Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 24 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.The COVID-19 (coronavirus) pandemic has set off a wave of unprecedented events on many areas including family law. A relationship breakdown is difficult and uncertain as it is without a global pandemic going on in the background.Whether you have separated recently during the pandemic or have previously started proceedings in the family courts, it is difficult to know where you stand and how you can effectively financially separate from your partner or resolve parenting disputes.The Family Court and Federal Circuit Court recognise the importance of continuing to provide assistance to Australian families and as such have remained open with added structural changes.The Courts currently have a restricted amount of staff working and have transferred all court appearances to being conducted over the phone. There is no need to attend the registry in person to file documents as all material to be relied upon can be filed online.At this time, the family courts remain open and are keeping cases moving along.The Court is not the only option available to settle parenting or property disputes between separated couples. There are a range of alternative dispute resolution methods that can be a quicker and cheaper option. The main two being mediation and arbitration, which are becoming increasingly popular as they can be done electronically.Mediation is very different to the court system. It requires both parties to actively engage in resolving a dispute with the assistance of a mediator. The mediator assists the parties in identifying options and negotiating an agreement between themselves.Whilst many people can be quite resistant to the idea of negotiating with the ex-partner, mediation is one of the most successful forms of dispute resolution. It is quite empowering to reach an agreement that is suitable for both yourself and your ex without a third party making those choices for you.Arbitration is a similar process to the court system. The arbitrator is generally a retired judge or an experienced barrister who, after hearing both sides of a dispute, hands down a judgment referred to as an ‘award’. Awards are binding, final and can only be overturned by the court system if there is an error of law.Arbitration gives the parties the opportunity to choose the arbitrator themselves and offers a faster solution to a dispute that is binding on the parties. This is becoming an alternative to going to Court.During the current circumstances, speaking to a family lawyer may help you to resolve your dispute sooner rather than later.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 24 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.Today’s article looks at a case that deals with the question of an inheritance received by one party from their family after they have separated but before they finalise their property settlement. Are they entitled to keep the inheritance for themselves?In the 2017 Family Law case of Calvin & McTier, the parties were married for 8 years between 2002 and 2010.In 2014, 4 years after the parties had separated, and 3 years after they divorced, the husband received a substantial inheritance from his late father’s estate. It is important to know that although the parties were divorced, they had not entered into a property settlement.The wife then applied to the Court for a division of property, including the husband’s inheritance of $431,000, which was the balance remaining.At the trial, the husband got 75% of the assets, the inheritance having been included in the asset pool, and the wife got 25%. The Court then gave the wife a 10% loading because she had a lower income than the husband. That resulted in an overall division of the assets of 65% to the husband and 35% to the wife.The husband was unhappy about the result and he appealed to the Full Court of the Family Court, saying that the inheritance should have been “quarantined”, rather than being treated as part of the asset pool. He maintained that he should have kept the whole of the $431,000.The Full Court said that it could include the inheritance in the pool of assets to be distributed between the parties and that the inheritance could be treated the same as the parties’ other assets.They confirmed that the discretion the Act gives them meant that it was up to the Court to decide how to treat property that was acquired after the relationship ended.In the end, the Full Court dismissed the Appeal, so that the husband’s inheritance was treated as part of the asset pool and the wife received an adjustment for it.Could the husband have avoided this situation?Under the Family Law Act you are required to apply for a property settlement within one year of your divorce order becoming final.Technically you cannot bring an application for property division unless you are within the 12-month period.There are provisos, however, that if the party applying can show that they did not know about the rule or they would be financially disadvantaged if they can’t apply, then leave to proceed can be granted.In this case, the wife did not apply for a division of property until 3 years after the divorce which was well and truly out of time. She was granted leave by the Court to proceed.If you settle your property matters by way of an order of the court or a binding financial agreement prior to the receipt of an inheritance, then it is basically yours to keep.The message here is that it may be a good idea to settle your property matters sooner rather than later if you would prefer to keep that lotto win or future inheritance to yourself.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 24 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.Spousal MaintenanceWhen you are the high-income earner in a relationship that is breaking down, a common question is ‘What expenses do I have to continue paying?’ and ‘Will I have enough money to continue to pay for everything?’On the other hand, if you earn much less than your former partner, you might be worried about the level of support you can expect to receive once the relationship ends.Spousal maintenance is particularly relevant in the separation process when there is a disparity between the incomes of a couple. The disparity often arises during the relationship, as a result of the different roles people adopt during their time together.A common example is when one person continues in paid employment while the other person maintains the home, looks after young children or is unable to engage in paid work for some other reason (for example, poor health).In this article, we explain what spousal maintenance is, why it exists and when you might need to think about it.What is spousal maintenance?Spousal maintenance is the financial support of a former spouse after separation. There are two things that have to be present in order for spousal maintenance to apply:a former spouse must be unable to support themselves adequately (because they are caring for children, are incapable or working or for any other adequate reason); and,the other party has the capacity (from their income or other financial resources) to financially support their former spouse.Spousal maintenance is particularly relevant in families where one party is the primary income earner (and meets the big ticket household expenses such as mortgage repayments, car repayments and health insurances) and the other party cares for young children in the home, or doesn’t earn as big an income for some other reason.There is no fixed rule, formula or scale to turn to when working out what someone’s spousal maintenance obligations might be.As each family is different, each family’s financial needs and outgoings are different, and spousal maintenance can take many different forms.The most common characterisation of spousal maintenance includes things like periodic payments of a set amount such as loans, mortgage or insurance repayments.Most people prioritise achieving financial independence from their former partner and are focused on selling the home and splitting superannuation to affect a clean financial break following the end of a relationship.These things are important, but the missing piece of the puzzle is what happens in the meantime, or what happens after you have agreed on your property settlement.It’s easy to forget that spousal maintenance is an important economic tool for ensuring that people’s exit from relationships are as financially equitable as possible.Spousal maintenance is particularly important in the early stages of separation, and while two people work out a final property settlement.The law expects that if someone leaving a relationship is unable to adequately support themselves, and the other party has the capacity to be financially supporting them, those arrangements continue in some form.Seeking legal advice can be beneficial to ensure you continue to meet your obligations after separation, and to ensure that you understand when spousal maintenance might apply in your case.If you were to just stop paying for the costs of living you had been providing during the relationship (or if you start paying less than what you had been), then your former partner could seek court orders to invoke urgent or interim spousal maintenance. Similarly, if you find yourself high and dry with limited or no income after separation, and the expenses your partner was meeting are no longer being met, then obtaining advice can help you gain clarity on what support you are entitled to.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 23 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.So you’re separating: now what?The decision to separate is never an easy one. Whether separation has been discussed previously or the announcement has come out of the blue, there are a lot of emotions involved.While many things can feel out of your control, there are practical steps you can take to ease the confusion and secure your future during the early stages of separation.Record your actual date of separationThis is an important date as there are some time limitations for applying to the court for a property settlement. Also, if you were married you are required to be separated for 12 months before you are able to apply for a divorce.Secure your bank accounts and credit cardsAs soon as possible, ideally prior to separation, ensure that you have access to money that cannot be cut off. This might include opening an account in your sole name and having any wages or payments directed to that account.After separation, consider the risks or benefits of continuing joint accounts including credit cards. If you are the primary account holder on a credit card, consider cancelling any secondary cards to avoid debt being run up in your name.For joint accounts that have significant amounts of money, or mortgages with re-draw facilities, it may be these cannot, or should not, be closed or quickly placed into a single name.If this is the case, ensure that your financial institution is aware of your situation and take steps to ensure one person can’t remove money without the other person’s signature.Understand your financial situationHave a good understanding of your financial situation. What money will you need to make sure you are able to manage your household income to cover day to day living expenses.Make copies of important documentsThis is especially important if you think there might be a dispute about property or if you have concerns that there may be attempts to ‘hide’ or dispose of income or property.It may become important at a later stage to be in a position to prove something like the existence of particular bank accounts. Having copies of all tax records and bank account statements and other documentation at the time of separation can be useful in the event of a dispute.Change passwords and consider your privacyIn some instances, the separation process can trigger a desire by one person to try to remain ‘connected’ to the other person. In rare circumstances, this can escalate to stalking, theft, and other criminal behaviours.It’s important that you change your passwords and PIN numbers for everything. This should include:All banking and other financial institutions;All social media accounts;Your email accounts & your mobile phone and computer;Change the password to something your ex-partner will not guess.Be polite and avoid confrontationWhile it might be difficult on occasion, do your best not to engage in any ‘slanging’ matches – either verbally or via text, email, Facebook or similar. Not only is it counterproductive to achieving as smooth a separation as possible, but these exchanges can sometimes turn up as evidence in later family law proceedings.