable attempt to comply with the order.

When drafting a contravention application, it is important to specify whether you say the other party either intentionally failed to comply or made no reasonable attempt to comply.
An applicant in a contravention matter must show the court that:

An order exists (whether an interim or a final order); and
The respondent has contravened the order.

You must state, clearly and concisely, the facts you rely upon to demonstrate the contravention. If you allege that more than one order has been contravened, and contravened on more than one occasion, deal with each alleged “breach” separately. Making one statement to cover all alleged contraventions, is not advisable.
Reasonable Excuse
A contravention may be excused where there is a reasonable explanation for breaching the order, for example, where the non-compliance was necessary to protect the health and safety of the child or themselves.
What are you seeking to achieve?
The law on contravention of orders is complicated and we recommend you obtain legal advice before making an application to the court. It is also important that you consider carefully what it is that you are seeking to achieve by bringing a contravention application and if only to punish the other parent, how this may affect your co-parenting relationship.
The court has expressed an unwillingness to entertain petty and unwarranted claims for contravention of parenting orders.
In a recent decision, the court found that the mother had contravened the parenting order without reasonable excuse, by not ensuring that the child was available for telephone contact with the father and for failing to give the father the required 60 days’ notice of the child’s proposed international travel.  Despite finding against the mother, the court held that the father’s application was “petty and unwarranted” and subsequently, the court did not impose any sanction against the mother and instead ordered costs against the father.
Need Assistant?
If you are concerned about your obligations under a parenting order, or if your contact time with your child has not been facilitated, one of our experienced family lawyers can assist you. Call our office on (07) 3221 4300 or fill out our booking form online.

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There are a number of factors considered when determining who gets what in a property settlement. As you might expect, this includes factors such as; financial contributions, length of the relationship, who cares for the children, but it can also include a consideration of incidents of domestic violence.
The reference to the acts of domestic violence are on the basis that they impacted on the victim spouses ability to contribute to the relationship and the acquisition and conservation of property, to the extent that it made those contributions significantly harder.
When the court is prepared to consider domestic violence in a property settlement, it is referred to as a “Kennon” adjustment, named after a case in which the victim of domestic violence was awarded a greater part of the property settlement.
If a domestic violence victim is to receive more in the property settlement, the court has to determine that it was “significantly more arduous” for that person to contribute to the relationship, due to the violence they suffered.
In a recent case, the husband and wife separated after nine years of marriage. The wife had two children from a previous relationship. The wife worked outside the home, as well as contributing to home duties.
The wife claimed that both she and her children were subject to ongoing violence through the relationship, although this was denied by the husband. After the couple’s separation, the husband was imprisoned for breaching an intervention order, intentionally destroying property, and making threats to kill.
The wife suffered post-traumatic stress disorder as a result of the relationship.
The court found the wife’s contributions to the family and maintenance for the home were made “significantly more arduous” due to the husband’s violence. She then received 67.5 per cent of the property pool in the settlement.
It’s important to remember, that the court relies on evidence, a mere assertion is not sufficient when there is a dispute. If you’re seeking an adjustment for “Kennon”, the affidavit should list where possible all incidents of domestic violence and then how those incidents significantly impacted the person’s contribution to the relationship.
For personalised legal advice, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]

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When it comes to changing your child’s surname, courts don’t usually look favourably upon it, unless it’s seen as being in the child’s best interest. A mother recently sought a hyphenated surname for her 8-year-old son. Here’s what the court decided.
The applicant mother applied to the court to change her 8-year-old son’s surname, to make it hyphenated with her maiden name. It was an application that was opposed by the boy’s father.
The court considered a number of factors, including:

the welfare of the child is paramount
the short and long-term effects of any change in the child’s name
any embarrassment likely to be experienced by the child if his name is different from that of parent with custody, or care and control
any confusion of identity which any changes in surnames may have on the relationship between the child, and the parent
the effect of frequent or random changes of name

The Judge noted there were situations where “one parent or the other and possibly both, appear to attach far too much importance to the question of the child’s surname. It is seen by some parents as almost a proprietary interest”.
The Judge added that attitudes of that kind were “unlikely to find favour with the court”.
“The court should give no encouragement to parents who seek to change a child’s name for reasons unconnected to the welfare of the child, (and) the fact that parents are haggling over the surname can of itself engender insecurity and confusion in the child’s mind,” the Judge said, dismissing the mother’s application for a change of name.
In another recent case, the mother was seeking sole parental responsibility and for all three of her children as well as them each having hyphenated surnames. The father opposed the application for sole parental responsibility and wanted his name registered as the children’s official surname. He said the children could be known by a hyphenated surname in their day to day lives if they wished.
At the time of the trial the eldest child had the father’s surname, while the younger two had their mother’s surname.
The father lived in the United states and the mother argued that father had limited contact and involvement in the children’s lives. The judge found distance was not a factor, and decided that all children would be known by one hyphenated surname, in all official and unofficial capacities.
The courts have said it is now common and accepted practice for children to have a different surname from at least one of their parents, even in intact relationships.
If you have questions about custody arrangements, or other issues of family law, please contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected]

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It’s a common situation after a relationship breaks down where one parent wants to move, whatever the reason for that may be, and wants to take the child with them. But, when the other parent does not want their child to relocate, what happens?
The Family law Act sets out the law relating to children, but there is no specific legislation that deals with relocation matters. The court has to rely on the usual parenting pathways set out in the Family Law Act. As always, the child’s interests are of paramount concern for the court, but not the sole consideration.
Let’s look at the different reasons why parents might like to, or have to, relocate after a relationship breakdown.

