We’re pleased to announce the promotion of Stephanie Brown as an Associate at Michael Lynch Family Lawyers.
Stephanie has worked at Michael Lynch Family Lawyers for more than 5 years and demonstrated an exceptional and professional ability in all areas of Family Law.
Stephanie is an invaluable member of our team, and has assisted many clients through difficult Family Law situations by developing a unique strategy for each matter.
We congratulate Stephanie on her new role with Michael Lynch Family Lawyers and look forward to her continued success into the future.
Congratulations!

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With COVID-19, financial pressures are increasing. When financial pressures are serious that can sometimes lead to bankruptcy. Declaring bankruptcy is a major financial step to take but what impact can it have in a divorce?
What is bankruptcy?
When a person is declared bankrupt, their assets are immediately put under the control of a Trustee. This means the bankrupt person does not have any control or possession of their assets and can no longer transfer property.
In Family Court proceedings
A person who is bankrupt, or becomes bankrupt, and is a party to Family Court proceedings must notify the court at the start of the proceedings or as soon as they become bankrupt.
A bankrupt person is not entitled to make submissions to the court in relation to property that is currently being looked after by the Trustee, but they do have a right to make submissions in relation to property owned by their non-bankrupt spouse.
Where there is one party to a property settlement who is bankrupt and the other party is not, the non-bankrupt person may make an application to the Family Court for an injunction.
The purpose of the injunction is to stop the Trustee from distributing any assets or property amongst the bankrupt party’s creditors before the property settlement matter is resolved.
The court can order that property, otherwise available for distribution to creditors, be transferred to the non-bankrupt spouse.
Types of debts:
In cases of bankruptcy, it’s important to note the difference between secured and unsecured liabilities.
Secured liabilities are “secured” by a tangible asset such as a house or car – the asset serves as collateral for the debt. Lenders have a right to seize the asset to cover the debt. A mortgage and car loan are the most common examples of secured debt.
With unsecured liabilities, lenders do not have the rights to any collateral for the debt. If you fall behind on your payments, they generally cannot claim your assets for the debt. Credit card debt is the most widely held unsecured liability.
What about child support?
Even when a person has been declared bankrupt, child support or spousal maintenance orders can be made against them.
A person who is bankrupt is not released from all provable debts – they’re still liable, for example, for debts incurred by fraud such as Centrelink debts and debts incurred under a maintenance order or child support assessment.
In fact, when an order is made for child support or spousal or child maintenance, the payments are taken to the debts of the bankrupt party. The non-bankrupt person can then choose to enforce those debts via court proceedings. The funds can be recovered either by voluntary payments, by deductions from the bankrupt person’s wages or by intercepting and applying taxation refunds.
Bankruptcy proceedings and how it affects family law settlements can be a complicated matter. This is definitely one area where you need specialist family law advice. Please contact our office and we can discuss your needs at an individual level. To make an appointment, please phone us on (07) 3221 4300 or email at [email protected], or alternatively fill in our online form here.

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By 2022 Australia will be home to 4 million people in the 65 – 84 age bracket. The impacts on our health care and aged care systems are quickly becoming apparent, but an ageing population will also change some aspects of family.
Increasingly, one person in a marriage or partnership is being admitted to an aged care facility to help cater for their health needs, while the other person remains in the marital home. Or in some cases, couples are being forced to reside in separate aged care facilities.
What happens if one party’s financial needs are now different from the other, and can a couple be considered “separated” even if it’s involuntary?
In short, yes. The Family Court has the power to make property settlement orders if the parties aren’t divorced. This can become particularly complicated if it’s a second marriage, and the adult children from the previous marriages become involved.
A judge can also determine it is “just and equitable” to make settlement orders in circumstances where the parties were involuntarily separated by reason of their age and ill-health, and have been forced to reside in separate aged care facilities.
Those settlement orders can be made for the couple’s wellbeing only and not for any potential beneficiaries of their estate.
In some circumstances, an application for spousal maintenance can be made.
A spouse may be able to make an application to the Family Court for spousal maintenance to be paid to them, in order to meet the costs of their care, even if the relationship is intact, but the couple are physically separated.
Dementia and other issues of mental decline can further complicate matters.
If one person is unable to apply for court orders, a family member may do this on their behalf.
Sadly in some cases, the elderly person simply no longer has the mental capacity to understand the decisions being made on their behalf by their adult children. In that case, an adult child or other family member can have control over the assets through an Enduring Power of Attorney.
Issues relating to aged care, mental capacity and property settlements are complicated ones. They’re also extremely personal. At Michael Lynch Family Lawyers we know how to take care of these often distressing issues. Please contact us today for a consultation on (07) 3221 4300.

