A mother unexpectedly passes away and her 13 year old son wants to continue to live with his step-father, contrary to the biological fathers wishes. What should happen?
The Family Law Act provides that a parenting order may be applied for by:

A parent;
The child;
A grandparent; or
Any other person concerned with the care, welfare or development of a child.

This final and broad category can include any number of persons who might have such a level of involvement in a child’s life. One such category of people, includes step-parents. Clearly, a step-parent who has had an active involvement in raising a child will be considered a person concerned with that child’s welfare, and will be able to apply to the court for parenting orders in their favour.
In a recent tragic case, a mother passed away in a car accident. Both the biological father and the step-father sought opposing orders for the child to live with them. The child had previously been living with the mother and the step-father for a number of years, and his half-siblings also lived in the house. He spent regular time with his father, who live in another State.
The child was 13 years of age at the time of the court proceedings. The child indicated, via the family report writer, that he wanted to remain living with his step-father and siblings.
The court agreed that it was in the child’s ‘best interest’ to remain living with his step-dad and siblings, and made orders for the child to spend time with the father each 3rd weekend and half school holidays.
If you have any questions about applying for parenting orders, or any other family law query, please contact our office on (07) 3221 4300 or fill in our online form here to arrange a fixed-fee, no obligation initial consultation with an experienced family law solicitor.

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Being a multi-cultural country and having exposure to media from around the world it can be confusing for people in Australia to know what is required for a Divorce. Let’s clarify the position in Australia but also have a quick look at the situation in some other parts of the world.
Every country in the world allows its citizens to divorce, but different requirements apply to how that can happen, that is, except for (2) countries. The Philippines (though Muslims Filipinos have the right to divorce) and the Vatican City, have no procedure for divorce. In these two countries, there are only laws that allow for the annulment of marriages.
Also interesting is the fact that divorce only became legal in Malta in 2011.
Philippines
In general, divorce is illegal in the Philippines. Under Philippine law, Filipino citizens married to foreign nationals who divorce in the other spouse’s country of residency are considered legally divorced and able to remarry.  Filipinos not married to foreign nationals who divorce in other countries but who remain legal residents of the Philippines, are still considered married under Philippine law.
The only options for other Filipinos are legal separation or annulment, and for either one the process is lengthy and expensive.
Vatican City
There is no process for obtaining a divorce in the Vatican state.  Arguably, there is no need for a law for divorce in the Vatican because most citizens of the Vatican state are either living outside the country state or are members of the Roman Catholic clergy who take a lifetime vow of celibacy.
Vatican City allows annulment or the invalidation of a marriage based on a number of grounds, however the process is difficult and lengthy.
Other countries:
Japan
Most divorces in Japan are consensual and fairly straightforward. However, there is no provision for joint ‘custody’ of children under Japanese law, unless the divorce was finalised in another country where the child has citizenship and custody was established there. There are provisions for child support but not visitation; it is uncommon for children to see the other parent frequently after a divorce.
From an Australian perspective, another unusual aspect of Japanese family law is that women have to wait six months before they can remarry after a divorce. Men have no such restrictions. A woman is also required to take her husband’s surname upon marriage, and it takes complicated legal processes to restore her maiden name after a divorce.
France
The first French divorce law was passed on 20 September 1792, during the French Revolution. It was subsequently modified in 1793 and 1794, and eventually incorporated in the Civil Code. It was repealed on 8 May 1816, due mainly to the influence of the Catholic church, after the restoration of the Bourbon kings. The divorce law was re-established by law on 27 July 1884.
The process for divorce differs depending on the ‘reason’ sought for the divorce.  But in all divorces the other issues that often arise, such as parenting arrangements, property settlement and maintenance are resolved as one matter. This is the same process that is followed in most of the Civil Law countries.
Egypt
Egypt introduced no-fault divorce in 2000, but Egyptian women still face unequal access to family courts and protections under the law. Personal status laws in Egypt establish that Islamic rules on marriage and divorce prevail except in cases where both husband and wife are non-Muslims and from the same religious denomination. Under the current law, for instance, a Catholic husband with a Coptic wife could be subject to Islamic law.
Women can now file for no-fault divorce, but must give up all financial and property rights to do so and repay any dowry their husbands gave to the wife’s family upon the marriage. To receive any sort of support they must be able to prove their husband harmed them during their marriage, often needing eye-witnesses even for physical abuse. Egyptian men, however, have unconditional rights to divorce and don’t even need to go to court to obtain it. Women filing for divorce have to go through mediation with their estranged husband; men have no such requirement.
International Recognition of Divorces
Australia is a contracting state to the Hague Convention on Recognition of Divorce and Legal Separations enacted in 1970.  Australia has acceded to the Convention by inclusion of Part XII and specifically section 104 of the Family Law Act 1975 which states:
A foreign divorce will be recognised as being valid in Australia if it was effected in accordance with the laws of that foreign jurisdiction and at the date of those proceedings either one or both spouses had a sufficient connection with the foreign jurisdiction.
Divorce in Australia:
Since 1974 Australia has had a ‘no fault’ system for divorce, this means that 12 months separation is required. The effect of a Divorce application is to dissolve the marriage, it does not address any other issues, such as, property division or parenting arrangements. For more information see our article ‘Separation and Divorce’.
To get in touch with an experienced divorce lawyer in Brisbane, contact us. As one of Queensland’s largest specialist family law firms, our combined knowledge of divorce law is exceptional. Call us on (07) 3221 4300 or fill in our online form here to find out how we can assist you throughout your divorce proceedings.
 

