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Do Grandparents Have Legal Rights to See Grandchildren?

By | Family Law

The bond that most grandparents have with their grandchildren is special and unique, so their desire to intervene is understandable when there are complications in family dynamics that put their grandchildren’s welfare at risk.  This can result in their grandchildren being prohibited by the parents from spending time with their grandparent. But that begs a question. Do grandparents have legal rights to see their grandchildren? The answer is, “it depends”.

Relevant provisions in the Family Law Act

Legally, a grandparent is defined as the parent of a child’s mother or father. This means that most children have four biological grandparents. However, children who are adopted or those with step-parents may also have “non-biological” grandparents.

In any case, the importance of the relationship between grandparents and grandchildren is affirmed in the Family Law Act -a piece of Australian legislation that defines and protects children’s rights.

The law acknowledges the significance of this relationship by:

  • recognising that children “have a right to maintain regular communication” with certain people; and
  • including grandparents in that category.

Even so, the Family Law Act does not include any provisions that give grandparents automatic rights to see their grandchildren. Instead, it allows them to ask the court for permission to spend time with their grandchildren when the child’s parent(s) refuse to let them do so. The Family Law Act also allows grandparents to seek custody of their grandchildren in certain circumstances.

Specifically, grandparents can seek temporary or permanent custody of their grandchildren when:

  • addiction or alcoholism prevents one or both parents from looking after the children properly;
  • mental or physical illness prevents one or both parents from providing adequate care;
  • the children have been abused (sexually or physically);
  • there is evidence of domestic violence;
  • other significant factors are in play.

The best interests of the child

As the Court’s main concern is ensuring that no harm comes to children, any decision the court makes in this regard is based on “the best interests of the child”.  In this context it will generally assess:

  • the type of relationship of the child with a grandparent (or other relative of the child);
  • how the child may react to any changes in his or her situation, including his or her potential reaction to any separation from a grandparent (or other relative) with whom he or she has been living;
  • the grandparent(s) ability to meet the child’s needs.

Depending on the situation, the court may also take other factors into account. It will even consider the child’s wishes, depending on his or her age and maturity.

Other options for resolution

You should be aware, that going to court is not the only way to seek permission to spend time with your grandchildren. If anything, it is viewed as a last resort.

This is because Australian law encourages families to try to reach consensus on key issues through informal negotiations and mediation before seeking court intervention.

Mediation is a structured process in which a specially trained person, called a mediator, facilitates the conversation and helps the participants come to a mutual agreement. The type of mediation used as a tool for the resolution of parenting matters is also known as Family Dispute Resolution or FDR.

However, there are some circumstances in which FDR is not required. For example, FDR is not applicable when there is evidence that the child is at risk of harm and the matter is urgent.

How to make informal agreements enforceable

Depending on the family dynamics and other factors, grandparents and parents may sometimes reach informal agreements regarding the care of the children. This type of agreement may specify where the children live and how long they can live there. For example, a single parent being treated for addiction may agree to let the children stay with their grandparents until she finishes rehab.

Unlike agreements reached through mediation or FDR, however, these informal agreements are not legally binding or enforceable. The only way they can be enforced is if the terms are specified in a court-approved document called a parenting order by consent.

Assumption of parental responsibility

When the court awards permanent or temporary custody of a child to his or her grandparents, it may also allow the grandparents to assume parental responsibility for the child. This means the grandparents are legally authorised to make certain decisions regarding the child’s wellbeing without having to obtain the parents’ consent.

This includes decisions for their grandchild such as:

  • education;
  • medical care;
  • religion

Additional information

Grandparents with the permanent care of their grandchildren may qualify for financial assistance, such as:

  • Grandparent Child Care Benefits;
  • Family Tax Benefits;
  • Double Orphan Pension;
  • Child Support.

For grandparents caring for grandchildren with special needs, Centrelink may also provide:

  • Carer Payments;
  • Carer Supplements;
  • Carer Allowance;
  • Child Disability Assistance Payments;
  • Carer Adjustment Payments.

If you’ve been denied access to your grandchildren or you are concerned about their wellbeing, and you’re interested in seeking time with your grandchildren, it is important that you get the proper legal advice. To learn how we can help, contact us today.

What is ‘Parental Responsibility’?

By | Family Law

Parental responsibility refers to the entirety of the duties, powers, responsibilities, and authority with which parents, by law, have in regards to their children. While seemingly straightforward at the outset, parental responsibilities become more complicated when forcibly divided by courts during divorce or separation proceedings. Whereas it’s generally preferable that parental responsibility is shared and close to equal, the court will determine parental responsibility on a case by case basis in accordance with what is in the best interests of the child in cases of divorce or separation.

What is included in parental responsibility?

All decisions surrounding child care are included in parental responsibility, ranging from mundane day-to-day decisions to longer term ones. The clothes the child wears, the food the child eats, the activities the child participates in, the school the child attends, the religion the child practices… all are included in the large umbrella of parental responsibility. Other responsibilities of the parents include the ability to:

  • represent their child in any legal proceedings on their behalf;
  • consent to the adoption of the child;
  • discipline;
  • upbringing, religious practices, and education;
  • child maintenance and caregiving (necessities);
  • ensuring school attendance.

Equal shared parental responsibility

There is a general presumption that equal shared parental responsibility is the preference of the court absent some exception. This determination means that parents will need to cooperate in order to make long-term decisions regarding their child’s care, upbringing, and future. However, the short-term decisions (the day-to-day ones) will become the sole responsibility of the parent who is caring for the child. Equal shared parental responsibility does not necessarily mean or will not guarantee that the child will spend equal time with each parent.

An exception where the court will not make an order for equal shared parental responsibility is if there is violence involved and/or any risk of harm to the child.  In these circumstances, sole parental responsibility may be ordered for one of the carers (who does not pose any risk) of the children to the exclusion of the other carer.

