Three Family Law Cases

Drug use by a parent is often alleged in Family Law parenting proceedings, typically in the context of one parent calling into question the ability of the other parent to provide appropriate care for the child/children.

Where drug use is alleged by one or both parents, a Court will often seek some independent evidence to determine whether or not there has in fact been drug use. The Court will typically make orders for one or both of the parents to undergo drug testing.

Orders for drug testing usually involve urine testing and/or hair follicle testing, however, it is important to understand that testing is not conclusive and some drugs are more readily identifiable than others.

Urine Testing VS Hair Testing

Urine testing is useful in a short-term context as it can provide information about drug use in the short period of time before the test sample is obtained. Hair follicle testing can provide a 90-day history of drug use in relation to certain drugs and is therefore generally considered a better source of information with respect to drug use.

Limits of hair follicle drug testing in Family Law proceedings

It is, however, important to appreciate that there are limits to hair follicle testing. Hair follicle testing for cocaine use is less accurate than hair follicle testing for marijuana, for example, as there is no definitive metabolite for cocaine. There is a single metabolite which is considered evidence of the use of marijuana.

This table prepared by Dimitri Geostamoulos, Chief toxicologist and manager of the Victorian Institute of Forensic Medicine, shows classes of drugs which are readily identifiable in urine and their detection times.

QML provides a list of substances they routinely report within a hair drug test, including:

• Amphetamine-type substances including Methylamphetamine and MDMA
• Benzodiazepines
• Cocaine metabolites
• Cannabinoids and Synthetic Cannabinoids
• Opiates/Opioids
• Synthetic Cathinones and Hallucinogens including LSD

A judgment was handed down in Family Law proceedings in the United Kingdom on 29^th September 2017 criticising the validity of hair follicle drug testing based on criticisms made by a trichologist (hair and scalp specialist).

In this case, a child had been removed from her mother at birth but returned to the mother when she was 6 weeks old under the supervision of the local authority. The removal occurred because the mother had provided an ‘ostensibly positive’ hair follicle drug test result which led to authorities determining that the child was not safe in the mother’s care. The mother had a history of drug abuse having used heroin and ‘crack’ when she was 21. The 3 older children of the mother had been removed from her and were being cared for by the maternal grandmother.

The mother was adamant that she had not used drugs during a 2 year period despite some positive hair follicle drug test results during that period. Testing organisations had interpreted the results as showing low-level cocaine use by the mother for at least part of the 2 year period. The processes of the testing organisations were identified as issues by the Judge, including the significance of findings of cocaine metabolites below “cut-off levels”.

The Judge made a supervision order whereby the child remained in the mother’s care with the local authority to supervise this, rather than the care order sought by the authority (where the child would be placed in the care of the authority). This was despite a finding that the mother had used cocaine at a low level and infrequently during the 2 year period, and also the fact she had lied about it.

Hair falls short

The criticisms of hair follicle testing were partly based on analysing the significance of test results. It placed an emphasis on the need for experts to describe the process, record the results and explain their possible significance in a way that can be clearly understood by those likely to rely on the information.

It is expected that this case will have flow-on effects for drug testing in Family Law proceedings in other countries, including Australia.

Aylward Game Solicitors is able to provide you with practical advice regarding parenting matters and Family Law matters more generally. It is especially important to obtain advice if you have concerns about the other parent which may have an impact on the child.

For help navigating a matter you may be facing, please reach out to our team on 1800 217 217 or contact us.

The post Limits of hair follicle drug testing in Family Law proceedings appeared first on Brisbane Family Lawyer.

from Brisbane Family Lawyer http://ift.tt/2j3uqC3
via IFTTT

Three Family Law Cases

The whole area of succession law in Australia is still dealt with by State Legislation and there are therefore variations in the arrangements and laws between the different states. Victoria has recently passed changes to the legislation in that state that govern what happens when somebody passes away without having left a valid Will. It reminds us of The Critical Importance Of Having A Will.

Victorian Wills Legislation

The new Victorian arrangements provide that when someone dies and leaves a partner but no children then the partner takes the whole of the deceased estate. If the deceased leaves a partner and children, who are the children of the surviving partner, then the partner takes the whole of the deceased estate. If the deceased leaves a partner and child/children who is not a child of the partner then the partner takes the personal chattels plus the first $451,909.00 of the estates plus interest and one half of the balance and the children of the person who has died share equally among the other half of the balance of the estate equally.

The Victorian Legislation also provides that the figure of $451,909.00 is the ‘index link’ according to the Melbourne Consumer price index. These Victorian arrangements are somewhat different to the arrangements that apply in Queensland. In Queensland, if there is one surviving spouse and no children, then like Victoria the spouse takes the whole of the estate. If there is a spouse and one child, the spouse takes half of the estate. If there is more than one child then the spouse takes 1/3 (or 33%) of the estate. In each case, the children share equally in the balance that remains.

To ensure that you avoid the uncertainty of your estate being dealt with according to the Laws passed in each state, which can be changed from time to time and which vary around the country, it is vital that you make an keep up to date a properly executed Will.

