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Month: November 2020

FAMILY LAW

Family Report – What to Expect

Going through the process of having a Family Report prepared can be very stressful. This guide will help explain everything you need to know about Family Reports.

Are you going through the process of having a Family Report prepared?  We understand this can be very stressful. Our experienced team of family lawyers at Forge Legal can answer any questions you may have and guide you through the process, each step of the way, to ensure you are properly prepared and best present yourself during interviews.

What is a Family Report?

When parents involved in parenting cases in the Family Court of Australia or the Federal Circuit Court of Australia are unable to reach agreement about arrangements for their children, the Court may order a report be prepared by a family consultant.

If an Independent Children’s Lawyer has been appointed in your case, the Independent Children’s Lawyer will coordinate the family report process.

The family consultant will conduct interviews with family report questions for each parent, the children and other significant people such as siblings, partners or grandparents.  The family consultant then prepares a written document setting out an independent assessment of any relevant issues, consider the children’s future care, welfare and developmental needs and provide recommendations as to what is in the best interests of the children.  This is known as a Family Report.

A Family Report may also make recommendations for other expert reports to be obtained such as a psychiatric assessment report, or suggest the parents participate in some form of counselling or parenting program.

A Family Report is one of the forms of evidence that a Judge takes into account when making a decision about parenting arrangements.  Whilst a Judge is not required to follow the recommendations in the Family Report, the report is often given considerable weight as it provides as assessment from an expert who is independent of both parents.

If you do not agree with the Family Report, the Family Report Writer may be challenged in cross examination about the recommendations in the report, particularly if the Court makes findings that are contrary to the facts they have relied upon in forming their opinion.  A Family Report Writer may then change their views and make alternate recommendations under cross examination.

Our team at Forge Legal have successfully challenged many Family Report Writers under cross examination, with the report writer altering their opinion and recommendations referred to in the Family Report, in favour of our clients.

The Family Report cannot be shown to any person other than the parties to the case and their lawyers without the Court giving permission.  It is an offence under the Family Law Act 1975 to do so.

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What is a Family Consultant?

A Family Consultant is a qualified psychologist, psychiatrist or social worker who has experience with working with children and families.  Family Consultants work as advisors to the Court who provide independent guidance to Judges to assist in reaching the best possible outcomes for children.

What is a Family Report Writer?

A Family Consultant who has prepared a Family Report is known as a Family Report Writer.

How much does a Family Report Cost?

If neither party has the money to pay for a Family Report and the Court orders the report, the costs are funded by the Court and there is no cost to the parties.  However, if the parties have agreed to arrange a family report privately you may be asked to pay half of the costs, unless the other party is prepared to pay the costs in full.  The costs of a Family Report arranged privately will vary, usually anywhere between around $2,000 to $4,000, depending on the report writer engaged.

Family Report Interviews & Family Report Questions

Once a Family Report has been ordered, the Family Consultant will arrange for the parents, the children and any other significant persons to attend specific appointments i.e. family report interviews.

You will be advised of the appointment times and location for the interviews.  It is critical that you attend the interviews as scheduled by the report writer.  Interview appointments can usually only be changed in exceptional circumstances.  If you fail to attend the appointment, the Family Report may not be able to be completed, or it may result in delays or additional costs being incurred which you may be ordered to pay.  Family report Writers are obliged to advise the Court if you fail to attend appointments scheduled for family report interviews.

The Family Report Writer will have individual interviews with each of the parents and the children, as well as other significant persons involved in the children’s lives such as partners, siblings or grandparents.

You should think of the interviews like an observation session being conducted by the Family Report Writer.  They will observe you interact with the children and with the other party, or any other significant persons being interviewed.

Your children will be interviewed separately from any adults unless there are special circumstances preventing the children from being interviewed by themselves, but this rarely occurs. In addition to the children having individual appointments, you may have a joint session with the children so the report writer can observe your interaction with the children and their behaviour towards you.

The purpose of your children having individual appointments is so that they are given an opportunity to speak freely to express their wishes without having the pressure of either parent being present, although they will not be forced to express any views if they do not wish to.

During interviews, your children may be able to be supervised by qualified staff in a secure and neutral environment away from any potential adult conflict, but you will need to check with the Family Report Writer beforehand as to the services they are able to provide.  You may need to bring someone who can look after the children whilst you are being interviewed.

How long does a Family Report take?