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We live in an increasingly inter-connected world. And while social media may be great for keeping in touch with friends and family around the world, sometimes it can be used against you, particularly during a relationship breakdown. Cyber-stalking is domestic violence and is sadly a common complaint among women who have experienced coercion and control in their intimate partner relationships.
All too often it’s also reported in criminal proceedings following the death of a domestic violence victim, such as Hannah Clarke and her three children, who were murdered in February 2020 by Ms Clarke’s estranged husband. The tragedy occurred just weeks before the husband was due to face court on charges of breaching a domestic violence order.
New research from the Queensland University of Technology has found that 100 per cent of survivors of domestic abuse reported that tech abuse, or cyber-stalking, began or escalated at separation.
The most common types of abuse are repetitive texting or emailing, constant monitoring by the ex-spouse on Facebook or other social media platforms, and also GPS tracking.
This was especially an issue for those navigating arrangements for their children post-separation.
It’s a good idea to frequently check the privacy settings on your devices and social media, organise replacement devices if need be and prevent hidden tracking – there are apps out there which can be installed on your phone, without your knowledge, that track your location.
So what can you do to protect yourself from cyber-stalking? Steps include:

Have a data security professional assess your network and devices. If necessary, get a new device.
Encrypt all your data, laptops, external drives and portable devices.
Use encrypted messaging apps such as Signal or WhatsApp and ensure you have multi-factor authentication on your devices.
Set up a new email account and do not access it on shared devices.
Ensure your phone account is not accessible through online accounts detailing call history and location.
Change all passwords on all social media and devices. Put a passcode on all phones.
Check privacy settings on devices and social media.
Turn off Bluetooth and GPS when not in use. Turn off location sharing on devices too.
Ensure devices are not linked through Apple ID.
Ensure photos uploaded to social media are not geo-tagging your location.
Delete unknown apps on your phone and keep an eye out for for excessive battery use.
Having one separate device, used solely for communicating with your ex-spouse, can also be a good idea.

As always, if you are feeling unsafe, contact police.
If you need help negotiating a relationship breakdown, contact Michael Lynch Family Lawyers  on (07) 3221 4300 for trusted, confidential and personalised advice.

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We’ve all heard the words “exceptional circumstances” and “unprecedented times” this year, but do any of them apply to setting aside a binding child support agreement?
Courts recognise only very limited grounds for setting aside any kind of child support, particularly a binding child support agreement.
In the past, some “exceptional circumstances” recognised by the courts have been:

A radical change in child care arrangements. For example, the child going from 80 per cent of time spent with one parent, to 20 per cent of the time.
One parent moving to another country – although during the current COVID-19 pandemic, with travel restricted, this is rarely going to be an option.
One parent being made redundant from a long-term job and being unable to secure new employment

There are a number of options for parents to arrange child support to be paid.
One is that some parents, if they have an amicable relationship, have an informal agreement and one parent pays the other privately.
Alternatively, parents can apply for child support through the Department of Human Services (Child Support), commonly called the Child Support Agency.
The agency uses a formula to calculate how much a parent should pay, based on the age and number of children, the income of both parents and how many nights the children spend with each parent.
The assessed amount can be paid directly to the parent, or can be paid through the agency. The agency also has powers to garnish a person’s salary and bank accounts in some circumstances.
Private agreements between parents can also be registered with the child support agency, although both parents much obtain independent legal advice before signing such an agreement.
A binding child support agreement will often include details of which parent pays school fees, health insurance or other additional costs.
It’s no easy task to set aside a binding child support agreement.
The court recently considered an application by a mother (the receiving parent) to enforce the terms of the binding child support agreement as the father was not paying various medical and school costs.
The father sought to set aside the binding child support agreement due to “exceptional circumstances… that have arisen since the agreement was made, the application or child will suffer hardship if the agreement is not set aside.”
In this case, the father argued that:

His high income meant that he was already assessed to pay the highest possible amount of child support, on top of which he was expected to pay the medical and school costs.
He did not agree that the children should go to a private school, and therefore did not agree to pay the school fees and
The legal fees he had incurred of around $200,000 were a significant liability that affected his financial position

However, the court did not agree that the agreement should be set aside, as the issues raised by the father as “exceptional circumstances” were in existence when the agreement was made, and should have been known to the father.
In particular, the parties had thought about sending the children to private schools during the relationship, and the binding child support agreement particularly referred to “school fees”.
The court enforced the binding child support agreement and ordered that the father repay the arrears owing to the mother.
If you need help navigating child support payments, contact Michael Lynch Family Lawyers for expert, personalised legal advice by calling (07) 3221 4300 or by filling out our Online Contact form.

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A child support assessment will usually end when a child turns 18. However, where the Child Support legislation stops, there is scope for the Family Law Act (FLA) to step in. Under the FLA parents can in some cases be required by a Court Order to pay maintenance for a child who is over 18 years of age.
The obligation to pay for an adult child, is worded more as an exception to the rule. Such that “a court must not make an ‘Adult Child Maintenance Order’ in relation to a child who is 18 years old or over unless the court is satisfied that the provision of the financial support is necessary…”
Therefore for a court to make an order that a parent pay child maintenance for an adult child, it must be satisfied that provision of the maintenance is necessary for one of the following reasons:

to enable the child to complete his or her education; or
because of a mental or physical disability of the child.

