Christmas holidays can be a time of mixed emotions, particularly for separated families.
If you are going through a separation and are wanting a smooth and stress-free Christmas then we suggest you follow our list of Do’s and Don’ts for Christmas.
Do’s
1. Do follow the terms of any Parenting Plan or Consent Order in respect of parenting arrangements for the children. If you don’t, you could be found to be in breach of Orders if you have them.
2. Do arrange a Family Dispute Resolution Conference (Mediation) with the other parent if you have not been able to reach any agreement in relation to parenting arrangements for the children or if you want to change the current parenting arrangements.
3. Do arrange to formalise any custody and access arrangements by way of a Parenting Plan or Parenting Order.
4. Do get specialist Family Law legal advice if you are contemplating separating or have separated.
5. Do follow the terms of any Domestic Violence Protection Order. Just because it is Christmas this does not provide you with an exemption from following the terms of the Protection Order. If you breach the terms of a Protection Order this is a criminal offence and you could go to jail.
Don’ts
6. Don’t take your children overseas without the written agreement of the other parent if you have a Parenting Order in place which doesn’t allow for such travel or if an Application for a Parenting Order has been filed in the Court. If you do, this is an office punishable by imprisonment for up to 3 years.
7. Don’t run out of time. If you have a time limit approaching for property settlement or maintenance matters file court proceedings within the time limit which is 2 years from the date of separation for de facto couples and for married couples it is within 12 months from the date your Divorce Order becomes effective.
8. Don’t commit any acts of family or domestic violence including against your partner or children and do not expose your children to domestic violence. Domestic violence has a very broad definition and can include not only physical abuse but can also be emotional or psychological abuse and economic or financial abuse.
9. Don’t denigrate the other parent in the presence or hearing of the children.
10. Don’t unilaterally relocate the children’s residence without the consent in writing of the other parent or without a court order if such relocation would make it significantly more difficult for the other parent to spend time with the children, eg. relocating the children’s residence from Brisbane to Melbourne.
At Michael Lynch Family Lawyers we can help you in all aspects of family law matters. For a fixed-cost no-obligation initial consultation contact Michael Lynch Family Lawyers by calling (07) 3221 4300 or emailing to [email protected].
We wish you a very Merry Christmas and thank you for your support during the year.

The post The 10 Do’s and Don’ts of Family Law for Christmas appeared first on Michael Lynch Family Lawyers.

When couples separate and are trying to resolve issues, section 60I certificate is referred to quite often. So, what is it and do you really need to have one, and what are those situations?
Do I really need a section 60I certificate?
If you want to make an application to the court for a parenting order to address ongoing custody or access arrangements, you are required to file a section 60I certificate at the time you file the application. Alternatively, you may be exempt from filling one, if you meet one of the grounds for not requiring a certificate.
Recently, the Court of Appeal[1] set aside Orders made in the Federal Circuit Court which allowed a father’s Application for Orders concerning children to proceed; despite him not having obtained a section 60I certificate and despite the mother’s objection to the Application for that reason. The father’s application was dismissed. Ultimately the Court of Appeal concluded the Application could have been allowed to proceed had the Judge in the first instance considered whether one of the exceptions applied.
The exceptions to requiring a certificate are:

Orders are being sought with consent of all parties;
There are reasonable grounds for a Court to believe:

There has been abuse of the children by one of the parties to the proceedings;
There would be a risk of abuse of the child if there was to be delay in applying for orders;
There has been family violence by one of the parties to the proceedings;
There is a risk of family violence by one of the parties to the proceedings;

You are filing a Contravention Application associated with a Parenting Order that has been made within the last 12 months and the Court is satisfied there are reasonable grounds to believe that a person has shown serious disregard for the Order
The Application is urgent;
A party is unable to participate in family dispute resolution effectively because of incapacity of some kind, physical remoteness from dispute resolution service or for some other reason;

This case emphasises the importance of obtaining a section 60I certificate, or alternatively having evidence as to why one of the exceptions should apply.
What is a section 60I certificate?
A section 60I certificate is a certificate issued by a family dispute resolution practitioner (FDRP) pursuant to section 60I(8) of the Family Law Act 1975; which relates to a person’s attempt to attend family dispute resolution with the other person (usually two parents). A FDRP can issue a certificate for the following reasons:

Because the other party refused or failed to attend family dispute resolution;
The FDRP did not consider it appropriate to conduct family dispute resolution;
All parties attended family dispute resolution and made a genuine effort to resolve the issues;
All parties attended family dispute resolution and the other party did not make a genuine effort to resolve the issues;
The FDRP did not consider it appropriate to continue family dispute resolution

If you are in dispute about children’s matters and considering making an Application to the Court, you should firstly consider obtaining a section 60I certificate and obtain advice from a family lawyer in relation to whether your circumstances meets one of the exceptions.
For more information on what a Section 60I certificate is – see our previous article “What is a section 60I Certificate?”.
If you have any questions about this article, email us at [email protected]. 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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It’s been the hot political topic in Family Law for the last 12 months- ‘what is happening with the Family Court? Despite all the noise, nothing has changed. So what is the current position?
There are two federal courts that have jurisdiction to deal with family law matters in Australia – the Federal Circuit Court and the Family Court.
Although both courts have jurisdiction to deal with family law matters, there is a specific division of work that dictates which Court a matter should be filed in.
Generally, the following will apply:
Family Court

complex property matters
international child abduction and relocation matters
questions of whether Australia is the appropriate jurisdiction to hear a matter with international aspects
special medical procedures
serious allegations of sexual abuse of a child, or serious allegations of physical abuse or family violence
if a trial of the matter is likely to exceed 4 days
divorce applications

Federal Circuit Court

most parenting matters
most property settlement matters

It is important when filing proceedings in court that you file in the correct court, as filing in the wrong court may result in unnecessary delays, legal costs and stress to you.
If a matter is in the wrong court, it can be transferred to the other upon application by one of the parties, or the Judge if they consider it needs to be transferred.
The different courts have different court forms, processes and rules and it is important to understand these differences prior to commencing court proceedings, and we recommend you obtain legal advice prior to taking steps in court.
Need advice?
At Michael Lynch Family Lawyers we can help you in all aspects of family law matters. For a fixed-cost no-obligation initial consultation contact Michael Lynch Family Lawyers by calling (07) 3221 4300 or emailing to [email protected].

