Have you recently separated? Have you been to see a Counsellor?
Many people believe that their private counselling discussions are confidential.
The reality is – most are not.
It is important during a separation that spouses seek professional support and talk through their issues either together or individually. If repair can’t be brought to the relationship, counselling will usually improve communications and in so doing lessen the stress of arrangements for the spouses and the children.
Only solicitors, mediators and a limited number of counsellors have legally enforceable confidentially. If legal confidentially is not available, then the discussions someone has with an expert – and the notes that are taken and all documents provided to them, whether it be a counsellor, doctor, psychologist or accountant, can be obtained by the court under subpoena.
There are ways of reducing your risk of exposure but still be able to take advantage of counselling services. It is important to obtain specialist Family Law advice, as soon as possible.
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. Call us on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed-cost. We will be happy to assist in person, over the phone or by Skype.

The post What is confidential? appeared first on Michael Lynch Family Lawyers.

Under the Family Law Act (since 2009) defacto couples have the same rights as married couples to seek a property settlement or spouse maintenance payment when they separate. So, the question is, how do you know if you are in a defacto relationship?
Firstly, the couple needs to have been in a “genuine domestic relationship.” There are various indicators as to whether that is the case, some of these indicators include:

The duration of the relationship;
The nature and extent of their common residence;
Whether a sexual relationship exists;
The degree of financial dependence or interdependence and any arrangements for financial support between them;
The ownership, use and acquisition of their property;
The degree of mutual commitment to a shared life;
The care and support of children (if there are any); and
The reputation and public aspects of the relationship.

If there is a “genuine domestic relationship”, then one of the following needs to exist, i.e.:

The couple had been in the relationship for at least 2 years; or
There is a child of the relationship (in which case there is no time requirement); or
It would be unjust not to recognise a defacto spouse’s financial or non-financial contribution.

Can a defacto relationship exist if the parties are not living together?
A recent case from the Federal Circuit Court considered an application for a property settlement where the parties had a child together but had not lived together. The facts involved two friends, who after a one-off sexual encounter discovered that the female (the applicant in this case) was pregnant.
During the time prior to the birth of the child, the parties had spent time together and this had included sharing meals and spending time socialising. There was evidence that the parties had spent two nights together, but otherwise had maintained their own separate residences.
Following the birth of the child, the respondent father ceased all communication with the applicant and the child, even refusing to sign the child’s birth certificate.
As there was a child of the relationship, the parties were not obligated to satisfy the requirement that the defacto relationship was of at least two years duration.
The judge highlighted the need for a “genuine domestic relationship”, noting the difference between parties merely “dating.” Taking into consideration the overall circumstances that the parties had been in, the judge was not satisfied that the parties’ relationship could be regarded as a “defacto relationship”. The applicant’s application was, therefore, dismissed.
If you need advice on a defacto property settlement, please contact Michael Lynch Family Lawyers on (07) 3221 4300 or [email protected].

The post Are you in a defacto relationship? appeared first on Michael Lynch Family Lawyers.

You may have an understanding that you are in a defacto relationship but what happens now? Like every relationship there are challenges to resolve: parenting, property, child support. How does that effect you? Here’s a quick guide.
PROPERTY SETTLEMENTS
How will our Property be Divided?
The Family Law Act sets out how property is divided for defacto couples.
Determining a Property Division
The court has the right to determine how property is divided when a defacto relationship has broken up.
The court takes a number of steps in determining how property should be divided in a particular case. For this article we have summarised this into two steps.
The first step involves quantifying the value of the pool of property that looks at:

The court takes an inventory of all assets and liabilities that existed at the time of separation;
A current value is put on the assets;
The financial and non-financial contributions both parties made during the relationship.

The second step then looks at what percentage will be applied to a division of the property. This specifically looks at financial and non-financial contributions both parties made during the relationship, as well as looking to the ‘future needs’ of the partners, such as:

future obligations;
financial situation; and
the cost of caring for any children from the relationship.

What Happens to Superannuation?
In property settlements under the Family Law Act, superannuation is defined as ‘property’.
The law regarding superannuation was changed in 2002. From that time on it has provided detailed formulas for calculating the value of superannuation in property settlements.
These formulas need specialist advice. Ask your solicitor for help in these situations.
Superannuation funds can be split between spouses and rolled over as part of a property settlement.  It is not compulsory to split superannuation.
CHILDREN
Children and the Law
The child’s rights are the most important thing in child custody matters. To protect children, the court prioritises the following basic principles:

Children have the right to be properly cared for and protected from harm
If possible, both parents should be meaningfully engaged in their children’s lives
Parents are responsible for caring for their children.