Arrangements between care-givers

Whether you are a parent or other adult responsible for the care of the children, arrangements will need to be made for the children in question as to the amount of time the children spend with each parent/guardian. There are different ways to make these arrangements (whether oral or in writing) including:

  • an informal agreement;
  • by way of a signed parenting plan; or
  • Formal orders of the Family and Federal Circuit Court.

In the event that the parents or guardians of the children cannot agree on the proper course of action to care for the child, or cannot communicate in an effective way, either party can request that a court make a ruling that determines the parenting and arrangements for the children.

Child protection orders

If a minor child (under the age of 18) leaves home, the child may be required to return either by their parents or by the court. If a parent or guardian makes a complaint that a minor child has left the home, the police and Child Services may investigate. If it is then determined that the child is in need of protection, the police or an authorised Child Safety Services officer may apply for a child protection order for the child in question. If the minor child is able to support themselves, secure adequate housing, is not breaking the law (or likely to break the law), and is not posing a threat to themselves or anyone else, the child protection order may be dismissed.

Ipswich Lawyers

How to Sue for Emotional Stress in Queensland

By | Compensation Law

Some injuries are invisible to the naked eye, but can be just as devastating as physical impairment. Emotional, mental, and psychological trauma may play a key role in a person’s quality of life. Sometimes, psychological injuries can go hand-in-hand with physical injuries, making it harder to heal and becoming a critical issue in many personal injury claims. However, sometimes there is psychological damage without a physical injury, which can add to the complexity of filing a claim for compensation. If you or a loved one is experiencing difficulties of this nature, it is important to seek help from both medical and legal professionals in order to receive the care and compensation that you need and deserve.

Can I Receive Compensation for Psychological Injury Alone?

Occasionally, a situation will arise where an individual will be suffering from emotional trauma absent any accompanying physical injury. In most cases, the person suffering will be able to receive compensation.

Examples of Psychological Injury

Bullying in the workplace is a common cause of these types of injury and usually is due to the failure of management to take reasonable action. In such cases, an employer is required to investigate the circumstances and instigate disciplinary action, even if the employer comes to an incorrect conclusion.

When investigating the employee’s circumstances, an employer must conduct itself in a reasonable manner so as to respect and protect their employees. For instance, an employer will likely be held accountable for conducting disciplinary action over the phone with no notice and with no opportunity for the employee to respond if such behavior results in psychological injury.

‘Nervous shock’ is another type of pure psychological injury that can be caused by witnessing a tragic event or serious accident that causes a fatal injury. Nervous shock may also occur when a family member of a fatal accident victim hears about the accident and has to deal with the aftermath of the death, for instance identifying the body or attending to them in an intensive care ward.

Symptoms of Psychological Injury

Psychological injury can manifest in a broad range of symptoms, including mental, emotional and even physical ones. Diagnosis and treatment of such injuries is not a straightforward process. It can often take a long time to identify a treatment plan that works for the particular circumstances of the injured party. Conditions such as anxiety, depression, adjustment disorder, panic disorder, and post-traumatic stress disorder can cause an unpredictable number of symptoms including, but not limited to: mood swings, insomnia, irritability, dissociation, difficulty concentrating, difficulty eating, fatigue, chronic anxiety and fear, withdrawal, dissociation, periods of mania, confusion, and more.

Proving Psychological Injury

When fling a compensation claim for psychological injury, not only will you need to prove that there was a duty of care owed, that the duty was breached and that the breach caused your injury, but you will need to demonstrate that you have suffered damage in some way. This can include past and future expenses, lost wages, and even future economic losses. You can show damage through proof of negligence and proof of medical treatment. By seeking medical treatment, you can establish both the existence of your injury, and the cost of the injury.

Compensation Potential

The amount of compensation you can receive for psychological injury has the potential to be very large, but will depend on both the severity of the injury and the duration of the injury. Unsurprisingly, the worse the effects of the condition and the longer-lasting the condition, the more compensation you will be entitled to receive.

In short, psychological injuries are extremely serious and you may be entitled to receive compensation for your condition. If you or a loved one have experienced trauma at work, it is vital that you immediately seek both medical and legal advice.

Can Your Ex-De Facto Inherit Under Your Will?

By | Family Law, Wills and Estates

No two people who embark on a relationship together hope that it will fail. Both partners take steps to progress their relationship: moving in together, splitting bills, combining finances, and perhaps even writing wills together. At the time they are written, these wills reflect the trust you have in your partner and the desire to provide for them in the event of your death. Sadly, de facto relationships break down just as often as marriages. In the aftermath of a split, disentangling two lives is both complicated and stressful, and these factors can lead to oversight. What happens if you forget to change the contents of your will and then pass away?

What is a de facto relationship?

According to the Family Law Act of 1975, a de facto relationship involves two parties of the same or opposite gender living together on a genuine domestic basis.  A de facto relationship will be deemed to have arisen after a period of living together for two years or if there is a child of the relationship.  The Court may also deem a relationship as de facto earlier than two years if a party has made substantial contributions to the relationship and there would be serious injustice in the relationship is not recognized

For the purposes of the Succession Act 1981 (Qld) there is a further requirement that the two parties lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years at the time when one of the parties passes away.

Can your ex-de facto partner inherit from you?

Consider the situation in which your de facto relationship ended, you passed away, your will was never changed and now your ex is seeking to inherit his or her share, much to the displeasure of your family and friends. What happens now? Well, after June 5, 2017, in Queensland de facto relationships are now treated in the same manner as marriages. This means that upon dissolution of the relationship, a de facto spouse’s appointment as executor of the will shall be automatically revoked, along with any gift left to them under the will.

Differences to ending a marriage

As mentioned above, de facto relationships are meant to be treated the same way as marriages. In the same way that divorce revokes appointments and benefits left to the ex-spouse in the will, so too will the dissolution of a de facto relationship.