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Anything that can help with communication between separated parents is a good thing. For parties where communication is difficult, there is now AI technology hat can help improve phone and email communication and much more. We’ve done the hard work for you and compiled a list of what’s available.

Application / Platform
Cost (per parent)
Features

1.   Toppako
https://toppako.com/
$0 for 6 months
$9.95 per month
$110.00 per year
· Message Monitor (using AI and dictionaries of approved words) reviews, filters and flags messages using a ‘traffic light’ system giving confidence that a message is ‘safe’ to send or read. Messages containing swear words, that are threatening or significantly negative are quarantined;
· Control over when and where you receive your messages so you are in the ‘right frame of mind’ before opening your messages.
· Calendar for appointments, events and commitments which you can chose to be visible to your connection
·  Messages securely stored in the cloud and can be accessed anytime including if transcripts of messages are required.

2.    Our Children Australia
https://www.ourchildren.com.au/
$15 per month
$100 for 6 months
$150 per year
· A co-parenting calendar to allow parents to easily view schedules including events and appointments for the children and time spent with each parent.
· An email ‘mailbox’ where parents can continue standard messenger-based communication.
·          Costs tracker (such as school fees or child support paid)
·  Information bank where parents can share information and photos of and about the children

3.    Divvito
https://divvito.com/
Basic Plan $0
Enhanced Plan:
$96 per year (both parents)
$399 for life (both parents)
Both plans, ‘Dani’ (virtual assistant) assists with the following:
· Organising messages into conversations (such as ‘school expenses’ and ‘changeovers’);
· Archiving messages (messages will be stored permanently in chronological order);
· Inappropriate messages will be flagged, and the sender will be given the opportunity to revise their message before it is finally sent.
· The application does not have a calendar, however, offers integration of times and dates of communication between parents with the user’s phone calendar.
Enhanced Plan (additional features):
· Download and share messages enabling the transfer of all communication (from email or text etc) that the user has shared with the other parent to store in one place
· Unlimited document, photo and video uploads
· Extreme language will be blocked
· Speed dial to support network – this allows parents to reach out to their colleagues or family members quickly when in need of support.

4.    Our Family Wizard
https://www.ourfamilywizard.com.au/
30 day free trial
$154 for 1 year (both parents)
$270 for 2 years (both parents)
· Shared colour-coded calendar for parents to share time arrangements, important events or appointments for the children.
· Secure messaging through ‘message board’ which cannot be edited, deleted or retracted
· A journal to record observations, share memories and check in at different locations (for example to check in and confirm attendance at a changeover)
· Expenses log to keep track of shared expenses, any upcoming expenses and reimbursement history including to upload receipts for the other parent to view;
· InfoBank allows parents to store important family information such as the children’s medical/prescription needs and immunisations schedule to-date.
· ‘ToneMeter’ that uses a communication algorithm to encourage positive and productive communication.

5.   2Houses
https://www.2houses.com/en/
14-day free trial
$13.25 per parent per month
$159 per year (per family)
$659 for life (per family)
· A co-parenting calendar to allow parents to easily view schedules including events and appointments for the children and time spent with each parent.
·  A costs tracker to track expenses such as school fees, medical bills, clothing etc.
· Information and document centre for parents to exchange photos or videos of the children and information about the children including medical reminders, notes from any recent medical appointments and clothing and shoe sizes etc.
· Private messaging where messages cannot be deleted so to ensure that each party maintains a full transcript of all communications.
· A journal which allows parents to easily share information, news, photos (additional to the information bank)
· Parents can assign specific ‘rights of access’ to the secure platform to their children, other family members or third parties for example a mediator.
· One parent subscribes and pays for the platform and the parents then organise between themselves the amount (if any) to be met by the other parent

6.    Cozi
https://www.cozi.com/
$0 Basic
$46.99 Gold per year
Cozi is not specifically for separated families but is a ‘family organiser’.
Basic and Gold:
· Shared colour coded calendar function makes it easy to schedule and review events related to each child
· To Do List function to add reminders in relation to each child such as a note about school forms to be signed or collection time at school.
· Family Journal
Gold:
· Month View so can review entire month of appointments on one screen
· Calendar search function, calendar change notifications and additional reminder settings
· Birthday tracker and shared contacts

7.    Talking Parents
https://talkingparents.com/home
$0 Standard Plan (Website only)
$5.99 USD per month Premium Plan
Standard and Premium:
· Easy and secure messaging with 5 files able to be uploaded with messages, as well as timestamp as to when other parent viewed and unalterable record history
· Real time email notification for new messages
· Mobile friendly website access
· Shared calendar and personal journal
· Attachment library (Standard Plan limited 7 day access)
Premium:
· Attachment library (Unlimited Access)
· Vault personal; file storage (Mobile App Feature only)
· Certified printed records with 10% discount
· Unlimited PDF conversion and journal record downloads
·  Access to Premium Mobile App
There are additional reports and features available for purchase as often as required including journal record download, pdf calendar record download and text message notifications.

8.    Custody Connection
http://custodyconnection.com/

·  Syncable cloud based easily viewable ‘time arrangements’ calendar
·  Parents can sync ‘primary calendar’ with each other to accurately create, manage, change and view the arrangements for the children to spend time with each of them
·  Avoids the texts, email or phone call to communicate with the other parent about time arrangements as the app provides for communication and requests to be sent in real time
·  Auto track the days/time children spend with each parent during the year as well as review requests for changes to those days/times

The popularity of such apps in Australia is steadily increasing as are they in many countries.  ‘2houses’ for example, has an estimated 170,500 families using the platform across numerous countries.
Applications such as the above do require commitment from all parties using the platforms to ensure that the benefits of the respective application are utilised to their full potential. Accordingly, if used appropriately, such applications 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 orders that may be in place.  The use of such platforms encourages all parties to maintain a child-focussed approach to their custody and access arrangements.
If you are looking for a ‘whole package’ application, Our Family Wizard and 2Houses are comparable in that they each offer not only a communication platform, but also calendars, costs trackers and information sharing. Both have been included (and arguably) endorsed in recent judgments of the Federal Circuit Court and Family Court of Australia. Alternatively, if you are looking for a cost-efficient ‘communication only’ based platform, Toppako and Divvito offers services to suit most budgets, enabling parents to engage in organised and civil communication.
If you are about to separate or are separated, and have any questions about Family and Relationship Law – contact Michael Lynch Family Lawyers today.