Family violence

The existence and severity of family violence can be a very relevant factor in determining whether a parent will be allowed to relocate. In a recent case, the mother’s application to relocate was initially refused, but the court then changed that decision, after a significant event of family violence.
Initially, the parties agreed the children should live in a week-about arrangement with each parent. The father lived with his parents, about three streets away from the mother.
After about a year of this arrangement, the father violently attacked the mother at her home, shortly before the children were due home from school. She was able to escape and raise the alarm with a neighbour.
The judge accepted she feared for her life. A psychologist reported it would be detrimental to the mother’s mental and physical health and her social, emotional and physical wellbeing if she had to remain in the same town. The judge concluded the children were at risk of harm and the mother should be permitted to relocated to the town where her family and partner lived, so she could receive practical and emotional support from them.

Relocating for work

Child relocation cases almost always focus on the applicant parent wanting to move with their child to a specific location. But what happens when that parent is in the Australian Defence Force (ADF) and has to move regularly?
In a recent case, the court made the quite unusual order that a mother could move “wherever her defence force job may send her”.
An ADF representative told the court it was a condition of service that members of the military are available to be posted at any time. If they were not available, they could be dismissed. The father worked full time and the court determined that even with distance, the relationship between the child and father could still be meaningful.
If the mother was forced to leave the ADF, it was likely to have a significant impact on her, as her career with the ADF formed part of her identity and may affect her parenting capacity.
The court found it was not practical, or in the child’s best interest, to continually return to court requesting relocation orders at each posting.

Short-distance relocation

In a recent case, the mother moved one hour’s drive from her current residence, essentially to a new suburb.
However, the move would disrupt the care arrangements for the child and the court was asked to make a decision about which parent the child should primarily live with, and whether or not the child could change schools.
The mother was moving to be with her new partner, with whom she was expecting a baby. The court decided it was not “insurmountable” for the father to visit the child, and they were allowed to move and the child changed schools.

Long distance relocation

Relocation cases are emotional, and in all cases it’s best not to make veiled threats. Comments such as “well, I’m moving anyway, regardless of what’s decided” are not helpful.
In a recent case, a five year old child had spent most of his life with his mother. She married a Canadian citizen and moved to that country, in contradiction of a court order.
Both mother and son were ordered to return to Australia, where the mother told the court she was expecting a baby with her new husband and that she was “relocating to Canada regardless” of whether her older child remained in Australia.
The court ordered the boy remain in Australia with the father, and he was to spend time with the mother during the school holidays and be in regular phone and internet contact with her.
Whatever happens after a relationship breakdown, it’s an emotional time, particularly if one parent wants to or needs to move away with their children.
Before making any decisions about relocating, it’s important to get legal advice. Contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected] to make an appointment with one of our family law specialists.

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The Court is launching a new Domestic Violence initiative in Brisbane next week, called The Lighthouse Project.
The new pilot program which started last month in Adelaide, will now start a trial period in the Family Court and Federal Circuit Court in Brisbane and Paramatta, from 11 January 2021. The program will be initially trialled for 3 years.
The program has been designed and introduced in an effort to protect families, who are involved in parenting proceedings, from domestic violence as well as other safety matters. The program will work the following way:

Once a court application is filed for parenting proceedings, the parties will be required to complete a confidential online risk screening assessment. The service is focussed on early risk identification and responsiveness to those risks.
The results of the screening process will be considered by Registrars and Family Counsellors with the assistance of Case Managers and Case Coordinators in the court, to determine how the case will then be managed.
There are 3 options for the management of the case depending on the level of ‘risk’ classification:

High Risk cases will be given to a Family Counsellor for risk assessment, referral and safety planning. A registrar of the court will also review the case to determine whether it should be placed on the “Evatt List”. This is also a new list that has been introduced as part of this process. When determining whether a matter is appropriate for the “Evatt List” a Registrar will consider whether the proceedings have high risk factors including:

a) serious abuse or risk of serious abuse of a child of the proceedings whether it be physical, psychological or neglect;
b) serious family violence or risk of serious family violence by a party to the proceedings whether it be physical, emotional/psychological or financial;
c) recent threats or attempts to abduct a child.  If the matter is deemed appropriate by the registar it will be referred to the “Evatt List” and be dealt with by a team of specialist judges who have been selected based on their experience with family violence.

Moderate risk cases will be offered safety planning and service referrals via the online process and consideration will later be given to other case management options such as court ordered family dispute resolution whether internal or external to the court;
Lower risk cases, will be focussed on court ordered family dispute resolution whether internal or external to the court.

