Family Law | Wills & Estates

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Are you looking for a legal team with experience in family law and estate planning?

For 50 years, Barry.Nilsson. has provided advice and support to people going through a relationship breakdown or a change in their family circumstances.

Our Family Law and Wills & Estates team is made up of a group of extremely highly regarded practitioners. When working on your family law or wills and estates matter, we focus on identifying the key issues and then approach each one very strategically in order to get the best result for you.

We also understand that every case is different. We take a customised approach, especially when it comes to financial and property settlements relating to complex business structures, an area in which we specialise. We tailor our advice to your situation in order to achieve the best possible outcome.

We have particular expertise in assisting clients who live overseas but have familial disputes in Australia.

We understand that going through a family breakdown is tough and that you may need both support and understanding. At the same time, we’re honest and don’t sugar-coat advice: it is in your best interest to know exactly where you stand from a legal perspective.

How can we assist you?

We’re aware that changes in family relationships and/or having to address succession planning issues can be extremely stressful. For that reason, our lawyers not only ensure that the process runs as smoothly as possible, but also provide you with the support you need.

We can:

  • Assist and advise you on your legal rights and obligations
  • Identify alternatives to litigation
  • Work with you to minimise the impact of legal disputes on children
  • Liaise with other professionals where needed, such as counsellors and accountants, to provide advice that takes a holistic view of your situation
  • Appear as your advocate in court
  • Be available to provide you with advice in person or in writing, by phone, Skype or email, whenever you need it.

To find out more, meet our Family Law |Wills & Estates team and sign up for our insights. You can also follow us on LinkedIn or contact us.

Did you know?

As a firm, Barry.Nilsson. has been consistently recognised as a leading Family & Divorce Law Firm in Doyle’s Guide 2014, 2015, 2016 and 2017.

All five of our Family Law principals have been recognised in the 2017 Doyle’s Guide:
Geoff Sinclair | Don Leembruggen | Scott Wedgwood | James Steel | Jane Koelmeyer

Three of our family lawyers have been recognised in Best Lawyers 2018:
Geoff Sinclair | Scott Wedgwood | James Steel

Twelve of our family lawyers are Family Law or Succession Law Accredited Specialists; formal acknowledgement that they are leaders in their areas of expertise:
Don Leembruggen | Geoff Sinclair | Scott Wedgwood | Jane Koelmeyer | James Steel | Jarrad Mobbs | Allison Caputo | Kirstie Colls | Marie Dore | Will Stidston | Thea Davies | Elizabeth Mathews

Property settlements

The Family Law Act 1975 outlines matters relating to property settlements for married and de facto couples.

If the parties can reach an agreement

Parties can agree how their property will be divided following separation. An agreement would then be formalised in the form of an Application for Consent Orders to be filed in the Federal Circuit Court. Parties may also enter into a financial agreement prepared by their solicitors, but not filed with the court.

If the parties are unable to reach an agreement

If the parties are unable to agree how their property will be divided, then a court application needs to be filed within 12 months of a divorce becoming final.

“Property” is defined by the Family Law Act 1975 and includes all assets, liabilities and superannuation owned by both parties, prior to and after separation.

The usual approach a court will take in response to a property settlement application is to:

  • Ascertain the property of the parties at the time of the hearing, as well as its value. There is an obligation on the parties to disclose all items of property owned by them, and disclose to each other all documentation relating to that property.
  • The court will then assess the entitlement of each of the parties to the property. The court is prohibited from making any order unless it is satisfied that it is just and equitable to do so.
  • The court divides the property reflecting the parties’ entitlements. The court exercises its discretion when determining the actual allocation of property, however there is a general desire to preserve assets as much as possible.

We specialise in property settlements involving multiple parties, the untangling of complex property interests, trusts and corporate structures as well as complicated superannuation concerns. Our family law team will ensure that you achieve a favourable property settlement.

For assistance with your property settlement, contact our team of dedicated family lawyers in Brisbane, Sydney or Melbourne.

Childrens' disputes

Our family law team will assist you with any query or advice you require.