What Does the Court Consider When Deciding Child Custody?
The court considers a range of factors before deciding on a child custody matter. The court must first consider if an ‘equal time’ arrangement is appropriate or failing that if, a ‘significant and substantial’ time arrangement is appropriate. It does this by looking at the ‘best interest’ factors. This includes matters such as, the child’s wishes, the current living arrangements and many more. The court must also consider if the arrangements proposed are ‘reasonably practicable’.
Each case is unique, but anything to do with a child’s wellbeing can impact the final decision.
What Is Parental Responsibility and How Is It Relevant?
The law presumes that both parents have shared parental responsibility.
Under a shared parental responsibility arrangement, parents play an equally important role in deciding the big issues in a child’s life such as, religion and health.
Will the Child’s Preferences Be Considered?
Children do not need to meet a specific age requirement before their wishes can influence a child custody matter. If a child expresses a wish as to which parent they want to live with, their emotional maturity will need to be assessed.
Even though the views of young children are of interest, the court is more likely to seriously consider and give more weight to the opinion of a child in their mid-to-late teens.
What Is Child Support?
Child support is a form of financial support designed to help parents cover the costs of day-to-day care. The parent who pays child support is known as the ‘payer parent’ while the recipient is referred to as the ‘payee parent/carer’.
Child support amounts can vary depending on how much money each parent makes and the child’s living arrangements. The Department of Human Services (formerly the Child Support Agency) is responsible for overseeing child support payments.
Different Types of Child Support
Depending on their unique situation, families can receive different types of child support payments. Most payments fit into one of the following categories:

Periodic payments
Non-periodic payments
Lump-sum provision.

These are the most common categories of child support, although other types of payments do exist. For example, it’s not uncommon for parents to make non-cash transactions by exchanging property. However, any agreement for this to be credited to child support should be clearly documented. Payments can also be made to a third party to cover a child support debt.
How is Child Support Calculated?
Unless separated parents can come to a private agreement, child support amounts are calculated by the Department of Human Services using the following 8-step formula:

Each parent’s taxable income is calculated.
These incomes are added together to determine a combined child support income.
Each parent’s cost percentage is calculated using the care and cost table.
Using the care and cost table, each parent’s cost percentage is calculated.
Each parent’s percentage of care is calculated.
Each parent’s cost percentage is subtracted from the income percentage. This calculation determines which parent will receive child support. The parent with a negative percentage receives child support, while the parent with a positive percentage pays child support.
The costs for the child are then worked out using the costs of children
The total amount of child support is decided by multiplying the positive child support percentage by the costs of the child.

The DHS office website has an online calculator that is very insightful.
SPOUSE MAINTENANCE
Spouse maintenance is where a payment is made by one spouse to the other (whether the couple was married or de facto) because of a significant difference in their incomes.
Under the Family Law Act, there is no formula to apply in determining how much spouse maintenance should be paid, rather there are a number of factors that need to be considered.
Spouse maintenance does not arise for every couple, however where it is an issue the amount will differ in every case.
The Family Law Act states that a person has a responsibility to financially assist their spouse or former de facto partner if that person cannot meet their own reasonable expenses.
Where applicable, both parties have an equal duty to support and maintain each other. This obligation can continue even after separation. The extent of the support depends on what the other party can afford to pay.
When making a decision, the Court considers:

The financial needs of an applicant
The respondent’s capacity to pay
Your age and health
Your income, property and financial resources
Your ability to work
What is a suitable standard of living
If the relationship has affected your ability to earn an income
With whom any children (under 18 years of age or adult children who are disabled) live.

For a fixed-cost no obligation initial appointment to discuss your specific situation, call us on (07) 3221 4300.

The post Defacto issues appeared first on Michael Lynch Family Lawyers.

For a defacto couple’s property settlement it is important to determine when separation occurred. Is it moving out of the house or can you be in the house but separated?
The Family Court has determined that separation is when the following 3 elements are present;

An intention to separate;
Acting upon that intention; and
Communication of that intention to the other spouse.