The information provided as part of the screening process by parties will be kept confidential and is inadmissible and cannot be used as evidence in any court proceedings.
If you have any questions about Domestic Violence, or any aspect of Family Law, contact Michael Lynch Family Lawyers today on: (07) 3221 4300 or email: [email protected]

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What power does the court have to direct a parent and children where they are to live? A mother has recently appealed against a judge’s decision allowing her to relocate but then telling her to what town that would be.
It is important to remember that the Family Law Act provides the Family Court with extremely broad powers to make orders in parenting cases. This includes the power to require a parent who is wanting to relocate to move to a town they had not proposed however this would only be in circumstances where it is necessary to avoid an adverse effect to the best interests of a child. It is rare for the court to impose an order on a parent that will affect their freedom to live and work where they wish, and as this recent case shows, this power must only be exercised after careful consideration of the surrounding circumstances and alternatives in the case.
In this case, the 3 children were aged 2, 4 and 8 years of age. Following separation, the mother relocated to Town B some 3 hours’ drive from Town A where the father (and formerly the mother and father was living). The mother proposed remaining in the Town B and the children spending alternate weekends and school holidays with the father. The father opposed the relocation.
The relevant facts were:

The mother had significant support and close friendships in Town B to help her;
The mother had a drug problem previously which had stopped when she relocated, and she was concerned about a relapse if she returned to the same circles in the father’s town (Town A);
The mother and father agreed that the mother should continue to be the primary caregiver for the children.

The trial Judge made orders for the mother to live in Town C, a town 40kms from Town A (where the father was living).
On appeal, the Full Court found that the trial Judge had failed to take into account relevant considerations. The Full Court noted that coercive orders should only be made in rare and extreme circumstances. The matter was remitted to the lower court for rehearing.
Relocation cases are complex and are rarely straight-forward. If you are involved in a relocation dispute it is important that you get specialist Family Law advice. Call us today on (07) 3221 4300 for a fixed-fee initial consultation.

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Michael Lynch Family Lawyers are proud to announce the listing of two of our staff on the 2021 Doyle’s awards for Family & Divorce Lawyers. Our Director Tarah Tosh is listed in ‘Leading Family and Divorce Lawyers’ category. Tarah has also been recognised as a ‘Recommended Lawyer’ in the ‘Parenting & Child’s Matters Lawyers – Brisbane, 2021’ list. While our other Director, Amy Honan, is recognised as a Recommended Lawyer in the ‘Parenting & Child Matters Lawyers – Brisbane, 2021’ category.
Doyle’s guide is a prestigious and independent organisation that ranks individual lawyers and law firms based on extensive research and various sources of information. These include: online peer-based surveys, extensive telephone and face-to-face interviews with clients, peers and relevant industry bodies.
As a result, the individual lawyers are identified and recognised for their expertise and abilities in various aspects of Family Law.
Both Tarah and Amy have years of dedicated experience in all aspects of Family Law including: divorce, property settlement, child support, children’s issues, as well as de facto relationship issues.
We congratulate Tarah and Amy on their achievements and we are very proud to have them on our team!

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Michael Lynch Family Lawyers are proud to announce the listing of two of our staff on the 2020 Doyle’s awards for Family & Divorce Lawyers. Our Director Tarah Tosh is in the Leading Parenting & Child Matters Lawyers (Brisbane) list and our Associate Zoe Adams is in the Family Law Rising Stars (Queensland) list.
Doyle’s guide is a prestigious and independent organisation that ranks individual lawyers and law firms based on extensive research and various sources of information. These include: online peer-based surveys, extensive telephone and face-to-face interviews with clients, peers and relevant industry bodies.
As a result, the individual lawyers are identified and recognised for their expertise and abilities in various aspects of Family Law.
Both Tarah and Zoe have years of dedicated experience within various aspects of Family Law including: divorce proceedings, property settlement matters, child support, children’s issues, as well as de facto relationship issues.
Tarah was appointed as one of three Directors of the firm in August 2017. Tarah has worked in all aspects of Family Law including practising as a solicitor in the United Kingdom, specialising in child protection and education law. Tarah is strongly committed to and recognised for her volunteer work, providing legal advice, guidance and support to highly regarded organisations.
Zoe has worked exclusively in Family Law for more than ten years. Zoe has a strong practical and collaborative approach to resolving Family Law disputes, backed by her experience and knowledge of court procedures.
We congratulate Tarah and Zoe on their achievements and we are very proud to have them on our team!