The court recently considered an application for adult child maintenance, filed by the mother of a child who had a mental and physical disability. There was no dispute between the parents of the child’s disability, being born with down syndrome and a congenital heart defect.
In deciding if an order should be made, the court outlined that it must consider the following:

Necessary expenses of the child;
The contribution the child is making to their own upkeep. There is an expectation that adult children will contribute to their own support by working part-time where this is possible. If the child has disabilities and is not able to work a medical certificate should be provided; and
The capacity of each parent to provide financial support. This includes a consideration of each parent’s income, expenses, financial resources and earning capacity.

Necessary expenses include:

The adult child’s share of food, household supplies, utilities, housing and transport (even if this is paid by a parent);
Costs to do with study, such as books, internet fees and computer equipment, TAFE fees (but not HELP-HECS and other government student loans). For children with special needs, expenses associated with their disabilities can also be considered; and
Medical needs including optical, dental, doctors’ visits, prescriptions and other medical expenses.

Maintenance may also pay for clothing, toiletries and hairdressing, car and phone expenses of the child. Entertainment and social expenses are generally not included.
The court may stipulate that the court order stops when:

The adult child finishes their education, for example, completes their qualification. The court may not make an order for a second degree or qualification if the adult child continues studying; or
A particular time period has ended, for example, three years to allow the adult child to finish their education. There may be conditions in the order, such as proof of passing subjects. If the adult child fails a subject, the order may stop; or
The adult child no longer has the particular illness or disability, or after a particular period of time, for example, three years, to review the child’s illness or disability.

In the case before the court, it was the mother’s position that the child’s proper needs were not presently being met and the father should therefore be ordered to pay her an amount per month for adult child maintenance. The mother sought that the father pay $4,274 per month.
The father submitted that the mother had not established that adult child maintenance was  necessary and in the alternative, the father’s position was that the expenses claimed by the mother, purportedly because of the child’s disability were either not necessary, included matters that should not be taken into account or were inflated or excessive.
The court determined that it was proper and necessary that the father provide financial support to the child and ordered that he pay the amount of $230 per week (or $920 per month) for a period of 3 years (backdating the commencement date to when the mother filed the application) and with a further requirement that ‘arrears’ owed to the mother be paid within 28 days of the order.
We provide a no-obligation fixed cost initial appointment. To make an appointment at Michael Lynch Family Lawyers Brisbane office, call us on (07) 3221 4300.

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A parent wants to move with a child away from the other parent. Can they? How far?
Relocation cases are some of the most common and most challenging in the Family Court. COVID-19 has now added new challenges. The added complication is that the situation in every case is different and the Family Law Act has no specific provisions to deal with them.
This webinar provides a practical and easy-to-understand explanation of the area, looking at cases on international and local relocation and the Hague Convention.
Get practical tips and understanding that will help you help your clients.
To watch a recording of this webinar, please click here.

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There is no 50%/50% presumption or (even) starting point when it comes to how property is divided between divorcing couples. The percentage is determined by looking at the “contributions” each party has made. This is an inexact science and will vary for every couple. This webinar will look at: The main categories of contribution and particularly how “financial and non-financial contributions” are treated. What is “future needs” and how is it treated? The treatment of gifts, inheritances, personal injury payments, redundancy payments and other common questions.
To watch a recording of this webinar, please click here.

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It is important to know that superannuation is ‘property’ and is considered in a property settlement, but more importantly, it can be split between parties and usually it is.
Background
The law in relation to superannuation and family law changed dramatically in 2002 with amendments to the Family Law Act. Prior to December 2002, the options for dealing with superannuation in a property settlement were very limited.
Since 2002, superannuation is now treated as ‘property’ and is able to be ‘split’ by agreement or court order. Whether or not a superannuation interest will in fact be split and in what proportions will depend upon the circumstances of the case. Potentially, the superannuation policy can be “split” in any percentage (it does not have to be 50/50%) however a split does not mean a payout of the policy, rather it is a “rollover” of an interest. A fund of less than $5,000 cannot be split.
Relevant factors for considering if a split should occur, include:

Whether there are children
If, by splitting the superannuation, the primary carer of the children will be able to keep the family home
The needs of the parties for cash and saleable assets
The value of all the property and the proportion of the property pool that is made up of superannuation
The type of super
The ages of the parties
The length of time before the parties can access their super
Any tax implications.

Types of Super
There are (3) main ‘types’ of superannuation funds:

Accumulation fund – a superannuation fund that provides benefits to members based on contributions and earnings, less fees (e.g. like a bank account balance).
Defined benefit fund – a superannuation fund in an eligible superannuation plan which provides benefits to members according to a formula set out in the trust deed. The formula usually takes into account the member’s length of service and final average salary.
Hybrid funds – a superannuation fund that is a combination of a defined benefit fund with an accumulation component.

