A warm welcome to Rachel Stuart (solicitor) and Zoe Adams (associate), who have recently joined our team!
Rachel has a broad general practice background, covering experience in family law, wills and estates, conveyancing and commercial law, plus almost two years as a Family Court Judge’s Associate. Rachel has a commercial approach to matters and a communication style with clients that is very supportive and empathetic. Welcome, Rachel!
Zoe has represented clients in all areas of Family and Relationship Law, including property division, spouse maintenance, child support, parenting disputes and divorce. Having worked in family law for more than ten years, Zoe is well-versed in using her practical skills and experience to adopt the most appropriate strategy for each client’s individual circumstances. Welcome, Zoe!

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UPCOMING WEBINAR FOR ACCOUNTANTS
There are many misconceptions about how divorce property settlements are determined. Is it 50% / 50%? Are pre-existing assets included? What if one spouse has a significantly higher income? What about the inclusion of a family trust? In this ‘Back to Basics’ presentation all these questions and more will be answered in easy to understand and practical terms. This overview will help you, better help your client.
Webinar details:
WHEN: 2-3pm, 4 September 2019
REGISTRATION: To register, please click here.

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When can a divorce application be made?
The Family Law Act is based on a no fault principle. The only requirement for a court to grant a divorce order is an irretrievable breakdown of the marriage, this can only be evidenced by the parties having lived separately, and apart for at least 12 months.
What if separation exists under the same roof?
If the two spouses live under the same roof, but not as husband and wife, during the 12 month period since separation, then they will need to file additional affidavits. I.e. an affidavit by the applicant confirming the situation, and also, an affidavit by an independent person who was aware of the circumstances. This is to satisfy the court that the spouses were living separately and apart during that period. We are able to assist with the information required to be addressed in the affidavits.
What if there are children of the marriage?
If there are children under 18 years of age, the court must be satisfied that their welfare arrangements are appropriate prior to granting a divorce order. Accordingly, there needs to be detailed information in the application as to the current arrangements regarding the children.
Do I need to attend the hearing?
If there are children under 18 years of age, even if the application has been filed jointly, it is best that one of the spouses attends the hearing, so that if the Registrar hearing the matter has any questions which have not been addressed in the application, the spouse in-attendance can assist the court by answering those questions. For an application filed by one spouse, the applicant is required by the court to attend for the hearing.
If there are no children under 18 years of age, regardless of whether the application was filed jointly. Otherwise, the parties’ attendance is generally not required.
However, if parties have separated but continue to reside under the same roof, even if additional affidavits have been filed, then at least one of the spouses should attend the hearing. So that if the Registrar hearing the matter has any questions which have not been addressed in the application or affidavits, those queries can be answered.
If the court is not satisfied:

as to the welfare arrangements of any children under 18 years of age; or
that the spouses have been separated (i.e. living separately and apart) for at least 12 months;

the Court may either: refuse to grant the divorce order; adjourn the matter to another date; or dismiss the application.
Either of the spouses can attend the hearing, if they wish to, even if an appearance is not required.
When can you remarry?
A divorce order becomes final one month and one day after the court grants the order. If this time needs to be shortened, special rules apply. Each of the divorced parties is only free to remarry after the order becomes final.
Are property settlement matters affected by a divorce?
A divorce application is a specific application in itself, and is separate from property or children’s matters.
However, it is important to note that there are only 12 months after the divorce order becomes final in which to start property proceedings. If court proceedings are not commenced within this 12 month period, an application must be made to the court for permission to do so.
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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A family pet is often considered as part of the family, but the law in Australia provides that pets are considered chattels (property). In a divorce, their ownership is determined by the court in a property settlement. Whilst such cases are rare, a recent case has considered such an issue.
The Facts

The couple were able to reach consent in relation to their property division, which ultimately provided for the husband to retain the house and make a cash payment to the wife. The parties entered into a consent order providing for each of them to otherwise retain all assets in their respective names.
The only issue that remained before the court for determination, was who would retain the family dog. The husband sought an order for the family dog to be transferred to him. The wife sought to rely on the consent order, being that they each retain the assets in their respective possessions, and for her that would include the dog.
The couple agreed that the husband had paid the $300 for the purchase of the dog which was purchased when the parties commenced dating. The wife’s case was that the dog resided with her at her parents’ property after its purchase and that she was financially responsible for the dog since its adoption.  She produced a number of bank statements to verify her payment of the dog’s expenses.
The husband’s case was that the dog lived with him after its adoption and only commenced living at the wife’s parents’ property when the parties commenced their cohabitation. He also argued that the court should make an order that the dog be returned to him as it was registered in his name. Registration was done by the husband 8 months after separation.

The Court Found

The court found that the registration of the dog was self-serving and had been done by the husband only after the wife asserted ownership of the dog. Whilst the dog was registered in the husband’s name, as the wife’s evidence as to her care of the dog since its adoption was preferred by the court she was found to be owner of the dog.

Court Order:

That the wife be declared the owner of the dog and the husband do all such things necessary to transfer the dog to the wife.

Need assistance?
If you would like to discuss your personal circumstances with an experienced family lawyer, phone (07) 3221 4300, email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.