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For a married couple time runs out for bringing an application for property settlement to the court 12 months after a divorce order has been made. (For defacto couples it is 2 years after the date of separation). If you miss this deadline you are in trouble as you can only then proceed with the Application if the court specifically allows it.
So how long is too long? The court recently considered an Application that was 18 years late!!
The Facts
Shortly after separation, the wife’s solicitors wrote to the husband and proposed that the wife retain a motor vehicle and some items of furniture. In exchange the wife would transfer her interest in the jointly owned property to the husband, which at that time had equity of approximately $15,000.
The parties were divorced the following year. No property division agreement was reached, nor were any Orders made by the court. The house remained in joint names and the wife remained jointly liable under the mortgage.
Some years later, the wife consulted a solicitor. She argued that this was the first time she became aware of the limitation date, after her solicitors in 1994 failed to advise her of the limitation date. As she acted for herself in the divorce, she also argued that she failed to see the notation on the divorce certificate referring to the limitation date.
The husband had the benefit of living in the jointly owned property. The equity in the house had increased to approximately $300,000. The wife filed a court application to commence property proceedings ‘out of time’.
Whilst the Judge found that ‘hardship’ to the wife existed, as she would need to pursue remedies in the State Court as the property remained jointly owned, the court was not satisfied that she had provided an adequate explanation for the delay when there was a notation on the divorce order that there was a limitation date and she had previously consulted solicitors. The Judge also held it was prejudicial to the husband for property proceedings to be commenced so far out of time.
The Judge dismissed the wife’s application. The wife appealed.
The Appeal
The Appeal Court found that there was some explanation for the delay on the part of the wife but it also noted that the husband had been equally inactive in formalising matters. Whilst either of the parties could make an application to the State Courts, this option did not reduce the hardship to the wife, as the State Courts could not take into consideration the wife’s contributions to the children and other relevant matters.
The Court Ordered
The appeal was granted and the wife was allowed to proceed with her application for property proceedings ‘out of time’.
Need family law advice?
To get specialised advice with one of our experienced family lawyers, contact us today. We offer a fixed fee, no obligation initial appointment. To arrange, phone (07) 3221 4300 or email [email protected] or fill in our online form.

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Separation and divorce inevitably means a property settlement will need to be worked out but what can you do if your former partner is trying to delay settlement? Beyond that being frustrating, you need to be aware of time limits. It is usually not a good idea to try and delay a property settlement.
And there are a number of reasons for that.
Firstly, if you end up going to court, the property pool is assessed at the time of trail, not the time you separated.
Until you are legally divorced, your spouse remains your spouse. This ad greater implications than you simply being unable to remarry. If you don’t have a Will, your former partner could be entitled to a large part of your estate, should you die before the property settlement is finalised.
Similarly, if you’re likely to receive a large inheritance in the near future, it’s better to get that property settlement finalised sooner rather than later, otherwise that inheritance of yours will almost inevitably be considered by the courts to be part of the asset pool.
Sometimes a booming property market can be a disadvantage. If you’d like to stay in the former martial home, an increase in property priced can make that harder for you in property prices can make that harder for you financially. Dealing with the property settlement promptly can solve this problem.
If you happen to win lotto after you spilt, that can be included in the assets pool too!
If you are married, it’s important to remember that you can finalise your property settlement as soon as you like after separation, you don’t have to wait the 12 months until you can file a divorce application. However, there are time limits that come into play once a divorce order is made.
If you are getting divorced, you have 12 months to finalise the property settlement from the date of the divorce and if you’re splitting from a de facto relationship, you have two years to finalise the property settlement from the date of separation.
In a recent case, a husband and wife delayed their property settlement until six years after separation. The judge hearing the matter was critical of bother parties for the delay in finalising matters and noted that the lapse of time since separation had greatly increased the complexity of resolving an otherwise straight forward matter.
It was contended that the while the wife had received the advantage of remaining in the home, she had accrued substantial debts relating to her living expenditure. The husband on the other hand had made use of assets in his sole control and spent approximately $150,000 on expenses which included a luxury holiday for him and his new partner, school fees and legal expenses.
The husband also gifted the party’s eldest son the sum of 200,00 to put towards the purchase of a unit in the son’s name. the husband had lived with the son since separation and said it was unreasonable of the court to include the son’s unit in the property pool available for distribution.
The court determined that the assets be split in the husband’s favour 55 per cent and 45 per cent to the wife. Which was mainly due to the husband having made a more significate “initial contribution”.
If so much time had not elapsed, the husband may have received a greater percentage adjustment.
Here at Michael Lynch Family Lawyers, we know that every case is different. Our aim is to give you some realistic expectations and well as an idea of what the finish line will look like for your property settlement. If it clear negotiation are going to be difficult, we can work out a pathway to finalise settlement.
If you have questions about divorce, separation, property settlement or any other aspect of family law, please call Michael Lynch Family Lawyers on (07 3221 4300 or email us: [email protected]

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Children often express their wishes about which parent they want to live with. The consideration that is given to a child’s wishes depends on a range of factors, but age is usually the first question. In a recent case the court considered the wishes of a 15 year old.
In a previous article we looked at the weight the Court gives to children’s views. We concluded that the Court is likely to give significant weight the Court gives to children’s views. We concluded that the Court is likely to give significant weight to the views of a child who is mature and/or in their teens.
In a recent case the court expressed the same view. However, the Court highlighted that a mature child’s views can be weighed against other relevant factors, including:

Any influence or pressure on the child by either parent;
The circumstances surrounding the time the child expresses their views;
Any uncertainty in the child’s views;
Matters relevant to the child’s wellbeing, including any history of family violence; and
The benefit to the child of implementing their views versus any detriment to the child of further litigation.