However, what most people might not realize is that revocation of dispositions and appointments to an ex-spouse in a will after marriage only occurs when a divorce order of the Family Court has been issued. Many assume that it happens as soon as the married couple begins the year of separation required for a divorce in Australia, but this is not the case. Though merely ending a de facto relationship will revoke these will provisions, the end of cohabitation between married couples will not because a formal divorce is required.

What if I want them to inherit?

Some people are able to maintain healthy and happy relationships with their ex-partners. If you are one of these people, you may want to keep will provisions that appoint your former partner the executor of your estate or bestow gifts on them. To prevent automatic revocation, you must include a specific contrary intention within the will.

Keeping wills up-to-date

What if your ex de-facto is claiming that the relationship hasn’t ended when you pass away?  While a divorce order in a marriage is conclusive evidence of the dissolution of the relationship, there is no such document for de facto relationships.  In the event of a relationship breakdown it is important to update your will to reflect the change in your circumstances.  Outdated wills can cause unwanted costs, delay and distress to the administration of your estate.

Unfortunately, many people spend so much time in bitter property settlements and acrimonious family law proceedings that they forget all about updating their wills. In fact, a shocking number of Australians do not have updated wills, with studies showing that around 45% are living without a valid will. Most legal professionals suggest that you revisit your will (and other estate planning documents) every three to five years, or after a significant life event (such as the breakdown of a relationship) to ensure it is up-to-date and reflects your truest intentions.

Conclusion

Wills are complicated formal documents that must conform to strict legal requirements. As such, it is not advisable to prepare one on your own. Because of their complicated nature and the pain surrounding such topics, many leave estate planning until it is too late. If you or a loved one have any questions regarding de facto relationships, the validity of will provisions, or revising a current will, seek legal advice as soon as possible.

Remembrance Day is this Sunday 11th November 2018

By | General Information

Remembrance Day is this Sunday 11th November 2018.

This Sunday marks the 100th anniversary of the Armistice which ended the First World War (1914–18).

McNamara and Associates.  Please find below service times for Remembrance Day within our local community.

  • Ipswich:  Memorial Hall, 63 Nicholas Street, Ipswich @ 10.30 am
  • North Ipswich:  The Workshops Rail Museum, North Street, North Ipswich @ 10.30 am
  • Redbank Plains:  Seasons Care Home, 15 Argyle Street, Redbank Plains @ 10.45 am
  • Redbank:  Redbank Memorial Reserve, Bridge Street, Redbank @ 10.30 am
  • Goodna:  Soldiers Memorial Stone, Corner of Queen and Church Streets, Goodna @ 10.40 am
  • Springfield:  Springfield Light Tower, Robelle Domain Parklands @ 10.45 – 11.15 am
  • Boonah:  Memorial Park, Corner of Park and Bell Street, Boonah @ 10.50 am
  • Beaudesert:  Jubilee Park, Brisbane and Albert Streets, Beaudesert @ 10.40 am
  • Peak Crossing:  Peak Mountain View Park (Opposite Peak Crossing State School) @ 10.30 am
  • Kalbar:  Engelsburg Park, 25 Edward Street, Kalbar @ 10.45 am
  • Laidley: Cenotaph Memorial, Whites Road and Patrick Street, Laidley @ 10.45 am
  • Gatton:  Weeping Mothers Memorial, Littleton Park @ 10.35 am

Myths About Family Law Property Settlements

By | Family Law

Myths About Family Law Property Settlements

According to the Australian Bureau of Statistics, a whopping 46,600 divorces were granted in Australia in 2016. In addition to the serious emotional toll of divorce, there are seemingly endless logistical concerns as well, including asset division, childcare and property settlements. Unfortunately, because of how common divorce is there is a lot of false information around about its consequences. Below, we do our best to debunk some of the more persistent myths surrounding property law settlements.

Property Division and Divorce

Though often a direct result of divorce, there is no requirement that your divorce needs to be final before negotiating your property settlement. In Australia, you need to be separated for at least one year before qualifying for a divorce application. However, property division can begin as soon as you separate and must be finalised within one year of the date of your divorce.

Previously Owned Property

In the event of divorce or the dissolution of a de facto relationship, a four step process is used to determine how assets should be divided, based on how a court might order it to be done. Property that was brought into the relationship without any contribution from the partner, will not necessarily remain the property of the original owner when a relationship ends.

  1. Asset identification: First, you must take inventory of all the assets and liabilities in the relationship. This may include property owned individually or jointly (both with each other and with third parties).
  2. Contributions: When dividing assets, the Court will look at the contributions made by each party in the relationship. This includes economic contributions (such as income), non-economic contributions (such as homemaking and childcare), and external contributions (such as inheritance or gifts).
  3. Assessment of future needs: Courts will also consider whether one party may have greater needs than the other moving forward by factoring in earning capacity, age, health, childcare needs, and more.
  4. Justice and Equity: Overall, the Court will come to an arrangement that is just and equitable in light of all of the attendant circumstances. In non-legal terms the settlement should suit the needs of both parties and be practical.

In general, the Court is free to use its discretion when determining the divisions of assets, and parties will likely negotiate along these same lines.

Equal Division of Property

A related myth of property settlement is that the division of assets will be a 50-50 split between partners. However, there is no policy which requires an equal split. Just as every relationship is unique, every dissolution will be unique, too. The percentage amount that each partner will receive is based on a variety of factors including (but not necessarily limited to): the length of the relationship, contributions made to the marriage, current and future needs, earning capacity, childcare, and more. Generally, the longer that the relationship has lasted, the more even the marital contributions will be. In longer relationships the Court has strong consideration of the needs of the parties after separation.

Asset Exclusion

Assets that were held by a company or a trust will not necessarily be excluded from a property settlement. When property is held by a company or trust, the Court will look at who is in control of the company or trust. If one of the parties have some control over the company or trust then the Court will be able to consider it either an asset of the marriage, or at least attribute it to one of the parties when determining worth.