It can take anywhere up to two months for appointments to be scheduled for family report interviews once a Family Report has been ordered by the Court.  Interviews are usually scheduled much quicker for Family Reports where report writers have been engaged and are funded privately by the parties.

Family report interviews will usually take a full day.  In some cases, additional appointments may be scheduled for another day if the matter is complex and the Family Report Writer requires more time for interviews.

Once all of the interviews have been conducted, it can often take up to six weeks before the Family Report is issued by the report writer.

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What questions are asked in a Family Report Interview?

If an Independent Children’s Lawyer has not been appointed in your case, you will need to provide the Family Report Writer with copies of the court documents that have been filed in the proceedings, such as the initiating application and/or response and any affidavits.

The Family Report Writer may request permission to contact third parties such as teachers, doctors or other professionals who are independent and may be able to provide additional information about the children.  The Family Report Writer may also ask to inspect any documents that have been produced under subpoena before preparing their report.

The Family Report Writer usuaully asks Family Report questions relating to obtaining information about:

  • any facts or issues that are disputed between the parents
  • the arrangements that have previously been in place and are currently in place regarding the care of the children
  • the parenting arrangements proposed by each of the parents moving forward
  • any views or wishes expressed by the children and the reasons behind their wishes
  • the relationship between the children and each of the parents, as well other significant people such as siblings, grandparents and partners
  • the children’s individual needs
  • the capacity for each parent to appropriately care for the children and provide for their welfare and developmental needs
  • any risk of harm posed to the children
  • the relationship between the parents and ability to co-parent
  • the capacity of each of the parents to facilitate and encourage a relationship between the children and the other parent

How to prepare for a Family Report Interview?

Here are some tips on how to prepare for family report interviews:

  1. Read the court documents being provided to the Family Report Writer beforehand so you are familiar with the case and the issues in dispute. Think in advance so you are clear about the issues you wish to raise.  Consider how you may address any concerns raised by the other parent.
  2. Consider what is in the children’s best interests. Think about what is best for the children and why.  Ask yourself how the orders sought by you will achieve the best outcome for the children.
  3. Always remain focused on the children. If there are issues you are raising about the other parent, ensure you are able to explain how these issues are relevant and their impact on the children, as opposed to just being negative or critical of the other parent.  Making degrading remarks does not assist in showing you have the capacity to facilitate a meaningful relationship between the children and the other parent, or the ability to co-parent.
  4. Do not try to ‘coach’ the children. Provide a general overview to the children about the Family Report process in age appropriate terms.  Don’t put too much emphasis on the interview process that would create anxiety for the children.  Don’t try to influence or pressure the children or tell the children what to say.  Encourage the children to be honest and speak openly and freely with the Family Report Writer.  Family consultants are experienced in recognising the signs and behaviours presented by children when a parent has tried to influence or pressure them about what to say.
  5. Behave appropriately, present yourself well and be honest. Make sure you dress well and are on time so you start with a good first impression.  Be respectful, courteous and co-operative both to the Family Report Writer and all other people involved in the interview process including your ex-partner.  Be mindful of how you speak to your ex-partner.  The Family Report Writer will be watching and observing your behaviour, actions and interaction with other persons who are involved in the interview process, not just listening to what you have to say during your interview.
  6. Be prepared for the children’s needs. Bring food, drinks, toys and activities to keep the children entertained for the day.  Check with the Family Report Writer whether you need to bring someone to look after the children whilst the parents are being interviewed.
  7. Safety concerns. If you have concerns for your safety or the children’s safety, tell the report writer beforehand so that steps can be taken to ensure the safety of everyone throughout the interview process.

If you have any questions about the Family Report process or your parenting order, please contact our friendly and understanding team of experienced lawyers at Forge Legal for legal advice.
 

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FAMILY LAW

Top 10 tips to prepare for a strategy session

If you are contemplating or in the midst of a separation, you will meet with a lawyer to discuss your individual circumstances, something that is incredibly personal and challenging for most people. These are tips on how best to prepare.

As the old saying goes, in difficult situations the first step is always the hardest. For those contemplating or in the midst of a separation, the first step is meeting with a lawyer to discussions your individual circumstances, something that is incredibly personal and challenging for most people. At Forge Legal, we strive to ensure that our prospective clients feel comfortable and at ease in their Strategy Session, however, we understand that this is a daunting situation and can be stressful for those who are unprepared or do not know how to prepare.