Defined benefit interests are becoming less common and therefore most parties will be dealing with accumulation interests.
Other terms that parties should be familiar with when looking at superannuation include:

Growth phase –where no benefit has been paid in relation to the interest and no action has been taken by the member under the rules of the fund to cash in the benefit.
Payment phase – is defined as an interest that is not in the growth phase.

How do you get information about superannuation?
Each spouse can request information from the Superannuation Trustee for either their policy or their spouse’s policy. The Trustee of the fund is entitled to charge a fee for providing the information. The Trustee is not allowed to give out the address of the member, or notify the member that an information request has been received from a non-member (the other spouse).
The Trustee is required to provide a statement to the requesting spouse outlining:

The value of the superannuation interest as at certain dates;
Any withdrawals made between those dates;
Details of any payment flags (i.e. notifications) or previous splits;
Any fees that it will charge for payment splits and flags;
The member’s eligible service period and date that their membership in the fund commenced;
Preservation and components of the interest;
Vesting terms and scales;
Details regarding reversionary beneficiary entitlements if the benefit is in the pension phase.

Valuing a superannuation interest
Superannuation interests that are going to be split must be valued in accordance with the Family Law (Superannuation) Regulations 2001. Caution should be had in simply relying on an annual member statement for the value of the superannuation entitlement.
Benefits of super splitting
Due to the greater flexibility in the way that property settlements can be structured, the majority of property settlements today include a ‘super split’.
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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Property settlements are one of the most common and often hotly contested aspects of family law. Injunctions are often an important part of that process and are generally used to protect the property of the most vulnerable people during a divorce or separation. So, what is it?
What is it?
As an example, a situation may arise if one partner has assets worth millions and there is a risk of them disposing of some or all of that property to the detriment of the other partner and the other partner does not have property, an injunction can be used to stop the wealthier partner from selling or transferring their assets, before the property settlement is completed.
The court can issue injunctions restricting parties from selling assets, dissipating funds, or changing company structures if it is necessary to protect the matrimonial asset pool, pending a final determination about property settlement.
A recent case:
The Family Court recently considered a case, Tsiang & Wu v Ors, where the husband appealed a decision of the lower court not to grant an injunction restricting his wife from dealing with certain property.
The court had initially said that there was insufficient evidence to issue an injunction against the wife selling the properties owned by her.
The husband appealed the decision and sought that the injunction against the wife be made, and also sought an injunction against two third parties from selling company interests.
The parties had a significant property pool of around $40 million, and had reached consent orders in the court to resolve property matters.
But under those orders, there were significant business assets in China which required the wife to transfer assets to the husband.
The imprecise description of one of the partnership entities led to a significant dispute between the husband and the wife, and the husband applied to the court for the orders to be set aside. At the same time, the husband filed an application for an injunction against the wife, to protect the property pool pending the court decision.
The court decided it wasn’t necessary to show that there was an intention by the wife to sell off or dispose of property, it was only necessary to show there was a possibility of this happening.
On that basis, the husband’s appeal was granted and an injunction granted against the wife preventing her from dealing with the property.
If you have questions about property settlements, please contact Michael Lynch Family Lawyers on (07) 3221 4300 for all the expert advice on Family Law.

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Australians are known for liking a drink, and increasingly we’re known for “liking” other substances as well. According to Federal Government statistics, 16.4 per cent of Australians used an illicit substance in the past 12 months, with cannabis, ecstasy and amphetamines top of the list.
And while those same statistics also show that many Australians are cutting back on alcohol – the number of ex-drinkers increased from 1.5 million in 2016, to 1.9 million in 2019 – it’s still our most commonly abused drug.
The Family Court has seen a significant rise in cases where one parent – or sometimes both – are too often under the influence of drugs or alcohol.
Courts take this matter very seriously and where one parent has been accused of putting the children at risk by consuming, or being under the influence of drugs or alcohol, it’s likely that parent will be viewed as “lacking parental capacity”.
There are a number of ways of testing for drugs that can be ordered by the court. They are:

Alcohol Ethyl Gluchronide (EtG) Test, most commonly known as a Hair Follicle Test. This is the most comprehensive test, and can determine a person’s pattern of drug use over a period of time, generally up to three months. It’s also the most expensive test, and the costs may be shared between parties.
Liver Functioning Test (LFT) assesses current liver damage from alcohol abuse and is most useful when used in conjunction with other types of testing.
The Carbohydrate Deficiency Transferrin (CDT) test can be used if a person has been drinking heavily for the past 10 to 14 days. However gender, age, smoking, previous alcohol dependence and Body Mass Index, may impact results.
Blood and urine testing can be ordered to be undertaken regularly, or they can be ordered at random.