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When can a divorce application be made?
The Family Law Act is based on a no fault principle. The only requirement for a court to grant a divorce order is an irretrievable breakdown of the marriage, this can only be evidenced by the parties having lived separately, and apart for at least 12 months.
What if separation exists under the same roof?
If the two spouses live under the same roof, but not as husband and wife, during the 12 month period since separation, then they will need to file additional affidavits. I.e. an affidavit by the applicant confirming the situation, and also, an affidavit by an independent person who was aware of the circumstances. This is to satisfy the court that the spouses were living separately and apart during that period. We are able to assist with the information required to be addressed in the affidavits.
What if there are children of the marriage?
If there are children under 18 years of age, the court must be satisfied that their welfare arrangements are appropriate prior to granting a divorce order. Accordingly, there needs to be detailed information in the application as to the current arrangements regarding the children.
Do I need to attend the hearing?
If there are children under 18 years of age, even if the application has been filed jointly, it is best that one of the spouses attends the hearing, so that if the Registrar hearing the matter has any questions which have not been addressed in the application, the spouse in-attendance can assist the court by answering those questions. For an application filed by one spouse, the applicant is required by the court to attend for the hearing.
If there are no children under 18 years of age, regardless of whether the application was filed jointly. Otherwise, the parties’ attendance is generally not required.
However, if parties have separated but continue to reside under the same roof, even if additional affidavits have been filed, then at least one of the spouses should attend the hearing. So that if the Registrar hearing the matter has any questions which have not been addressed in the application or affidavits, those queries can be answered.
If the court is not satisfied:

as to the welfare arrangements of any children under 18 years of age; or
that the spouses have been separated (i.e. living separately and apart) for at least 12 months;

the Court may either: refuse to grant the divorce order; adjourn the matter to another date; or dismiss the application.
Either of the spouses can attend the hearing, if they wish to, even if an appearance is not required.
When can you remarry?
A divorce order becomes final one month and one day after the court grants the order. If this time needs to be shortened, special rules apply. Each of the divorced parties is only free to remarry after the order becomes final.
Are property settlement matters affected by a divorce?
A divorce application is a specific application in itself, and is separate from property or children’s matters.
However, it is important to note that there are only 12 months after the divorce order becomes final in which to start property proceedings. If court proceedings are not commenced within this 12 month period, an application must be made to the court for permission to do so.
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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A child’s surname can be changed at any time when there is consent between the parties. However, if there is no agreement, a parent needs to apply to the court to seek an order for such a change. What happens then?
How a Court Application is commenced
An Application for changing a child’s surname can be heard in either the Family Court or the State Magistrates Court. Prior to commencing any proceedings in court, parties must make a reasonable attempt to resolve the matter by participating in Family Dispute Resolution. If a parent is seeking specific orders in relation to the children’s parenting arrangements, in addition to a change of surname, the application can only be made in the Family Court (or Federal Circuit Court).
Considerations for the Court in determining an Application for the change of a child’s surname
The case law is clear, that the welfare of the child is paramount in determining whether a court should intervene in changing a child’s surname. A court however will also take into consideration the following factors: –

Short term effects of a change;
Long term effects of a change;
Any embarrassment to the child;
Any confusion of identity for the child;
Any effect which a change of surname may have on the relationship between the child and the parent whose surname the child had during the relationship;
Advantages both short and long term in a change;
Contact the other parent has with the child;
The degree of identification the child has with the father and mother, and with any siblings;
The effect of frequent or random changes of name.

Set out below are 2 examples of how the Court has dealt with such Applications.
Case example #1
The parties were married for 18 months, during which time their child was born. During the marriage the mother used the father’s surname and the child’s birth was registered under that surname. Following separation the mother reverted to her maiden name. The father discovered that the mother had enrolled the child in pre-school under the mother’s surname so he then made an Application to the Court seeking orders to ensure that the child used his surname.
The father argued that the child had used his surname for the majority of his life and closely identified with it. The mother on the other hand argued that the child strongly identified with her surname and proposed that in the future the child have a hyphenated surname, comprising of both the mother and father’s surnames.
The court held that the child did not have any particular attachment or identification with either parent’s surname and therefore was persuaded that an order where the child’s surname was hyphenated was in the child’s best interests.
Case example #2
The mother and father were married for 9 years. There were 3 children of the relationship, aged 10, 9 and 4 years. Following separation the parties entered into consent orders that provided for the children to live with the mother and spend time with the father as agreed.
Two years after the parties separation the mother remarried and she started using her new husband’s surname. The father alleged that the mother had told him that she proposed to encourage the children to use the new husband’s surname. The father had also observed that the library card of one of the children was in the new husband’s surname. The father applied to the court seeking an order that the mother be restrained from permitting the children to use any surname other than his own surname.
The court found that the mother and her new husband, at least passively, had encouraged the children to progress towards and ultimately change their surname to that of the new husband.
The court found that the two oldest children wanted to be known by their step-father’s surname. The court therefore found it appropriate to order that it was in the children’s best interests to be known by the step-father’s surname.
Summary
Each case to change a child’s surname is unique. It is therefore important that prior to commencing any Application you obtain specific advice from a Family Lawyer. If you would like to discuss your personal circumstances with an experienced family lawyer, phone (07) 3221 4300 or email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.