Generally, there are a few simple steps that you can follow to prepare for your Strategy Session whether you are liaising with a lawyer regarding a parenting matter or for advice about property settlement, or in most cases, both.

Here are our top 10 tips to prepare for your Strategy Session

Write down dates of important events

Whether you are coming in for advice regarding a parenting matter or property settlement, there are key dates which are applicable in both scenarios. The most relevant dates are the date of cohabitation; date of marriage; date of separation and date of divorce.You may wish to add onto your list of important dates with events such as:

  1. The time you spend with the children;
  2. The date you attended mediation (if you have attended); and
  3. The date you purchased and/or sold any property.

These are just examples of relevant events.

It may be easier for you to prepare a chronology starting from the date you commenced a relationship to the date of separation and all things in between that you consider relevant.

Write down a list of questions that you would like to ask your lawyer

It can be easy to forget those burning questions that you wanted to ask your lawyer particularly, in circumstances where you are discussing emotional and sensitive subject matter.Take a notepad with you and have a list of questions that you have thought of prior to your meeting. Your lawyer may also give you some advice or request that you attend to a task that you will need to jot down.

Update your contact details

It is not unusual for spouses to share an email address or have access to each other’s mobile phones and personal contact information.Your lawyer may need to contact you either before or after your Strategy Session. It is important that you are able to freely engage with your lawyer without fear of being intercepted by the other party.Think about creating your own private email address or opening a PO Box where your lawyer can contact you without being intercepted. This is especially important if you are separated under the one roof.

Bring your financial documents

If you are liaising with a lawyer about property settlement, it is helpful for you to have an idea of the composition of your asset pool. That is all assets, liabilities, and superannuation in your sole name or in joint names. The most helpful documents to bring with you include but are not limited to:

  1. Your most recent tax return;
  2. Redbook valuations for vehicles;
  3. Your most recent bank statements including credit card and loan statements;
  4. Your most recent superannuation statement;
  5. One or more market appraisals for any property;
  6. Share certificates;
  7. Profit and loss statements for any business;
  8. Trust deeds;
  9. Mortgage statements;
  10. Car loan documents;
  11. Evidence of any debt.

Bring copies of your court documents

If you have already commenced proceedings or the other party has served you with court documents then you should bring in a copy of these documents to your Strategy Session. Try to make copies so you can leave them with your lawyer to review at a later date.Any document that you have in your possession or have been served with that has the seal of the court will be relevant in your Strategy Session. Documents such as applications, affidavits, notices or reports are extremely helpful and can give context to your matter.Your court documents will also help your lawyer ascertain important dates like upcoming court attendances and filing dates for material.

Think about what your goals and expectations are

Your lawyer should give you advice about your expectations and whether these are achievable. If you have a clear, concise idea of your short-term and long-term goals, your lawyer should be able to give you advice about the prospects of achieving those goals.

Get to know your lawyer

Most law firms have websites with profiles of their lawyers. Have a look at each lawyer’s profile and ascertain their experience, areas of expertise and familiarise yourself with their face.The more you know about the person you are speaking to, the more comfortable and at ease, you are likely to feel prior to and during the consultation.

Bring a copy of your will and/or power of attorney

If you do not have these documents then you should seriously consider asking your lawyer to prepare these documents for you.If you do have these documents, then you may need to update them.Most people are surprised to learn that without a power of attorney your husband/wife will be the ones left making all decisions in respect of your health, finances and other substantive matters for you in the event you lose capacity.

A Will and Power of Attorney are priceless documents and something you should always have and keep up to date.

Ask a friend or family member to come with you

Family law is inherently emotional and it can be difficult to discuss separation with a stranger. It is okay to bring a friend or family member for support and it can sometimes be helpful. They may ask questions that perhaps you had not thought of or just be there to lend a hand and offer support. Irrespective of why they are there, your close friends and family are the ones who will walk with you through this journey and should be there from the beginning.

WILLS & ESTATES

Powers of Attorney – the essential guide

A Power of Attorney is a legal document which allows the person making the Power of Attorney to appoint a person (or persons), known as the Attorney or Attorneys, to make decisions on their behalf while they are still alive.

Something that often surprises solicitors practicing in the area of succession law is the number of people who have been prudent enough to ensure their assets and loved ones are protected after their death by having a Will in place, only to completely leave to chance what might happen while they are still alive, but without the ability to make decisions.