If the parties can reach an agreement:
If the parties are unable to reach an agreement:

To find out more, please contact our Family Law team.

 

Domestic violence

Domestic or family violence is a serious issue, and if a party to a relationship is fearful of their own safety, or that of their children, then regardless of whether the Family Court or Federal Circuit Court are involved, the police should be called.

What is domestic or family violence?

Domestic violence occurs where one partner in a relationship uses his or her violent and/or abusive behaviour in order to control and dominate the other partner. The behaviour is either directed towards the spouse or towards the children (in which case it becomes known as 'family violence'). Such behaviour can include physical abuse, damage to property, sexual abuse, verbal abuse, financial abuse, harassment or the threat of any of the above.

The Family Law Act 1975 defines 'family violence' as:

'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.'

What options are available when domestic or family violence occurs?

The Domestic and Family Protection Act 1989 deals with domestic and family violence issues. The Family Circuit Court can make a domestic violence order for the benefit of the aggrieved party that can either be temporary or permanent. A temporary protection order is an order for a short period of time until the court decides whether to make a permanent protection order in favour of the aggrieved. A Protection Order can only continue in operation for a maximum of two years.

An application for a protection order can be made by the aggrieved, an authorised person, the police, or a person acting for the aggrieved under another Act (such as the Family Law Act 1975).

A Domestic Violence Protection Order not only protects the aggrieved, but also relatives and children of the aggrieved. Such individuals must be specifically named in the Order to be protected. The court will make an order in favour of the aggrieved if the following conditions are satisfied:

  • The respondent has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
  • The person is either likely to commit an act of domestic violence again or if the act of domestic violence was a threat, is likely to carry out the threat.

The orders may include requirements that the respondent:

  • Be of good behaviour and must not commit acts of domestic violence or associated domestic violence;
  • Comply with any other conditions imposed by the court, such as conditions whereby the respondent must remain at least a certain distance away from the aggrieved, he or she must not hold any weapons and must give up any weapons in his or her possession, etc.

The police have considerable powers under the domestic violence legislation, including the power to take the respondent into custody using such force as is reasonable, if they feel that the aggrieved is in danger of being harmed by the respondent or a person's property is in danger of being damaged by the respondent. The respondent who is taken into custody may be held in custody for a maximum of 4 hours, so it is essential that an application for a protection order naming the respondent be heard as a matter of urgency.

For additional information, please contact our Family Law team.

Guardianship

Our guardianship system plays an important role in human rights protection in Queensland. Guardianship gives someone the legal authority to make decisions for another person who does not have the capacity to do so.

The Guardianship and Administration Act 2000 (Act) provides for the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired decision-making capacity.

The act aims to seek a balance between the right of an adult with impaired decision making capacity to maintain an independent role in decision making and their right to adequate and appropriate decision making support.

Queensland Civil and Administrative Tribunal

Although many parties make informal arrangements to help close relatives who have impairments, the Queensland Civil and Administrative Tribunal provides a legal mechanism for appointing guardians and administrators to make certain decisions. The tribunal is an independent authority with the power to protect individuals with impaired decision-making capacity and to appoint guardians or administrators who will act in their interests.

Where can I get further information?

To find out more, please contact our Family Law team.

Separation & divorce

We specialise in assisting our clients achieve the best possible outcome following separation or divorce.

There are a number of considerations after a couple separates. These include:

Surrogacy

The Surrogacy Act 2010 (Qld) came into effect in Queensland on 1 June 2010. The act provides the framework for the regulation of altruistic surrogacy agreements and prohibits commercial surrogacy arrangements.

What is a surrogacy arrangement?

Surrogacy is an arrangement whereby a woman (known as the “birth mother”) agrees to become pregnant, with the intention of handing over the child to a person or a couple (“the intended parent(s)”). The agreement must be established prior to the pregnancy.

Can I be a surrogate?

Any woman that has capacity to make decisions for herself and is over 25 years of age may enter into a surrogacy agreement, provided that she complies with the conditions under the Surrogacy Act 2010.

There is no requirement that you be related to or associated with the intended parent. Given the complications that may arise, we would recommend though that you only consider entering into such an arrangement with a trusted family member or close friend.