The Court’s primary consideration will be “the need to protect the child from physical or psychological harm or from being subject to, or exposed to abuse, neglect or family violence.”
A positive drug test may result in the court reducing the parent’s time with the child, as well as any time with the child potentially being supervised. A refusal or failure to comply with a request for a drug test, can also be regarded by the court as being deemed to have failed the test, i.e. as if returning a positive test result. Orders to undergo drug testing can be made on an interim basis, or until the parent returns a negative sample.
If this article has raised any questions for you, get in touch our office today. We offer personalised service for all your family law issues.
To make an appointment to discuss your personal circumstances, please phone us on (07) 3221 4300 or email at [email protected], or alternatively fill in our online form here.

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If there’s two words that have summed up the source of anxiety for many families in 2020, it’s “financial stress”. The COVID-19 pandemic has resulted in many people either losing their jobs or being forced onto a reduced income. Financial stress can have a huge impact on families.  And with the JobKeeper program set to be cut back at the end of September, there’s a feeling Australia is headed for an economic cliff.
There will be a 60 per cent decline in JobKeeper applicants due to tightened eligibility by the end of September, as well as a rollback of the six-month moratorium on insolvent trading and changes to the statutory demand regime which extends the time for compliance and the debt threshold.
Essentially, companies will need to start dealing with outstanding liabilities, and directors will be back on risk for their company incurring debts.
Experts believe the key to handling stress is you – because stress is personal and what’s stressful for one person, may not be for another.
Australian mental health organisation, the Black Dog Institute, has 10 tips for dealing with stress, particularly during a global pandemic.

Be informed and plan ahead. Often if people feel something is out of their control, it becomes a source of stress. Get the facts on COVID-19 and follow the advice from the medical experts and the government.
Limit your exposure to social media. While it’s important to stay informed, sometimes that can be overwhelming. Choose one trusted news source and read or watch one update from that source each day.
What fuels your anxiety? Are you worried that a scratchy throat might be something more serious? Don’t rely on Dr Google. Stay calm and speak to the experts.
Focus on the here and now. There’s no point worrying about what might happen, so try and live in the moment.
Be aware of negative thoughts. Take a step back if you can recognise you’re stuck in a loop of negative thinking.
Look after your health. Eat right, exercise if you can and make sure you get plenty of rest.
Stay connected with others. If you’re physically separated from family and friends, take the time to speak over the phone or on FaceTime.
Help others. When we help other people, we feel so much better. Is there somewhere you can volunteer your time? Maybe you spent social isolation cleaning out the wardrobe – donate those unwanted items to a worthy cause.
Take a breath. Some days, it’s just all too much. Stop and take a deep breath, it really does make a difference.
Seek professional help. It’s ok to not be ok, and talking to a professional is always a good idea. Many therapists and counsellors are offering consultations over the phone or via Zoom.

It’s important to remember we’re facing unprecedented times. Taking care of yourself, so you can take care of your family, is vital.
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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One of the most important questions for the Family Court to consider is the wishes of children. Parents often differ in their views of what their children really want, so to gain an independent understanding of a child’s wishes a family report is often obtained. So what is it? And how do you get it?
How to get a Family Report?
A family report can be mutually agreed to be obtained by the parties, without any involvement of the court. If an agreement to get one can’t be obtained, then an application can be made to the court to request one. If a court application is made, the parties involved can either agree on a private report writer or ask that the court appoint a Family Consultant.
Who Prepares the report?
A Family Report is usually prepared by private social worker or child physiologist. If the court orders
the preparation of a report, it can direct that the parties pay for a private report or the court can arrange for the report to be done by the court. That is then done by a ‘Family Consultant’. A Family Consultant is a qualified social worker or psychologist, with experience in working with children.
The Report Process:
The Family Consultant will conduct a series of interviews with the children, their parents, and other significant people in the lives of the children. They can also ask for parents’ permission to contact teachers, doctors or other professionals to give more information about the children.
Generally, interviews with the Family Consultant are conducted face to face, over the course of a day or several days, but with current COVID-19 restrictions in place, some interviews may now take place over video.
If anyone involved in the report has concerns for their safety, they should tell the Family Consultant before the interviews take place.
The Family Consultant will gather information about, but not limited to:

The issues in dispute
Past and current parenting arrangements
The parenting capacity of each parent
The children’s relationship with significant people
The children’s views and wishes

A Family Report may also include recommendations to the court about:

Parental roles and responsibilities
How the children will spend time with, and communicate with, their parents, family members and other significant people in their lives
Safety concerns
Support services that may help the children or adults, for example, attending a parenting program

Not Confidential:
It’s important to note that what you tell the Family Consultant is not confidential, everything is admissible in court. The Family Consultant may also be required to give evidence.
How to Prepare:
If you’re preparing for an appointment with a Family Consultant, there are a few things to think about, such as:

Think about what is best for your children and why you think that is best for them
Tell the children they’re going to see someone who will help them spend time with people who are important to them
You may need someone to look after the children while you’re being interviewed
Bring something to keep the children entertained if they have to wait – a game or activity, and don’t forget some snacks and drinks for the children as well.