In the case, there had been extensive litigation regarding the parenting arrangements for the child from when the child was three years of age. The parents had different positions about who the child wanted to live with, however the Family Consultant who interviewed the child when he was eight years old formed the view that the child had a fear of his father’s reaction or disapproval and so would agree with the father’s views. At this stage the parents agreed that the child would live the mother in Canberra and spend weekends and holiday time with the father in Melbourne and the Court made an order to that effect.
When the child was 15 years of age the father filed an application in the Court seeking that the child live with him in Melbourne because of alleged repeated requests by the child. In order for the Court to change the ordered parenting arrangement the father had to prove there had been a “significant change in circumstances”. The father argued the child’s age and his strongly held views about living with the father was one factor establishing a significant change in circumstances. The mother agreed that the child had said on two occasions that he wanted to live with his father in Melbourne, however the child expressed those wishes at time when there was disharmony between the child, mother and step-father. The mother also said that she believed the father was putting pressure on the child.
The Court found that the age of the child and his expression of some desire to live with the father represented a “significant change in circumstances”. However, the Court was not satisfied that the further litigation required to change the parenting arrangements was warranted due to the history of pressure on the child by the father and the other relevant factors (identified above). The court noted that the potential benefit to be gained by the child from the litigation, being the opportunity to live with the father for the remainder of his childhood, was significantly outweighed by the likely detriment to the child caused by further litigation, including the disruption to the child at an important time in his education.
So, does your mature child have a say in where they live? The short answer is yes, however the Court will consider the child’s wishes in light of other relevant factors as well.
At Michael Lynch Family Lawyers. We understand that parenting matters can be difficult and the outcome depends on the circumstances of the individual case. If you would like to discuss your personal circumstance, please contact our office by calling (07) 3221 4300 or emailing to [email protected] to arrange a fixed-cost no-obligation initial consultation with on of our experience family lawyers.

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During a family breakup, children often see a psychologist to help them. Sometimes the court may order children take part in sessions with a psychologist. It’s hoped the children feel secure in speaking to an objective person who can help them. But is what your child says to their psychologist a secret? Not always. >…
Queensland Health guidelines indicate that where a child is “assessed as capable of making their own decisions about information sharing, their wishes should be followed”. Unless disclosure of that information “in the opinion of the clinicians, is in the best interests of the child”.
Of course in some circumstances, such as when a child may be in danger, sharing information with the courts is mandatory.
Courts can also issue a subpoena for a child’s psychologist to produce their notes for the court.
In a recent case, a child’s psychologist was issued with a subpoena by the child’s mother to produce notes to the court in relation to her sessions with the child. But the psychologist objected to producing her notes.
Previously, the court had made orders that the child and both parents see the psychologist with the aim of repairing the relationship between the mother and the child.
The psychologist gave evidence that she objected to sharing her notes with the court, saying the “production of documents threatened ongoing therapeutic relationships between psychologist and client.”
In particular, the psychologist said the “production of sensitive therapeutic material may jeopardise the continuation” of the therapeutic relationship with the child.
She expressed concern that the subpoenaed information may be used detrimentally towards the child, “putting her in an emotionally vulnerable position and dissolving trust built between the psychologist and the child.”
The court acknowledged that having access to the notes could be “potentially destabilising of the child, undermine her current therapeutic relationship, and potentially her capacity to develop future therapeutic relationships, in the context of again potentially needing them given the issues that she has faced”.
However, the court also found that obtaining the information from the psychologist would help determine what was in the child’s best interest. This weighed in favour of granting access to the psychologist’s notes, both because of the public interest, and having a decision made with the best interests of the child in mind.
The court granted “conditional access” to the documents produced by the psychologist, meaning they were limited to use with a therapist or a family report writer involved with the family and the court process.
If you’re trying to navigate a family breakup or need advice on helping your child, contact Michael Lynch Family Lawyers by calling (07) 3221 4300 today. Our family law experts are here to help you.

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A spouse may have a right to obtain maintenance from the other spouse if at separation there is an income difference.
The additional requirement is that the low income earner must be unable to meet their reasonable financial needs and the high income earner must have the financial ‘capacity’ to provide assistance.
Although there is an obligation on the low income earner to pursue employment, the obligation is lifted if they are unable to support themselves adequately because of:

Their care of a child of the relationship;
Their inability to be gainfully employed by reason of their age, physical or mental incapacity; or
Any other adequate reason.

Powers of the court in dealing with a spousal maintenance claim
The Court has wide powers when determining a Spouse Maintenance Application. The Orders the Court can make include:

A payment of weekly, monthly or yearly Spousal Maintenance payments;

A lump sum amount to be paid; or

An Order that a property or asset be transferred to one party as a Spouse Maintenance payment.