The process for determining a ‘date of separation’ is the same for a defacto relationship as for a marriage.
Whilst it may seem relatively straightforward, what constitutes separation can sometimes be a grey area.  The issue of separation was recently considered in a case on appeal where the wife opposed the husband’s application for divorce on the grounds that they had not been separated for 12 months.  She argued that the parties had maintained a married relationship even though they were not ‘living under the one roof’.  She said they were only living separately because of the husband’s mental health issues, and that they otherwise continued to socialise together and engage in personal intimacy right up to just before the husband filed his divorce application.
The husband’s account of these reasons for separation were different, but to some extent he agreed that they had continued a relationship as the wife had contended, however he said that his contact with the wife was on the basis of ‘friendship/religion or obligation’ but that he had been clear to the wife that they were separated and that he had no intention of reigniting the marriage.  The Judge in the first instance had taken the wife’s case at its highest and still found that the parties had been separated for at least 12 months. The appeal Court agreed with the single Judge’s decision and dismissed the wife’s appeal.
Reasons for being separated but living under the one roof
There are many reasons why a separated couple may remain living together, including:

Financial – people often can’t afford to pay rent and/or mortgage repayments for two households;
Children – people may remain living under one roof to give children stability and to share the parenting responsibilities while other arrangements are sorted out;
Property – people may remain living together to keep an eye on the property, furniture and other items, or to ensure that items remain at the house until property settlement can be sorted;
Convenience – it is difficult and expensive to set up a second home, and homes are often close to schools, workplaces, hobbies and family, so it may be more convenient for couples to remain in the same property for a period.

What’s required for separation under on roof?
Frequently, and particularly when couples are separated under one roof, people disagree on the date of separation. This can be a grey area, particularly if you are living together and the separation occurs over a period of time.
To establish a ‘separation under one roof’ is not straight-forward, but broadly speaking there needs to have been a demonstrated and fundamental breakdown of the core components of the relationship such as separate:

finances,
sleeping arrangements,
domestic tasks, etc.

The analogy is often given of a ‘glass wall’ down the middle of the home with two separate households operating within it.
You are not alone
Separation is a difficult time for people, and it can be even more emotionally draining and stressful to continue to live under one roof after separation. If you are separated or thinking about separation, it is important to obtain legal advice early on to weigh up the options and ensure you are informed about your rights. Your solicitor can also talk about some of the practical things you should consider, and what options there are in terms of moving out or the other party moving out of the home.
We offer a no obligation, fixed fee initial consultation where a solicitor can talk with you about separation, and steps moving forward. Call us on (07) 3221 4300.

The post What constitutes separation? appeared first on Michael Lynch Family Lawyers.

If you have separated it is important that you get Family Law advice about how to achieve a property settlement, as there are strict time limits that apply. If you miss them there can be real problems. So, what are they?
There are time limits on when spouses can file an application for property settlement in the court. These time limitations ensure that all parties, once separated or divorced, have some certainty that an ex-spouse will not come chasing money from them at some later point in time.
There are occasions however, where parties fail to finalise their property settlement within the allocated time, and have not received their entitlement following the breakdown of the relationship.
The Family Law Act provides that for defacto couples, the time limitation is 2 years from the date of separation. If you have missed this time limitation you must first obtain the leave of the court to proceed out of time.
Alternatively, if you and your spouse have reached an agreement about property settlement matters, this can be documented and finalised.
If you and your spouse are not agreed on your property division, you need the assistance of the court and you are beyond the expiry date, you must first seek the leave of the court to proceed. The court has the discretion whether to grant leave or not, and leave will only be granted if you can show that you, or a child, will suffer hardship if the court does not give leave and that there is an explanation for the delay. This can be a difficult test to overcome.
It is important to keep track of the date of separation (if defacto) and to note the relevant time limitation that applies. If the time limitation is approaching and you have not finalised your property settlement, you should seek legal advice immediately.
It is worth noting that no time limit applies to defacto couples trying to resolve parenting arrangements.
If you require advice about property settlement, your entitlements, or time limitations, please make an appointment with one of our solicitors on (07) 3221 4300 for a fixed fee initial consultation. Alternatively, request an appointment online here.