The report is released prior to the court hearing date and is only intended for parents and their lawyers. It’s expected that parents not share the report with any other people, especially the children.
The court is not bound by the recommendations in the report and if you disagree with the contents of the report, that can be challenged during a court hearing under cross-examination.
If you need help with a family law issue, contact Michael Lynch Family Lawyers to book a fixed-fee initial consultation, phone (07) 3221 4300 or fill-out an appointment booking form, here.

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COVID-19 is ever changing and continues to impact families worldwide. The Queensland Government has closed the border to New South Wales and Victoria. But what does this mean for your parenting arrangement if your partner lives with the children in a COVID-19 hotspot, such as Victoria for example and you live in Queensland? Can you still see the children?
Can the children spend time with you despite border closures?
In our recent article Border Closures and Family Separation we addressed the Queensland border closure but here we delve a bit deeper.
The Queensland Government has published rules and guidelines for those wanting to cross the border between Queensland and New South Wales in the new Border restrictions Direction (No. 11). To access the full Direction released by the Queensland Government, click here.
Parents and children under 18 years of age who live interstate can enter Queensland if:

They are entering to meet obligations relating to shared parenting or child contact (i.e. under a Family Court or Federal Circuit Court Order) including as part of an order or arrangement under the Child Protection Act 1999; and
They have a Queensland Border Declaration Pass. You can find this by clicking here. You will also need identification such as a driver’s licence or Medicare card.

It is important you do not provide false, misleading or incorrect information on a Border Declaration as you could face a fine of $4,004, a court-imposed penalty of up to $13,345 or six months imprisonment;  and

They provide evidence of a Court Order or legal agreement that they are complying with by travelling to Queensland; and
They travel by plane.

If your former partner lives in a COVID-19 hotspot and the children need to travel to Queensland unaccompanied, you will need to apply for an exemption from the Chief Health Officer first.
You may be allowed to cross the border by road if you apply for an exemption. As an example of how this would work, we have recently become aware of a case where one parent lived in Queensland with the child and the other parent lived in Northern New South Wales. The parents did not have a Court Order in place, only a Parenting Plan that was out of date due to the current situation. Both parents applied for and were granted exemptions to cross the border so long as the parent from Northern New South Wales and the child self-quarantined while in New South Wales and the parents followed the Government’s directions regarding pick up and drop off areas.
So, can you see your children despite border closures? The short answer is yes, so long as you meet and follow the above conditions. Our experienced Family Lawyers can answer any questions you have about whether your parenting arrangement means you can enter Queensland.
What happens if you are allowed into Queensland?
If you are allowed to enter Queensland you and the children will need to self-quarantine in a hotel at your own expense for 14 days, unless you have an exemption like in the case example mentioned above. You will not be allowed to leave self-quarantine except for specified purposes including, for example to give effect to a Court Order, for an emergency situation or to attend Court (if you need to attend in person). There are rules you will need to follow if you need to leave quarantine for any reason, which are set out under the “quarantine requirements” section of the Direction and penalties can be imposed if you do not comply.
The only exception to the mandatory self-quarantine period in Queensland is if you have already self-quarantined for 14 days prior to entering Queensland and you can show proof of this and other details to public health in Queensland.
Need advice?
If your parenting arrangements is being impacted by COVID-19, we recommend you contact us immediately to obtain legal advice to navigate this new and developing process. Contact our office by calling (07) 3221 4300 or emailing to [email protected] to arrange a fixed-cost no-obligation initial consultation with one of our experienced Family Lawyers.

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As the COVID-19 pandemic continues, Queensland has once again closed its borders to NSW and the ACT.
Premier Annastacia Palaszczuk announced that from August 8, only residents of border communities and essential workers would be able to cross the border and exemptions, including for compassionate reasons, would be limited.
COVID-19 has had a significant impact on separated families, and border closures are an added complication.
According to the latest information from the State Government, families with shared parenting arrangements will need to provide evidence of official court orders or agreements to allow them entry into Queensland.
Earlier this year the Family Court brought in the ‘COVID-19 urgent parenting list’, dedicated exclusively to dealing with urgent parenting-related disputes that have come about in the wake of the pandemic.
There’s a specific process to follow to get onto the COVID-19 court list, including instances of family violence or if there are issues with supervised contact. If the Court accepts the matter, it will be heard within three days.
The Chief Justice has recently noted parents are still expected to facilitate contact time with children, despite the pandemic and the courts have also said they’re unwilling to entertain petty claims for contravening parenting orders.
Here are some of the issues you should keep in mind:

Domestic violence orders are unaffected by COVID-19.
Courts treat any breaches of parenting orders very seriously. If you plan on breaching a parenting order, for example due to health concerns for your child in another household, please speak to us first.
There may be grounds to change child support arrangements if one parent has lost their job or are now on a reduced income.
Any change to parenting arrangements should be documented in emails, a parenting app or letters between lawyers. Seek legal advice about the best way to document changes.