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Following the breakdown of a relationship, one party may want to make a “fresh start” and relocate from the town or region where they lived with their spouse during the relationship.
If there are no children of the relationship, that party can relocate wherever they want. If there are children of the relationship, both parties usually need to agree on whether the children should relocate from the town or region which has been their home. The court recently considered a case where one party had relocated whilst pregnant and the other party was opposed to it. What happens in that situation?
The Facts

The mother and father (of the unborn child) began a relationship in May 2017 and separated in September 2017.
During the relationship, the parties lived in the Northern Territory.
At the time of separation, the mother (to-be) immediately went to live with her family in New South Wales – before relocating to Queensland. At the time the mother relocated to Queensland, she remained pregnant and had not given birth.
The baby was born in Queensland.

The Decision
The father opposed the mother’s relocation and sought her return. The first Judge made an Order that the mother return with the child to New South Wales. The mother appealed. The Appeal Court found that the primary judge had incorrectly regarded the case as a “relocation case” and had therefore, been led into error. The mother’s appeal was successful on the basis that the primary judge had made errors of law and the orders made by the primary judge were set aside.
The Lesson
The Appeal Court noted that the child had never been a resident of New South Wales. The Appeal Court said that, properly considered, the father’s application was for the child to be brought to New South Wales, so that the father and child could have a relationship. The Court found that the primary Judge had not considered the ability of the father to have a relationship with the child in Queensland, had not properly considered the mother’s evidence, and also made orders that were not supported by the evidence.
The case demonstrates the necessity of having evidence before the court about the child’s place of residence and properly formulating orders that are supported by the evidence.
This case confirms the court’s long held view that where a person is pregnant, that individual’s right to liberty is paramount to the rights of an unborn child.
Need advice?
If you believe you have a similar situation and would like Family Law advice, please contact Michael Lynch Family Lawyers on (07) 3221 4300 and we will be able to assist you.

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The Australian Institute of Family Studies (AIFS) just issued a report on parenting arrangements. It says that 3% of separated parents go to court, 97% don’t go to court and 10% use family dispute resolution services to help them. It also tells us a lot about the types parenting arrangements that are occurring.
Over the past 10 years, the AIFS has conducted multiple large-scale studies of post-separation parenting outcomes, including surveys involving nationally representative samples of separated parents.
Two multi-method studies evaluated:

the situation before and after the 2006 amendments to the Family Law Act 1975
the situation before and after the 2012 amendments to the Family Law Act 1975.

The evaluation of the 2012 amendments included an analysis of court outcomes that involved 997 court files of matters initiated after the amendments and finalised by 30 November 2014. The evaluation also included a Survey of Separated Parents, which analysed survey data from a sample of about 6,000 separated parents who had been separated for 18 months on average.
What are the most common parenting arrangements after separation?
AIFS’ research shows that there is considerable variation in the ways that families arrange their children’s care after separation. Issues such as the children’s age and the parents’ working patterns play a significant role in decision making, i.e.:

The mother has sole responsibility in 27% of cases
The mother has the majority care 46% of cases
The mother and father shared care-time in 21% of cases
The father has the majority care in 3% of cases
The father has sole responsibility in 2% of cases.

The survey of Separated Parents 2014 found that the most common arrangement about 18 months after separation is for children to live with their mother most nights (at least 66% of nights in a year).
The next most common arrangement (18% of cases) is for children to spend all of their nights with their mother and see their father in the daytime only. Earlier research shows this is particularly common for children under two years of age.
In 21% of cases, care time was substantially shared between parents (i.e. the child spending between 35% and 65% of nights in a year with the mother/father). Most shared-time arrangements involved more time with the mother. Arrangements for equal time occurred in less than 10% of cases.
It is fairly uncommon (9% of cases) for children to have no contact with their father.
Is it common for parents to go to court for orders about parenting?
Most parents (97%) don’t go to court: they make arrangements between themselves.
Around 10% of parents use family dispute resolution as the main way to sort out parenting arrangements.
When parents do go to court, what are the outcomes?
There are three ways that court orders are made:

Adjudicated matters – This is where a judge hears the evidence and makes a decision. These are the least common cases, and the ones that are most likely to have complex facts and evidence.
Consent after litigation – This occurs when a case starts but the parents make an agreement before a trial. These are also likely to have complex facts.
Pure consent – The third and most common route to a court order is when the parents make an agreement between themselves through a family dispute resolution practitioner or through lawyers, and then formalise the agreement by applying for consent orders. These cases are less likely to have problems such as family violence and safety concerns than the other two.

Orders for parental responsibility
Adjudicated matters
Orders for both parents to share parental responsibility are least likely to be made when a matter is decided by a judge: 40% of these cases had these orders. Orders for mothers to have sole parental responsibility were made for 45% of children; fathers were given sole responsibility for 11% of children.
Consent after litigation
In cases that start a litigation pathway but resolve before judgment, orders for shared parental responsibility are much more common, applying to 94% of children. Orders for sole parental responsibility are much less common: for mothers for 4% of children and for fathers for 2% of children.
Pure consent
Shared parental responsibility outcomes are the most common outcome when the parents reach agreement themselves. In the pure consent sample, these orders applied to 92% of children. Orders for sole parental responsibility were made for mothers for 4% of children and for fathers for 3% of children.
Care-time arrangements
Adjudicated matters
Most children (64%) subject to orders were living mainly with their mother and spending less than 35% of nights with their father. Orders for shared care time were made for 17% of children.
In the adjudicated sample, 19% of children were to “live with” their father and spend less than 35% of nights with their mother. It is notable that these sort of arrangements are far more likely to occur when there is a court intervention than when parents sort things out themselves.
Consent after litigation
Where parents had agreed without their matters actually being determined by the judge, but after litigation commenced, 75% of children had orders that the child live with their mother and spend less than 35% of nights with their father.
A further 15% of children had shared care-time arrangements and 10% had arrangements where they lived with their father and spent less than 35% of nights with their mother.
Pure consent
In cases where parents agreed without litigation, orders for children to spend most of their time with their mother applied to 64% of children. Orders for shared care time were more common in this group than in the other two, applying to 33% of children. Orders for children to live mainly with their father and spend less than 35% of their nights with their mother applied to 4% of children.
Is it common for a court to order that a child have no contact with one of their parents?
It is very uncommon for orders of no contact to be made. In all the cases of court orders in the three categories, only 3% of children had orders where they had no contact with their father and 0.2% had orders where they had no contact with their mother.
Where courts are concerned about child safety, they can make orders for contact to be supervised, either by a relative or friend or at a centre run by an organisation that provides this service. Supervised time arrangements applied to 4% of children.
Get advice:
Everyone’s situation is different and, therefore, it is important that you obtain legal advice for your own individual circumstances sooner rather than later. For that reason, we encourage you to come and see our one of our friendly family lawyers.
References:
Parenting arrangements after separation, AIFS, Research summary— October 2019