Your spouse may also be a party to the surrogacy agreement. Typically, he or she would also be considered the child’s birth parent, prior to an order transferring parentage being obtained.

Who can be an intended parent?

An intended parent is either a male, or an eligible woman, and may either be single or in a couple. The intended parent(s) must also be at least 25 years of age prior to entering into the agreement.

Generally, an eligible woman is a woman who is unable to conceive or carry a pregnancy successfully, or alternatively, is likely to conceive a child affected by a genetic condition or a child that is unlikely to survive a pregnancy. The act further defines an eligible woman and the intended parents’ lawyer should discuss their eligibility in more detail with them.

What is the first step?

Prior to becoming pregnant, you and the intended parents must seek counselling and independent legal advice.

Firstly, should obtain counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications. You must not consult the same counsellor as the intended parents.

Secondly, you should seek independent legal advice from a family lawyer. You and the intended parents must not consult the same law firm.

What information will I receive from the lawyer?

Each arrangement will be different and personal to your circumstances. It is important that you receive proper and candid advice from a lawyer that understands the Act and family law.

A lawyer should advise you the following:

  • Whether such an agreement is enforceable.
  • Your legal obligations under the arrangement and the act.
  • What happens if you don’t want to hand over the child.
  • Whether child support would be payable if you don’t want to hand over the child.
  • What happens if the intended parents don’t want the child.
  • The legal implications of a parentage order (this is discussed in further detail later in this article).
  • Whether a child will know about their birth parentage.

In the event that you and the intended parents have sought counselling and independent legal advice, and still wish to go ahead with the arrangement, you may then execute a written agreement.

What needs to be in the agreement?

We recommend that you have your lawyer draft your agreement. In the event that the intended parents’ lawyer drafts the agreement, we advise that you should not execute it until you have provided your lawyer with a copy and you have had the opportunity to discuss each provision with you and made amendments, if necessary.

The act does not specifically provide any conditions that must be included in the agreement.

However, as the surrogate, you are entitled to be reimbursed your reasonable surrogacy costs. An agreement should further clarify what expenses are considered to be reasonable in the circumstances. The agreement should also provide an overview about arrangement and parties generally.

Can I get paid to be a surrogate?

The act prohibits commercial surrogacy arrangements. This means that it is illegal to profit from such an agreement.

However, as previously stated, you are entitled to be reimbursed reasonable costs in relation to the arrangement such as medical, legal and counselling expenses. Your lawyer should discuss with you in further detail the expenses that are to be included in the agreement and what you are entitled to be reimbursed.

Are there any restrictions on conception?

The act does not dictate or prohibit how a child may be conceived. Accordingly, there are no restrictions, provided that the conception is otherwise legal.

Can I manage my own pregnancy?

There is a possibility that you and the intended parents may disagree with how you manage your pregnancy. Some issues that may arise include:

  • Whether an amniocentesis should be undertaken.
  • Whether you drink small amounts of alcohol during the pregnancy.
  • Whether you have a natural birth or caesarean.

The act provides that you have the same rights to manage your own pregnancy and birth as any other woman. Effectively, you are the decision-maker with regards to the unborn child and pregnancy, notwithstanding the intended parents’ contrary wishes.

What happens when the baby is born?

As you are the birth parent, it is your responsibility to register the birth of the child. Until the parentage is transferred to the intended parents, you are considered to be the child’s parent. However, from birth the child may live with the intended parents but you remain legally responsible for the child until the transfer of parentage.


How is parentage transferred to the intended parents?

Twenty-eight days after the child has begun residing with the intended parents (and not more than six months after the birth), the intended parents may apply to the Children’s Court to transfer the parentage of the child from the birth parents to them. Several documents must be filed, including an affidavit sworn by you, being the birth mother, an affidavit of your lawyer and an affidavit of your counsellor. Your lawyer should assist you with preparing these documents.

A parentage order will not be made in this manner without your consent.

The intended parents will also arrange a surrogacy guidance report. This will require you to meet with an independent and appropriately qualified counsellor (other than the counsellor you met with prior to entering into the agreement), who will form an opinion, inter alia, whether the making of the parentage order will be in the best interests of the child.