Pre-Nuptial Agreements and Binding Financial Agreements

Prenuptial Agreements (“pre-nups”): Though popularly thought of as an American invention beloved of celebrities, prenuptials are in fact less sensational than movies and newspapers would have you believe. In fact, they are a useful way to establish a property distribution plan and protect assets from being included as marital property. Is there an Australian counterpart? Yes…

Binding Financial Agreements (BFAs): Binding financial agreements are legal documents that act as protection for those entering into new relationships. Having a BFA means that, if in the unfortunate event that the marriage breaks down, they have a plan for how they want to divvy up their property. This can reduce the cost and stress of property settlement, and perhaps reduce the negative feelings that go hand-in-hand with negotiating who gets what and how much.

Are Overseas Assets Included in Australian Property Settlements?

By | Family Law

To borrow a line from an old Disney favourite, “It’s a small, small world”, and in the 21st century that sentiment is more accurate than ever. The Internet provides global news and information 24/7. Social media makes it easier for friends and families separated by thousands of miles to keep in touch. It also increasingly facilitates relationships between strangers from different countries.

But what happens when a marriage between an Australian and someone from another country ends in separation or divorce? Or more accurately, what happens to the foreign assets?

For starters, let’s see how the Full Court of the Family Court of Australia has ruled on this issue. In a recent case, Anderson & McIntosh (2013) FLC 93-568, the people involved were married in Australia in 1988, but had lived abroad (in country X) since 2006. They were still living in country X when they were legally separated in 2009. They also got divorced in country X in 2010. Afterwards, they obtained property settlement orders pertaining to their assets in country X. However, they didn’t receive any such orders for their Australian property.

In this matter, a ruling on an application for property orders under the Family Law Act 1975 established that whenever anyone going through separation or divorce has property in more than one country, they must seek and obtain property orders in each place (country) where they have assets/belongings. In other words, if you have property here and elsewhere, you must seek separate property orders based on the laws of each country. This is because foreign countries don’t necessarily recognise orders issued by Australian courts.

Further Considerations

In relation to international divorce or property orders overseas, here are some other things to keep in mind:

  • If you were married here but are living overseas, you are legally classified as an expatriate of Australia. This means that you are allowed to file an international divorce in both countries.
  • If you got married here, but are separating or considering an international divorce in another country, it may be better to get divorced in Australia rather than in a foreign country. The key standard that must be met to obtain a divorce in Australia is that you have been separated for no less than 12 months.
  • In the event that one of you kept your Australian residence, lived here at any time within the 12-month period, or considered Australia as your home with the intent to live here most of the time, the divorce and property settlement could fall within the purview of the Australian Family Courts.
  • In Australia, there is a 12-month deadline for making an application for property settlement with the Family Courts after the date of divorce. Because this deadline may be different in other countries, you should seek legal advice about your options as soon as possible.

Furthermore, it doesn’t matter where you have property overseas. In accordance with Australian law, you must make your former partner aware of the holding/s during the property settlement process. This is called disclosure and failure to share the required information can have serious consequences. For instance, if the Australian Family Courts have the authority over the settlement process, it may force them to scrap a final property order and start from scratch. Conversely, disclosing the information as required by law will help the Australian Family Courts issue a final order that is fair to everyone involved.

The Need For Expert Advice

On a related note, there are several circumstances in which it may be necessary to seek advice from qualified financial and legal professionals. For example, you may want to get an independent assessment if you and your ex-spouse disagree on the worth of a foreign asset. If you have significant assets in a foreign country, you should also consult accountants or tax advisers about the potential foreign and domestic ramifications stemming from a property settlement. Finally, you may need to enlist the help of relevant professionals in the foreign country to ensure that Australian court orders can be executed.

Even in a best-case scenario, divorce and separation are acknowledged as two of the most stressful life experiences one can go through. And although divorce and separation in Australia is fairly straightforward, any emotional upheaval during this time puts you at risk of making costly and unpleasant mistakes. As we have noted, even the unintentional failure to share information about a foreign asset can result in the denial of a settlement or invalidation of a final order, forcing you to go through the entire property settlement process again.

On the other hand, the best way to avoid unnecessary complications is to get the proper legal advice as soon as possible. If you are considering divorce or separation and you have any sort of property overseas, phone us to schedule a consultation today.

Drug Testing in Family Law Matters

By | Family Law

Divorce, separation, and the breakdown of the family relationship is one of the hardest and most challenging things many Australians will face in life. But as difficult and emotionally draining as this experience can be on its own, when combined with the pain caused by addiction, it can feel impossible to reach a place where you and your family feel safe. The prevalence of drug use in today’s society means it has become increasingly common for allegations of drug abuse to be raised in Family Court proceedings. If you or a loved one has questions about how drug use may affect their family law matters, contact a lawyer as soon as possible for the most accurate legal advice possible.

In the Child’s Best Interests   

The primary concern in a family law matter is the wellbeing of any children involved in the proceeding. While a parent who is struggling with drugs is fully capable of loving their child, there is the question of whether they are able to provide adequate care. When there is an allegation of drug abuse or dependence, therefore, it is a highly relevant matter in ultimately deciding the living arrangements and childcare agreements.

When Will a Drug Test Be Ordered?

If there is reason to believe a parent is using drugs or there is some risk to the child involved, a Notice of Risk will be filed with the Family Court within the initial application. The Notice of Risk will also be sent to the relevant child protection agency in your state for it to develop a report regarding the family’s situation. Because of the Court’s responsibility to protect the children from the potential harm caused by a drug-using parent, they will allow tests to be ordered.

How Does the Court Administer Drug Tests?

Independent Children’s Lawyer: In the event that the child(ren) in question has had an Independent Children’s Lawyer (ICL) assigned to their case, it is the responsibility of this ICL to request random drug testing. The requests generally need to be made in writing and require that the party to be tested complies within 24 hours of receiving the request. After undergoing the test, the results need to be provided to all parties involved. Random drug testing will continue for as long as the Court deems necessary to ensure the safety of the children.        