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Mediation provides an alternative to going to Court. Defacto relationships are no different to other relationships, when it comes to trying to resolve issues. Amicable outcomes are always best. It involves you and your former partner, sitting down with an independent third party. Here are some helpful tips as to whether it would be suitable for you.
What is mediation?
Mediation provides an alternative to going to Court (letting a Judge decide your matter for you). It involves you and your former partner, sitting down with an independent third party (a “mediator”), who gives both of you an opportunity to tell your side of the story and attempt to help you both work towards resolving the issues in dispute.
Mediation does not always result in a settlement of all issues, but it may help both of you better understand where the other person may be coming from, or find some “common ground”.
A mediator will not force a decision upon you or your former partner, but if an agreement is reached, they will provide you with a record of your agreement, which can be drawn up into a binding agreement later, by your lawyer.
What are the benefits of mediation?
There are a number of benefits to you and your former partner attending mediation, regardless of whether an agreement is reached on all issues, these include:

By exploring both sides of the dispute, mediation may help you better understand and explore other points of view, which may assist you both with co-parenting in the future;
You may be able to narrow the issues in dispute by identifying some areas of “common ground”;
You may be able to work together with your former partner to jointly make a decision for you, and your children, rather than having a third party who does not know you personally make those decisions for you; and
The financial and emotional costs of going to Court are reduced if an agreement can be reached at mediation, whether that agreement relates to all the issues, or just some of the issues.

Is mediation appropriate for me?
Everyone’s circumstances are unique. In determining whether mediation is appropriate, a mediator will consider your circumstances, and in particular:

Whether you are able to speak freely;
Any history of family violence;
The equality of bargaining power between the parties (i.e. whether one party is disadvantaged in the mediation, in terms of language, culture, finances etc);
Any risk that a child may suffer abuse;
The emotional, psychological and physical health of the parties; or
Any other issue the practitioner considers relevant.

If the practitioner is of the view that mediation is not appropriate, it should not proceed.
If you have an agreement what do you do?
It depends on the issue… Parenting, property, child support and spouse maintenance can be documented. The question is – should you and if so, how do you do it? For more details, read our article “Do you need to document a divorce agreement”.
If you have any questions about this article or would like to make an appointment to discuss your personal circumstances please telephone us on (07) 3221 4300 or email us at [email protected]

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Agreeing to a Domestic Violence Order (DVO) being made ‘without admission’ is often considered the quickest and easiest solution when faced with a domestic violence application, especially in circumstances where the respondent does not wish to defend the action and agreeing to the order will not affect their livelihood (e.g. they don’t require a “weapons licence”) or otherwise impact significantly their life (a DV order is a civil order, not a criminal order).
However, if you have children and intend to commence family law proceedings it is important to be aware of its potential impact. Prior legislation made specific reference to whether or not a DVO was consented to, and it was held in a 2007 case that in circumstances where the evidence was not tested, as is the case of a consent ‘without admission’ DVO, the court could not find that the ‘presumption of equal shared parental responsibility’ had been rebutted by family violence.
The legislation and particularly that section has been amended so that the court is now required to reflect on factors far broader than whether or not a person on a ‘without admission’ basis consented to the making of a DVO.  The flow-on effect being that in this broader context it may be far easier for the court to consider that the presumption has in fact been rebutted and equal shared parental responsibility may not apply.
If you have been served with a Domestic Violence Application and are not sure what to do, call us on 3221 4300 for a fixed cost initial consultation.
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.

The post Consenting ‘Without Admission’ – What Does That Mean? appeared first on Michael Lynch Family Lawyers.

The Family Court holds that parties to a marriage (or defacto relationship) should share in the good economic times as well as the bad that occur in their relationship, even if the losses have been caused by the actions of one party.
Only where there are ‘good and substantial reasons’ should there be a departure from this general principle and in those cases the greater share of the loss will be retained by the party who incurred the loss. The court recently considered whether the husband’s unpaid (ATO) debt and penalties should be included in the pool of property to be divided between the parties.
Facts:
Following the sudden death of his father, the husband developed a significant gambling problem. The wife was unaware of the husband’s gambling and by the time the husband agreed to cease all gambling he had a significant ATO debt. The parties then secured an overdraft of $50,000.00 to discharge the husband’s unpaid tax liabilities. The husband continued to struggle with his finances and accumulated over $170,000 in unpaid taxation, interest and penalties.
The husband was found to be suffering severe depression and a post-traumatic stress disorder (PTSD).
Court Found:
The court concluded that despite suffering PTSD, the husband’s psychological functioning was not so compromised that he was unable to manage his financial affairs. The husband was found by the court to be “negligent or recklessly indifferent” towards his taxation responsibilities and he alone should bear the penalties and interest to the ATO.
Accordingly, the court found that it would be unjust to include the ATO debt as a joint matrimonial debt and the husband should bear the greater responsibility. The ATO debt was treated separately from the remainder of the pool of property.
It was ordered that the parties should take half of the unpaid tax as a joint matrimonial debt and the husband be solely responsible for the remaining 50% and penalties.
Family law matters, such as described in this case, need to be addressed carefully and professionally. We are happy to assist you with family law matters in person, over the phone or by Skype/Zoom.
To speak with one of our experienced family lawyers, please call us on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed-cost.