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When a separation occurs, spouses can sometimes act in unexpected ways. This may involve assets being taken, whether it be cash spent, shares sold, mortgages extended, or real estate sold. Once assets are gone they can be very hard to retrieve. So, in these urgent situations what can be done to protect property?
The legal remedy from the court is an injunction. This is an order that restrains a party from depleting assets prior to a final property settlement.
In a recent Family Law case such a situation was considered when the mother sought an injunction against the father restraining the father from further depleting his funds invested in an overseas bank account.  The mother alleged that the funds held overseas had already been depleted by withdrawals by the father.  The father claimed that his legal fees, expenses for the children and his child support liabilities may soon exhaust the remaining funds as he had a weekly “shortfall” after payment of expenses from his income.
The net asset pool was modest and principally comprised of assets held by the father overseas in the amount of EUR 114,823 (AUD$171,561). The mother sought final orders that she should receive 80% of the non-superannuation assets and 80% of the father’s superannuation.  She submitted that due to the depletion of funds already by the father the final outcome she sought would now be unlikely.
The court has broad powers to grant injunctions to preserve the property of parties.  In this case the court referred to previous case law that stated that such injunctive relief must be “proper” which means “reasonable and just in the circumstances”.   The court therefore must be satisfied that it is ‘just or convenient’ to grant such an injunction.
The court held that the applicant needs to provide evidence to establish there is a real risk of disposal of an asset and that would defeat an anticipated property settlement entitlement.
The court decided that the father did not need to access his investment funds overseas as he did not have any weekly shortfall after the court reduced his requirement to pay spousal maintenance payments to the mother.
The court ordered an injunction that the father be restrained from dealing with, transferring, dispersing or making any withdrawal from monies held in his name in any overseas bank account save for the sum of EURO 20,000 which he could use at his own election.
At Michael Lynch Family Lawyers we can assist you if you need an injunction or need advice about restraining your former partner from depleting the asset pool. Call us on (07) 3221 4300 or fill in our online form here to arrange a fixed fee, no obligation initial consultation with an experience family lawyer.

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Family law can be challenging at the best of times. And as more blended families or step-family forms emerge, some new challenges arise.
So, what happens for step-parents? When together, the issue of adoption might arise, for example. Separation can raise some unique challenges across a range of issues such as, change of name, parenting, spouse maintenance and child support.
Find out answers to these and other relevant questions about Child Support by pressing Play to listen now, OR click HERE to watch a full PowerPoint presentation with a voice recording.