Direct Requests: When no ICL has been appointed in the case, the involved parties can request drug tests against one another. In a scenario where requests are being made by the parties themselves and are not at the request of an ICL, the Court will place limits on how many drug tests will be allowed.

Refusal to Take the Test

If a party who has received a drug test request refuses to take one, the Court will infer a positive result. If a party has a legitimate reason as to why they couldn’t take a drug test, however, the Court may be more lenient but the party will have to provide sufficient documentary evidence to support their inability to take the test.

Type of Drug Testing

Urine: Urinalysis is the most common type of testing ordered by the Court due to its efficiency and cost effectiveness. Testing urine is non-invasive and the test results are returned quickly. But urinalysis only really tests whether a person has recently used drugs and doesn’t indicate any evidence about drug use over a period of time.

Hair: Unlike urinalysis, testing hair does provide a longer view of a person’s drug use habits. Despite the higher costs associated with testing hair follicles, Family Court has begun moving towards hair analysis to better assess drug use over a period of time. In circumstances where hair will be tested, the Court may limit the party’s ability to cut and/or dye their hair, as it may affect the integrity and accuracy of the test.

Blood: Blood testing is generally used when the abuse in question is that of alcohol rather than drugs.

Costs of Drug Testing

Generally, the costs of the drug tests will be paid by the party who is required to undergo the testing, but occasionally the costs will be distributed differently according to the unique circumstances of the case in question.

If you have questions, concerns, or are in need of support in the face of a family matter which involves allegations of drug abuse, please do not hesitate to contact a professional lawyer to represent your best interests and those of your family.

Legal Costs

Who Pays the Family Law Legal Costs?

By | Family Law, General Information

Your ex has threatened to take you to Court and go after you for legal costs? Or you are in the unfortunate position of having to take your recalcitrant spouse to Court to have progress? Who pays the legal costs?

The general rule in the family law courts is that each party pays their own legal costs.

However, there are exceptions and circumstances that fall outside the general rule where one party may be required to pay part or all of the other’s costs.

Section 117 of the Family Law Act 1975 deals with legal costs in family law matters.

The section starts by saying that each party bears their own costs, but also says the Court may make Orders as to legal costs as the Court considers just.

Subsection 117(2A) then lists the factors the Court should consider in deciding whether to make an Order on costs, summarised as follows:-

  1. The financial situation of the parties;
  2. Whether either party is receiving Legal Aid funding;
  3. the conduct of the parties to the Court proceedings including, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters (have they followed Court rules and procedures);
  4. whether parties have complied with Court Orders;
  5. whether either party was wholly unsuccessful in the Court proceedings;
  6. any offers made by the parties and the terms of any offer;
  7. such other matters the Court considers relevant.
They breached an Order

Where there has been non-compliance with previous Court Orders a claim that one party pay the other parties’ legal costs would usually get the Court’s initial attention, however the assessment of whether a costs Order is made depends on weighing up all the above listed factors.

Send them a letter before applying to the Court

If the need for applying to the Court has arisen by the failure of one party to engage in any negotiations, exchange of documents, or unreasonable delay this would assist to seek costs.

The fact that the Court considers the conduct of the parties and any offers made gives good reason to attempt negotiation with the other party prior to resorting to Court proceedings.

It is imperative that prior to any application to a Court the parties’ and their lawyers should engage in correspondence to attempt resolution without needing to apply to the Court.

If you make a reasonable or favourable offer that is not accepted by the other party, and the Court considers the other party’s position to have been unreasonable, there may be an argument that they should pay some or all of your costs.

The straw that got the costs Order made

The consideration of whether to make a costs Order is a matter of discretion by the Court. This means the Court weighs up all the competing factors and can decide differently for each case. For this reason, if a party simply made an offer that was not accepted then that alone may not be enough to result in a costs Order. However, if a party in a letter makes a very favourable offer, the other party has breached a Court Order, and the other party’s position at Court appears unreasonable, then the combination of factors might mean a costs Order is made.

Because the Court may consider a costs Order if parties do not follow the Court rules and procedures correctly, it is recommended that legal advice be sought throughout the course of your Court proceedings to avoid failure to comply with Court rules developing into a situation where the other party seeks legal costs. It is worth noting however that the Court will usually give unrepresented parties some forewarning when it comes to non-compliance with rules prior to making a costs Order against them.

What about the children

The consideration of the relative financial positions of the parties is an important consideration, particularly in parenting matters. If the Court is satisfied that making a legal costs Order against a parent would have a negative financial effect on a child’s household the Court in those cases will usually not make a costs Order.

Documentation

Whether you are seeking a costs Order or attempting to dodge one, it is important that all relevant information be set out in an Affidavit and filed at Court. Any information relevant to the seven (7) considerations in section 117(2A) should be included. A detailed breakdown of your income, expenses, assets, and liabilities should be provided. Copies of letters or offers exchanged by the parties should be attached.

All or some costs?

A Court can make an Order to pay legal costs on a Court Scale or the actual amount of the other party’s legal costs.

Court Scale costs are usually much less than actual legal costs, and the Court may fix costs at 100% of the Court scale or any lesser amount the Court decides as just.

The actual legal fees of the other party are sometimes called “Indemnity costs” or “solicitor and client costs”. The Court will usually only grant payment of the actual legal fees of another party in the most deserving of circumstances and the Court will need to be satisfied that the legal fees are reasonable and not excessive.

The assessment of whether there is a chance of a legal costs Order being made is something that should be done by an experienced family lawyer.

This brief article is intended to give a basic knowledge of the rules surrounding legal costs Orders in the family Courts.

Our family lawyers Ipswich at McNamara & Associates would be happy to discuss this and any other aspect of your family law matter. Please do not hesitate to contact our office to arrange your first initial consultation free of charge.