What happens if I no longer want to transfer the parentage of the child to the intended parents?

In the event you change your mind and wish to keep the child, then it is up to the intended parents to make an application to the family law courts to determine parentage. Until such an order is made, you are legally the parent of that child.

The family law courts will thereafter determine which person should be given parental responsibility, in light of the child’s best interests.

What happens if the intended parents no longer want the child?

There is a risk that prior to a parentage order being made, the intended parents may no longer want the child. Until a court orders otherwise, you remain the child’s parent.

Effectively, you have the option of either keeping the child, or consenting to the child’s adoption by another person. In these circumstances you should consult your lawyer who will discuss your options and obligations in more detail.

Will the child ever find out who its birth parents are?

Upon a child obtaining the age of 18 years, the child may apply to the court to have access to the record of proceedings in relation to the application to transfer the child’s parentage.

The court has the option of providing the child with all or part of the record of proceedings. This means that the court may disclose your identity to the child, even if you do not consent for them to do so.

Conclusion

There are many legal and emotional complications involved in entering into a surrogacy arrangement and such a decision should not be made lightly. Provided however, if all parties receive expert advice from their lawyers and counsellors, and a serious consideration of all possible consequences, then the parties have the framework for a joyous outcome for all involved.

If you have any questions regarding this article or would like legal advice if you considering becoming a surrogate, please contact our surrogacy lawyers.

Wills & Estates

More than making a will

Estate planning allows you to make informed decisions about the control and transfer of your wealth.

An appropriately considered and effective estate plan enables you to transfer your wealth to the next generation in a tax effective manner. By implementing an effective estate plan you have the option of placing the beneficiaries of your estate in a better position to receive their inheritance whilst simultaneously ensuring your estate assets are protected from disputes, bankruptcy and relationship breakdown.

An effective estate plan will also assist protection of your assets and lifestyle during your lifetime should you become incapacitated or unable to manage your own personal, health and financial affairs.

There are many issues to consider when preparing your estate plan. Some of these issues include:

  1. Choosing an appropriate executor of your estate and trustees of trusts established by your will.
  2. Drafting your will with or without trusts, in order to effectively transfer your assets to your chosen beneficiaries.
  3. Understanding the nature and make up of your estate.
  4. Appointing appropriate attorneys to act for you in making important lifestyle and financial decisions.

Estate planning is more than ensuring that you have an up-to-date and valid will. Rather, it is about ensuring the smooth transition of wealth from one generation to the next in the most tax-effective manner and with appropriate asset protection.

We will help you transfer your wealth to the next generation

We understand that all families are unique and have different needs. Our relationship with you allows us to cater for all estate planning requirements. We will work together to draft your will to take into account all aspects of your estate and family. We will provide advice on which assets may be included in your will and how to ensure that other assets are also distributed according to your wishes.

As your personal circumstances change, we will provide specialist advice on reviewing and amending your will to reflect changing circumstances.

Sharing our experiences

Through our experience, we are able to assist you in implementing your estate plan, acting for your chosen executors in the administration of your estate, and if necessary, acting for your executors in any dispute resolution regarding your estate.

Depending upon your circumstances, the range of services we offer you and your family include:

  • Prepare your will.
  • Prepare your will containing trusts (i.e. testamentary discretionary trusts).
  • Prepare your Enduring Power of Attorney.
  • Prepare your Advance Health Directive.
  • Prepare superannuation nominations.
  • Advise about control of non-estate assets (i.e. passing control of family discretionary trusts or jointly owned assets).
  • Advise about choice of executors, trustees and guardians.
  • Advise and act for executors in the administration of estates, including applying for a Grant of Probate or Letters of Administration;
  • Advise and act for executors in disputes concerning the estate (i.e. in any claim made against the estate);
  • Advise and act for beneficiaries or potential beneficiaries of an estate.
  • Advise on all legal matters concerning wills and estates.
Family Law resources & information

Commonwealth legislation

Family Court legislation - relevant legislation considered by the court.