We find that this omission, committed even by very prudent individuals who do not wish to leave anything to chance, is almost never intentional. Rather, it seems to stem from the fact that Powers of Attorney are misunderstood the majority of the population – and that only takes into account those who know of their existence!

In fact, many of our first-time clients mistakenly believe that their existing Will somehow incorporates a Power of Attorney or allows the Executor under their Will to make decisions on their behalf before they pass away. In actual fact, this is never the case.

What is a Power of Attorney and how does it differ from a Will?

Given this widespread confusion and the implications for those who consequently do not have a Power of Attorney in place, it is necessary to clearly and simply break down what a Will does, what a Power of Attorney does, and how they differ from each other.

A Will is a legal document which allows the Testator (the person making the Will) to set out the way in which their assets should be distributed upon their death. The person who is appointed under a Will to facilitate that distribution of assets is known as the Executor. The key point to remember is that a Will only comes into effect after the Testator has died. An Executor has no power to make decisions on a Testator’s behalf while the testator is still living. For more information on Wills, see the previous article in this series, The Essential Guide to Wills in Queensland

A Power of Attorney, on the other hand, is a legal document which allows the Principal (the person making the Power of Attorney) to appoint a person (or persons), known as the Attorney or Attorneys, to make decisions on their behalf while they are still alive.

There is no crossover between these two types of documents. A Will has no effect whatsoever before the Testator dies, and a Power of Attorney becomes immediately ineffective upon the death of the Principal. Often, the person appointed as Executor under a Will is even different from the person appointed as Attorney under a Power of Attorney. For this reason, it is always necessary to have both documents in place.

What are the different types of Powers of Attorney?

There are two main types of Powers of Attorney, General Powers of Attorney and Enduring Powers of Attorney. While everyone should ensure that they have valid Enduring Powers of Attorney in place at all times, General Powers of Attorney are nonetheless extremely useful documents in certain circumstances.

A General Power of Attorney is a document which allows the Principal to appoint an Attorney (or Attorneys) to make financial decisions on their behalf, with such powers coming to an immediate end once the Principal loses the capacity to make their own decisions. Usually, these documents are used for the purposes of allowing somebody to make decisions on the behalf of another for a limited period of time. A common example is a situation where the Principal is going overseas and wishes their Attorney to be able to sign a contract for the purchase of residential property and draw settlement cheques from their bank account on their behalf. Such documents are usually revoked once they are no longer needed. To continue with the above example, the document would be revoked upon the Principal’s return to Australia. Thus, General Powers of Attorney can be extremely useful tools in circumstances where distance or convenience require another person to be able to ‘step into one’s shoes’ financially.

Conversely, the decision-making powers granted to an Attorney (or Attorneys) under an Enduring Power of Attorney continue even after the Principal loses their own decision-making capacity. In fact, this is the only time most Enduring Powers of Attorney are utilised. In putting an Enduring Power of Attorney in place, Principals seek to ensure that once they lose their decision-making capacity (for instance, by way of dementia or vegetative state), their chosen person is able to make decisions on their behalf. Contrary to General Powers of Attorney, Enduring Powers of Attorney not only allow for Attorneys to make financial decisions, but also personal and health decisions. As such, these are the documents which every person should have in place, ready for ‘when the time comes’.

When do I need to put an Enduring Power of Attorney into place?

The short answer is now. Once you lose your decision-making capability, you will no longer be able to put a Power of Attorney in place. You can only put a Power of Attorney into place whilst you retain your full decision-making capacity. As a result, it is important to ensure you are protected early and not risking a situation whereby you lose your capacity to make decisions through accident or ill health, by which time it will be too late to put a document into place. If you fail to put an Enduring Power of Attorney in place and subsequently lose your decision-making capacity, your loved ones may have to go through the difficult process of obtaining an order appointing them to act on your behalf. This could make things exceptionally difficult in the interim as banks and other institutions will usually want to see documentary evidence (usually in the form of an Enduring Power of Attorney) of an individual’s ability to make decisions on the behalf of another.

What kinds of decisions can my Attorney make on my behalf?

Under a General Power of Attorney, Attorneys can only make financial decisions on your behalf. These include, for example, signing a contract for the purchase or sale of a house or car, withdrawing monies or closing a bank account, or purchasing investments.