Rickuss-and-Gimara-Visit

Rickuss and Gimara Visit

By | General Information

On Friday, our Gatton office had the pleasure of hosting the Member for Lockyer, the Honourable Ian Rickuss, and the President of the Uganda Law Society, Mr Francis Gimara, on their tour of the local Magistrates Court and law firms.

It was very interesting to learn from Mr Gimara that Uganda use the Torrens Title system, which is used here in Australia.

Thank you again to Mr Rickuss and Mr Gimara for their visit and we wish Mr Gimara well on his visit here to Australia.

88 Limestone St

Have You Heard the News? McNamara & Associates has Moved and so Have Your Securities.

By | General Information

If you have documents held with our firm in safe custody we take this opportunity to let you know that those documents have now been carefully transferred to our safe at 88 Limestone Street in Ipswich.

A few months ago McNamara & Associates’ North Ipswich and Wharf Street offices relocated to one central location at the historic and beautifully restored former TAFE building on 88 Limestone Street.

If you haven’t been to visit us at our new office, we look forward to seeing you there soon. The building retains its period features with a modern twist. We are very happy in our new home which provides spacious conference rooms to meet with our valued clients.

We are currently in the process of notifying clients by email and post of where their documents are now being stored. Please be patient with us as we go through thousands of security packets and contact individual clients. The process is going to take some time but we are working hard to notify all clients as soon as possible.

We encourage any clients that have documents stored with us who have changed contact details to get in touch with our office to update their address, phone and email contact to enable us to keep all of our records current and ensure that we can get in touch with people when necessary.

This is also a good opportunity for clients to contact us if they wish to update or review their Wills & Powers of Attorney and make sure the documents are still appropriate for their circumstances.

Please phone us on 13 58 28 any time between 8.30am – 5.00pm Monday to Friday to speak with one of our helpful staff members.

Post-Separation Binding Financial Agreements

Post-Separation Binding Financial Agreements

By | Family Law

A good family lawyer’s knowledge and experience is in some ways similar to that of a tradies toolbox.  There are array of tools available to a family lawyer that may do the job, but there is likely to be a tool best suited to achieve the desired outcome.

Binding Financial Agreements certainly fit into this category.  As a tool to settle post separation property, it can be the best available tool in some situations, but in many situations Consent Orders tend to be a much better option.

There are a number of reasons for this.  Consent Orders are Court sanctioned orders.  They have been sealed by the Court and are difficult to challenge.  The process of drafting and filing Consent Orders is relatively straight forward, not overly time-consuming in most cases, and relatively risk free to clients and lawyers.

Binding Financial Agreements on the other hand are agreements made under the Family Law Act, and require strict compliance with the Act’s requirements to be binding.  If the agreement is not drafted properly, or does not comply with requirements, it will not be binding.

Some legal practices will suggest a Financial Agreement as being a less expensive and more time effective way of resolving property settlement.

Financial agreements require both parties to have a solicitor to explain, and in writing, give them advice on the terms of the Financial Agreement. Full and frank disclosure of relevant documents should also be exchanged to maximise the chances of the Financial Agreement being binding.

Although it may seem like a quick and cost effective solution, a well drafted, well considered Binding Financial Agreement accompanied by the level of advice required under the Family Law Act can be time consuming and costly.  It also comes with a risk that the agreement may be challenged in the future and found not to be binding.

A fundamental difference between a Financial Agreement and Court Consent Orders is that once Orders are made be the Court they are final and binding. For a financial agreement, if a party wishes to rely on the Agreement at a later date, they must first satisfy the Court that the agreement is actually binding.

An example might be: The parties separated in 2015 and completed a Financial Agreement for property settlement. The Financial Agreement is then held by the parties and their lawyers. In 2019 one of the parties becomes dissatisfied and seeks property settlement different to the Financial Agreement. The party that wishes to rely on the Financial Agreement must then prove to the Court that the 2015 Agreement was actually binding. So it is not until 4 or more years after the agreement has been signed that a Court will determine whether the agreement is binding or not.

So when is a Binding Financial Agreement the best post separation option?  It is entirely dependent on your particular circumstances.  A Binding Financial Agreement may be the only available option where a limitation date has expired either 12 months after the date of divorce or two years after the end of a de facto relationship.  In these situations, a Binding Financial Agreement comes with the advantage of providing a stamp duty exemption on property transfers dealt with the in the agreement.

Other circumstances where a Binding Financial Agreement may be the better post-separation option can include more complex property settlements involving business interests, or for making binding spousal maintenance arrangements.

The best way to determine whether a Binding Financial Agreement or Consent Orders are the best property settlement option in your circumstances is to seek legal advice from an experienced family lawyer before embarking on this journey.  McNamara & Associates provide a free initial family consultation to discuss your options and advise you of the most suitable way forward for you.

Rafter and Rose

Rafter and Rose

By | General Information

Walking into this beautiful laneway café in Ellenborough Street is like entering a secret garden. Rafter and Rose is as much about the antique shabby chic furniture, lime washed brick walls and rustically quaint garden as it is about the coffee and food. The atmosphere is as enjoyable as the food.

I have eaten here many times, as have most locals. It is a favourite weekend breakfast haunt, and the pet-friendly policy adds to the comfortable atmosphere. The café is a labour of love and combines the talents of Ellie, her aunt Candy (aka the Queen of cakes), and her mother, Lisa.

So, how would I describe the food? Good, honest, homegrown and homemade, with a twist. There is a simple respect for quality ingredients that resonates in each bite. The meals are filling and delicious. The food is grown with care, made with love, and served with a smile.

Double ChocMy real difficulty with Rafter and Rose is that I am always coming away from lunch wishing I had left room for dessert. If you love sweets as I do, I recommend a dedicated morning or afternoon tea at Rafter and Rose. If you are able to pass up on the famous choc-macadamia brownies, you may be tempted by the array of scones with homemade jam, the fresh almond croissants or the rosewater and pistachio cake.  But beware! If you opt to share these generous serves you’ll wish it was all for you.