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In a recent case a child was born after separation, the alleged father was not on the birth certificate and he disputed paternity. The mother applied for child support and was refused. Four years later the mother applied for DNA testing. What happened with Child Support?
Child support
The underlying principle of the Child Support Agency (‘CSA’) is that parents have the primary duty to maintain their child, which includes financial support for their children.
To be eligible for a child support assessment, you only need to meet two requirements:

Residency rules; and
You, and the other parent must be the legal parents of the child.

The CSA is clear that only a ‘parent’ may be a liable parent under the Child Support Assessment Act.  Difficulty can arise though where there is uncertainty or disagreement about who the child’s father is.
Paternity may be presumed by the CSA if:

the child was born during the marriage.
the person’s name is entered in a register of births or parentage information as a parent of the child.
you’re named in adoption papers as a parent.
you’re a parent under the Family Law Act 1975 – this covers artificial conception and surrogacy.

If there is a dispute about paternity, then either party may apply to the Family Court for a ‘declaration’ as to paternity. The CSA will only accept a declaration from the court as to paternity, not just the DNA testing report.
In circumstances where paternity is in dispute the court will almost always order DNA test. In the event that the person refuses to participate in the DNA process, the court will deem that person to be a parent as long as it is just in the circumstances.
In this recent Family Court appeal case, the court determined the issue of paternity and child support. The DNA test had occurred and the alleged father was found to be the father, so the central issue to the case was not the paternity of the father but whether the child support assessment could be “backdated” to the child’s birth.
The Facts:
In August 2012 Ms N fell pregnant. In September 2012 she informed Mr C of the pregnancy.  In October 2012 Mr C terminated the relationship.
Not long after the child was born in April 2013, Ms N filed an application for assessment of child support with the CSA. At this time, Mr C advised the CSA that he was not the father of the child. It is important to note that Mr C was not named on the birth certificate. The CSA refused Ms N’s application as the CSA was not satisfied that Mr C was the father.
Four years later, Ms N filed a court application (September 2017) seeking a declaration of paternity and an order that child support be payable from the child’s birth.
At the trial (in October 2017) Mr C agreed to a paternity test. The test confirmed that Mr C was the father. Mr C did not dispute that he was liable to pay child support but disputed there should be any backdating of the liability.
Trial court decision:
The trial court made the declaration as sought by Ms N but declined to make the order that the child support be payable from the child’s birth as the trial judge considered it to be the CSA’s decision as to from when Mr C paid child support.
Appeal court decision:
The appeal court changed this decision saying that if the only reason that the CSA refused the original assessment application was due to the paternity issue, then the declaration (of paternity) operated retrospectively to render the father liable to pay child support from the date of the original CSA application. That meant the payment should cover the (4) year period.
Need advice?
If you are about to separate or are separated, and have any questions about child support – contact Michael Lynch Family Lawyers today.

The post Paternity and child support – beware! appeared first on Michael Lynch Family Lawyers.

Does a redundancy payment received after separation get included in a property settlement?  The Family Court recently considered the question where the wife argued that she and the husband had contributed equally to the husband’s redundancy that was received post-separation. What did the court decide?
The couple had been together for 19 years. During the relationship, the wife had been the homemaker and parent to their two children, while the husband had worked full-time.
The husband’s redundancy payment was based on two times his salary as well as a bonus to compensate him for the loss of future income. He submitted that the wife had made little, if any, contribution. Since an equality of contribution was found between the parties, the wife argued that it could not be said that she made no contribution to the redundancy payment.
The appeal court agreed with the wife, concluding that the wife had made a substantial contribution to the husband’s earnings and accumulation to his superannuation during the marriage.
It may seem fair to some and absurd to others. But each matter is unique and is addressed according to your personal circumstances. It is worthwhile to seek professional advice.
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 you in person, over the phone or by Skype.

The post What Happens To Post-Separation Redundancy Payments? appeared first on Michael Lynch Family Lawyers.

School Counsellors have certain obligations as professionals when disclosures are made to them by children. A family law case has considered a school counsellor’s behaviour and the consequential impact on the child’s care arrangements, where the counsellor failed to comply with their professional obligations.
The Facts:

The parties had a 10 year old daughter who, following separation, had lived primarily with the mother. The parties lived 3 hours apart and therefore, the child was only spending block holidays with the father.
The child commenced seeing the school counsellor approximately 6 months prior to the proceedings coming before the court. During the sessions with the school counsellor, the child made a variety of disclosures, including: –

– her mother had punched her in the face;
– she was made to do significant chores;
– the step-father used to be ‘fun’ to be with, until her half-sister was born;
– that she had stolen money from her step-father’s wallet and tried to run away but the police had collected her and returned her home; and
– that the step-father threatened to break her wrist.

Over the sessions the school counsellor provided the child with legal advice about the Family Court process.
The school counsellor contacted the biological father numerous times to discuss the disclosures the child had made to him. At no time did the school counsellor contact the mother to discuss the disclosures made by the child.
The school counsellor ultimately decided that she had a ‘duty of care’ to the child and, as there were no court orders in place, assisted the father to unilaterally remove the child from school.

Court Found:

By the time that the matter was listed before the court, the child had withdrawn a number of allegations of abuse that she had previously made, including that the step-father had attempted to break her wrist and that she had run away. The court concluded that the child had an active imagination, given the significant detail in her stories and the subsequent withdrawal of allegations.
The court also found that the child’s stories would have been fanciful to an ordinary person. Such examples included the child’s allegation that the mother punched her in the face the day prior to making the disclosure to the school counsellor, yet the child showed no bruising. Also, that a police officer would not have made a formal report, if a child had run away from home.
 The court was also particularly concerned that when the child had made disclosures to the school counsellor that she had then received some sort of reward. These included being able to watch her favourite TV program, or getting breakfast. The court was also critical of the school counsellor treating the child as an adult, by attempting to provide her with legal advice.
The court found that nothing in the Family Law Act provides for a teacher’s or social worker’s ‘duty of care’ to override the parental responsibility that by law is vested in the parents.

