Formalising the parenting arrangements for children after separation has many benefits for both the parents and children.  A formalised agreement provides a predictable and stable routine, reduces the chances of conflict, and reduces stress and the likelihood of the other parent acting contrary to the agreed arrangement.
There is no one better placed to make decisions about what parenting arrangements are in the “best interests” of children, than their parents.  However, an experienced family law practitioner can provide very useful, and sometimes critical advice, to assist parents to agree on, and formalise, all necessary parenting issues for their children.
Issues we commonly advise separated parents about include:

the various parenting arrangements parents might consider such as week-about, a shared week arrangement, and alternate weekend routines, including arrangements for special occasions such as birthdays, Christmas, Mother’s and Father’s Day;
how to “make legal” the agreed parenting arrangement to reduce the risk of the other parent absconding with, or holding over the children, or making threats to do so;
whether to enter into a parenting order – which is legally binding, or a parenting plan – which is not legally binding, but which has other benefits, including flexibility;
how to ensure the parenting arrangements still maintain a degree of flexibility where needed. This can be critical where one parent works on a fly-in, fly-out (FIFO) arrangement, does shift-work, or lives in another city;
other parenting issues such as domestic and international travel with the children, passport arrangements, choice of schools and medical providers;
concerns relating to who will care for the children when they spend time with the other parent;
what to do when a child is refusing to spend time with the other parent;
how parents can keep in touch with their children when they are living with the other parent;
concerns regarding alcohol, illicit substances and family or domestic violence; and
how to communicate with the other parent regarding a parenting issue about which they do not agree.

The feedback we commonly get from our clients is that formalising the parenting arrangements:

reduces stress for the children by providing a stable routine;
reduces anxiety and conflict for the parents by removing the need to communicate on a weekly basis with the other parent about what time the children will spend with each of them;
enables parents to plan their time with their children, including holidays and special occasions such as birthday and Christmas celebrations;
reduces their level of fear that the other parent may abscond with their child, refuse to return their child or otherwise act contrary to the formal parenting arrangements; and
reduces their level of fear that the other parent may make a court application seeking for the children to live with them or to move away.

It is strongly recommended that, in the initial stages of a separation, parents obtain legal advice from experienced family law practitioners about:

the law surrounding parenting issues and arrangements under the Family Law Act 1975(Cth) as relevant to the particular family;
the various parenting options, arrangements and issues they should consider;
whether a parenting arrangement should be formalised through a parenting plan or court orders;
the services available (some of which are free), to assist parents to discuss and agree on parenting arrangements; and
how they can make the agreed parenting arrangements “legal”.

At Miller Harris Lawyers, our experienced Cairns and Mareeba family lawyers are available to provide you with advice on general parenting matters and the application of the Family Law Act 1975 to your family situation, and specific parenting issues, to assist you to amicably resolve the arrangements for your children.
If you would like more information about how we can assist you to amicably resolve the parenting arrangements for your children, please feel free to contact our Cairns and Mareeba Family Lawyers on 4036 9700.
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There seems to be a misunderstanding about divorce and the appropriate time to update your will or do a new will.   You should always have a current and up to date will in place.  Waiting for your divorce to be finalised is never a good reason to delay your estate planning.
What’s the effect of divorce on a will?
In Queensland when a person makes a will (“the willmaker”) and then later divorces, any provision appointing the willmaker’s former spouse as executor, trustee and/or guardian will be revoked and taken to have been omitted from the will.  Further, any gifts made in favour of the former spouse are automatically revoked upon divorce.  All other provisions in a will not relating to the former spouse, generally will remain valid and effective.
As divorce only revokes the provisions to your former spouse in your will and not your whole will,  you do not need to wait for your divorce to be finalised to prepare a new will (and I do not recommend that you wait). Whist this example may seem reasonable to many of you, it is important to bear in mind that only upon a formal divorce will those provisions to a former spouse be revoked.
What happens if I am separated but not divorced?
For married couples, separation alone will not revoke a will. In Australia married couples must be separated for a minimum period of twelve (12) months before making an application for a divorce.  During the period of separation (which is sometimes many years) if you have an old, outdated will in place gifting everything to your former spouse, he/she may get just that, everything.
What if I don’t have a will?
It is just as bad, if not worse, if you don’t have a will in place and you are recently separated but not divorced.  If you do not have a will in place and are legally married at the time of your passing, then under the rules of intestacy your former spouse will get a large portion, if not all, of your estate.
When should I do a new will or update my existing will?
A lot of clients prefer to hold off preparing a new will or reviewing their existing will until their divorce and/or property settlement has been finalised.  I do not recommend this.  Whist you might feel like you have 101 things to do and your life is chaotic, a new or revised estate plan should be at the top of your “To Do” list.
What other life changing events will affect my will?
The ending of a de facto relationship or civil partnership will also revoke the provisions to a former spouse in a will.  So even if you are not married, you should bear this in mind.
Marriage will automatically revoke a will*, unless the will is made “in contemplation of marriage”.    I often find, especially for younger clients, that they still wish to make provisions for their siblings or parents even if they are getting married.  Usually if their parents have gifted them a sum of money or have provided a guarantee to assist them in buying their first home.  If they prepare a will making these provisions for family members and then later get married, and their will has not been made in contemplation of marriage, then these special gifts to family members will be revoked.
*It is important to note that marriage will not revoke the following provisions in a will pre-dating marriage:

a gift to the person to whom the willmaker is married to at the time of the willmaker’s death;
an appointment as executor, trustee, advisory trustee or guardian of the person to whom the willmaker is married at the time of the willmaker’s death;
a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the willmaker or to an administrator of any estate of the willmaker if the power of appointment were not exercised.

Information contained in this article is of a general nature only and is applicable to the current law in Queensland.  It is not intended to address the circumstances of any particular individual or entity.  Please note that the law in each state and territory may differ.  We recommend that you contact one of our experienced wills and estates solicitors to obtain advice about your individual circumstances.
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Lost, destroyed or missing trust deeds can sometimes lead to tears, misery and heart attacks.  But is the situation as dire as it seems if a document, crucial to organising your financial affairs, disappears?
Maybe it is the advent of trusts as a useful financial planning structure, or the rise of the self‑managed super fund (“SMSF”) (read our previous article on self-managed super funds here), but in recent times, well recent for the law, there have been a number of cases which are resurrecting a seemingly forgotten principle of law, the presumption of regularity.
The presumption of regularity is that deeds and other documents will be presumed to have been validly executed and made, unless there is some contrary evidence.  The cases below illustrate the point, and highlight that the presumption is only applied in very limited circumstances, often where there is a substantial lack of evidence.
Sutherland v Woods[1]
In Sutherland v Woods there was a question as to whether a SMSF had been validly established.  The trust deed could not be located, and because there was no deed, Woods claimed that it was not a valid SMSF.
Sutherland sought to rely upon the presumption of regularity and contended that despite the absence of the deed, the fund was valid.  The subsequent conduct of the parties, including their bank and the ATO, led to the conclusion that the SMSF must have been correctly established, even if the deed was now missing.
Importantly, the parties did all they could to locate a signed copy of the original deed, contacting Westpac, the ATO and titles office to see if any of those entities held a signed copy.  These enquiries were unsuccessful, and the parties were forced to rely upon an unsigned copy of the alleged deed.
The court ultimately agreed with Sutherland, and held that although a true signed copy of the deed was unavailable, that did not prevent the inference that the trust had been validly created.
The missing deed would have been conclusive evidence that the SMSF was established correctly.  In absence of the deed, Sutherland was instead required to prove the validity of the SMSF through other means, such as subsequent dealings.
It was apparent that through the actions of the parties, and third parties, relying upon the existence of the deed, the trust had always been intended as a superannuation fund and had been validly created as such.
The absence of the missing document did not invalidate the fund, and indeed the evidence in the circumstances led to the presumption that the establishing deed must have existed at some point.
Re Thomson[2]
In Re Thomson, the deed establishing the trust was not an issue.  Instead, there were two subsequent amending deeds, one was missing and the other unsigned.
The first deed, which was missing entirely, purported to remove two of the original trustees.  The second deed, which was unsigned, referred to the first deed and amended the trust so that if both of the remaining trustees were to pass away, the trust would vest in the estate of whomever survived the longest.
The dispute arose around the validity of the two amending deeds. If they were not valid, then the two trustees who were allegedly removed would be entitled to the property of the trust.  If both were valid, then the trust would vest in the estate of Thomson.
Such matters around the validity of documents when it comes to the administration of an estate are not uncommon, and is the context in which the presumption is commonly applied.
In determining the validity of the irregular deeds, the court again looked at similar factors as in Sutherland.
In particular, the court relied on the fact that since the removal of the trustees, only the two remaining trustees had been signing off on the trust’s financial reports, indicating that the deed existed, and the parties had been acting as if it were the true state of affairs.
The court found that the two irregular deeds could be presumed to be regular because the evidence indicated that was probably the correct and true situation.  The executor was therefore entitled to include the trust property in the deceased’s estate.
So what is the presumption?
So now that we have reviewed a couple of examples of the presumption, when should you be considering relying upon it?
The presumption will only apply in limited circumstances, it should not be considered a cure-all for any trust problems you have.
The courts have held that before applying the presumption:

a considerable amount of time must have passed since the event happened;
there is no other way to prove the existence or validity of the missing deed;
there is some other extrinsic evidence indicating the deed, or missing instrument was valid and people have since acted as if it were valid; and
the presumption must only be applied to a procedural or formal detail.

Point 3 above is clearly identified in the two cases.  The evidence from the bank, the ATO, and financial reports all indicated the legitimacy of the actions being undertaken, even where the deed was not located.
The presumption should not be thought of as applying in all situations, indeed, its limited application throughout the last 50 years suggests it should only be thought of as a last resort.
In many circumstances, simply claiming the deed is lost, without exhausting all possibilities will not be enough.
Before relying on the presumption, consideration should be given to some of the following alternatives:

preparing a deed of rectification;
relying on the trustee powers in the Trusts Act;
for a SMSF, where practicable, rolling the assets over to another SMSF which does not have any issues with documentation; and
last but certainly not least, no effort should be spared in locating the original deed.

Of course, these options are not always available, some may rely on the original trustees still being available, or simply be inapplicable in the circumstances.
Lost or irregular trust documents often have circumstances unique to each case.  For that reason, when irregularities are detected, efforts should immediately be made to correct them.
In most cases involving the presumption, it is not raised until there is a crisis, for example the breakdown of a marriage or the administration of a deceased estate.  By taking proactive steps, most of these situations, and possibly expensive litigation, can be avoided.
The experienced team at Miller Harris can help you, or your clients in dealing with lost or irregular deeds.  Many situations will require a bespoke solution, and our experience across many areas of the law enable us to come up with the right solution to your problem.
Should you have any questions or enquiries, please do not hesitate to contact Ashley Jan on 07 4036 9700, or [email protected].
[1] Sutherland v Woods [2011] NSWSC 13 ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2011/13.html ).
[2] Re Thomson [2015] VSC 370. ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/370.html )
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There are many misconceptions or “myths” in family law that can lead to separating couples making poor decisions that are not in their best interests.  We debunk some of these common myths below.
Myth 1: “I am not married so I don’t need to have a property settlement”
Not true; save for very limited exceptions, all de facto and married couples are required by the Family Law Act to formally end their financial relationship through a property settlement within a specific time period.  If in doubt, it is always best to seek advice on whether a formal property settlement is required.
Myth 2: “Property acquired after separation is not relevant”
This is also incorrect.  Whilst the inclusion of assets acquired post-separation will always depend upon the circumstances surrounding the acquisition of the asset, as a general rule, the asset will usually be included in the property pool.  For example, in a recent court case, the court made a decision to include in the property pool, an inheritance of $715,000.00 received by the husband five years after separation.  This is a classic example of why property should be divided and a property settlement formalised soon after separation— not years later.
Myth 3: “If my ex and I agree on the division of our assets, we do not need a lawyer”
Once an agreement is reached, it is important that it is formalised in one of the two ways recognised as binding and enforceable by the family courts.  The parties can apply to the court for consent orders or they can execute a binding financial agreement in accordance with the family law legislation and regulations.  It is important that legal advice is sought in the drafting of these documents.  If a property settlement is not formalised in one of these ways, the family courts will not recognise that a property settlement has occurred, which may leave parties vulnerable to a later court application seeking a further adjustment of property interests.  There are additional benefits in formalising a property settlement including eligibility for an exemption on transfer duty on any property transferred between spouses.
Myth 4:  “Most property settlements are 50/50”
This is another common misconception.  What percentage of the property pool a spouse is entitled to is calculated by applying complex legal principles and precedents.  It includes consideration of many factors.  We encourage clients to obtain legal advice as to their entitlements before discussing the division of their property with their former spouse.
At Miller Harris Lawyers, we understand that separation is stressful and emotional.  We work with our clients to provide strategic legal advice which empowers people to make informed decisions about the future and to move forward with their lives.  If you are going through a separation, contact our expert family lawyers today on 07 4036 9700 to enquire about our fixed fee initial consultations offered at both our Mareeba and Cairns offices.
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One common misconception that parents often have following separation is that their child will get to decide who they live with and how much time they spend with the other parent.
The living arrangements for children after separation is a decision to be made by both parents, not the children.  If parents cannot agree to the living arrangements for their children, they are required to attempt mediation to see if they can agree with the assistance of an independent third party.  If there is still not agreement after mediation, then ultimately either parent may need to commence court proceedings asking the court to decide on the arrangements for the children.
The next obvious question is—If children do not get to decide who they will live with, do they get a say in the decision at all?  The answer to this question will depend on the circumstances of the particular family.
For example, we are commonly now seeing that parents who agree to attend a mediation to discuss and try to reach an agreement on the arrangements for their children are adopting one of the two following practices to ensure their children also have a voice in the decision:

Attend a child inclusive mediation.

Unlike the suggestion of the name, the children do not actually attend at the mediation with their parents.  Whilst mediations are run differently by different mediators, generally the mediator will spend time with the children prior to the mediation.  The mediator is trained to create a comfortable and safe environment for the children to share their views on the issues to be discussed at mediation.  Those views can then be brought into the mediation through the mediator.

Obtain a family report prior to mediation

A family report is written by a family report writer, who is usually a social worker or psychologist.  The purpose of the report is to provide recommendations on what parenting arrangements are in the best interests of the children.  In making recommendations, the report writer gathers information through interviewing both parents and significant others, the children (if they are old enough) or observing the children with their parents (if they are not old enough to be interviewed).
A family report is often ordered by a court in parenting proceedings to assist the court in gathering evidence as to what arrangements are in the best interests of the children.  Increasingly however, parents are choosing to obtain a family report privately to assist them in making decisions for their children outside of the court process.
A family report is another way in which children can have their views heard by both parents and is an asset in a mediation. However, ultimately it is the parents or court who have the final say in the children’s care arrangements.
It should be noted that how much weight is given to the views of children will depend on the individual circumstances of the case, and in particular, the age of the children and their maturity.  Whilst children do not get to decide their own care arrangements, the more mature and older they are, the more weight that will usually be given to their views.
The recent High Court decision of Bondelmonte confirms that even children who are mature and approaching the age of 18 are not able to decide their care arrangements.  In that case, the children who were 15 and 17 at the time, were ordered by the court to live with their mother, despite both children expressing that they wanted to live with their father.
If you are going through a separation and would like to discuss your parenting matter, contact one of our family lawyers today on 4036 9700 to find out about our fixed fee initial consultations offered in both our Mareeba and Cairns offices.
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One of the first questions that we are often asked by clients going through a separation is, how do we separate our property and finances and protect ourselves?
It is important for separating couples to understand that there are only two ways in which you can finalise your financial relationship, so that it is binding and recognised by the courts, namely:
1. by court order; or
2. by entering into a binding financial agreement.
Separating couples are able to obtain a court order to record any agreement they reach by consent, by submitting an application for consent orders. This is a relatively inexpensive way to formally end your financial relationship. Consent orders will only be made if the judge considers that they are just to both parties. A court order may also be made during court proceedings, if one party commences proceedings because the parties are unable to reach an agreement. The majority of our matters are resolved through negotiation or mediation and then finalised through the consent order process.
The other option is a binding financial agreement, which must be drafted and executed in accordance with the family law legislation and regulations.
If you do not formalise your property settlement using one of the methods mentioned above, then the Family Courts will not recognise your agreement and it will not be binding. This is true even if the agreement has been recorded in a deed or statutory declaration or other alternative legal form. For this reason it is important that you have an experienced family lawyer assist you in formalising your property settlement agreement. There are other benefits for couples in finalising their property matters, including receiving an exemption on paying transfer duty on the transfer of any property between spouses.
If you are going through a separation and require assistance in separating your finances and property, contact our expert Cairns and Mareeba family lawyers today on 07 4036 9700 or 07 4092 3555 to book in for an initial consultation where we will discuss how to finalise your property matters and the four step approach used by courts when determining the overall division of your assets and liabilities.
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If a tenant conducts an online retail business, but uses premises predominantly for producing or storing goods, is it a retail shop?  The Victorian Civil and Administrative Tribunal (“VCAT”) recently considered this question.
The Retail Shop Leases Act in Queensland and its equivalent across other states in Australia (“Retail Shop Legislation”) imposes additional tenant protections in leases of retail shop premises.  These additional protections do not apply to premises that are not considered retail shops under the legislation.  The concept of what is a retail shop is not always a straightforward determination to make, as illustrated in the decision of VCAT in Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property).
Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property) [2018] VCAT 2000
Bulk Powders Pty Ltd (the tenant) leased premises in an industrial area in Victoria where it developed and produced sports nutrition and supplement products.  While the tenant sold the items it produced as a retail business, the sales were mostly online, except in limited circumstances where some customers could collect products by appointment.  The tenant sought a declaration from VCAT that the premises was a retail shop.  The reason the tenant did this was that the lease included outgoings which would not be permitted to be recovered by the landlord if the premises were a retail shop.
The Retail Shop Legislation defines retail premises as premises that are “used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services”.
Upon reviewing the law on this point, VCAT considered that to be retail premises, it was necessary that the premises have a retail characteristic of being open to the public, which in this instance, it was not.  The premises were used for predominantly production and storage of products and even though those products were sold online, that did not make the premises retail premises.
With so many businesses being conducted online today, this is an important clarification for both landlords and tenants about when the Retail Shop Legislation will apply to a leasing arrangement.  The consequences of the Retail Shop Leases Act applying to a lease are significant, for example, as illustrated in this case, the inability of the landlord to recover certain types of outgoings and charges.  There are also further disclosure obligations on the landlord that, if not complied with, can give the tenant extensive rights to terminate a lease.  This decision also goes to show that what does constitute a retail shop is not always a straightforward answer and there are a number of considerations in making a determination about this.
You can access the full decision of VCAT here.
Our team at Miller Harris Lawyers has extensive experience in commercial and retail leasing in Cairns and surrounding areas.  We would be happy to assist you with all of your leasing requirements.  Please contact our office on 07 4036 9700.
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Being a member of a blended family can create some unique challenges.  There are very few families who conform to the “Brady Bunch” dynamic, where six children happily share two bedrooms and one bathroom and every problem is magically resolved within 30 minutes. With sibling rivalry, competing needs for love and attention, and conflicting emotions being […]