The coffee is equally divine and is sure to please the fussiest of coffee drinkers. There is no shortage of beverage options to satisfy everyone. Even my notoriously fussy son loves Rafters, particular the homemade iced tea, which comes with fresh cut fruit.

If you love the ingredients, you have the option of buying seasonal fruit or vegetables from Lisa’s garden, local honey, or homemade jam and preserves.

The popularity of Rafter and Rose it well deserved and it definitely rates as an Ipswich favourite.

Soaring Property Prices Fuel Inheritance Wars

Soaring Property Prices Fuel Inheritance Wars

By | Property, Wills and Estates

A recent national survey has revealed that approximately 1 in 4 Generation Y Australians are eagerly waiting on an inheritance to purchase a home.

The survey that asked 1000 people across Australia, found that over 26% of them were relying on a windfall to back them into a home purchase, thanks to the soaring house prices, particularly in capital cities.

Whilst these findings themselves are a worry, it also coincides with an increasing number of Australians who are in dispute with their brothers and sisters over an inheritance.

“We’ve certainly seen a rise in the numbers of people who are seeking legal intervention to resolve matters of who should get what in an estate, but it cannot be overstated that many of these claims that are commenced are legitimate.” McNamara & AssociatesRebekah Sanfuentes said.

“In other words, the reasons behind a person’s decision to dispute the estate is substantiated by the type of evidence that the courts stringently require. Evidence of financial need can be aptly demonstrated by the fact that many people are struggling to meet their living costs from their income and, even if they have been able to enter the property market, the equity they have is minimal. Mortgage stress and rising household debt are factors which will often weigh in favour of an increased legacy to a disappointed beneficiary.”

“There is little doubt that the exponential increase in property prices may well be an influencing factor, small or otherwise, in people considering exercising their legal rights in this manner.”

Lawyer's nan learned to be 'good housewife' at college

Lawyer’s nan learned to be ‘good housewife’ at college

By | Uncategorized

THE times certainly have changed in Ipswich – just ask local lawyer Rebekah Sanfuentes and her beloved grandmother Shirley Farr.

The pair recently discovered that the same office where Mrs Sanfuentes now works as head of wills and estates for McNamara & Associates was once the place where Mrs Farr learned the ins and outs of being a housewife.

The ironic discovery was made recently, with Mrs Sanfuentes’ firm moving into the newly refurbished Limestone 88 precinct, formerly the Ipswich Technical College.

Read More Here

Amanda and Gareth

Strictly Coffee

By | General Information

I have an unashamed love of Ipswich!

I live in Ipswich, work in Ipswich, shop in Ipswich and eat in Ipswich. There is so much to love about this city and the amazing people who run some fantastic local businesses.

When we (McNamara’s) recently moved into our beautiful, new/old building at 88 Limestone Street, I was excited to be that little closer to some of my favourite local haunts. I also realised that many of these places were unknown to my colleagues, so I thought it a perfect opportunity to start a post on my some of my favourite local businesses.

My reviews are in no particular order, and are by no means all encompassing. I am certain there are some great places in Ipswich that I have not discovered, and I hope that readers may share some of these places with me.

Strictly Coffee

Strictly Coffee

This is one of my favourite coffee spots in Ipswich, although our relationship is not exclusive. Located on Brisbane Street, across from the Icon building, this coffee mecca is one of the most popular coffee shops in Ipswich.

Its popularity is well deserved. I am always guaranteed a perfect coffee! I acknowledge this is a bold statement, and it is one that I do not make lightly, particularly given the undeniable importance of caffeine in my universe. But there it is.

Gareth makes a superb coffee using freshly ground Di Bella beans, poured to perfection into a bio degradable cup….. decorated with the work of up and coming Australian artists. There is so much to love about this place.

If you are looking for a delicious cup of coffee, in a cosy atmosphere, with fabulous service, then a sit-down coffee at Strictly Coffee is a must. This place tends to attract a friendly crowd, and the large tables encourage conversation. I have met many great people over a soy latte and colouring book at Strictly.

If you are fanging for a slice of cake with your coffee, or you are hoping to drop in on the weekend, you won’t be quite so lucky. The food options are deliberately limited at the moment as the name “Strictly Coffee” would suggest, and they are closed Saturday and Sunday.

AMP tax errors on TPD payouts

AMP tax errors on TPD payouts

By | Disability Superannuation

It has come to our attention that there may be a serious systemic error involving AMP Superannuation with the calculation of tax deductible on total and permanent disability (TPD) payouts.

The error seems to be in AMP using the incorrect calculation date from which the TPD payment was to be paid. In some cases, the calculation error was as much as $7,400 that was over-taxed.

An AMP spokesperson said to a member of the Australian Lawyers Alliance that this was human error and possibly not a one-off.

We understand AMP plan to review their paid out super/TPD claims for the last several months however we urge you that if you have received a superannuation or TPD payout from AMP that you seek financial advice to confirm that the correct tax has been calculated and deducted, and if there is an error, seek legal advice to recover the difference from AMP.

Should you require any assistance with AMP, or any other superannuation matter do not hesitate to contact one of our Ipswich superannuation lawyers on 13 58 28.

Childhood Sexual Abuse

Childhood Sexual Abuse: Changes to time limits and how this affects abuse claims

By | Criminal Law

By Georgia Allan of McNamara & Associates Solicitors

As the Royal Commission into Institutional Responses to Childhood Sexual Abuse draws to a close this year, it has been recognised that the average time for a survivor of child sexual abuse to disclose their abuse is twenty-two years.

In our legal system, it has been long established that the law requires any claim for personal injury to be brought within three years of the cause of action arising, or in the case of the child, by their twenty-first birthday. Any applications to extend the limitation period have traditionally been fraught with difficulties and are often unsuccessful.

