(07) 3208 0850

Springwood Lawyers

Brisbane Family Law | Divorce Lawyers | Wills & Estates | Property Mediation

Provision for disabled children in your Will

Making provision for a disabled child in your Will can be a difficult matter. How much of your estate should you leave the disabled child in comparison to your able bodied children? Who should the Trustee be and on what Trusts should your gift for the disabled child be left?

It is important to note that once your disabled child becomes eighteen (18) such child shall come under the supervision of the Adult Guardian and if when you have died, the Adult Guardian forms the view when you have died, that you have not made adequate provision for your disabled child, then they well might instruct the Public Trustee to bring a Family Provisions Application against the estate. Springwood Lawyers is able to talk you through these issues and provide you with advices, including with respect to the pros and cons of Special Disability Trusts.

Parenting Orders with respect to very young children

When parents separate, there can be very young or even newborn children. Given that parental attachments are formed early in a young child's life, it is important that appropriate arrangements/Orders be put in place for parents (usually the father) to spend time with the young child/children. A general rule of thumb is that frequency of time, rather than quantity of time, is most important for the child at this stage. It will often be necessary in these circumstances to attempt to negotiate/obtain Orders so that "the non live with parent" can spend time with the child on several times each week for a couple of hours each time. Such negotiations are often made more difficult because emotions are running high and the "live with parent", probably the mother, often requires such time to be supervised by her or take place at her or one of her family member's residences.

Springwood Lawyers is able to provide sound advice in these circumstances and assist with the negotiations or the obtaining of a Court Order.

What happens if you die without a Will?

A common is misconception is that if you die without a Will then your estate all goes to the Government. Whilst this can happen in certain circumstances, it is not usually the case nor is it usually likely. This being said, dieing intestate (without a Will) can create all sorts of hardships for your family. If a husband or a wife dies without having made a valid Will, then the surviving spouse will receive a percentage of the estate, with such percentage depending upon how many children the deceased left. This can create a situation which the deceased spouse may not have contemplated. Also, it is more likely that a grant of representation will be required if the deceased died intestate, putting the estate to unnecessary expense.

Springwood Lawyers is able to discuss these issues with you and assist you to make a Will.

Disputes over children's names

It is not uncommon in Family Law matters, that there is a dispute over a child's surname. As in all other parenting disputes before the Court, the Court will then make a decision on the child's surname, based on the best interest of the child. Section 60CC of the Family Law Act sets out what the Court must take into account in determining what is in a child's best interest. Each case turns on its own facts but there is a significant likelihood that the child will end up with the hyphenated surname of both its parents.

When there are no Court proceedings, the dispute can be decided by the Registrar, of the Registry of Births, Deaths and Marriages. If the mother lodges a Birth Registration Application with the Registry but the father has not signed the Application, the Registry will provide the father with an amended Birth Registration Application. This allows the father to make Application to the Registry, including with respect to the surname. The Registrar can record either of the names of the parents on the child's Birth Certificate or a hyphenated name. If an Application has already been made to a Court exercising Family Law jurisdiction however, seeking an order with respect to the child's surname, then the Registrar will not make a decision and will await the Court's determination.

I am not the father but I still want to be involved in the child's life

From time to time disputes arise over the paternity of a child of a relationship.  Just because you are not the father of the child doesn’t mean that you are expelled from having a relationship with the child.  In certain circumstances the person seeking to spend time with the child may be unsure if he is the biological father or he may have raised that child as his own.  For all intents and purposes he is a father to the child.

Disputed paternity can be resolved by simply undertaking a DNA based paternity test.

Whether the father is the biological father or is otherwise a significant person in the child’s life, can have an impact upon the time that the child will spend with the father or such significant person.   The Court will usually grant more time to a biological father than to a significant person. 

If you have concerns regarding paternity or if the mother of the child is claiming that you cannot spend time with the child because you are not the biological  father, then we can assist you to maintain your relationship with the child or otherwise clarify issues with respect to the paternity.

The practical approach

We often have parents say to us “I want 50/50 custody of the kids”, that is that they would like the children to live with each parent for an equal amount of time in a shared care arrangement.

When quizzed on their employment circumstances, the next statement from the parent can sometimes be “I work Monday to Friday from 6:00am to 6:00pm”.  In such circumstances, if that parent does not have a support network or cannot otherwise make arrangements for the child’s care during their working hours or cannot modify their working hours, then an equal time, shared care arrangement may not be practical or achievable. It may be however that arrangements can be put in place which will allow such a parent to spend more time with the child.

When considering what arrangements are appropriate for a child, the Court’s will consider issues such as domestic violence and child abuse if applicable, as well as what is reasonably practicable and in the child’s best interests. 

Springwood Lawyers will provide sound advice on how you should proceed.