Under an Enduring Power of Attorney, Attorneys can always make personal and health decisions on your behalf. These include decisions such as where you live or what kinds of healthcare you receive. Under an Enduring Power of Attorney, in addition to personal and health decisions, you can also specify whether you wish for your attorney to make financial decisions on your behalf.

When can the decision-making powers commence?

When making an Enduring Power of Attorney, the power to make personal and health decisions will always commence upon the Principal’s loss of decision-making capacity. Such a loss of capacity will usually be evidenced by a letter from the Principal’s doctor confirming same. For financial decisions under both General and Enduring Powers of Attorney, the Principal can choose when the power is to commence. With respect to Enduring Powers of Attorney, most Principals choose for the powers to commence upon a loss of capacity, however this is not a must. Also common for financial decisions (particularly where the Attorney is the Principal’s spouse) is for the Principal to choose for the powers to begin immediately. This way, the document can be used both as an Enduring Power of Attorney and in the way that a General Power of Attorney is usually used, for the facilitation of transactions in circumstances where it is inconvenient for the Principal to be present. It is also possible to choose a particular date for the power to commence. This is the usual course where General Powers of Attorney are concerned.

Who can I appoint as my Attorney, and how many Attorneys can I have?

You can appoint up to four Attorneys. When appointment more than one Attorney, you specify how you would like your Attorneys to come to their decisions (for example, you can specify that they must unanimously agree on a decision, that a majority must agree, or that any one of them may make a decision). While one or two Attorneys are usually sufficient, however in circumstances a Principal will wish to have input from a variety of people (for instance, a spouse and a child in a blended family situation).

You can also appoint attorneys successively, so that if your first choice has passed away or is not able to act, the power will pass to your second choice and so on.

You should appoint people you trust, such as close family of friends, as your Attorneys. You may not appoint a person under 18 years of age or a person who is your paid carer.

What obligations will my Attorney have while making decisions on my behalf?

Attorneys have an obligation to discharge their duties honestly and with reasonable care. Attorneys must comply with a number of duties. Some of the more important duties include the duty to keep records, the duty to keep the Principal’s property separate from their own, the duty to avoid transactions which constitute a conflict of interest, the duty to not waste of give away the Principal’s property and the duty to promote the Principal’s health.

In the event that an Attorney fails to comply with these duties, they may be investigated by the Public Guardian or removed by the Queensland Administrative and Appeals Tribunal.

How can I revoke a Power of Attorney?

Revoking a Power of Attorney is a very simple matter. In some circumstances, a Power of Attorney becomes void by default. General Powers of Attorney will automatically become ineffective upon the Principal’s loss of capacity, while both General and Enduring Powers of Attorney will automatically become ineffective upon the Principal’s death.

Where a Principal wishes to revoke a Power of Attorney before its automatic lapsing, they may do so (so long as they still retain their decision-making capacity) by executing a new Power of Attorney of the same type which supersedes the old, or by simply signing a revocation form which immediately causes the power to cease.

WILLS & ESTATES

Automated and DIY Wills – do I need a lawyer?

Preparing your own Will using an online template, or using a ‘DIY’ Will Kit, can potentially create more problems for you and your family, rather than a solution. 

Are you considering doing your own automated Will online, or completing a Will Kit yourself, as a less expensive ‘do-it-yourself’ solution?  Be very careful as preparing your own Will using an online template, or using a ‘DIY’ Will Kit, can potentially create more problems for you and your family, rather than a solution.

An experienced lawyer should provide you with advice to ensure you are aware of the potential risks that may arise including contesting a Will and a claim being made against your estate.  An experienced lawyer will review your financial circumstances and family dynamics and discuss your intentions regarding the distribution of your estate to ensure your Will is prepared correctly and accords with your wishes.

Our friendly and understanding team of lawyers are here to help you put your estate planning in order and provide you with expert advice.  We keep the process simple, quick and cost effective for you, so you don’t need to put off doing your Will any longer!