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The High Court recently considered if a sperm donor could legally be considered the father and then be able to have input into parenting arrangements, such as, if the child could move overseas. The answer? Yes, but the facts of the case are important.
Does being a sperm donor automatically make you a parent?
The Family Law Act provides that if a child is born through artificial insemination while the woman was married or in a de facto relationship (this is important – we will come back to this), then both the woman and the male are parents of that child.
But what happens when you are not married or in a de facto relationship?
The recent High Court decision concluded that a sperm donor is a parent, even when you are not in a relationship.
In Masson v Parsons, Robert and Susan (the names given for the court case) were close friends for many years.  Robert provided his sperm to Susan for an at home insemination in 2006.  The sperm was provided on the express or implied understanding that he would be the child’s parent – his name was entered on the child’s birth certificate.  After the child was born, Susan then commenced a de facto relationship with Margaret and conceived a second child through an unknown sperm donor.  Robert played a very hands on and active role with not only his child, but his child’s sister (Robert is not the biological father of the second child) by providing financial support and having a role in her health, education and general welfare.  Both children even called Robert, “Daddy”.
The relationship between the parties broke down when Susan and Margaret informed Robert they wanted to move to New Zealand with both children.  Given the impact this move would have had on the relationship between Robert and his daughter, Robert initiated proceedings in the Family Court that he be declared ‘a parent’ of the child and an order preventing Susan and Margaret from moving from New South Wales to New Zealand.
This Application became a long drawn out process for all parties involved, in that, after the trial judge declared Robert a parent, Susan and Margaret appealed to the Full Court.  The Full Court determined that Robert was not a parent as there was a ‘gap’ in the law.   The High Court overturned the Full Court’s decision and concluded that the meaning of parent is the natural and ordinary meaning and that there was no gap, meaning he was a parent.  The High Court stated:
“…to simply characterise the appellant [Mr Parsons] relationship to the child as simply a ‘ sperm donor’ suggested that the man in question (the appellant) had relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is therefore to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case.”
The outcome of the case would have been completely different if Susan and Margaret were in a de facto relationship at the time the child was conceived.  If they were, then the child would have been a child born to that relationship and Robert would not be considered a parent.
What does this mean for the future?
It may come as a surprise to some men who have donated their sperm that they are legally a parent and liable to pay child support, among many other parental responsibilities.  Likewise, some mothers may find themselves in a position where they no longer have “sole parental responsibility” but rather ‘equal’ shared parental responsibility with their known “sperm donor”.
Another issue that arises is the real possibility that a child may now have more than two parents.  This is a consideration that needs to be taken into account given our changing society and modern families.
Given that the use of IVF treatment and sperm donation has increased in recent years, it is extremely important for you to be aware of your rights and responsibilities.
If you would like to discuss your personal circumstances with an experienced family lawyer, phone (07) 3221 4300 or email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.

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The role of mediation between separated couples has become better understood, over recent years, but what is ‘child inclusive’ mediation? It’s becoming more common, so let’s look at it.
Child-inclusive mediation
Resolving parenting arrangements after separation is often difficult. Knowing what the child thinks about possible arrangements is often an issue, but how to independently ascertain those wishes can be a challenge.
It is important to remember that mediation for the parents is only compulsory if an Application is to be made to the court, in all other situations attendance is voluntary. Until recent times, children have never been apart of that process.
During the separation process, it may be important to hear how the child is experiencing their parent’s separation.  Child-inclusive mediation can assist parents in understanding how their child is coping with the separation and current parenting arrangements.  This process is important as sometimes the parent’s agenda and the child’s development and best interests are inconsistent.
What is Child-inclusive mediation?
Child-inclusive mediation is a voluntary process (although sometimes the court may order it) whereby children are included in the mediation process with a qualified child consultant.
It is a chance for children to speak safely and meaningfully about their experience through play and discussion.
The information obtained in a children inclusive mediation is confidential and is not admissible in court.
The process

The Mediator will meet individually with each parent

The Mediator will determine if the matter is suitable for family dispute resolution and discuss the potential of a child-inclusive process.  A child inclusive mediation is not always the best course of action and is determined on a case by case basis.

The child and Child Consultant meet with the Mediator

The child must give their permission before their views are passed on to the parents.

Feedback session

This step involves the parents, the child consultant and the Mediator.  The child consultant will discuss with the parties how the child is coping with the separation and deliver any key messages the child would like the parent to know.

Mediation

The Mediation process with both parents, their legal representatives and the child cponsultant then occurs.  The child is not present during this session.
The benefits:

The child may express their views and it gives them a voice without fear of upsetting either parent.
The child may be a part of the decision-making processes without putting the pressure on them.
It gives the parents an understanding of how the child is feeling/coping.
Last but not least, it ensures that all parties are focussed on the child’s best interests.

Child inclusive mediation is not for everyone, it is another option that can be considered. If you would like to discuss your personal circumstances with an experienced family lawyer, call (07) 3221 4300 or email [email protected], or fill in our online form here to arrange an appointment.