Court Order:

The child was ordered to be returned to the mother.
The court did not order any restraints on the school counsellor from having continued discussions with the child. However, the court did order that a copy of the decision be provided to the Department of Education.

To receive a professional family law advice from Michael Lynch Family Lawyers, please call on (07) 3221 4300 or fill out the Appointment Form here.

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If there is an income disparity between parties at the time of separation, then there could be a spouse maintenance entitlement. Spouse maintenance is often an important issue for spouses after separation. The level of financial support provided by one spouse to the other affects not only the spouse in need, but the children of the relationship as well. So what should you do?
If a negotiated agreement can’t be reached it may be necessary to make an Application to court for spouse maintenance.  A recent case provided a timely reminder of some of the important factors to consider when making such an application. In the case the court considered the wife’s application for spouse maintenance on an Interim basis.
Facts:

The couple had been married for over 10 years and there were 2 children of the relationship;
During the marriage the husband was the main breadwinner, whilst the wife was the children’s main carer;
The children continued to live with the wife after separation and see their father on alternate weekends as well as some mid-week time;
The wife’s evidence was that the funds she had available to her was $880 per week. This included her wage from a part-time job, social security and rent assistance and child support. Her expenses were $1,096 per week.
The husband’s evidence was that his income was $1,511 per week and his expenses were $1,504. It was his position at the Interim Hearing that he could not pay spousal maintenance.
There was a Trust with assets worth an estimated $1 million. The husband controlled the Trust.

Considerations for Spouse Maintenance:

Spousal maintenance is essentially concerned with issues of ‘need’ and ‘capacity’.
Threshold Issues:

One party is reasonably able to maintain the other (i.e., has financial capacity).
The other party is unable to support him or herself adequately (i.e., has a financial need).

The legislation provides that any income tested pension, allowance or benefit is to be disregarded, i.e. Centrelink payments, Family Tax Benefits, Austudy and Abstudy, Service Pensions under the Veterans’ Entitlements Act.
The word “adequate” in the ‘threshold issue’ (above) is not to be determined according to any fixed or absolute standard.  Adequate support does not mean a subsistence level.
The parties’ standard of living may have to be lower if financial resources are insufficient to maintain the standard they had pre-separation.
It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
However, an applicant is not entitled to live at a level of considerable luxury merely because the other party is very wealthy.

Held:

That the wife was not able to support herself adequately (the wife was not paying her way, whereas the husband was);
That even though the evidence was that the husband’s expenses and income came close to being equal that was not the only issue for the court’s consideration. The court should conduct an objective assessment of the husband’s overall financial circumstances to determine whether it was reasonable that he provide some form of interim recurrent financial support to the wife.
It was relevant that the husband controlled a trust with assets of $1 million, and therefore his financial resources must be considered as they were grossly disproportionate to that of the wife.

Order:

The court ordered that the husband pay the wife $200 per week, each week, until the final hearing.

To read more about spouse maintenance, please click here to navigate to our Spouse Maintenance section.
Need advice?
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 The “How To” of Spouse Maintenance appeared first on Michael Lynch Family Lawyers.

When going through a separation, families experience different challenges with parenting arrangements. Sometimes to better address these challenges the court will order different therapeutic treatment approaches. One such approach is Family Therapy. Let’s look at what that is…>
The Australian Association of Family Therapy (AAFT) says that family therapy helps people in a close relationship help each other as it enables family members, couples and others who care about each other to express and explore difficult thoughts and emotions safely, to understand each other’s experiences and views, appreciate each other’s needs, build on strengths and make useful changes in their relationships and their lives.
Furthermore, individuals can find Family Therapy helpful, as an opportunity to reflect on important relationships and find ways forward.
Research shows that Family Therapy is useful for children, young people and adults experiencing a wide range of difficulties and experiences.
Psychotherapy can focus either on individual therapy, and the patient-therapist relationship as the way to treat psychological problems e.g. patients focus on their individual symptomatic behaviours, or, on family therapy. Family Therapy focusses on treatment in a way that allows for social context, communication and relationship to have primary importance in therapy.
Family Therapy involves engaging with the whole family system as a functioning unit. While the individuals in the family are as important in family therapy as in individual therapy, family therapists also deal with the personal relations and interactions of the family members, both inside the family and in the therapeutic system which comprises the family, the therapist, and their broader community.
One such therapeutic program is “Circle of Security”. This program is designed for parents (and carers) of children aged up to 12 years of age, who want to strengthen the bonds with their children and would like support to help their children to build secure relationships. When done in a group (usually of about 10) the facilitators provide information, create discussion, allow for self-reflection, goal setting and learning new skills. The aim is for the participants to gain the confidence to turn negative habits and cycles into positive ones and manage strong emotions constructively.
Need advice?
If you are about to separate or are separated, and have any questions about Family and Relationship Law – contact Michael Lynch Family Lawyers today.

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

In the globalised world we live in, it is not uncommon for parties to have married overseas, have lived overseas for parts of a relationship, or for one party to be living overseas when a divorce is filed. In these situations, it’s important to consider which country is best when contemplating filing a divorce.
Married overseas
If you got married overseas, generally the marriage will be recognised in Australia if:

the marriage was valid in the overseas country; and
the marriage would have been valid if it had been done in Australia.

Application for Divorce
In order to file an Application for Divorce in Australia, you or the other spouse must satisfy one of the following conditions:

born in Australia or an Australian citizen by descent; or
an Australian citizen by grant of citizenship; or
present in Australia (and have lived in Australia for at least the previous 12 months) and intend to continue living in Australia.