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In Queensland, ’emotional, psychological and economic abuse’ constitutes Domestic Violence and, therefore, can be the basis for a Domestic Violence Order (DVO). So, what are some examples of this?
The Domestic & Family Violence Protection Act 2012 (Qld) provides a non-exhaustive list of examples that might constitute this type of behavior.
Emotional or psychological abuse:
Some examples include:

following a person when the person is out in public, including by vehicle or on foot;
remaining outside a person’s residence or place of work;
repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent;
repeated derogatory taunts, including racial taunts;
threatening to disclose a person’s sexual orientation to the person’s friends or family without the person’s consent;
threatening to withhold a person’s medication;
preventing a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity.

Economic abuse:
Economic abuse means behaviour by a person (the first person) that is coercive, deceptive and unreasonably controls another person (the second person), without the second person’s consent –
a) In a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
b) By withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses.
Some examples include:

coercing a person to relinquish control over assets and income;
removing or keeping a person’s property without the person’s consent, or threatening to do so;
disposing of property owned by a person, or owned jointly with a person, against the person’s wishes and without lawful excuse;
without lawful excuse, preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses;
preventing a person from seeking or keeping employment;
coercing a person to claim social security payments;
coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person;
coercing a person to sign a contract for the purchase of goods or services;
coercing a person to sign a contract for the provision of finance, a loan or credit;
coercing a person to sign a contract of guarantee;
coercing a person to sign any legal document for the establishment or operation of a business.

Domestic Violence laws are different in each State of Australia. ‘Domestic Violence’ in Queensland has a wide definition and includes much more behaviour than what has been listed in this article. Such behaviour is serious and unacceptable and action can be taken to stop it. If you have concerns about a situation you are in, call us for advice.
We provide a fixed cost, no obligation initial appointment. Call us on (07) 3221 4300 or email [email protected] to arrange.

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A family report is a very important document in a parenting case. It is prepared by an independent expert and the information it contains and the recommendations made, are powerful. If you are involved in one, you should be well prepared. Here are some valuable tips.
What is a Family Report?
A family report can be ordered by the court or the parties can agree to get one prepared privately.
A family report is a professional written assessment of a family based on interviews with the parents and any other significant adults, age-appropriate interviews with the children, observations of each parent with the children, and a review of any court documents (if the case is in court) including any subpoenaed documents. If the case is not in court then the parties might provide the report writer with some other written material to give them some background to the matter and the issues in dispute.
The family report writer will be a social worker or psychologist who is experienced in dealing with parenting arrangements for children, whose parents are separated.
The report writer will make recommendations regarding the parenting arrangements which they believe will be in the best interests of the children.  Those recommendations will assist the judge in making decisions about the arrangements for the children or assist the parents to reach an agreement.
The court is not bound by the recommendations in the report. However, as an independent expert the report writer’s evidence and recommendations are generally very persuasive. As with any evidence, the appropriate forum for challenging the report is at a trial by cross-examination of the report writer.
Preparing for Interviews

Tell the truth. Misrepresentations and lies can be easy to spot by trained professionals and are likely to catch up with you. This could raise doubts about the truthfulness of all of your other information.
Remember key information and avoid relying on written information. Personal recollections are seen as more genuine.
Consider your proposal for parenting arrangements, particularly how it will impact on the children.
Consider the other party’s proposal and how that would work if that is what ends up happening.
The best interests of the children are the paramount consideration so consider the needs of each child and keep them in mind throughout the process.
Answer questions directly, without providing unnecessary detail. The report writer will ask for further details if required.
All interviews are conducted differently, depending on the particular report writer. Don’t expect a specific format.
Nothing you say to the report writer is confidential. Anything could end up in the report.

Preparing Children
Parents can provide age appropriate information to the children prior to the day of interviews:

Keep it simple and straight forward.
Try not to create anxiety and don’t exaggerate or minimise the child’s role and views.
Don’t tell them what to say – or not say.

For more information regarding family reports, please do not hesitate to contact our office on (07) 3221 4300 to arrange an appointment with one of our experienced family lawyers.