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The aim in all separations is to try and reach an amicable agreement. For property division, that process usually involves an ‘offer to settle’ being made. That may seem obvious, but there is a bit more involved than you might think.
An ‘offer of settlement’ is a proposal, usually in writing, made by one party to the other seeking an agreement to the terms that are set out in the ‘offer to settle’, and if the terms are agreed to, bringing the matter to an end.
Offers to settle can be made or received at any time during a family law matter.
It may be that you would like to propose ‘terms of settlement’ to the other party or it may be that the other party sends you an ‘offer to settle’ to consider.
If you instruct your lawyer to make an offer of settlement to the other side, your lawyer needs to advise you of your actual costs, (both paid and owing up until the date of the offer to settle) and the estimated costs to complete your matter.
When your lawyer receives an offer to settle from the other side, your lawyer needs to advise you of the offer that the other side has made, your actual costs, (both paid and owing up until the date of offer to settle) and the estimated costs to complete your matter.
There can be an advantage to making an offer of settlement early on, before matters reach the court, so that if you do go to court and you are successful, you can ask the judge to take into account your early offer and seek an order that the other party pay your costs, as long as such an offer was reasonable.
Likewise there can be a disadvantage in rejecting an ‘offer to settle’ because if you go to court and you are unsuccessful the other party can ask the judge to take into account their early offer and seek an order that you pay the other party’s costs. So, seek family law advice at the earliest opportunity, and especially if you have received an ‘offer to settle’.
If you would like to discuss your personal circumstances with an experienced family lawyer, phone (07) 3221 4300 or email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.

The post What is an offer to settle? appeared first on Michael Lynch Family Lawyers.

A press release recently reported that thousands of Australian marriages may be invalid due to celebrants using incorrect words at wedding ceremonies and consequently not complying with the Marriage Act. Apparently an examination of last year’s marriages by the Attorney-General’s department revealed that 80% of the ceremonies did not meet these requirements. This pointedly came down to poor celebrant training – but is this enough for the court to find a marriage invalid?
For most people the end of a marriage is effective either by the ending of a spouse’s life or divorce, but there are circumstances where a spouse can apply to the court to void a marriage, which essentially means that it wasn’t actually a valid marriage in the first place.
According to the Marriage Act, a marriage is void where:

Either of the parties were lawfully married to some other person;
The parties are within a prohibited relationship (e.g. where the parties are related);
By reason of section 48 (i.e. that certain marriages not solemnized in accordance with the Marriages Act by authorised celebrants, are invalid);
The consent of either party is not a real consent;
Either party is not of marriageable age;

INCORRECT WEDDING CEREMONIES – IS THIS ENOUGH TO VOID A MARRIAGE?
The Marriage Act specifically states that if marriages are not solemnized in accordance with that particular division, it is an invalid marriage. However, the Act then goes on to provide a list of reasons where a marriage wouldn’t be invalid, even if the ceremony did not comply with the requirements. There are exceptions, though. For example, a marriage is not invalid if the following occurs:

The forms and requirements of notice to the celebrant of the intended marriage is not complied with.
There are not 2 persons over 18 present as witnesses.
The celebrant does not explain the nature of the marriage relationship.
The celebrant solemnizing the marriage is not an authorized celebrant, yet either party at the time of the marriage believes that the person was lawfully authorised.

However, it is indicated that in the ceremony each party in the presence of a celebrant must say words to the effect of “I call upon the persons here present to witness that I . . . take thee . . . to be my lawful wedded wife (or husband).” It is the exchanging of vows where celebrants have run into problems, the question being – how far can these words be stretched but still be within the ambit of “words to the effect of”? A narrow interpretation of these words have led to celebrants being allowed to leave out the words “lawful” or “wedded”, but not both. However, spouses have more commonly sought to void a marriage after finding out their ‘spouse’ is married to someone else.
A CASE FOR A VOID MARRIAGE
If a party wishes to end a marriage on the basis that it is an invalid marriage, the party can make an application to the court for a decree of nullity of the marriage. Whether this succeeds will depend on the basis claimed for the marriage to be void. The court has noted that a decree of nullity will not be granted lightly.
Here’s an example of the court considered a husband’s application for a decree of nullity.
The Facts:

The husband and wife were married in Australia.
The wife was from the Philippines and after not being permitted to stay any longer on her visa after the ceremony, she returned.
In the following year, the husband travelled to the Philippines on a surprise visit to the wife.
During the husband’s visit he discovered the wife was in a relationship with another man, to whom she had 2 children.
The husband requested that the Department of Immigration investigate. The Department’s investigation revealed that at the time of the marriage, the wife was still married to the other man.

Court Order:

The subsequent marriage was void.

IS IT REAL CONSENT?
A marriage can also be void if the consent of the parties is not real consent. This would be the case if the consent was obtained by duress or fraud. What is considered as duress is a matter of degree and it must be sufficient to overbear the will of the party. It may involve violence or threatened violence, however this is not a prescribed requirement for duress to be established, but oppression must be made out.
A marriage is also void if the party is mentally incapable of understanding the nature and effect of the marriage ceremony, or in the unusual situation where a party is mistaken as to the identity of the other party or as to the nature of the ceremony performed.
What does it mean to be mistaken about your husband or wife’s identity? The court will not recognise that a marriage is void on the basis of a partner misrepresenting their rank, family, fortune, age or habits of life.
VOIDING A MARRIAGE
It should also be noted that a party cannot establish a case for a void marriage merely because the marriage occurred to enable one of the parties to obtain a visa to stay in the country. Immigration requirements differ to the requirements under the Marriage Act. If there is any doubt as to whether a marriage is void, legal advice should be sought as it is important to acquire advice specific to a person’s situation.
If you would like to discuss your personal circumstances with an experienced family lawyer, phone (07) 3221 4300 or email [email protected] or alternatively fill in our online form here to arrange a fixed fee no obligation appointment.