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One of the most important questions for buyers to ask when considering purchasing a house is – can I afford it? When purchasing a property and planning your budget, it is more than just the purchase price that you should anticipate. You should keep in mind the following costs: Transfer duty (stamp duty) If you […]

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A reminder that chapter 3 and chapter 4 of the Building Industry Fairness Act 2017 (“BIF”) commenced on 17 December 2018.  BIF now applies to all payment claims for construction work, regardless of the contract date.  BCIPA only applies to claims made before 17 December 2018. Key changes: No requirement to include the words “This […]

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We have seen a few examples recently of buyers not being aware of the truth about garden areas, balconies and the like which are exclusive use areas associated with their unit or townhouse.  Areas such as these are often overlooked in the negotiation of the sale, or worse still, the buyer assumes that they are […]

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With developments in technology, and especially cloud computing capabilities, more people are opting to use software as a service (“SaaS”) than ever before. SaaS differs from traditional software programs.  Rather than installing a program on your computer or device, the software is accessed directly via the internet, usually by means of cloud software.  As a […]

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A buyer is awarded only $500.00 for a building inspection report that missed extensive termite damage. Building and pest inspection conditions are incredibly common in property contracts these days.  When purchasing a house or unit, it is always recommended that you engage a qualified inspector to look over the property for problems.  Building and pest […]

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If you have recently gone through a separation, you might be dreading the upcoming annual “celebration of love” Valentine’s Day. If you are anything like me and you are reading this article, your mind is probably already turning to the scene from Bridget Jones’s Diary where she is in her onesie pyjamas, by herself, drinking […]

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After parents have separated, it is not uncommon for many issues in relation to their children to come into dispute.  These issues may have previously been agreed upon prior to separation.  One issue that we see often in family law is the choice of school which your child will attend.  When this issue comes into […]

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In a property market that is increasingly harder to break into, granny flat arrangements are becoming more and more popular. Such arrangements however bring with them two common issues. What is a granny flat arrangement? Whilst the traditional idea of a granny flat is a freestanding building on a property, this is not always the […]

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