If you or the other spouse satisfy one of the above conditions, you will be eligible to apply for a divorce in Australia. In order to apply for a divorce, you must have been separated for at least 12 months, which under the Family Law Act indicates that the relationship has irretrievably broken down.
Issues may arise however, if one party files for divorce in Australia and the other spouse commences proceedings in an overseas jurisdiction. The conflict then becomes a matter for the court to determine which jurisdiction is more appropriate, having regard to all the circumstances.
When considering this question, the court may consider a number of issues, including:

whether the foreign court will recognise the order made in Australia;
whether Australia will recognise any orders made by the foreign court;
where proceedings were first commenced;
the parties connection with each jurisdiction;
parties’ ability to participate in each jurisdiction.

If jurisdiction is in question, it is important to obtain legal advice as soon as possible to be at the forefront of any issues that may arise.
Family law advice
Each case is different, as there are other issues and circumstances at play. If you require advice specific to you, please call our office on (07) 3221 4300. Otherwise you are welcome to fill in our online form to arrange a fixed fee, no obligation initial consultation.

The post Where should I get divorced? appeared first on Michael Lynch Family Lawyers.

With the popularity of smart phones, it is now easier than ever to make audio or video recordings of conversations with other people, with or without their knowledge. It’s tempting to use this technology to record interactions with your ex-partner and to then use as evidence in your family law matter. But can you and should you?
Section 138 of the Evidence Act 1995 (Cth) says that evidence which has been illegally or improperly obtained is not to be admitted into evidence.
So is it illegal or improper to make recordings of your ex-partner without their knowledge or consent?
The Law
Laws relating to the use of “listening devices” (including smart phones and similar devices) differ from State to State.  In Queensland, section 43 of the Invasion of Privacy Act 1971 says that it is an offence to use a listening device to overhear, record, monitor or listen to a “private conversation”.  A “private conversation” means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves.
However, it is not an offence to record a private conversation in Queensland if the person who makes the recording is a party to the conversation.  So, it is not illegal to record a conversation between yourself and your ex-partner, but it is illegal to record a conversation between your ex-partner and someone else, such as your children.
But beware – this exception does not apply in most other States, so it would still be illegal to record a conversation that you are a party to.  However, some other exceptions are available in other States such as the recording being necessary to protect a party’s lawful interests.
Even if the recordings have been illegally or improperly obtained, the Evidence Act says that they can still be admitted by the court if the desirability of admitting them outweighs the undesirability of admitting evidence obtained in such a manner.  The court will consider a number of factors including:

the importance and probative value of the evidence;
the nature of the proceedings;
the gravity of the impropriety or illegality in obtaining the evidence; and
the difficulty (if any) of obtaining the evidence without impropriety or illegality.

Cases where the court has allowed illegally obtained recordings, generally relate to allegations of domestic violence or other serious risks to the children or the recording party.
But another warning – even if the court allows the illegal recording into evidence in your case, it may still refer you to the Police for investigation of the offence.
A final consideration is how the court views a party who has made recordings of the other party, particularly if this is a regular practice.
The court is unlikely to be too critical of a parent who has made recordings which provide important evidence about serious issues such as domestic violence, which are very significant to determining the children’s best interests and about which it is otherwise very difficult to obtain evidence because it occurs in private.
However, the court is reluctant to encourage the use of technology by parties to regularly make recordings of their ex-partner for evidentiary purposes because it could contribute to a lack of trust between the parties, the unnecessary prolonging of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child.
Recent Case
In a recent parenting case, the court was faced with a situation where, the mother made secret recordings of the father. The recordings were audio and video; and were made in South Australia. The court found that the video evidence be allowed, however the audio evidence be excluded.
The court considered the Evidence Act, however also had regard to the allegations of physical and controlling behaviour by the father, the arrangements in place at the time of the hearing, that the father was unaware of the recordings being made, and that the mother was not a party to the audio recordings – these being private conversations between the children and their father.
The court found it was not improper for the mother to make video recordings of the two changeovers. The court noted the mother had a legitimate interest in her personal safety and in preventing the children from being exposed to conflict. At the time the recordings were made, the mother gave evidence that she had ongoing difficulties with the father.
The court found it was in contravention of an Australian law (specifically, the Listening and Surveillance Devices Act 1972 (SA)) for the mother to make recordings of secret conversations. The court was not persuaded that it was sufficient for the mother to have believed that the father was attempting to alienate the children from her. The court refused to exercise its discretion to allow the audio recordings. The mother’s conduct in obtaining the recordings was considered “most improper” and “a serious invasion of the father’s privacy and the rights of the children”.
Summary
So approach recordings with caution – in some cases they can provide crucial evidence, but in many others they reflect more poorly on the person who made them than the party being recorded.
If you have any questions about this article, email us at [email protected]. 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 Can I record conversations with my ex? appeared first on Michael Lynch Family Lawyers.

Separation is a stressful and emotional time. If you are considering separation or are currently going through the process of separation, it is important that you look after your emotional health and try and keep your stress levels to a minimum.
In order to achieve that, you may wish to consider family counselling. The purpose of this Article is to outline what the Family Law Act says about family counselling.
What is family counselling?
Family counselling is the process where a ‘family counsellor’ assists one or more people to deal with issues relating to marriage, personal issues or issues relating to the care of children. Those people can include children who are affected or are likely to be affected by separation, or divorce.

Who are family counsellors?
A ‘family counsellor’ is a person who:

is an accredited counsellor; or
is a person authorised to act on behalf of an organisation designated by the Minister (such as Centacare or Relationships Australia); or
is authorised as a Court employee, to act as a family counsellor.

Will the counselling be confidential?
Generally, yes. A family counsellor must not disclose a communication made to them during family counselling, unless they are required to or authorised to under the Family Law Act. This is a significant and somewhat unique protection that the Family Law Act offers.
It is important to note that a lot of “Counsellors” will not come within the Family Law Act definition and therefore will not have the protection of “confidentiality”, as provided under the Family Law Act.
A family counsellor under the Family Law Act, must disclose a communication made during family counselling if they reasonably believe that it is necessary in order to comply with a law of the Commonwealth, or a State or a Territory, e.g. child protection laws.
A family counsellor may disclose a communication made during family counselling in the following circumstances:

If they have the consent of the person who made the communication. If the person is under 18 years, the counsellor must have the consent of the people who have parental responsibility for that child;
If the disclosure is to protect a child from the risk of physical, emotional or psychological harm;
If the disclosure is to prevent or lessen a serious and imminent threat to:

(a)     the life or health of a person, or
(b)     the property of a person;

If the disclosure is to report the commission or to prevent the likely commission of an offence:

(a)     Involving violence; or
(b)     a threat of violence to a person; or
(c)     involving intentional damage to property; or
(d)     a threat of damage to property;

If the disclosure is to assist an Independent Children’s Lawyer to properly represent a child’s interests.