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One of the challenges that often arises between separating couples is the preservation of property.
Property has a wide definition, it is not limited to just real estate.
It is not uncommon (before or after separation) for a spouse to take property (i.e. take money out of a bank account, draw down special repayments of a mortgage, run a credit card to its limit, try and sell a house (in their name) or a car, take valuable collections or take pieces of art work, etc.). Sometimes these events happen with the best intentions, but quite often not!
How to preserve property is a topic for another day. This article focuses on how a property settlement is determined when one spouse has independently taken property and the property is gone.
As set out in our article ‘Property Settlement‘ the first step the court takes is to ‘identify and value the property’. Therefore, where an item of property is gone the court has to come up with a creative way of assessing the “property pool” to minimise any injustice to the other spouse. This missing property is commonly described as “notional property”.
Over the last couple of decades case law has developed that now enables courts to include notional property that one party has already had the benefit of.
THE 3 CATEGORIES OF ADD-BACKS
The court has identified 3 categories of cases where it will notionally add-back the property.

where parties expended money on legal fees

The normal approach taken by the court is to notionally “add back” into the property pool any matrimonial money already spent by the parties on legal fees. It should be noted that neither spouses’ outstanding legal fees are included in the ‘property pool’ as a liability.
Recently, the Full Court determined that, in exercising its discretion to add-back notional property, it should have regard to the source of the funds spent on legal fees, in that:

If the funds used to pay legal fees existed at separation and both parties have an interest in them, then such funds should be added back as a notional asset of the party who has had the benefit of them; or
If the funds have been generated by a party post-separation from his or her own endeavours or a loan, they generally would not be added back as a notional asset or liability in the calculation of the net property of the parties. However, funds generated post-separation from assets or businesses that both parties had made significant contributions to or have legal entitlements in, may need to be looked at differently from other post-separation incomes, or acquisitions.

The treatment of funds used to pay legal costs ultimately remains a matter of discretion for the court.

where there has been a premature distribution of assets

where one of the spouses has undertaken reckless investments or deliberately set out to diminish the value of the property pool

Money wasted or spent by one spouse on their own pursuits such as, gambling, the purchase of extravagant gifts or lavish holidays should be added back into the pool of assets. The court has clearly stated its position in such situations, saying:
“Financial losses incurred by the parties or either of them in the course of the marriage whether such losses result from a joint or several (individual) liability, should be shared by them (although not necessarily equally) except when:

one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of the matrimonial assets; or
one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced of minimised their value.”

SUMMARY

Monies reasonably spent by a spouse in the conduct of their post-separation lives will not usually be added back into the property pool.
The treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the court, who will have regard to the source of funds.
Parties should maintain accurate records of the source utilised for the payment of legal fees as the court can only make findings based on evidence.
The best course is to get Specialist Family Law advice (ideally, prior to separation) on how to preserve property.

If you have any questions about this article or would like to arrange a fixed fee initial consultation with an experienced family lawyer to discuss your personal circumstances, please call us on (07) 3221 4300 or email us at [email protected]. Alternatively, fill in our online form here.

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Many separating couples operate businesses through a variety of different corporate and trust structures for tax minimisation purposes. Such structures can complicate property settlements if certain tax costs are not identified and taken into account at the time of settlement negotiations.
Not unlike public companies, private companies have shareholders and payments are often made to these shareholders (in addition to that shareholder’s salary). These payments are referred to as dividends. Ordinarily, a dividend payment received by a shareholder will be taxable, as if it were regular income.
However, historically such payments to shareholders were often referred to as “loans”; thereby avoiding any taxation that would be paid on such dividends. Typically payments of this nature would be made to the Directors themselves, as shareholders, because using company money taxed at 30% gives more spend than paying marginal income tax rates. Not surprisingly, the Australian Taxation Office tried to minimise business owners treating company money as their own by implementing Division 7A of the Income Tax Assessment Act 1936 (“Div 7A”) (“The Tax Act”).
Overview: Division 7A
In certain circumstances, the transfer of an asset or payment from a private company to a party (or associate) will result in that party being deemed to receive a taxable dividend. A “payment” can include the transfer of property, a lease, licence or other right to use an asset, or the granting of guarantees and meeting of guarantee obligations.
Div 7A treats 3 kinds of amounts as deemed dividends paid by a private company:

Amounts paid by the company to a shareholder or shareholder’s associate;
Amounts lent by the company to a shareholder or shareholder’s associate; and
Amounts of debts owed by a shareholder or shareholder’s associate to the company that the company forgives.

An “associate” of a shareholder is broadly defined as a relative, partner, trust controlled by the shareholder or company controlled by the shareholder.
Exceptions
There are certain payments which may qualify as excluded payments which are not classified as deemed dividends. Some of the exclusions include:

Where a payment is a legitimate commercial loan which satisfies the requirements specified by the Tax Act (repayment schedules, minimum interest rate, maximum term etc.);
Loans made from one private company to another private company (other than a company in the capacity of trustee); and
Payment of a genuine debt as defined by the Tax Act.