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As your family lawyer we can provide you with advice with respect to your family law matter including property settlement and parenting matters.  However, from time to time there may be other areas of law that arise as a result of a separation where we may need to refer you to another lawyer who specialises in that particular area of law.  What might those issues be?
Other lawyers that we may need to refer you to include the following:

Wills and Estates lawyer including Succession Planning lawyer
– if you do not have a Will or an Enduring Power of Attorney we may refer you to a lawyer who can prepare these for you or provide you with advice if you have any existing Will or Enduring Powers of Attorney and want to change them. Upon separation you should review your Will and Enduring Power of Attorney particularly after your Divorce which voids a former spouse or partner who you may have listed as an Executor or beneficiary in a Will.

Criminal lawyer
– if your matter in any way raises any issues of a criminal nature whether or not you have been charged for any criminal offence, we may refer you to a criminal lawyer. If there are allegations of domestic violence made against you which include elements of a criminal nature such as stalking or where you have allegedly breached a domestic violence order we will refer you to a criminal lawyer.  Some more common areas now include publication of Family Court proceedings such as on social media including Facebook as it is an offence against section 121 of the Family Law Act 1975 to publicise any account of any proceedings or any part of any proceedings where the parties, the children and any associated party can be identified.  Breaching section 121 of the Family Law Act carries a penalty of up to one year imprisonment.

Defamation lawyer
– if you have defamed your ex-spouse or partner or have been on the receiving end of defamation you may need advice from a defamation lawyer. In the age of social media such as Twitter and Facebook allegations of defamation are more common.

Commercial lawyer
– if you have various companies or trusts we may need to refer you to a commercial lawyer to assist you with respect to those entities particularly if you are wanting to restructure entities after a separation.

Employment lawyer
– it may be that your former partner or spouse is currently employed by you or a company which is controlled by you or you may be the one employed by a former spouse or partner. As a result of separation you may wish to terminate the employment of your former spouse or need to receive advice if your employment is terminated. It is important that you obtain proper legal advice from an employment lawyer in these circumstances as certain time limits may apply particularly for unfair dismissal.

Property lawyer
– we may refer you to a property lawyer in the event you reach final consent orders and a real property needs to be transferred to your partner or spouse. There may also be other instances where property lawyers become involved including where caveats are involved or where the severance of legal title to a property is required. In some instances we as family lawyers can complete some of these documents on your behalf.

What the above illustrates is that there is a need, from time to time, for family law clients to consult with another lawyer in a different area of law.  As family lawyers at Michael Lynch Family Lawyers we only specialise in family law matters but should other areas of law arise we may need to refer you to another lawyer who practices in and specialises in that area of law.
Please contact us at Michael Lynch Family Lawyers on should you require assistance with your matter by calling (07) 3221 4300 of filling out the online form.