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 23 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.Under the Family Law Act, you and your partner may be considered to be in a de facto relationship if you’re are not married or related and you live together on a genuine domestic basis.The fact that some couples may maintain separate residences but still have regular time staying over at each other’s houses doesn’t automatically mean that they are not in a de facto relationship.In order to establish the existence of a legal relationship you need to prove:The period or total period of the relationship was at least 2 years; or,There is a child of the relationship; or,That the person bringing the Court application made substantial contributions to the property and it would result in a serious injustice if an order was not madeSo what happens if there are no children and you break up before the 2 year period?What if you feel that you have contributed in some way to assets acquired during your time together?Do you get your money back?The test is whether or not the contributions by you were such that it would be unfair and unjust for the other party after the separation to retain all of the benefits that those contributions brought to the relationship.They may take the form of a deposit to buy a house, physical labour for improvements or the provision of services such as babysitting or gardening.The making of the contributions isn’t enough on its own to entitle you to be compensated. You must show that you will suffer a serious injustice if no court order is made.A few recent cases have dealt with this issue. In Beaumont v Schultes the 36-year-old applicant with 2 children from a prior relationship moved in with the respondent who was a single tradesman of the same age.The couple were together for 18 months during which time the respondent funded and purchased 2 residential properties and made the mortgage repayments.The applicant, who was not a qualified labourer and was not contracted to provide labour to the respondent, claimed compensation for organising renovations to both properties carried out by friends and family.Her claim for total non-financial contributions were $90,000. The court referred to the calculation as a guestimate with no solid evidence.The court found that the contributions made added only very minimal additional value to the two properties.The court also held that a failure to compensate the applicant for her claim would not result in a serious injustice to the applicant.In the case of Adesso v Payton, the couple were together for 14 months. During that time, he worked as a pilot and was the sole financial contributor to the relationship. She stayed in the residence as homemaker and mother to her child from a previous relationship.The couple were living in a heritage listed house that they planned to renovate. The house was owned by his mother.She brought a claim stating her contributions were:Maintaining the gardens and supervising a gardener;Homemaking and cooking;Project managing the renovations;Assisting with his business.The court found that the applicant made contributions but that her contributions could not be described as “substantial” in the sense of being over and above the ordinary.She and her child had received considerable financial support from the respondent, including accommodation, private school fees and holidays. In this context, her efforts could not be viewed as out of the ordinary and no serious injustice would arise.The area of law involving de facto relationships and whether they exist or not can be quite complex and often subjective.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.An application for property settlement can be made immediately following separation and it is not necessary to wait until divorce. However, once a divorce has been obtained the application for property must be made within twelve months of the date of the decree absolute (a month after the divorce hearing).If the application is not lodged within that time a person must prove to the Court that there are special circumstances which allow the application to be made late.When a marriage or de facto relationship breaks down, superannuation can be divided between the parties.For the purposes of a family law property settlement, super is considered to be property and can be transferred between spouses’ funds as part of a property settlement. One of the first steps taken in property settlements is to identify the property of both parties available for division. Naturally, this includes the parties’ current assets and liabilities, but also includes any super that they may have.As you are probably aware, you cannot usually access your super until you reach retirement age.In the context of a family law property settlement, super can be transferred between spouses as part of a property settlement, which has been formalised in a way that the Court recognises. This is referred to as a super split.However, a super split to a former spouse or de-facto partner does not mean that the party receiving the benefit of a super split will receive that transfer as immediate cash. It will simply be transferred as super into their nominated fund.The legal rights of either party to access the funds will be identical to the rights they had before the super split.In order for super to be divided between spouses, there a few requirements that need to be met. These steps put simply, are:1. You will need to obtain a valuation of the person’s super interest you intend to divide.2. You will need to document the proposed division. Super can be divided by way of an Order of the Family Law Courts (including Orders made by consent) or by way of a Superannuation Agreement. A Superannuation Agreement cannot be entered into without both parties having first received independent legal advice.3. Once the proposed Order or Agreement has been drafted, a copy of the document will need to be sent to the relevant Superfund. The Superfund can require changes to the wording to ensure that the division is able to occur, pursuant to the particular rules governing the relevant fund.4. Once the Order has been approved or made by the Court, or in the case of a Superannuation Agreement signed by the parties and their legal representatives, a copy of the Order or Agreement will then need to be served on the fund or the fund administrator so that the administrative process of a super division can occur.Division of super can be quite complex and is subject to a raft of legislative requirements. We recommend that you seek legal advice before making any decisions regarding division of superannuation and property settlement generally.