Marriage Breakdown Concessions
Transfers of property and other payments related to a marriage or relationship breakdown are caught by Division 7A, even though they may be non-voluntary (required by a Court Order). However, Div 7A provides a further exception in respect of marriage or relationship breakdowns where payments made after 1 July 2006 (including the transfer of an asset, such as a house) from a company to a shareholder or an associate, although still classified as a dividend, can be fully franked by the transferor company. This means that the company will absorb the tax payable on the dividend, rather than the shareholder.
Examples of where deemed dividends may be franked include:

a court order under the Family Law Act 1975 (‘the FLA’) or a corresponding foreign law;
a maintenance agreement approved by a court under section 87 of the FLA, or a corresponding agreement approved by a court under a corresponding foreign law; and
a court order under state, territory or foreign law relating to de facto relationship breakdowns.

However it is important to note that, because there is a difference in the tax rates for companies and individuals, the payment of such a dividend (even a fully franked dividend) may require “top up tax” to be paid by the individual recipient if the individual’s ultimate tax bracket is higher than that payable by the company.
Div 7A and Trusts
In certain circumstances Div 7A can also apply to treat dealings with trusts as deemed dividends where a private company has an unpaid present entitlement to receive an amount from a Trust.
An unpaid present entitlement will arise where a distribution is declared in favour of for example, a company beneficiary, but all of the entitlement is not physically paid to the company. One advantage of this type of arrangement is that the distribution is taxed at 30%, even if it has not physically been paid and the cash remains in the trust for investment. The operation of Div 7A extends to cover these arrangements.
Conclusion
It is critical that the tax costs of potential property settlements are identified and quantified prior to final settlement negotiations, so that informed decisions about the structure of property settlements can be made. If there is any prospect that money or property owned by a company and taxed at the company rate has found its way directly or indirectly into the hands of the business owners, then the impact of Division 7A should be considered in more detail.
Need Assistance?
If you’d like to discuss your personal circumstances call (07) 3221 4300 or email [email protected] to arrange a fixed fee initial consultation with an experienced family lawyer. Alternatively, fill in our online form here.

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An Independent Children Lawyer (ICL) is an experienced solicitor who is appointed by the court to represent a child. Generally, their role is to assist the court in reaching a decision in the best interests of the child. However, they are not appointed in every case.
Case law sets out what the role of the ICL is and what criteria applies for that appointment.
Overall, the ICL should act as an ‘honest broker’ between the parties. The criteria for appointment broadly involves cases, where:

there are allegations of child abuse.
there is intractable conflict between the parties.
the child is alienated from one or both parents.
there are real issues of cultural and religious difference affecting the child.
the sexual preferences of either or both of the parents are likely to impinge on the child’s welfare.
the conduct of either or both of the parents is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare.
there are issues of significant, medical, psychiatric, or psychological illness in relation to either party.
neither parent seems a suitable custodian.
a child of mature years is expressing strong views, the result of which would be to change a long standing custodial arrangement or deny contact.
a child is to be permanently removed from the jurisdiction.
it is proposed that siblings be separated, or
neither of the parties are legally represented.

The actual appointment of a solicitor as an ICL is co-ordinated by and funded by the Legal Aid Office (Qld). As a result, Legal Aid request parties contribute to the ICL costs.
Need Assistance?
To get specialised advice from one of our experienced family lawyers, contact our Brisbane office today. We offer a fixed fee, no obligation initial appointment. To arrange, phone (07) 3221 4300 or email [email protected] or fill in our online form here.

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

There are many reasons why it is important not to delay getting Family Law advice. Whatever you do, don’t rely on the experience or suggestions of friends or family! Here’s an example of why you shouldn’t delay.
Being aware of how the law applies to your situation does not mean that a legal process has to start, it is all about being informed. By being informed, you will be calmer and less anxious about what is happening around you and what you should or shouldn’t, be doing.
It may seem like a daunting experience making your first appointment to see a lawyer, but the prospect of what could happen if legal advice is not sought when parenting arrangements are falling apart, or communication becomes difficult, is far more daunting!
An example:
A recent case before the court highlights the need for getting Family Law advice early. The mother and father did not seek legal advice early and the situation soon got out of control. By obtaining legal advice initially, the parents could have saved costs and avoided a complicated and disruptive situation, not only for themselves but for their 3 children.
In the case, the mother, who was the primary carer of the children, wanted to relocate from South Australia to Queensland. The father was opposed to the children moving and therefore took over as the primary carer.
Unfortunately, at the time, the parents did not see the need to seek any court orders to resolve the issues that arose from the mother’s wish to move to Queensland. Consequently, neither the father nor the mother had considered the long term arrangements for the children and how this would impact on them.
The Facts:

The father and mother were married for 8 years and had 3 children, 8, 7 and 5 years of age.
The father worked as a manager in the retail industry during the marriage.
The mother continued to live in the family home in South Australia, while the father had moved out.
The mother met a man who lived in Queensland on the internet and formed a “serious friendship” with him. She decided that she wanted to live in Queensland.
She moved to Queensland the next year and it was agreed the 3 children would live with the father and spend time with the mother on school holidays.
The father cared for the children while working full-time. The mother’s sister and mother moved closer to help care for the children.
After a month living in Queensland, the mother returned to South Australia to spend time with the children in the mid-year school holiday break.
When the mother returned to Queensland, she became engaged to her partner.
Towards the end of the year the parties agreed that the mother would pick the children up from the Adelaide airport so they could spent time with her in Queensland during the school holidays.
During one holiday period, the father claimed that the children were to be returned to him in Adelaide.
The father claimed that 5 days before the children were to be returned to him, the mother told him that the children would not be returned.
The mother said that she asked the father if he would agree to the children staying longer and he refused. She then indicated to the father that if he wanted the children back before the date that she had selected, a week later, then he would have to come to Queensland to collect them.
The father took time off work and drove to Queensland to collect the children. Due to other issues that had arisen, the mother would only allow the father to take the 8 year old child back with him to South Australia.
Following their meeting, the mother made a complaint to the police, alleging that the father had forcibly pushed her.
The 8 year old child returned to school in South Australia, while the mother enrolled the other child in a Queensland school.
At the interim hearing the court found it inappropriate for the children to be separated from each other in different States. The mother was ordered to deliver the children to the father.
At the end of the year the mother had ended her relationship with her partner and had moved back to South Australia.
The father wanted the children to continue to live predominantly with him and spend time with the mother on alternate weekends during the school term and for half of the school holidays.
The mother, wanted the children to live between the parents on a shared care basis, with the children moving between the households on a week about basis.

Court Found:

Each of the children had a “meaningful relationship” with both parents.
The father’s incident of forcefully pushing the mother was found to be the only incident of that nature that existed.
Both parents had been the children’s primary care provider for long periods of time in the past.

Court Order:

The children live with each of their parents on an equal time basis.
During the school term the children change households on Monday. Each parent to have “time with” the children for half of the school holidays.

It is important that legal advice is sought early regarding parenting arrangements, especially since circumstances between parents can change.
Getting legal advice sooner, rather than later, can also make things a lot clearer by providing a plan for you for the future and that will not only reduce dispute between you and your former spouse, but keep the best interests of the children at the forefront.
Need assistance?
To get specialised advice with one of our experienced family lawyers, contact our Brisbane office today. We offer a fixed fee, no obligation initial appointment. To arrange, phone (07) 3221 4300 or email [email protected] or fill in our online form here.

The post Get Legal Advice Early appeared first on Michael Lynch Family Lawyers.

To document or not to document an agreement? That is the question.
It is important to be aware of the options available when it comes to – whether? and if so, how? to document children’s arrangements, property settlement, and even child support.
The ‘rule of thumb’ is that a ‘property settlement’ must be documented, however, whether to document a ‘parenting arrangement’ should depend on the circumstances of the situation.
To help you find your way through, here are some of the options you should consider:
Property
It is important that when you settle property, a written agreement is made. This can be either in the form of a Financial Agreement or a Consent Order. A Financial Agreement is not filed with the court, so each party needs to get independent legal advice, these agreements are very difficult to set aside. A consent order however, is filed with the court. Both types of documents are legally binding and have the added benefit of providing an exemption for stamp duty (i.e. nil) for any transfers of property made pursuant to the documented agreement.
Children
Unlike property, deciding whether to document children’s arrangements should really be considered on a case by case basis as it really depends on the specific situation and circumstances. If the parties can cooperate effectively and there are no disputes over when each parent should care for the children, then often an agreement is not needed to ‘lock in’ dates and times. If, however, arrangements encounter difficulties then an agreement can either be documented by way of a Parenting Plan or a Consent Order.
A Parenting Plan has no specific form and is not legally binding. It generally details the arrangements the parents wish to make, with signatures from both parents on the plan. A word of warning – while it is not legally binding, if a dispute arises and it is taken to court, the court can use the plan as evidence of the parties’ intention.
A Consent Order is filed with the court and is legally binding, which means there can be consequences if it is contravened. It is important to remember that although a Parenting Plan is not legally binding, if it is made after a Court Order, then where it conflicts, it will override it.
Child Support
The Child Support Agency only provides for two types of agreements, a Limited or Binding Agreement, each of which have different conditions. The Limited Agreement can only be entered into if there is already an Agency assessment in place and the child support amount being paid is equal to, or more than, the assessment – it also only lasts for 3 years. A Binding Agreement can be entered into if there is no assessment but both parties must seek independent legal advice before entering into the agreement.
Need Assistance?
To get specialised advice with one of our experienced family lawyers, contact our Brisbane office today.
We offer a fixed fee, no obligation initial appointment. To arrange, phone (07) 3221 4300 or email [email protected] or fill in our online form here.

The post Do I need a documented agreement? appeared first on Michael Lynch Family Lawyers.

Thank you Three Best Lawyers for listing Michael Lynch Family Lawyers as one of the top 3 Family Lawyers in Brisbane, QLD.
Three Best Rated is using its rigorous 50-Point inspection which includes everything from checking reputation, history, complaints, ratings, satisfaction, nearness, trust, cost and general excellence in order to make its Top Three list. We are happy to be on the list!
For any Family Law matters, please contact Michael Lynch Family Lawyers or fill out our appointment-booking form here.