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During COVID isolation the mother of a 17-year old child with high autism needs suspended all contact with the father and placed a notice on her front door saying the child was vulnerable and would not be leaving the house. The father defaced the Notice and sought a court order to stop the mother. What did the court do?
The Family Court decision of Xiu & Hodges[1] is a decision of Justice Bennett regarding a high needs autistic 17 year old child who had global developmental delay, motor dyspraxia and an intellectual disability.
The parents in this case already had an existing court order but the matter was recently exacerbated when the mother stopped the father from spending time with the child due to COVID-19 and put a sign on her front door which read:
___
“COVID-19 Health and Safety
Government Order: Stay at Home
The child of this house is very vulnerable and very prone to virus and infections. In this coronavirus pandemic crisis, this child must stay at home and is not allowed to go out of this house. It’s for families, community and country’s safety.
Thank you for your understanding & cooperation“.
____
The father wrote over this sign by changing the words “Government Order” to “Mother’s Nutty Order”. He also added the word “not” before the word “very” where it appeared so that this sentence read “the child of this house is not very vulnerable and not very prone…“.
The parties were both self-represented in this matter but there was an Independent Children’s Lawyer (ICL) who had requested that the matter be listed before the Judge initially in relation to other concerns and later because the mother was withholding the child from the father due to “Coronavirus concerns”.
The mother sought orders that all previous orders be discharged and that the child live with her full time during the current COVID-19 pandemic and that she have sole parental responsibility for all decisions relating to the child’s health, education, National Disability Insurance Scheme (NDIS) and day-to-day care. She proposed that the father only communicate with the child by way of Zoom App and telephone and that the child only engage in therapy sessions via Zoom.
The mother’s issue with the father spending time with the child was that he exposed the child to high risk by taking the child to his girlfriend’s home frequently, taking the child to the local Coles supermarket and not observing social distancing and not making the child wear the face masks and gloves which the mother had provided for the child.
The father admitted during the hearing of the matter that the child did not wear the masks and gloves when they were at the supermarket.  The Judge accepted the father’s submission that it was not a recommendation of the Government that gloves and masks be worn. The Judge also accepted that the father was truthful when he said that he would follow the COVID-19 directions. The Judge did find that the father was disrespectful to the mother when he defaced the Notice by the mother that she had put on her door, but did find that it was an example of the “domineering attitude” of the mother and her propensity to “ride roughshod” over the father when she had an opportunity to do so.
The Judge found that the mother was bona fide and genuine in her concerns with respect to the child’s health and COVID-19 risks, but found that the mother had habitually sought to marginalise the father so that she could dominate the child’s care and was relying on her opportunistic and inaccurate understanding of the Government directions about COVID-19 as an excuse not to allow the father to spend time with the child.
The Judge was satisfied that it would be contrary to the child’s best interests for the mother’s concerns about the father’s standard of care during COVID-19 to outweigh the benefit of the child spending time with his father for significant periods in a shared care arrangement.
The Judge made orders for the father to spend time with the child and for the mother to make the child available for collection by the father. The Judge warned the mother that if she did not facilitate the father spending time with the child the court would make a Recovery Order for the Police to collect the child and deliver him to the father should that be necessary.
At Michael Lynch Family Lawyers we appreciate that COVID-19 is impacting upon many families and may exacerbate existing disputes between parties. Before the disputes escalate, we would recommend that you obtain legal advice by contacting us on (07) 3221 4300 or by filling out the online form. At Michael Lynch Family Lawyers we are able to provide you with advice in a safe environment either through video conferencing platforms Zoom or Skype as well as face-to-face conference adhering to the social distancing rules.
[1] [2020] FamCA 225 (9 April 2020).

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The end of financial year is coming. Do you need to check your child support income estimate is accurate for the rest of the financial year?
If you gave the Child Support Agency an estimate of your income for the current 2019/20 financial year, the CSA will soon be sending you a reminder to compare the estimate with your actual income to make sure you are still paying or receiving the right amount of child support.
It is important your income estimate is as accurate as possible to help ensure your child support assessment reflects your financial capacity to support your child. If you have incorrectly estimated your income at the end of this financial year there is the risk that you may over pay or, you might need to pay more child support.
To speak with one of our experienced family lawyers, please contact our Brisbane office today. Call us on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed-cost. 

The post Check Your CSA Income Estimate appeared first on Michael Lynch Family Lawyers.

It is very common for adult children to rely on the “bank of mum and dad” when purchasing property, investing in businesses or getting them out of a sticky financial situation. Grandparents are often also relied on heavily to care for grandchildren, providing free child care for their own children.
What if they divorce?
That can all add up to a lot. So if a couple is going through a separation, and have received a benefit from financial and non-financial contributions from a parent, how is this treated in the property settlement?
A property settlement does not run to a set formula- there is certainly no automatic “50/50 division”. In very simple terms, the first step is to work out the total value of the property, and secondly, to determine the percentage that it should be divided by considering each spouse’s contributions.
How is financial support treated?
The treatment of financial support may depend on the context of the support, whether it was considered a loan or gift, and whether it was intended to benefit both parties, or just the related party.
If the funds were provided as a loan, that will impact the first step of the process as it will generally be included in the asset pool for distribution, and will reduce the available property. Depending on the amount of the ‘loan’, this may significantly impact the property pool.
If alleging that a loan exists, it is important to have the best evidence and that means a documented loan that has been actively repaid. Usually what the court would look for is formality of the agreement, including supporting loan documentation, whether there was a repayment plan in place, demands for repayment and interest charged on the loan.
Sadly, many “family loans” are done informally and don’t have this level of documented detail. That is not necessarily fatal, but it makes the “loan” claim a lot more difficult.
If the payment made is a gift, it will be treated as a contribution by the party given the gift, and it will be taken into account in the second step of the process, when determining the percentage split. This means it is not considered as a dollar amount and won’t receive the full credit amount, as if it was a loan. It is important to note, however, that the weighting of any gift will depend on the particular circumstances of each case, including the size of the gift, how those funds were used, the overall property pool and other contributions factors.
Non-financial contributions, such as babysitting, may also be considered as a contribution factor, and again will be considered in the context of the relationship as a whole.
The court recently considered a case where a husband received a significant gift from his parents, however when the court looked at the intention of his parents when providing the gift, they came to the conclusion the gift was for the benefit of both parties. The specific facts which pointed to that conclusion included the fact that the property was transferred into joint names, and put an obligation on both the husband and wife that they would support the parents if needed as they grew older.
This case shows that there is no “general rule” in family law matters, and it is important to obtain advice for your specific situation.
Need family law advice?
To receive family law advice on “family loans” or other family law topic from one of our family lawyers, please contact Michael Lynch Family Lawyers on (07) 3221 4300 or fill out the online form to book an initial fixed-fee consultation.