Caring for young children
The question frequently arises as to whether a parent with primary care of the children can commit to that role and be eligible for spouse maintenance.
Case Study
In a recent case, the court considered an Application by a mother for spousal maintenance in the sum of $100 per week. The child was 4 years and 11 months of age and had yet to commence formal schooling. The father’s employment involved a rolling roster which the mother stated made it difficult for her to arrange a regular routine for her, or the child.
The father’s case was that the mother was fit and able to work full-time and the parties’ incomes were virtually equal.
The court found that the parties’ incomes may have been practically equal but the mother was the child’s primary caregiver and therefore bore the general expenses of his upkeep.
The court accepted that the mother was unable to obtain employment because the child was still below school age. She therefore demonstrated a need for maintenance until the child commenced school. The father gave his expenditure as $866 per week and his income as $1,100. He therefore had some capacity to pay maintenance.
The father was ordered to pay the mother Spousal Maintenance in the sum of $120 per week until the child turned 6 years of age or commenced school, whichever occurred first.
Limitation period for commencing a spousal maintenance application
For married couples that separate, if they are to bring a Spouse Maintenance Application to the court, they must do so within one year of the date on which the divorce becomes final. If a former defacto spouse is to make a Court Application they must do so within two years of the end of the relationship.
There is discretion for the court to extend this time if the Applicant can show that failing to do so would cause hardship to them, or the child.
How to extinguish any future applications for spouse maintenance
The only way that a party is able to extinguish any future application for Spouse Maintenance is by entering into a Financial Agreement. These agreements are outside the jurisdiction of the court and are a private agreement between the parties that are binding and enforceable.
As Financial Agreements are outside of the jurisdiction of the court, before signing the Financial Agreement both parties are required to obtain independent legal advice as to the nature and effect of the agreement upon their rights and the financial advantages and disadvantages of entering into the agreement.
We offer face-to-face Family Law initial consultations, as well as phone consultations and video consultations via Zoom and Skype.
To book an appointment, please call our reception on (07) 3221 4300 or fill out the booking form, here.

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It’s beginning to look a lot like Christmas and for most of us, after a stressful 2020, it’s the season we’re looking forward to.
Should COVID restrictions allow, it’s a time to see family and friends, swap presents and stories and enjoy each other’s company.
However, 2020 has been a long and tiring year, and for many families, this might be the first time they’re facing time apart during the festive season, due to distance, COVID, or a family break up.
If you’ve separated or divorced this year, Christmas can be a time of sadness and disappointment. But who’s caught in the middle? Children.
So, what can separated and divorced families do to make Christmas a little easier on themselves and their children?
One of the most important things to realise, is that Christmas is a time for your children. And from a legal point of view, children’s living arrangements are ordered by the Court for your children’s benefit, not yours.
Many disagreements start because of parent’s expectations of what will happen at this time of year. You expect that children will spend Christmas with you. The other parent may expect the same.
Parents need to communicate with each other and plan ahead. That way, Christmas has a chance to be happier and far less stressful for everyone involved.
How children feel at Christmas
Understanding some simple facts about children can help.

Children often experience a great deal of tension at Christmas.
They often feel responsible for making both parents happy.
The dream for most children is that their family will be together. Security is a real issue for them, it’s something they need.
They often feel it is their fault their parents broke up.
They try to come to terms with their parents not being together.
Adults have a greater capacity to make choices. Children don’t.
They are expected to move from one home to another to spend time with each parent. While this may be ok for short periods during the year, at Christmas the time spent with each parent can be longer. This can change the dynamics of the home and can cause problems, particularly with blended families.
They conform to keep others happy and often don’t even know how to express their feelings about all that is going on. This can mean that on the surface, everything seems ok. In reality, children may be experiencing a storm of unexpressed emotion.
They don’t have the understanding of life experiences that adults do. It is more difficult for them to make meaning of the situations they are in. Young children especially are unable to think things through in a rational way. They can only react to situations.

Regardless of what has happened between you, it is important not to criticise the other parent when talking to your children. You need to accept that your children love their other parent and the relationship they have with that parent must be protected. By criticising the other parent, you create tension for your children, because they may want to please you and agree with you. However, at the same time, they still love their other parent.
How to avoid conflict at Christmas

Agree on what you will do ahead of time, so there is no tension.
Discuss your ideas with your children.
Ask your children what they want to do. Give them input and some control over the process (this may depend on how old they are, however all children should have the chance to say what they want to do).
Listen closely to what they say.
Put their desires ahead of yours.
Avoid situations where your children are drawn into the centre of the conflict.
If your children’s wishes can’t be met, take the time to sit down with them and explain why.

Ask for help
Despite your best efforts, it is possible that difficulties may still arise. You must take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves.
You can do everything in your power, but they may still not co-operate. If you find yourself in this situation, always remember that help is available.
A counsellor can offer helpful advice on how to cope with difficult relationships and situations. They can also help by suggesting ways to communicate and reach agreement with your former partner in matters relating to your children.
A lawyer can also explain what the law says regarding various situations with relationships and children, and give you advice about the options available to you.
Remember, legal issues take time to resolve. If there are legal issues relating to your circumstances, give yourself plenty of time to discuss them with your lawyer and allow a number of weeks for the outcome to be finalised.
Communication is the key. Start communicating well ahead of time and keep your children’s happiness as your priority and you will have a good start to a happier Christmas.
Need assistance?
If you would like to discuss your personal circumstances with one of our experienced family lawyers, please contact our office today. Call us on (07) 3221 4300 to organise a no-obligation initial appointment, at a fixed fee. We will be happy to assist you in person, over the phone or by Skype or Zoom.

The post Coping with Christmas – tips for separated families appeared first on Michael Lynch Family Lawyers.