Here’s 10 reasons why you should engage one of our experienced lawyers to prepare your Will and advise you on your estate planning, to avoid the pitfalls that arise from using an automated Will service available online or a ‘DIY’ Will Kit:

  1. An automated Will generated online uses a template where you are asked a series of questions. You cannot know the quality of your online Will, what is missing, what did you forget, or leave out?  The same applies if you complete a Will Kit yourself.  If you do not answer the questions correctly, the Will automatically generated, or Will Kit completed by you may not be prepared correctly.  There is the potential for you to misunderstand the questions used in the template or kit, or not have the capability to make your wishes known.  Your intended wishes may be quite different from the legal effect of the terms of the Will that has been automated online or the Will Kit you have completed.  This may mean that some gifts fail, or the Will may not be upheld as a valid Will and your wishes may not be carried out.  If your Will is invalid, your estate will be distributed in accordance with the rules on intestacy as set out in the Succession Act 1981 (Qld);
  2. There is an increased likelihood with automated Wills or Will Kits that the formalities associated with the execution and witnessing of a Will (including alteration of a Will, or revocation of a Will (either partially or in full), number of witnesses, interested parties serving as a witness and other formal requirements may not be complied with. Unless the Court is satisfied to dispense with the execution requirements for a Will the document may not be a valid Will, or alterations or revocation of a Will may not be deemed valid.  This may lead to the executor being faced with problems that are not able to be rectified and not being able to administer your estate the way you intended;
  3. Most online Will templates, or Will Kits do not consider your individual and unique needs. Accordingly, not all relevant questions may be asked.  For example, if you own any joint real property i.e. real estate owned jointly with any other person, do you know if such property is held as ‘joint tenants’ or ‘tenants in common’?  ‘Joint tenancy’ means that the property will automatically pass to the surviving registered owner upon your death.  This is regardless of any bequests made in your Will.  Thus, you cannot gift your interest in the property to another person named in your Will, unless the property has already passed to you by survivorship upon the death of the other registered owner.  Conversely, ‘tenants in common’ allows you to gift your percentage share to another person in your Will.  However, there are various factors that may need to be considered in doing so, for example, if your share of the property is gifted to another person how will the property be cohabitated if both parties intend to live in the property?  What if one party wishes to sell the property and the other does not?  What if one party is living in the property and failing to maintain the property, or both parties are unable to agree as the necessary maintenance and repairs required to be carried out on the property?  These are only some examples of matters that need to be given serious consideration and require expert advice to ensure the bequests you make in your Will do not lead to disputes with your estate;
  4. Due enquiry may not be made as to a person’s testamentary capacity with an automated Will or Will Kit. You must have testamentary capacity at the time of executing your Will, otherwise the Will is not valid.  The executor of a deceased estate has an obligation to make due enquiry as to whether the deceased had testamentary capacity at the time of making their Will if there is any evidence to suggest a lack of testament capacity.  You cannot be expected to understand the scope of testamentary capacity, without the aid and advice of a lawyer;
  5. An online automated Will or a Will Kit is often completed behind closed doors where there can be pressure, duress or undue influence within a family group, particularly with the elderly who may require some assistance in completing the forms and templates online. After the death of the Will maker, any person who was present when the online template or Will Kit was completed is potentially at risk of accusations of pressure, duress or undue influence.  If any person has exerted such behaviour, they may be the only witness likely to be able to give evidence as to the deceased’s intentions as set out in their Will.  The evidence of such persons who have acted inappropriately is likely to be self-serving and may not attest to the true intentions of the deceased.  We can arrange one of our experienced lawyers to review your estate planning needs and prepare your Will.  Our usual practice is not to permit any person to be present other than the Will maker.  This assists to prevent a Will maker feeling frightened, isolated, pressured or lacking the capacity to clearly state and give effect to their true intentions as to the distribution of their estate;
  6. An automated Will prepared online or Will Kit does not necessarily detect, or alert you to potential claims being made against your estate. Claims made against an estate are often referred to as ‘family provision claims’.  Despite any wishes made under your Will, you cannot prevent a family provision claim being made against your estate. That is, where a person dies and in the terms of their Will adequate provision is not made from the estate for the proper maintenance and support of a deceased person’s spouse, child or dependant, the Court may use its discretion, on application made by a party, to make an order for such provision as the Court thinks is reasonable to be paid out of the estate to the applicant.  Usually, due to competing interests of parties, each party is separately represented and the costs are ordered to be paid by the estate prior to any distributions being made.  This ultimately serves to reduce the amount of the beneficiary entitlements.  The costs for these types of claims can be substantial and at times, outweigh the amount of the estate available for distribution.  We provide experienced lawyers who are well educated as to the types of family provision claims that may arise.  Our expert lawyers can provide you with advice regarding potential claims against your estate and offer possible solutions and alternative suggestions, or options you may wish to consider to avoid a claim being made against your estate;
  7. An automated Will or Will Kit does not assist in providing any records or evidence from an independent expert lawyer. When preparing your Will, our estate lawyers take detailed notes and keep a record of any meetings and discussions including advising as to any relevant supporting documents that should be kept with your Will.  This means you are likely to have documentary evidence that can be produced, as well as evidence that may be given, in person from one of our lawyers, who are independent of interested parties named in your Will.  Our lawyers can offer their view, based on your instructions, as to your intentions regarding the distribution of your estate including any explanation or reasons as to your wishes you have discussed with us.  This if often of great assistance to the Court in determining the validity of your Will and/or determining any provision that should be ordered with respect to any family provision claims made against your estate.
  8. The services offered through online automated Wills, or through the use of Will Kits do not give you any financial and/or taxation advice. It is unlikely that you will be abreast of taxation law changes which may adversely affect your estate planning.  Depending upon your financial circumstances and the terms of your Will that has been generated online or the Will Kit you have completed, your estate (and in some cases your beneficiaries) and may end up having a substantial taxation liability, which could have otherwise been avoided if the necessary financial and taxation advice had been sought;
  9. Any information supplied through services offered online for automated Wills is no substitute for legal advice. They do not provide personalised advice, particularly for matters such as where you need help choosing executors, providing appropriately for minor children or dependents with special needs, you are separated from your partner, you intend to marry, you own assets overseas, you have re-partnered and are in a ‘blended family’ with biological children, step-children and/or adopted children.  Our team of lawyers undertake professional education and development each year to ensure the services and advice we provide is based upon the most up to date legislation and cases that have been determined by a Court.  Our expert lawyers can provide you with guidance and advice to try to avoid potential claims being made against your estate;
  10. When a Will is prepared by a lawyer, there are consequences if the lawyer has not prepared your Will correctly. Lawyers are insured in the event they make a mistake.  With an automated Will generated online or a Will Kit you have completed yourself, you are likely to be the one who is responsible and liable if you get it wrong.