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THE court recently had to consider how to treat a large inheritance received by the wife during the relationship. In particular, the court had to consider whether those assets should be excluded and quarantined from distribution, or whether everything should be included in the pool available to distribute.
The facts:
The wife received an inheritance of approximately $3.5 million a few months after the parties were married. The inheritance included investment properties and a company which provided the wife with a substantial annual income. The husband also worked during the relationship.
The argument:
The wife’s argument was that the inherited assets and her post-separation assets should be quarantined and only the property and assets acquired jointly during the marriage should be divided between the parties.
The outcome:
The court did not agree with the wife’s argument, saying that she was downplaying the husband’s contributions during their nine-year relationship, including his non-financial contributions to the care of their child.
The court determined that the property pool should include all assets, and noted that the wife had made the overwhelming financial contribution to the asset pool. The court assessed that the husband should receive 8% of the asset pool for his contributions. The court also awarded the husband an additional 2%, taking into account the wife’s superior earning capacity and financial resources. The husband received approximately 10% overall, with the wife retaining the balance.
The outcomes in Family Law matters can be unpredictable, but it is worth getting professional legal advice to ensure you know your rights and achieve the best possible outcome. We specialise in all matters of Family Law, please call us (07) 3221 4300 to organise your initial fixed-fee consultation – protect your rights!
For further information read our Inheritance in Property Settlements article.

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All students as of 25 May 2020 should have gone back to school. In Queensland there was a staggered start for school students to return to school with students in kindy, prep, Year 1, Year 11 and 12 returning first on 11 May 2020 followed by Years 2 to Year 10 on 25 May 2020.
Although it feels like school has just started back school holidays start on 26 June 2020 for 2 weeks.
The Queensland Government Department of Education (“Department of Education”) website provides that it is expected that children in all year levels will now be back at school from 25 May 2020.[1] However, the Department of Education website does acknowledge that “…some parents or carers may still wish to keep their children home from school due to special circumstances, medical vulnerability, or concerns about the risk of COVID-19 transmission.” The Department of Education provides that if a child is kept at home that the parent at home remains responsible for their supervision, learning, safety and wellbeing at home or elsewhere.
For further information from the Department of Education on frequently asked questions about COVID-19 and children returning to school please see this web link .
For parents who are separated children returning to school may create conflict and further disputes with the other parent as to whether their child should return to school or whether they should be home schooled.  Each family situation is different and there are many parents who are living with a paternal or maternal grandparent or elderly relative who is particularly at risk from COVID-19 or the parent themselves may be at risk.  Similarly, there may be a child who has a medical vulnerability and is at high risk who a parent wants to protect and considers not sending their child to school and home schooling will be in that child’s best interests.
Parents who are in dispute about whether a child should or should not return to school or be home schooled should first try to resolve the dispute amicably with the other parent and listen to the other parent’s concerns and consider the safety and best interests of the child.
The Chief Justice of the Family Court has released a Media Release with respect to parenting Orders and COVID-19. This is the link where you can find the Media Release which lists out some practical steps to take when there is a dispute and how to reach an agreement with the other parent and also taking into account existing parenting Orders.
One of the practical examples given in this Media Release is that if an agreement is reached about new parenting arrangements the agreement should be in writing, which could be by way of email, SMS text message or WhatsApp message.  We consider that this is particularly important where parties already have existing Orders and are making changes to those Orders in light of COVID-19.  Most parenting Orders do provide for parenting arrangements to be changed so long as there is an agreement between the parties in writing.
At Michael Lynch Family Lawyers we are able to assist you with respect to parenting matters particularly to provide you with practical legal advice arising from issues concerning COVID-19 and how this may impact upon parenting arrangements and/or parenting Orders. We are able to arrange safe appointments for all clients including by way of video conferencing such as Zoom and Skype and face-to-face meetings adhering to the social distancing requirements.