Will things that I say in counselling be admissible in Court?
If the “counsellor” comes within the Family Law Act definition then, generally, No. However, again, note that a lot of “counsellors” will not come within this definition. Evidence of anything said or any admission made in front of a “family counsellor” who is conducting family counselling, will not be admissible in any court proceedings.
Also, if a family counsellor refers a person to another professional for medical or other professional consultation, anything said or any admission made during the carrying out of those professional services will not be admissible. If your family counsellor refers you to another professional, they have a duty to make them aware of the rules about admissibility of evidence.
This is the case even where the counsellor has been allowed to disclose a communication because of the circumstances set out above.
The only time that evidence of something said in family counselling will be admissible is where:
(a)     an admission by an adult indicates that a child under 18 years has been abused or is at risk of abuse; or
(b)     a disclosure by a child under 18 years indicates that the child has been abused or is at risk of abuse.
However, even in those circumstances the Court can rule the evidence of the family counsellor inadmissible if there is sufficient evidence available from other sources.
TIPS/WARNINGS
If you are looking for family counselling, we recommend that you follow these simple guidelines:

Clarify if the person that you are seeing for family counselling is a ‘family counsellor’as defined by section 10C of the Family Law Act. The counsellor should be able to tell you if they are an approved or accredited counsellor.
Be aware of the exceptions to the confidentiality rule as outlined above;
If your family counsellor refers you to another professional, make sure they are aware of the rules relating to admissibility of communications;
Always seek Specialist Family Law advice from a Solicitor prior to entering into any discussions or negotiations about your family law matter.

Need advice?
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 Family Counsellors and the Family Law Act appeared first on Michael Lynch Family Lawyers.

Occasionally circumstances arise which cause one parent to withhold a child and not return them to the other parent, in accordance with a court order. This usually results in an application for a “recovery order” being made. In these cases, the court has to carefully consider any allegations that may be made by the parties against the need to preserve the child’s relationship with both parents.
The court recently considered an application for a ‘recovery order’ by the mother in circumstances where the father of a 9-year old child had withheld him following school holiday time. The father alleged that the mother’s parenting of the child was marked by neglect, and that she had exposed the child to abuse by her current partner.
Evidence showed that the Police had made an application for a domestic violence order against the mother’s partner which had included an allegation that he had pushed the child and caused him to fall and suffer bruising. It was also ascertained that the mother had a temporary DVO against her previous partner and that the children were protected persons under that order.
Decision
The court found that while neglect and family violence figured prominently in the evidence before the court, no allegations of violence were made against the mother. The court noted that the child was in need of stability and should be in a position to continue his relationship with his older siblings, who also lived with the mother.
The court ordered that the child be returned to the mother and that the mother not allow her partner to be alone with the child at any time.
Need advice?
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 Withholding a Child appeared first on Michael Lynch Family Lawyers.

With R U OK? day just around the corner, we thought we would take the time to ask R U OK?
Everyone knows most jobs involve some level of stress.  Some people thrive on stress and it can also keep you alert and increase your performance in small bursts, however in the long run, stress can be a problem and impact your mental health.
Signs to keep an eye out for
A positive work culture is key in deterring stress and reducing mental illness.  Some workplace stressors to keep an eye out for:

Working long hours & working through breaks
Work that is emotionally disturbing
Poor communication
Not promoting employee development

Useful tips
While we are not experts in this, here are some tips to help:

Step away from the computer screen & get some sunshine!
Drink plenty of water
Exercise
Reach out to a work colleague and have a laugh
Plan a holiday
Think positive thoughts & surround yourself with positive people
When you walk out of the office door, switch off and focus on your personal life (we know, easier said than done)
Put positivity out in the world and do one random act of kindness a day

It is also important to understand your own stress as this will allow you to look at strategies that work for you to manage your stress.
Be sure to reach out to your friends or colleagues if you have that gut feeling telling you something is not right, and ask them if they are ok.  It is a hard question to ask, so visit How to Ask with tips and resources on how to start the conversation.
The Queensland Law Society has a resilience and wellbeing portal that provides information and support tools to manage the pressures of work and life.

The post R U OK? appeared first on Michael Lynch Family Lawyers.

For most couples it is not uncommon that one spouse will earn more than the other, particularly when that lower income earning spouse has taken on the homemaker role. In a recent case, the court had to consider whether an adjustment should be made to the property division in the wife’s favour, since the husband earned almost 10 times more than the wife had been earning during the marriage and after separation.
The Facts:

The husband, aged 58 and wife, aged 57 were married for 30 years and had one adult child.
The property pool was valued at $1.5 million.
The husband was the main income earner and the wife was the homemaker.
The wife had a business for 8 years and it was valued at $44,749. The husband claimed that the wife earned $112,000 per year from her business, which the wife denied. The wife said her average income was $35,000 per year when her business was operating well.
The husband had a yearly income of $320,000. He said that the wife excessively spent and had large credit card debts during their marriage and he had increased the mortgages to consolidate the debts.
During the 2 years after separation the wife’s father had provided the wife with $54,000 to support her living expenses.

Court Found:

Even if it was accepted that the wife had the capacity to earn $112,000 per year, that level of income had never been achieved during the time she had the business.
The wife would have been unable to support herself from her income during the marriage as well as after separation.
The wife was entitled to a 12% adjustment in her favour since the husband had a significantly higher earning capacity over a long marriage.

Court Order:

The wife receive 62% of the property pool and the husband 38%.

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 you in person, over the phone or by Skype.

The post Determining A Property Settlement Where There Is A High Income appeared first on Michael Lynch Family Lawyers.