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.When is a sperm donor a parent?The high court has ruled that a man who donated his sperm to a good friend is legally the father of the child that was subsequently conceived. As such, he was successful in obtaining an order from the court preventing the mother and her wife from moving with the child permanently to New Zealand to live.The father and mother had been friends for 25 years. The father privately donated his sperm to the mother on the understanding between them that he would be involved in the child’s life.The child was conceived in 2006 and the father maintained a constant relationship with her. He shared in her care from birth and continued that involvement. That included changing her nappies, attending school events and taking her to school activities.He also treated his daughter’s younger sister as his own even though he was not the biological father.They both referred to him as ‘Daddy’.He also provided financial support and was named as the girl’s father on the birth certificate.Issues arose when the mother and her wife attempted to take the children, then aged 10 & 9, to live in New Zealand, where the couple married in 2015.The father sought to prevent the relocation.The original decision of the court was in favour of the father; however, this was reversed in favour of the mother on appeal to the Full Court of the Family Court.The mother relied upon NSW Law that provides that a sperm donor is presumed not to be a father unless married or in a de facto relationship with the child’s mother at the time of conception.The Full Court held that the state law applied because the federal laws did not specifically state anything to the contrary.The father appealed to the High Court.The mother and her partner argued that the father was not a parent but simply a sperm donor.The fathers lawyer argued that the question of who is a parent, should be determined by the circumstances of each case.The important issue was not only who provided the genetic material but whether the father had actively and positively participated in the child’s upbringing.They argued that he was not simply a sperm donor but the father.The majority of the high court agreed and concluded that the father was a parent of the child.The court said that “the term ‘sperm donor’ suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an understanding that he is thereafter to have nothing to do with any child born.”This was not the case here.

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.Best interests of the childrenWhen a Family Law Court is asked to make Orders about parenting arrangements, it must consider the best interests of the child as the paramount consideration.The fact that a teenage child is expressing a view of their own that they wish to live with mum and not dad or vice versa, does not on its own create any legal obligation on the Court.There is nothing in the Family Law Act that says that children of any age can “make up their own mind” about what is in their best interests.What is in a child’s “Best Interests”? The main considerations for a Court are:The benefit to the child of having a meaningful relationship with both parents; andThe need to protect the child from harm (physical or psychological) by being exposed or subjected to abuse, neglect or family violence.The protection of children from harm is the most important consideration for a Family Law Court.If a child is mature enough to have a view about the proposed arrangements, the Court can take those views on board. This does not mean that your child will be called to the Court as a witness in proceedings or even be present at Court during the proceedings.The Court will often obtain evidence of the child’s views through a Family Report. This is prepared after the parties meet with a social worker or psychologist who provides a report following the interviews to the Court. They can speak with the children as well as the parents and will give a professional opinion as to what living arrangements they think are in the best interests of the children.If appropriate, the psychologist or social worker can inform the Court of the child’s opinions about the arrangements.Grandparents The role of a grandparent is a special one.It is understandable why grandparents become devasted when, often due to circumstances completely beyond their control, they are denied meaningful access to their beloved grandkids.This can happen when there is a breakdown in the relationship with their son or daughter-in-law or even with their own child. This break down often coincides or follows a marriage or relationship break-up, involving the child parents.A child’s extended family and particularly grandparents can be a very important part of a child’s life and can play an important role in their upbringing.A grandparent does not have an automatic legal right to see their grandchild.However, a child legally has the right to maintain a relationship and regular communication with those that are considered important to their welfare care and development, including their grandparents.So, whilst you do not have an automatic right to maintain contact, your grandchild has a right to continue to spend time with you. If the child’s parents are acting in a way that denies the child’s rights, you as a grandparent can take action.By law you are entitled to make an application to the court for a parenting order for access and regular contact.