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The court recently considered a case where the assets of the parties were modest in value. It included vehicles, credit cards, and some personal loans, by contrast, the superannuation of the parties totalled almost $900,000.
Of the super amount, the husband had around $780,000 in a ‘defined benefit fund’ and a small ‘accumulation fund’. The wife had about $45,000.
The husband and the wife cohabited for approximately 12 and a half years and they had 3 children together, who lived predominately with the wife.
When they commenced their relationship, the husband already had some accumulated superannuation, the wife admitted that the husband had made a greater financial contribution. The wife argued, however, that this contribution was equaled out by her post-separation contributions, including care of the children which allowed the husband to continue working and increase his superannuation.
The court found that the wife had contributed 45% to the husband’s superannuation interest and made an order that the wife receive a ‘super-split’ from the husband’s superannuation interest of 45% and that the wife retain her superannuation interest. Overall, this equated to a super split of 47.7% to the wife.
This case highlights several points, most importantly that superannuation is property and it can be split. It is also important to keep in mind that when sharemarkets fall (as they have recently) that impacts superannuation values. It is important to keep up to date with superannuation values when looking to finalise a property settlement.
Need assistance?
To speak about superannuation in property settlement with one of our experienced Family Lawyers in Brisbane today, please call (07) 3221 4300 or fill out our form online to arrange your initial fixed-fee consultation.

The post The Challenge of a Small Property Pool But Large Super appeared first on Michael Lynch Family Lawyers.

The most commonly-asked question in Family Law is “What age does the Court take a child’s wishes into account?” – but there is so much more to the topic. This webinar will give straight-forward and practical answers to questions like: What age does a child have to be? What if parent’s statements about the […]

The post Webinar for Counsellors: “Out of the Mouths of Babes” – Children’s Wishes in the Family Court appeared first on Michael Lynch Family Lawyers.

Not surprisingly, one of the most common questions we get is what will someone’s entitlement in a property settlement be? The answer is: it will differ for everyone – but here is what you should consider. The property settlement process is complicated, but essentially it involves the identification and valuation of the relationship property (which is broadly […]

The post What am I entitled to in a divorce in Australia? appeared first on Michael Lynch Family Lawyers.

One of the great misunderstandings is how assets in trusts are dealt with in the Family Court. Are they excluded or are they in? Asset pools in these cases can be significant, so before you suggest a particular asset-holding structure for a client, it’s important to know what the answer is. In this webinar […]

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I have just separated. What should I do now? The breakdown of a relationship is one of life’s biggest events and greatest stresses. In the midst of the turmoil it’s difficult to know what to do. If you or anyone you know has separated, here are some tips on what to do next. 1. […]

The post How to survive separation appeared first on Michael Lynch Family Lawyers.

How can you make sure that real estate registered in the other spouse’s name is not sold, transferred or put up as security without your knowledge? Protection may be found in a caveat.
A caveat is a document that can be lodged with the Titles Office. Once a caveat is lodged, the owner of the property is not able to deal with the property in any way including selling, transferring or further encumbering the property until the caveat is removed.
Are you able to Register a Caveat?
In order to register a caveat, a person must first establish a caveatable interest. In many family law matters, a former partner is usually able to demonstrate an interest in the property as a result of their ‘financial and non-financial contributions’ to the ‘acquisition, maintenance and improvement’ of the property during the course of the marriage or relationship.
Risk in Registering a Caveat
There are risks of registering a caveat. If the person who lodges the caveat is found to have no caveatable interest, and the owner of the land suffers some kind of financial loss as a consequence of the caveat, the owner of the land can recover those losses from the person who lodged the caveat.
We recommend that anyone who has concerns about property being disposed of without their knowledge or who is thinking of lodging a caveat should contact us for specialist Family Law advice. Phone (07) 3221 4300 for a fixed-fee no obligation initial consultation today.

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