In an effort to ensure survivors of child sexual abuse are not unfairly prevented from accessing compensation, the Royal Commission into Institutionalised Responses to Childhood Sexual Abuse in its Redress and Civil Litigation Report released in September 2015 recommended that all jurisdictions across Australia remove limitation periods for child sexual abuse as a matter of priority.

In Queensland, the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Act 2016 was passed in November 2016, with various Parts commencing on 1 March 2017.

This has had the effect of changing the Queensland legislation to read as follows:

LIMITATION OF ACTIONS ACT 1974 – SECTION 11A 

No limitation period of actions for child sexual abuse 

(1) An action for damages relating to the personal injury of a person resulting from the sexual abuse of the person when the person was a child
(a) may be brought at any time; and
(b) Is not subject to a limitation period under an Act or law or rule of law.
(2) This section applies whether the claim for damages is brought in tort, in contract, under statute, or otherwise.

So what do these legislative changes mean in the practical sense for survivors of childhood sexual abuse?

  1. The amendments are retrospective in effect. This means that Section 11A applies to an action for damages whether the right of action accrued before or after the commencement of that section.
  2. The amendments are restricted to sexual abuse and do not extend to physical abuse. In practice, however, it may be difficult to separate what effects are from sexual abuse, which could be pursued, and what effects are from physical abuse, which cannot be pursued.
  3. The changes extend to institutional and non-institutional abuse. This means that the act now covers situations where, for example, a child is sexually abused in foster care or in their own home by a family member or friend.
  4. An action may still be commenced, even where there has been a judgment dismissing the claim on the ground that the statutory limitation period had expired, if the Court decides it is just and reasonable to do so.
  5. Section 48 of the Transitional Provision for Limitation of Actions (Child Sexual Abuse) and Other Legislation Amendment Act 2016 (the Act) also allows for an action to be commenced where previously it had been dismissed on the ground that a limitation period applying to the right of action had expired.
  6. An action may also be brought on a previously settled claim. Section 48 of the Act allows a claimant who has previously compromised their claim because of the limitation period to bring an application if a Court sets aside the agreement effecting the settlement on the grounds it is just and reasonable to do so.
  7. The Court still does, however, have the power to stay proceedings where injustice should lead to a stay of proceedings. The Court may take this decision if it believes the lapse of time has a burdensome affect on the Defendant that is so serious that a fair trial is not possible. It should be noted, however, the onus to prove that a Court should dismiss or stay proceedings due to the lapse of time, will in these circumstances, lie with the defendant.

It should be noted that these practical measures to remove the limitation period detailed above are but one step in civil litigation reforms necessary to enable access to civil litigation claims for survivors of childhood sexual abuse.

The Redress and Civil Litigation Report recommends the Federal Government establish a Redress Scheme. The three main components to the Redress Scheme are: firstly, a direct personal response to the survivor (though only if a survivor desires it); secondly, the provision of counselling and psychological care; and finally, the provision of monetary payments.  It is hoped the Federal Redress Scheme will be up and running by early 2018.

Whilst the responses to the recommendations in the Redress and Civil Litigation Report and the changes in limitation period legislation are a welcome step to creating a more accessible civil litigation system for survivors of sexual abuse, it remains to be seen how these amendments will play out in practice.

For more information on the recommendations of the Royal Commission, see:

https://childabuseroyalcommission.gov.au/policy-and-research/our-policy-work/redress/final-report-redress-and-civil-litigation

For support contact knowmore on 1800 605 762

the_sad_consequence_of_not_attending_to_estate_planning

The Sad Consequence of Not Attending to Estate Planning Before Travelling

By | Property

Unfortunately we have all seen the news stories – in the last few years there have been a number of plane crashes and terrorist attacks involving innocent civilians. The world we live in is exciting and full of adventure but it can be dangerous as well. If you are travelling in Australia or overseas it is important that you set your affairs in order before you go.

When Malaysian Airlines flight MH370 went missing the people on board went missing as well. Because the aircraft has never been recovered, nobody knows whether the passengers are dead or alive.

It is a sad fact of life – money changes people.  Unfortunately many people feel a right to those dollar signs when a family member passes away, sometimes whether they had a relationship with the deceased person or not.

As an estate planning lawyer, there is one scenario that I have unfortunately seen on numerous occasions, particularly given that we are living in a day and age where blended families are becoming more and more common – that is, when a widow or widower loses their family home at the expense of the greed of their step-children.

Picture this:  your first marriage failed and you were left to raise your children on your own, you eventually find happiness again with a new partner who has also come out of a failed relationship.  Sadly your new partner has not had a relationship with his/her children since their first relationship ended.

Then comes the big question – whose house do you live in together, yours or theirs?  You decide to move in to their home because it was the better decision for the two of you.  You sell your home and put whatever equity you obtain from the sale into your partner’s new house.  However, you never considered putting your name on the title of your partner’s house, after all, you aren’t in this relationship for the money or the asset, and as far as you are both concerned, the house belongs to both of you now.

You and your new partner make this house your home, for what ends up being the next 30 years that you spend together.  Sadly, your partner then passes away.  The last thing you are thinking about is your house – you’ve just lost the love of your life and you are grieving.  Anyway, your partner had a Will that leaves everything to you so the house will be transferred to you eventually, right?  Wrong!

Remember those children that your partner had from his/her first relationship that have never wanted anything to do with him/her?  The children that you never even met for the 30 years that you and your partner were together?  Well they have contested your partner’s estate and, while you may be entitled to more than they are, your home is now being sold in order to pay your step-children.

If only you had an estate plan put into place during your partner’s lifetime.  A simple transfer of the house into joint names would have been all that was required to save you losing your family home.

Don’t realise that you have made this mistake once it is already too late!  Let us help you with an estate plan to avoid this scenario happening to you.

Contact us today on 3816 9555 or email [email protected] to arrange an appointment with one of our Lawyers in Ipswich who practise exclusively in this area.