‘Do-it-yourself’ online automated Wills and/or Will Kits are no substitute for Wills prepared by lawyers.  You may think you have provided for and protected your family, however if there are errors or mistakes, or other relevant factors you have not considered or addressed, you may have created only problems for your family instead of a solution and your family members may then find themselves in a costly dispute over your estate that could have been avoided had you engaged the team at Forge Legal.

Read this article The Essential Guide to Wills in Queensland for more.

FAMILY LAW

Divorce and property settlement

You want a divorce? But do you actually mean a divorce or in fact a property settlement or even just parenting orders? The terminology can be confusing.

We often get asked to assist clients in obtaining a divorce… but do they actually mean a “divorce” or are they referring to a “property settlement” or even “parenting orders”? The terminology can be confusing! This article explores some of those terms in order to give you some direction in settling your affairs after separation.

What is a property settlement and how does it differ from a divorce?

property settlement is the process of dividing assets, such as your house and superannuation, after your divorce. If you are thinking of separating from your partner, you need to make sure that you understand this process so that you get the best outcome. If you have recently separated and want to discuss a property settlement, you should contact your lawyer straight away.

A property settlement is different to a divorce. A divorce is an order of the court dissolving a marriage between two people. There is no property settlement involved in a divorce, unless you get your lawyer to help you with both the divorce and the property settlement together. You should speak to your lawyer if you would like to apply for a divorce and your lawyer will be able to answer the following: –

  • How to divorce in Australia;
  • How long does it take to get a divorce in Australia;
  • What is separation under one roof;
  • Time limits for starting a property settlement and the relationship with an application for divorce;
  • What is the cost of divorce; and
  • Any reduced fees for divorce that you might be entitled to.

Property settlement and what is considered

In Australia, after two people separate, a lawyer can assist in ascertaining how much of the property pool each party is entitled to. There is no presumption in Australia that each party should walk away from a relationship with 50% of the property pool. Lawyers, and the court if necessary, will look at each case on its merits and its facts and circumstances and come to a conclusion that is appropriate in all of the circumstances.

When you engage a laywer, you will notice that property matters are generally approached in terms of percentage splits, that is 50% to the wife and 50% to the husband or visa versa OR 40% to the husband and 60% to the wife or visa versa (as an example – this depends on the case).

What are the time limits?

The first thing that you need to consider when you separate from your partner is the time limit for a property settlement. Currently, you have 12 months from the date of your divorce to bring an application to the court for a property settlement. If you are not married and are instead in a de facto relationship, you must bring an application for property settlement within two years after the date of separation.