We also suggested at the same time it is an ideal opportunity to address the making of an Enduring Power of Attorney.

The post The Critical Importance Of Having A Will appeared first on Brisbane Family Lawyer.

from Brisbane Family Lawyer http://ift.tt/2AhnB7h
via IFTTT

Three Family Law Cases

When two people separate often after a very long relationship, financial issues can become problematic in that there is stress involved with the separation itself and then you have to start thinking about well how we’re going split these assets up how we’re going to finalise things between us and that can often become a complicated process especially if there are a lot of assets. The most important thing after a separation has taken place is to seek legal advice as early in the process as possible the sooner that you’re aware of your rights and your obligations the sooner you’re going to be able to take steps to  formalize matters between you and your former partner so as a lawyer I’ll  take all of those things into consideration and do my best to help you to reach a financial settlement which is suitable for you as it can be.

The post Financial Settlement appeared first on Family Law Brisbane.

from Family Law Brisbane http://ift.tt/2yCIpEC
via IFTTT

Three Family Law Cases

An unsent text message on the phone of a deceased man was found to be a valid Will in a decision handed down by the Supreme Court of Queensland on 9^th October 2017.

Before taking his own life in October 2016, the 55 year old deceased man drafted a text message to his brother on his mobile phone which said:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden… Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636

MRN190162Q

10/10/2016

My will”

The deceased’s widow made an application to the Court to be appointed as the executor of the deceased’s estate on the basis that the deceased died without a valid will. The brother and nephew of the deceased made an application that the unsent text message on the phone of the deceased should be treated as his will.

The deceased had been married to his wife for one year, and they had been together for over three years when he passed away. It was common ground that the relationship had problems and that the deceased had left his wife several times, most recently just two days prior to his death. There was evidence to suggest that his wife had taken him to his mental health appointments, and they had spent the weekend immediately before his death together.

What is a will?

There was no evidence of any other document or will prepared by the deceased.

The deceased’s brother gave evidence that he had spoken to the deceased around Easter 2016, and the deceased apparently told him that he wanted him and the deceased’s nephew to have all of his possessions including his house and superannuation if anything was to happen to him, and that his wife was to have nothing.

The position at law

The law has changed over time to recognise less formal documents can be accepted a valid will. This is in contrast to the earlier position which was that a person’s will has to be in writing and signed in front of two witnesses.

The Court will consider three factors when determining whether a document is a valid will:

• Was there a document?
• Did that document purport to embody the testamentary intentions of the relevant Deceased?
• Did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her or his part, operate as her, or his, Will?

How the law was applied

The Court was satisfied that the unsent text message was a document, and also considered there was evidence to suggest the text message included testamentary intentions (intentions about what is to be done with a person’s property upon their death). The use of the words “my will” at the bottom of the text message and the reference to various assets and how they were to be distributed were considered enough to amount to testamentary intention.

The deceased’s widow argued that the deceased did not intend for the text message to operate as his will as he did not send it. The Judge did not accept this and instead made the point that the deceased had his phone with him at the time of death, and he may have decided not to send the message to his brother as it would have alerted him to the fact he was about to commit suicide.

The Court found that the text message was intended by the deceased to operate as his will.

To read the full judgment, click here.

What does this case mean for you?

This case demonstrates the importance of a valid will. Having a solicitor prepare your will to ensure it is compliant with the relevant laws and accurately reflects your intention will provide you with security that your estate will be administered in accordance with your wishes. In this case a properly executed will could have saved the significant costs and delay of taking the issue to the Court.

We offer very reasonable fees for an estate plan review and will and EPOA preparation.

The cost involved will depend on individual circumstances and how complex the Will needs to be in order to effectively deal with your individual circumstances.  The will is only one element of a broader process.

When you consider the peace of mind you will have in knowing everything is in order in the event of your death; the cost of drafting your Will is not an expensive outlay.

Contact us on (07) 3236 0001 to arrange a consultation.

The post UNSENT TEXT MESSAGE FOUND TO BE A VALID WILL appeared first on Family Law Brisbane.

from Family Law Brisbane http://ift.tt/2z0GBZA
via IFTTT

Three Family Law Cases

It is not uncommon to spend large amounts of money on an engagement ring. What happens though if the Wedding does not go ahead?

Until 1961, it was possible to sue for damages for breach of promise to marry. Until that point, the courts followed the precedent from an English case that said that if the man gave the woman the engagement ring and she cancelled the wedding then she had to return the ring. But if he cancelled the wedding she could keep the ring.

Who Gets The Ring?

After 1975, when the Australian Family Law Act removed any issues of fault from the divorce application process, there has been some uncertainty as to whether the law regarding conditional gifts of engagement rings has changed or not.

A magistrate in New South Wales recently decide the question in a case that came before them and their view was that it did not matter who cancelled the wedding, the engagement ring was an unconditional gift and did not need to be returned after the wedding was cancelled.