But apart from heading straight to court, what else can families do under the current circumstances to make life easier, particularly for children?

Plan ahead for parenting time. If your child’s sporting activities have been cancelled, what else can you do together? And if one parent lives in a different state, think about how to keep the lines of communication open.
In the wake of businesses and playgrounds closing, changeover venues may need to be reconsidered. Can changeovers now happen at your home or the other parent’s home?
It’s an anxious and uncertain time for everyone. Try to keep calm and see things from the other parent’s perspective. Your children might be worried as well, seeing and hearing about COVID-19 through the media, or from their school. Take the time to talk with them and be present.
Be patient. This situation is not going to resolve itself overnight and there may be long term changes to how we live, work and socialise.

The Queensland Government has said the border closure will be reviewed at the end of August, but it’s important to remember this is an ever-changing situation.
The Chief Justice of the Family Court of Australia, the Honourable William Alstergren, has said it’s imperative that parents and carers act in the best interests of their children and to be consistent with their responsibilities.
“In the meantime, the community should be assured that the courts will continue to perform their duties during this time of crisis,” he said.
“Judges, Registrars and staff are committed to providing access to justice when called upon to do so.”
If you have a family law issue being impacted by COVID-19, we recommend you contact us immediately to obtain legal advice to navigate this new and developing process. Contact our office on (07) 3221 4300.

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Decades ago, it was called ‘taking sides’ but now it’s recognised as parental alienation – where one parent attempts to turn their child against the other parent. It’s becoming increasingly common in custody disputes and it can take a range of forms.
The term Parental Alienation Syndrome (PAS) originated in the United States when it was first used by a child psychiatrist in the mid-1980s.
PAS is widely recognised in Australian courts and it is sometimes a central consideration in how the courts award custody.
What forms can parental alienation take?
There are a number of ways in which one parent can attempt to influence their child against the other parent. Sometimes, it’s subtle and unintentional but at other times, there are overt ‘campaigns’ against the other parent. Tactics include:

Denigrating the other parent in front of the child
Encroaching on the other parent’s designated time with the child, for example by withholding access or even excessively texting the other parent during their time with the child
Encouraging the child to ‘keep secrets’ from the other parent

How is parental alienation addressed in the courts?
PAS is an issue that is often addressed in therapy and discussed with both parties.
Family Dispute Resolution (FDR) or the mediation process, can be a very useful one, although if domestic violence exists it may not proceed. If it does proceed it can raise and consider PAS, however it is unlikely that it would solve the problem of parental alienation.
It is not the role of FDR to delve as thoroughly into the past and present relationships as Family Therapy does. If left unchecked, PAS could also become an inter-generational problem, affecting relationships within a family for the rest of their lives.
Case Study
Parental alienation was recently considered by the court in the case of Lankester & Cribb (2018). PAS in this case was caused by the mother’s unsubstantiated belief that the father had sexually abused the child.
It was determined there was no medical evidence which supported the mother’s continuous allegations, despite various tests and examinations.
The Judge determined that the child needed to be “protected from the continued likely escalation of that emotional manipulation and harm, and the likely destruction of her relationship with her father”.
In this case, parental alienation had resulted in the moving of the child from the primary care of one parent, to the other and preventing the child from spending time with one parent for a set period of time.
The Judge recognised that a change in living arrangements would likely involve “grief, loss, confusion, a high level of stress, intrusive thoughts about the mother and missing the mother constantly”. However, this was “outweighed by the risks that presented for her in the mother’s primary care, including the need for the child to conform to the mother’s view that were psychologically and emotionally damaging to her.”
Each matter is unique and needs to be addressed according to your personal circumstances and needs.
To speak with one of our experienced family lawyers, please contact our Brisbane office today on (07) 3221 4300 or by filling out this form online.

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You may have a court date coming up, do you need a barrister? That will largely depend on what the purpose of the court date is, but firstly let’s look at what the difference between a solicitor and barrister even is.
On a basic level, a solicitor is a highly trained legal professional that focuses on the day-to-day legal matters of their clients. While in Queensland they can appear in court on behalf of their client, if necessary, they typically spend most of their time outside the courtroom.
A barrister is a lawyer who specialises in court advocacy, including the preparation of pleadings for those court cases, and the preparation of specialist legal opinions. They don’t prepare wills and contracts, though they do advise on them, nor do they undertake conveyancing. Typically spending most of their time actually in court.
We, as solicitors, do recommend the engagement of a Barrister if a case is proceeding to a final hearing or hearing requiring legal argument, a barrister can provide effective representation and advocacy, with:

Specialised knowledge of their area of law for us, family and relationship law;
Detailed knowledge of the rules of evidence and their application;
Full understanding of litigation tactics;
The skills to identify the most appropriate case preparation; and
The ability to persuade the other party or the court of the merits of the case.