Sometimes, you might not need to go to court in order to divide your property in a legally enforceable way. The Family Law Act 1975 (Cth) allows parties to reach an agreement privately about what they would like to happen in a property settlement and the court can make an order once you have agreed. These type of orders are called “consent orders” and are useful if you and your ex parter are amicable or can reach an agreement through negotiation. It is hard to make an order for property settlement if you are more than 12 months from your date of divorce or more than 2 years from the end of your de facto relationship for de facto couples. You should contact your lawyer straight away if you are served with an application for divorce and have not discussed a property settlement with your ex partner.

This is different to a divorce order. A divorce can be applied for one year after separation.

What is the property pool?

The “property pool” is a term that refers to all of the assets, liabilities and superannuation of both you and your ex-partner. Ascertaining the property pool is the first step in division of property and is essential to reaching an agreement with you ex-partner. Often, the property pool can be identified easily and without any complex intervention from your lawyer. Sometimes, matters may be more complicated if you have assets held in companies or trusts, your own business or interest in a business, or unusual superannuation entitlements such as military superannuation or self-managed superannuation funds.

Sometimes your matter may be further complicated if you believe your ex-partner is hiding property, or if either of you have acquired or disposed of any assets since you have separated.

Who made the contributions?

Contributions to the relationship are a big part of the considerations that need to be made when negotiating a property settlement. When figuring out how much of the property pool you might receive, your lawyer (and the court) should look at several factors, including who brought what in to the relationship in terms of money, who made the significant contributions throughout the relationship in terms of money, childcare, housekeeping, cleaning and cooking, book-keeping and even outdoor maintenance and general renovations. Just because one party earned a wage and was the primary “breadwinner” of the household does not necessarily mean that they will be awarded a higher percentage of the property pool. Arguably, home duties such as those mentioned above, are considered just as important a contribution to a relationship!

What are your future needs?

Your lawyer (and the court) should consider what you will need in future in order to get back on your feet. Relevant factors with relation to future needs can be, for example:-

  • Do you and your ex-partner have children under the age of 18, and if so, how many of those children live with you and how long do the children spend in each household?
  • Do you or your partner have any health issues? Do those health issues prevent you from earning a wage or gaining and maintaining meaningful employment?
  • Is there a disparity in income? That is, do you earn significantly more or less than your partner, and if you do, is there a chance that your ex-partner could earn a comparative wage to you? What are your employment prospects in the future?
  • Do you have any funds overseas, trust funds, any pensions or money coming in that has not been considered in the asset pool?
  • What property do you currently hold? That is, what have you and your ex-partner taken from the relationship?

Other considerations

When entering into a property settlement agreement, you and your ex-partner may wish to consider entering into children’s arrangements also, should you have any children who are under the age of 18. This is what most people refer to when they are taking about “child custody”.

Children’s arrangements can be included in consent orders alongside property orders, and this is often a cheaper way of dealing with all of the issues of separation in one hit.  Children’s orders, commonly referred to as parenting orders, entered into by consent can deal with a vast range of issues such as:-

  • Who the children will live with;
  • Parental responsibility, that is, who has responsibility for the day to day decision making relating to the children and more long-term decision making such as schooling, health and religion;
  • Time with each parent during regular weeks, school holidays, Christmas time and birthdays and even tailored clauses in relation to your child’s specific needs;
  • Communication with each parent;
  • The maintenance of a child;
  • The process that may be used if there is a dispute in relation to parenting of the children after the order has been made.

If you and your ex-partner are amicable it may be very beneficial for you to discuss the best avenue for you to reach an agreement for parenting arrangements with your lawyer. There is no strict time limit in order to apply for orders in relation to parenting, however it is often more affordable and time savvy to apply for both parenting and property orders at the same time. Your lawyer should be able to provide you with an estimate of costs for both applications, or just one of the applications, prior to doing the work for you.

There are a variety of orders that can be applied for once you have separated, and it can be hard to determine the difference between a divorce, a property order, consent orders, children’s orders and child custody.  The best course of action once you have separated is to immediately book with a lawyer, who will be able to inform you of your rights, assist you in preserving your position, and give you frank advice about your next steps to assist you in building your future after separation.  It is important to do so whilst you are within the time limits discussed above, so the sooner the better to avoid future heartache.

 

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