Background
Despite the law changing 17 years ago, making superannuation ‘property’, a common question we get is whether superannuation has to be included. Let’s do a quick refresh of what happens with superannuation in a property settlement.
The law in relation to superannuation and family law changed dramatically in 2002 with the introduction of the Family Law Legislation Amendment (Superannuation) Act.
Prior to December 2002, the options for dealing with superannuation in a property settlement were very limited.
Following the amendments, superannuation is now treated as ‘property’ and is able to be ‘split’ by agreement or court order.
Treatment of Superannuation
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 Superannuation
There are three 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 respective superannuation Trustee for either their policy or their spouse’s policy. This is done by sending to the Trustee a Declaration and Superannuation Information Form. The Trustee of the fund is entitled to charge a reasonable 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.
The majority of superannuation interests are accumulation interests in the growth phase and therefore, valuations will be straightforward. In these situations, a recent ‘member statement’ and/or a completed ‘Superannuation Information Form’ will be sufficient.
However, some funds require a further valuation by an expert in superannuation splitting and it is important that anyone considering a superannuation split obtain specialist Family Law advice immediately.
Benefits of super splitting
The changes to the law in relation to superannuation in family law property settlements has provided parties with more flexibility in the way that property settlements are structured.
This is particularly the case where parties my be a long way off retirement but have significant superannuation interests, the option of splitting superannuation can provide a more just and equitable outcome for both parties.
Need advice?
If you are about to separate or are separated and have any questions about Family and Relationship Law – come and talk to Michael Lynch Family Lawyers.

The post Understanding ‘Splitting Super’ appeared first on Michael Lynch Family Lawyers.

Who gets the Thermomix? Who gets the new lounge? Dividing personal items is often very difficult. The ideal is for former spouses to agree to split the furniture between themselves without the intervention of the court, but what does the court do when parties can’t agree?
In family law property settlements, ‘property’ has a very broad definition and is definitely includes furniture, no matter who may have purchased it during the relationship.
It is also important to understand that the court values ‘furniture and contents’ on a second-hand dealer basis and that is significantly lower than an insurance value. The total contents of the average home (excluding antiques and collections) would be valued over $10, 000.
The Court is also very reluctant to be involved in how furniture and household items are to be divided. If you can’t reach an agreement, the Court will often adopt a “two list” approach where one party will draft the two lists dividing the items and the other will choose one of the lists.
The Court may intervene for particular items where it is clear that they belong to one of the parties (as a gift or inheritance) but in nearly all cases the parties themselves need to agree.
In the worst-case scenario, if there can’t be an agreement, involves the Court ordering that all items be sold and the proceeds divided.
If parties cannot agree on the value of an item of property, a qualified valuer should value it. The valuer needs to provide an affidavit attaching their valuation report. The Court will normally require evidence of the value of property, and market appraisals cannot usually be used as evidence of value.
In a recent court case, the trial judge ordered that each spouse retain the assets that they held in their possession. The result of this was that the wife would retain a number of Persian carpets that remained in the former matrimonial home in which she was living. The husband appealed the judgement on the basis that the judge had failed to take into account the value of the carpets in the property split.
The appeal court held that if a party seeks that a value for furniture be included in a property settlement the onus lies on that party to put evidence before the court. The Husband had not obtained any valuation at the trial and the appeal was therefore dismissed.
The case highlights the importance of obtaining a valuation from an expert if you want to assert a value for an item of furniture, where the value of the furniture is in dispute.
To make an appointment to discuss your personal circumstances, please phone our separation lawyers on (07) 3221 4300, email at [email protected], or alternatively fill in our online form here.

The post How does a court deal with furniture? appeared first on Michael Lynch Family Lawyers.

A lot of personal communication these days is done by the way of text. When separation occurs, texting can often increases in frequency and intensity. So, if it is too much, what can you do?
What is it?
Cyberstalking can include:

Repeatedly contacting a person by calling, emailing, texting, messaging or sending offensive material.
Monitoring your movements (surveillance and GPS tracking) and using apps or spyware on your phone.
Threatening or committing acts of violence against someone.
Catfishing – where someone poses as someone else.
Sharing intimate photos/videos online.

The above acts are just some examples an ex-partner attempting to exert their power. Remember that this behaviour is not ok and, if you are the recipient of it, it is not your fault.
Unlawful Stalking is a criminal offence in all States and Territories in Australia.  Cyberstalking is also considered an act of domestic violence.
Domestic Violence
Domestic violence occurs where one person in a relationship uses violence or abuse to control another person. Victims of domestic violence are often cyberstalking victims. Domestic Violence Orders (‘DVO’) seek to prevent further violence occurring between people.
Cyberstalking can also constitute a breach of a DVO. A breach of DVO is a criminal offence and may lead to a criminal conviction.
If the stalker is a current or former spouse or de facto partner or a relative by blood or marriage, you should seek legal advice about obtaining a domestic violence order.
Visit the Queensland Police Service website for advise on how to record stalking incidents.
Practical tips
If you are experiencing cyberstalking, you should contact the police and reach out to a trusted family member or friend. During this difficult time, it is important that you receive the support you need. It is also important to remember that this behaviour is not ok.
Other tips:

Report it – to the police, your friends and family!
If you feel safe doing so, clearly tell them to stop harassing you.
Remove the amount of information you have on the web (ie remove date of birth and location off Facebook and Instagram).
Protect your password: create a complex password on all devices and change them regularly.
Save everything as it could be used as evidence later.
Speak with your phone provider (Telstra, Optus etc) as they have systems in place to protect your privacy.
Switch off location services on your phone.
If you believe your phone/computer is being monitored, set up new accounts.

Wait… I might be unintentionally cyberstalking my partner
Stalking and cyberstalking are classified as an ‘unintentional offence’, meaning it doesn’t matter if you intend for the person to feel intimidated or afraid – it is still a crime.
You may not realise that your actions, including repeated Facebook messages, checking your partners phones, tracking movements through an application are causing your partner to feel fear. The Queensland Government has advice that you can refer to it if you feel your behaviour is controlling.
Here are the links to get help, if you use violence in your relationship.
Useful resources:

Know your emergency numbers. You can call 000 or your local police station. If you need housing in a women’s refuge, call DV Connect 1800 811 811.
Contact 1800Respect (1800 737 732) to have a safety plan put in place.
The Brisbane Domestic Violence Service has information and resources.
The Queensland Courts website has information on support services, going to court, and help stopping the violent behaviour.
What is cyberstalking?

Need advice?
If you have any questions about this article, email us at [email protected].
To make an appointment to discuss your personal circumstances, please phone our separation lawyers on (07) 3221 4300, email at [email protected], or alternatively fill in our online form here.

The post What can you do about harassing texting? appeared first on Michael Lynch Family Lawyers.