The usual route to becoming a Barrister is from having initially been a solicitor. Judges are usually appointed from experienced Barristers. Solicitors forge good working relationships with Barristers and are likely to be able to identify the most suitable Barrister to deal with your case.
If you are about to separate or are separated, and have any questions about Family and Relationship Law – contact Michael Lynch Family Lawyers on (07) 3221 4300 today.

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A lot of couples hold their ownership in real estate as joint tenants. If a separation occurs that can prove a problem as the law provides that if one of the “joint tenants’ dies their shares automatically gets transferred to the other ‘joint tenant’. So, what can be done about it?
There are two ways that couples can own real estate, either as “joint tenants” or “tenants in common”. When couples separate, they may need to consider what arrangements are in place.
Joint tenants:
Joint tenants together own the whole property. Owning real estate as “joint tenants” means that if one of the parties dies then their half interest in the property automatically passes to the other owner regardless of the provision in their Will.
Tenants in common:
Tenants in common each own their individual share in the property absolutely. They may hold their respective shares equally or in some other proportion.
If someone holds an interest as “tenants in common” and they die, then the future ownership of their entitlement will be determined in accordance with their Will.
A tenancy in common may be the preferred ay for a couple to own property where there are children of prior relationships whose interests have to e protected. It is quite common for de facto couples and for investors buying property together to own their property in this way.
Severing a joint tenancy:
Most couples hold property as “joint tenants”, therefore if separation occurs people may wish to look at severing the joint tenancy. A joint tenancy may also be used where a property is held in trust or in certain business situations. Severing the joint tenancy is a straight-forward process that then creates a “tenants in common” ownership. To do this, the consent of the other party is not necessary.
Severing the joint tenancy does not attract stamp duty. It is a process that goes through the Titles Office. The other owner of the property and any mortgagee are notified that the form has been lodged and are given the opportunity to object.
However, we note that severing a joint tenancy is not for everyone and may create hostilities between parties that inflame other matters and lead to delays in finalising or settling a property settlement. It is therefore important to obtain specialist Family law advice in considering your circumstances and whether it is appropriate and to help you establish a plan.
We offer a fixed-fee, no obligation initial consultation. Please contact us on (07) 3221 4300 to arrange an appointment.

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Sadly, one of the first casualties in any break- up is communication. The old “I just can’t talk to him/her anymore” is fairly common. But keeping up that line of communication is vitally important for families, particularly for children. So, if you really can’t stand your ex but have to continue communicating, what are some ways to achieve that?
A communication book
In cases where parents have difficulty communicating about their children, the courts often order parents to use a communication book.
A communication book provides a way for parents to communicate important issues and events relating to their child, without face-to-face interaction, in order to avoid disputes.
The child typically carries the book in their bag between visits to each parent, and it is preferable if it is a bound book with numbered pages.
It is important that parents only make entries in the book that are brief and child-focused. It should not be used for argumentative or self-serving reasons.
Technology
Anything that can help with communication between separated parents is a good thing. For parties where communication is difficult, there is now AI technology that can help improve phone and email communication and much more.
A number of apps contain technology that filters threatening or abusive messages and messages are also stored securely and can be accessed at any time including if transcripts are needed. Parents can co-ordinate calendars, with all events and times covered; some include cost trackers which can include child support or school fees.
Some apps provide space for parents to share photos and other information about the child.
Apps and other online platforms do require commitment from all parties to ensure that the benefits of them are used to their full potential. If used appropriately, they can provide great assistance to parents, particularly in communicating with each other in a respectful, civil and non-denigrating format, as well as organising schedules, and complying with any agreements or court orders that may be in place.
This encourages all parties to maintain a child-focused approach to custody and access arrangements.
The Family Court of Australia recommends apps My Family Wizard and 2Houses, which offer a communications platform, calendar, costs tracker and information sharing. For a more cost-effective option, try communication only based platforms Toppako or Divvito, which offer services to suit most budgets. For more information about other apps, see our article “Making Parents Communication Easier with Technology”
Communication tips

Use your manners. It’s important to be respectful.
Set a business-like tone. Speak to your ex like you would a work colleague.
Make requests, not demands.
It’s a tricky one, but actively listening to them is helpful for everyone.
Show restraint. Keep your cool and don’t lash out over minor issues.
Commit to meeting or talking regularly (if it’s safe for you to do so).
Keep your conversations child-focused.

If this has struck a chord with you, please contact our friendly and helpful team here at Michael Lynch Family Lawyers on (07) 3221 4300 or by filling out this form online.

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It is our pleasure to congratulate Amy Honan (pictured on the right), one of the directors at Michael Lynch Family Lawyers, and Kirsty Mundt (pictured on the left), legal secretary at Michael Lynch Family Lawyers, on both having achieved 10-year work anniversaries in July 2020.
Thank you for your hard work, your generosity, and your contagious enthusiasm. We appreciate your energy, your kindness, and all the work you do, but most of all, we just appreciate you! We couldn’t let your work anniversary pass without sending our best wishes.
Congratulations on your work anniversaries, Kirsty and Amy!

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