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Sometimes legal issues such as child support, notification on a birth certificate and spending time with a child can quickly arise while the alleged father is still questioning – if he is the father? If that’s you, here are some tips on paternity testing.
Who is the child’s father is not always something that is agreed upon.
DNA and evidence of parentage is important when a mother wants to register an application with the Child Support Agency (Department of Human Services (Child Support)) (“the CSA”). The CSA will refuse an application if a parent is not listed on the birth certificate (i.e. father) and therefore, parentage needs to be established.
A person is the child’s biological father if:

they are named as the father on the birth certificate or adoption certificate
they sign a statutory declaration (a legal document) saying they are the father
the child was born during the marriage
the child was born within 20 to 44 weeks of when the mother and father lived together
the court makes a declaration (finding) that a person is a child’s father and/or that a person  is liable to pay child support for a child.

DNA testing is generally accepted as the most accurate method of proving or disproving parentage (i.e. if a man is the father of a child).
Paternity testing involves a DNA sample being taken from the alleged father, mother and child to prove evidence that they are the alleged biological father of the child. The usual sample collected is a mouth swab, although other samples such as blood, can be used.
While it is possible to order DNA test kits online, for legal proceedings testing must comply with the strict regulations outlined in the Family Law Act.
DNA testing can come about typically in two ways. Firstly, by parties reaching agreement for testing to occur or secondly, an application to a Court. However, it is important to note that the CSA cannot accept a DNA paternity testing report as proof that someone is or is not the child’s father. It will only accept a ‘declaration’ from the court. The DNA testing result can be presented in court and the court can make a ‘declaration’ stating a person is or is not a child’s father.
To satisfy the court that an Order for DNA testing should occur, the applicant needs to establish to the court under the prescribed criteria that there is a ‘presumption of parentage’. If this can be satisfied, then the Judge will order that a DNA test will be conducted.
Should the man refuse or fail to undertake the DNA testing ordered, then refusal to participate may still lead to the court making a ‘declaration’ stating that he is a child’s father and/or that he should pay child support for a child. Refusing to participate in a court ordered DNA test is held to be a deemed failure of the test that results in a finding that the man is the father.
It is important that you seek legal advice about DNA testing whether you are requesting a man to undertake it or whether you have been asked to provide the sample. It is important that you understand your rights and what is involved in paternity testing. If you delay in making an application or responding to a request, this could have serious consequences for you. Contact our Brisbane office today on (07) 3221 4300 or fill in our online form here to arrange an appointment to speak with an experienced family lawyer.

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Disclosing financial information is vital, if a fair property division is to be achieved. It comes as no surprise then that some spouses make this process difficult. If documents are not willingly provided can you force disclosure?
The Family Law Rules impose a ‘duty of disclosure’ and requires that each party “give full and frank disclosure of relevant documents in a financial matter” to each other.
If a party then refuses or is believed to not be fully discharging their duty to disclose, consideration should be given to applying to the court for a subpoena. A subpoena is a written order from the court that tells a person to:

give evidence; or
produce documents, (records or things); or
produce documents and give evidence.

Before a subpoena will be granted, you need to tell the court what kind of subpoena is required and also convince the court that it is needed. You can get up to 3 subpoenas in the Family Court and up to 5 in the Federal Circuit Court. The subpoena will usually be issued to a third-party person or organisation that may hold the relevant financial documents such as, a bank or an accountant.
Both the other party to the court proceedings and the person or organisation who the subpoena is directed to can object to producing the requested documents.  The court will then decide if the documents should be produced.
The court has recently considered a case where (2) companies appealed a lower court decision dismissing their objection by the court to produce documents which had been subpoenaed by the wife.
The companies included the corporate trustee of a family trust of which the husband was a beneficiary and a company controlled by the husband until he transferred control to his father. The companies argued that to comply with the subpoena by the wife and produce the documents was oppressive and that the documents sought were irrelevant.
The court dismissed the objection on the ground that the documents had relevance to the proceedings between the wife and husband.
The duty of disclosure imposes a considerable obligation on each party to properly examine and sort through all relevant documents in that party’s ‘power, possession and/or control’ and produce all relevant documents to the other party (and to the court in certain circumstances) in compliance. There can be cost implications if a party does not comply with their duty of disclosure.
A party to proceedings should also be aware of specific disclosure requirements before the first court date and conciliation conference.
If you wish to know more about the duty of disclosure, contact our Brisbane office today on (07) 3221 4300 or email [email protected] to arrange a fixed cost, no obligation appointment with an experienced family lawyer.

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