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It can be very stressful for a parent when the other parent takes a child overseas and doesn’t return. It is important to be aware in these situations that the government has a facility available that can help. What is that?
The Australian Central Authority provides the lawful procedure for seeking the return of abducted children to their home country so that custody issues can be resolved.
In order for the Australian Central Authority to process an Application for the return of a child who has been taken overseas the following criteria must be met:

The child must be under the age of 16 years;
You must have “rights of custody” in relation to the child;
You must have been exercising rights of custody at the time your child was wrongfully removed from, or retained outside, Australia;
Your child must have been habitually resident in Australia immediately before your child was wrongfully removed from, or retained outside, Australia;
Your child must have been taken to, or be retained in, a country which is a party to the Hague Convention. For a list of Hague Convention countries see https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionOnTheCivilAspectsOfInternationalChildAbduction.aspx and
Your child must have been taken from Australia or kept in another convention country without your consent, or without a court order.

The Application form to be completed with the Australian Central Authority can be found on the Australian Government Attorney-General’s Department website at https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/InternationalParentalChildAbduction.aspx
Certain documents may need to be attached to your Application such as a certified copy of the child’s birth certificate, photographs of the child and person who abducted the child, a certified copy of any Parenting Orders, a copy of your Certificate of Marriage and Divorce Order (if applicable).
It is important to make any Application to the Central Authority as soon as possible if your child has been taken overseas to a Hague Convention Country without your consent.
How can we help?          
At Michael Lynch Family Lawyers we can assist you in relation to all aspects of parenting matters including recovery orders, orders for children to be placed on the Family Law Watchlist and Parenting Orders.
To get specialised advice with one of our experienced family lawyers, contact our Brisbane office today. We offer a fixed fee, no obligation initial appointment. To arrange, phone (07) 3221 4300 or email [email protected] or fill in our online form here.

The post How do I get my child returned from overseas? appeared first on Michael Lynch Family Lawyers.

UPCOMING WEBINAR FOR COUNSELLORS
Client confidentiality is a crucial part of practising as a relationship counsellor and yet it is widely misunderstood. With the increasing role of mediation and other forms of dispute resolution, the provisions of the Family Law Act have come under increasing scrutiny.
How do you best keep notes? What to do when disclosures are made to you? These and other topics will be addressed in this webinar. We can help you to better help your clients.
Webinar details:
WHEN: 2-3pm, 11 September 2019
REGISTRATION: To register, please click here.

The post Counsellors Webinar – Counsellors, Courts and Confidentiality appeared first on Michael Lynch Family Lawyers.

In Australia, you can only apply for a divorce after you have been separated for a period of 12 months. This period satisfies the legal requirement that the relationship has broken down irretrievably.
This does not mean, however, that everything is on hold for 12 months while you wait the ability to make a divorce application. In fact, it is a good idea to use that (minimum) 12-month period to resolve other matters and leaving the divorce as the final piece in the puzzle.
It is important to remember that once you do obtain your divorce, you only have 12 months from the date of your final divorce order to apply to the court for your property settlement, and if you run out of time you will need the ‘leave’ of the court first.
Property settlement matters, parenting arrangements, child support and spousal maintenance can all be negotiated, mediated, arbitrated or (as a last resort) litigate, as the case may be, before a divorce is granted.
It is important to resolve these issues so that you can both move on financially, so that your children have routine and stability, and to ensure that you are both able to move on without the ongoing stress of possible litigation.
Our experienced solicitors can discuss all aspects of separation and divorce with you, and can give you the information and advice you need to be able to face this stressful period, and to work with you to resolve matters as quickly as possible.
Often, simply being informed about the steps to come and the process gives people comfort as they face the unknown and difficult period after separation.
Contact our office on (07) 3221 4300 or fill in our online form here to arrange a no obligation, fixed fee appointment with one of our experienced family law solicitors.

The post Can I try to sort out other issues while I am waiting for a divorce? appeared first on Michael Lynch Family Lawyers.

Separated parents often have very different parenting styles which can cause conflict. One common example of this is when one parent utilises child care or after school care and the other parent is available to care for the child at those times. The question from parents is usually “why should a stranger care for my child, when I can do it?”. What does the court say?
The court recently considered this argument, on an interim basis, involving a 3 year old child. The father said the mother was using day care as she needed to work. The father had re-partnered and had flexible work arrangements, and could also rely on assistance from his partner when needed to care for the child.
The court noted that at an interim hearing, it has limited scope to consider evidence and must make orders that are in a child’s ‘best interests’, without deciding on disputed facts. There was no evidence before the court that the child, who had previously lived primarily with the mother, was not flourishing, and this included her being in child care for periods.
The court made interim orders for the child to live with the mother, and spend time with the father. The court noted that use of child care was common in modern Australia, stating:
“The issues arising in this case are not only personal to the parties themselves. They also raise societal and indeed, political issues, relevant to many parents who come before the court. Fundamentally, they are also value-laden issues, which I am loathed to comment upon, namely, in general terms, the benefits and/or deficits of home care as opposed to professional childcare which, as I say, is a necessity to a huge number of Australian parents…”.
Each case before the court is different, as there are other issues and circumstances at play. If you require advice specific to you about a parenting matter, please call our office on (07) 3221 4300 or fill in our online form here to arrange a fixed fee, no obligation initial consultation.

The post Is using child care a problem? appeared first on Michael Lynch Family Lawyers.