The dangers of the internet for children have been well documented but did you know it could also impact the amount of time you’re allowed to spend with them? Failure to properly monitor your child’s screen time is something that can be taken into consideration by the courts.
In a recent case considered by the court, an 11-year-old girl lived with her mother and spent limited time with her father, as the couple had separated before the daughter was born.
The father, who had two children with his new wife, gave the daughter an iPad for her birthday. The child’s mother asked the father to use parental locks on the device and to properly supervise the daughter when she was using the iPad, which remained at his home.
The father did not put a lock on the iPad, nor did he supervise his daughter while she was using the device.
After spending time with her father during the school holidays, the daughter returned home and the mother was concerned about her behaviour, as she had become withdrawn and did not want to spend time with her father.
The mother found out her daughter had accessed pornographic material on the iPad while she was at her father’s home. The child told her mother she had seen material that included a photo of the father’s wife naked, as well as a video.
Seeing this material caused the child significant stress and shame, and she refused to speak to her father.
The daughter began counselling and a family report was also prepared for the court. The family report writer noted that the child had a warm and comfortable relationship with her siblings, and that the father was not a danger to the child, but there were concerns about risks that could arise from her father being inattentive.
The court ordered the father to ensure there were parental locks on all the computers and iPads during his contact time, that his mobile phone had a password lock, and that his daughter would be in the presence of a responsible adult at all times when she was using a computer or iPad, and that the adult had a clear view of the screen.
Provision was also made for the child to start spending limited time again with her father and half-siblings.
Failure to properly monitor a child can have a devastating effect on them, as well as impact the co-parenting arrangements. It’s an issue that should be taken seriously by all parents.
If you need help with parenting orders, please contact Michael Lynch Family Lawyers for advice.

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Most people would consider the relationship they have with their hairdresser to be deeply personal. Indeed, the conversations between client and hair stylist would be thought of as confidential by many. However, that is not the case. Did you know your hairdresser can be called to give evidence about you? Here is such a case.
In a recent Family Court decision, no fewer than three hairdressers were called to give evidence. Two were called by the husband, and one was called by the wife.
The hairdressers were asked to give evidence about the wife’s ability to understand English, as English was her second language.
The trial was focused on a Binding Financial Agreement (BFA) which was signed during the relationship. The husband contended it was a binding agreement and the wife contended it should be set aside.
Calling a hairdresser to give evidence might seem a little unusual, but the wife was trying to prove that her ability to understand and speak the English language, at the time of signing the BFA was “limited”, which in turn impacted on the advice she was provided at the time she signed it.
The husband was trying to prove the wife could “well understand and speak the English language” at the time of signing the BFA, and the fact that she did not have an interpreter was “her own fault”, as she had opportunity to use one.
The couple met when the husband was 77 and the wife was 42. The relationship lasted for approximately six years, during which time he financially supported her, and she made homemaker contributions. The judge specifically referred to the wife as having provided her husband with “a level of personal care that he likely had not enjoyed for many years, if ever”.
The husband had been previously divorced and the judge referred to the painful and long-lasting effect this first separation and property settlement had had on the husband.
During this case, the first hairdresser gave evidence that the wife “spoke English slowly and clearly, but not fluently. Enough for me to understand what she was doing on the weekend or where she was going for the evening, or whether I had to dress up her hair or just give her basic hairdos”.
The second hairdresser said, “I would speak to her in English and she would respond to me in English … I found that she and I communicated well in English”. However, under cross-examination he conceded the wife was the type of person who “basically did not want to talk”.
According to the third hairdresser, there were significant communication barriers.  “… because I could not understand what the wife was saying I looked on my phone for an app to translate from (her native language) to English and vice versa. I could not find one, and so we had to manage with gestures and pictures”.
The wife, having a very limited understanding of the English language, as well as some visa issues in relation to staying in the country, and limited finances, had signed a BFA that provided her with no property settlement should the couple separate.
The judge found all the hairdressers were “basically honest in giving evidence to the best of their recollection”.
The judge was not persuaded that the signing of the BFA by the wife was the product of her free will and found:

There was a general position of dominance by the husband towards the wife.
That there was undue influence because of the husband’s ongoing insistence over a considerable period of time that she sign the BFA.
That the husband knew that the wife depended on the relationship continuing in order to obtain a permanent visa to remain living in Australia, and yet the husband made it clear that he would end the relationship unless she signed the BFA.
That the wife’s solicitor had advised her not to enter into the agreement – albeit inadequately, having had only a 30-minute appointment with the wife, without an interpreter. Further, the wife had not been given a copy of the BFA, which would have been pointless anyway, as she could not read it, much less understand it.
There was a finding that the husband used his money to manipulate and control others.

The judge found that the wife was in a position of special disadvantage at the time she signed the BFA, and that the advice given to the wife by her solicitor was not sufficient to remedy that special disadvantage.
The judge, having then found that the terms of the BFA were “simply outrageous”, set aside the agreement.
If you have a question about what happens with the division of property in a separation, or any other aspect of family law, call Michael Lynch Family Lawyers on (07) 3221 4300 to organise a no-obligation, fixed-fee initial appointment.