If you would prefer to avoid all possible uncertainty and ensure that there is clarity as to the outcome if a relationship comes to an end (at whatever point) and you wish to consider a Binding Financial Agreement, call Aylward Game Solicitors on 07 3236 0001.

The post Who Gets The Engagement Ring If The Wedding Is Cancelled? appeared first on Family Law Brisbane.

from Family Law Brisbane http://ift.tt/2l14URe
via IFTTT

Three Family Law Cases

It Ain’t Over ‘Til It’s Over: Varying and setting aside final parenting orders

A recent case has moved the goal posts when it comes to re-opening parenting matters after final orders have already been made by the Court.

The test adopted by the Courts is that a parent seeking to have parenting orders set aside or varied must establish that there has been a significant change in circumstance. What constitutes a “significant change” has been called into question in this recent case and may make it easier for parents to reopen parenting matters after final orders have been made.

set aside. v. to annul or negate a court order or judgment by another court order. Example: a court dismisses a complaint believing the case had been settled. Upon being informed by a lawyer’s motion that the lawsuit was not settled, the judge will issue an order to “set aside” the original dismissal.

Set aside legal definition of set aside | http://ift.tt/2wlvSnB

Historically, pre-existing issues which were raised or could have been raised at the time of the original final orders will not be enough to constitute a significant change of circumstance. In this particular recent case, the mother was seeking to relocate from Melbourne to South East Queensland with the children to reside with her new partner. The mother was in a relationship with the same partner at the time the final orders were made. The father lives in Melbourne.

Court Orders

The original orders provided for the children to live with the mother and spend 5 nights a fortnight and school holidays with the father.

The mother gave evidence to suggest that the children had formed a close bond with her new partner and they wanted to have a permanent home as a family in South East Queensland and also have another child together. Given that the mother is 41, there remains a limited window of opportunity for her to have any more children and the Court took this into consideration.

The Court also considered the difficulties that had arisen in terms of compliance with the original orders – both the mother and father asserted that the other had failed to comply at times, to the children’s detriment. The mother also gave evidence about expectations she had of financial support she would receive from the father at the time the original orders were made and the fact that those expectations were not met. She was working three jobs to support the family. The mother believed relocation to South East Queensland with her new partner would alleviate these financial stresses.

Important Factors

A combination of these factors was considered to represent a substantial change in circumstances and the mother was allowed to proceed with her application to have the original orders altered.

The case is important given that the Courts have an interest in avoiding endless litigation. Repeat visits to the Court are often to the detriment of the children. It is important to remember that the primary concern of the Courts is the best interests of the children, regardless of the legal principle being applied.

Obtaining Final Parenting Orders

If you have or are in the process of obtaining final parenting orders, it is important to receive necessary legal advice to minimise the likelihood of the matter being re-litigated at a later date. Of course, there are inevitably situations where changes in circumstances mean that final parenting orders may no longer be appropriate or in the best interests of the children. Sound legal advice will, however, go a long way to minimising these risks.

For a full copy of the judgment in the case of Searson & Searson [2017] FamCAFC 119 please click here.

The post Varying & Setting Aside Final Parenting Orders appeared first on Family Law Brisbane.

from Family Law Brisbane http://ift.tt/2wleIH2
via IFTTT

Three Family Law Cases

It is not uncommon in our practice as Brisbane Family Lawyers to be asked questions about what happens after separation to the family pet, usually a dog.

Sometimes our clients use words and phrases in relation to their pets that we more commonly associate with arrangements for children, such as custody or access to the family pet. It is also not uncommon for people to be surprised that there is no specific section in the Family Law Act dealing with the issue of who gets the family dog after separation.

So, who gets the dog?

The intensity of emotion and attachment to the family pet was illustrated by the case of Downey v Beale which was decided by the Federal Circuit Court in Parramatta in February 2017.

The husband and the wife managed to resolve all of the other financial issues between them by agreement, but they could not agree on who should keep the family dog and ultimately that issue was the only one that the Judge was asked to decide. As there is no specific section of the Family Law Act that deals with pets, the Judge had to decide the argument in the same way they would as if the argument was about a personal possession such as a car or a boat.

The husband could show that he had paid for the dog when it was originally acquired, but the wife could show that she had paid vet bills during the time that they had owned the dog and that the dog had lived with her both before and after separation. After considering the evidence and the arguments put forward the judge decided that the dog should stay with the wife and the dog was declared to be the property of the wife.

This case demonstrates the strength of our emotional ties to our pets. The husband paid $300 for the dog but between them, the two parties would have spent many times this amount on legal fees for their lawyers to argue this case at the court.

BEST BRISBANE LAWYERS

Aylward Game Solicitors chooses a best practice approach to the Law and turns its eyes towards a customer service model incorporating the technology of our modern world.

For help with a matter you may be facing, please reach out to our team on 1800 217 217 or email mail@aylwardgame.com.au

The post Who gets the dog? A family law case. appeared first on Family Law Brisbane.

from Family Law Brisbane http://ift.tt/2hkZyLx
via IFTTT