Accessing courts & their judgments

Family Court of Australia - judgments and publications.
Austlii - published judgments from 1989 until present.
Federal Magistrates Court of Australia - Access family law judgments.

International

Australian Family Law - information relevant to Australians living overseas.
Convention on the civil aspects of child abduction 1983 - This convention is designed to ensure the rights of custody under the law of one signatory country are respected in another.
Reunite International - The leading UK charity specialising in international parental child abduction.

Government resources

Centrelink - more information about your entitlement to family tax and pension benefits.

Legal commentary

Go to our Family Law Insights for guidance and commentary on significant and topical family law issues.

International Family Law

Australia is a cosmopolitan society with an extremely mobile population.

Over the past 60 years, Australia has evolved into a modern, multicultural society that is closely integrated into the global economy. Twenty-eight per cent of our population were born overseas and, unsurprisingly, this trend has been increasing every year for the last five years. This means that there are a lot of professionals from around the world who have worked or are currently working in Australia.

Australian professionals are also incredibly mobile and form a large percentage of the one million Australians living overseas at any one time. In 2015–2016, over 400,000 Australian citizens left the country with the intention of remaining abroad either permanently or for the long term.

Understandably, many Australians will form relationships or marry whilst abroad. Many Australian professionals will also build up substantial assets, including property, superannuation (or equivalent), deferred compensation, shares or other assets.

It is also not uncommon for children of Australian nationals to be born overseas. You may be an Australian citizen who enters into a relationship with a person who is a national of another country and, if you have children, for those children to be born in either that country or even in a third one.

Did you know that living and working overseas can have legal implications for both your relationship and your family?

While pursuing business and professional opportunities abroad is both exciting and rewarding, complexities can arise if you form a relationship, enter into marriage or have children in a situation that crosses national boundaries and/or cultures. Things can become particularly difficult from a legal perspective if your relationship/marriage breaks down.

Some of the issues that can emerge in these situations include:

  • If you are an Australian based overseas, will your marriage or divorce be recognised in Australia?
  • Will an Australian binding financial agreement be enforceable abroad?
  • Will a court order from an overseas country be enforceable in Australia and vice versa?
  • If your relationship breaks down while you are overseas, can you file divorce or children’s proceedings in Australia?
  • Is it possible to select the jurisdiction of your choice for divorce, financial or children’s proceedings? If so, which jurisdiction would be best for you?

How can we assist you?

At Barry.Nilsson., we have developed expertise in international family law. We act for international clients and expatriate clients living and working overseas.

We assist in the following areas:

When working on family law matters that raise international issues, we are aware that there is no one right answer. Instead, we are the kind of lawyers who have the legal expertise to bring flexible and creative thinking to the table.

If it is appropriate, we will take a multidisciplinary approach to your matter. We are well equipped to collaborate with other legal experts in the areas of property, trusts, corporate and commercial matters, employment and immigration. If necessary, we also draw on the specialised knowledge of forensic accountants, financial advisors, tax experts and foreign lawyers.

Finally, we are well connected at the international level.

Geoff Sinclair is Chair of the Board of the World Congress of Family Law and Children’s Rights and is an expert in child abduction. He is also a Fellow of the exclusive International Academy of Family Lawyers, which means he is part of a network that includes the most highly regarded and elite family lawyers around the globe.

Terrence Trainor spent close to ten years working in London, where he specialised in family law cases dealing with complex domestic and international cases. During this time, he acted for a number of high profile clients in the entertainment industry, professional sportspeople and city professionals in both parenting and high-value financial disputes. Terrence is admitted to practice in Australia, England and Wales.

Angie Todd is dual qualified in Australia and Hong Kong, and is able to provide international family law advice for Australian/Chinese nationals and expatriates. She is a trained collaborative practitioner, and a member of the International Academy of Collaborative Professionals. Angie recently spent eight years in Hong Kong where she represented high net worth clients, senior business and legal executives, senior airline captains, expatriates and Chinese nationals.


To find out more, meet the rest of our Family Law | Wills & Estates team and sign up for our insights. You can also follow us on LinkedIn or contact us.

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