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Parents looking to bring a court application in a parenting dispute must first attend Family Dispute Resolution (FDR) and receive what’s called a Section 60I certificate from the Family Dispute Resolution Practitioner. It is rare that FDR can be avoided but what if the application is ‘urgent’?
Once a section 60I certificate is obtained, it must be filed in court with the parenting court application.
There are some exceptions to getting the 60I Certificate, including where there are allegations of family violence, as well as in cases of “urgency”.
However, what parents consider to be urgent may be quite different to what the court considers to be urgent, as a recent case has shown.
The court registrar recently refused to accept a father’s Initiating Application for filing, as he did not have a section 60I certificate. He claimed the exemption of “urgency” applied and asked to have registrar’s decision reviewed.
The father attempted to file his application following the mother’s decision to relocate, with their five-month-old baby, to her parents home, which was more than two hours drive from the couple’s former home.
The father sought orders for the mother to relocate back to the area of their former home with their child, so he could spend time with the baby. He sought to have (2), two-hour visits, and (1) four-hour visit each week.
He suggested the mother have sole use and occupation of their former home for this purpose.
The father’s solicitor submitted the matter was urgent because it was important that the father was able to spend regular short periods of time with the child in order to establish a strong bond with him, and that without court intervention compelling the mother to return to the area, this would not happen.
However, the father gave no evidence about having sought any kind of mediation to resolve the parenting issues.
The judge said there were a number of reasons parents were told to attend Family Dispute Resolution:

It is better if parents make their own arrangements for their children. They know their children, they know their different personalities, attachments and views. They are aware of what they can offer their children in light of their work commitments, where they live and any issues they may be suffering from.
FDR practitioners are trained to assist people to examine their situation and endeavour to reach an agreement.
It is better for parents if they can stay out of an adversarial system if possible.
The court system has insufficient resources to deal with all matters in as timely a fashion as the parents and community would like.

The judge added that not all matters could stay out of court or were suitable for mediation – such as when there are issues of family violence, drug use or alcohol abuse, serious mental health issues or where one parent has unrealistic expectations or ulterior motives.
The judge said there were no such issues in this case and the father had not put forward any evidence in his affidavit about whether he had attempted to resolve the matter with the mother. The father had not even asked the mother if she was relocating to her parents home permanently, or if the arrangement was temporary, and had not given any evidence of making enquiries about the availability and timeframes for attending FDR.
Further, the parents were communicating. The father had seen the child face to face at least once, and the mother had sent him photos and had arranged for him to see the child via Skype.
The judge dismissed the father’s application, as it was not “urgent” and that resolution outside the courts could be a possibility.
If you are in dispute about children’s matters and considering making an application to the court, you should firstly consider obtaining a section 60I certificate and get advice from a family lawyer in relation to whether your circumstances meets one of the exceptions.
To make a fixed cost appointment to discuss your personal circumstances, please phone us on 3221 4300 or email [email protected]

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Most people are familiar with the basic orders that can be made by a Magistrate Court in Domestic Violence matters. The two main types being a Protection Order or a Temporary Protection Order. It is also open to a court, however, to impose a further order on a Respondent – a “Voluntary Intervention Order”.
A Voluntary Intervention Order does not “replace” a Protection order but rather can be made in addition to a Protection Order or Temporary Protection Order.
A Voluntary Intervention Order requires the alleged offender (respondent) to attend an approved intervention program (such as a behavioural change program) and/or counselling with an approved counsellor.
This order can only be made if the respondent is present in court at the time the order is made. Further the respondent must be assessed for their suitability to participate in a program or counselling.
Sometimes a “victim advocate” may contact the aggrieved spouse to assess their safety on an ongoing basis over the course of the program. The aggrieved spouse can refuse to participate in any program or counselling.
Need assistance?
Please contact our team on (07) 3221 4300 should you have any questions, or would like to get in touch regarding your unique situation.

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A warm welcome to Tiela Morrison (solicitor) and Jessica Ragh (associate), who have recently joined Michael Lynch Family Lawyers.  
Tiela has extensive experience in Family Law. She prides herself on her approachable manner, professionalism and genuine client care.
Jessica Ragh is experienced in all areas of Family Law, including property settlement, parenting and child support. She practices exclusively in Family and Relationship Law with a particular interest in complex property matters. Jessica also has extensive experience in commercial law matters in Family Law.
Jessica’s and Tiela’s expertises reinforce our position as one of the largest specialist family law firms in Queensland.
Welcome!

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The Appeal Court of the Family Court recently considered an appeal by the husband against the trial judge’s decision refusing to order DNA testing to establish parentage of a child.
The facts were:

The parties were married and there was one child born during the marriage. At the date of trial the child was 17 years old.
After separation, the child resided with the wife.
The child was treated throughout the marriage as a child of the marriage and since separation the husband had paid child support.

The trial judge determined that the husband had not provided adequate evidence to overcome the “presumption of parentage” arising from “the marriage”.
The husband appealed claiming that the court had not obtained the “best available evidence” by not ordering DNA testing.
The appeal court rejected the husband’s appeal stating that:

In parentage testing applications in Australia the “best interests” of the child are the paramount consideration where “parenting orders” are also sought.
In this case, “parenting orders” were not sought and therefore the application failed as the court had no jurisdiction to consider the application.

Beyond that, the court was of the view that “there must be few cases where the interests of children can be shown to be best served by the suppression of truth (i.e not obtaining scientific evidence)”.
The court failed to see the “best interests of the child” being served by the paternity of a child being challenged, without compelling reasons, when the child is 17 years of age.
Call us on (07) 3221 4300 or by filling out an online form here to organise a no-obligation initial appointment at a fixed-cost. We will be happy to assist you in person, over the phone or by Skype.

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