Early inheritances and gifts towards adult children are increasingly common as the generational wealth gap widens over time. Can such inheritances and gifts be protected in the event of a separation?

We are often approached from both:
1. Parents who intend to give funds to a child and want to protect the funds from a future separation, or have already advanced such funds; and
2. Adult children, who has received or are going to receive funds from their parents and either:
        a. Are in a relationship and want to protect the funds in the event of their separation; or
        b. Are going through a separation and are wondering what they can do.

Legal Solution

The options for protecting gifts/early inheritances are limited and depend upon a family’s specific circumstances. However, they include:

Entering into a loan agreement with your child and/or child’s spouse, ensuring such agreement is drafted correctly, is commercial and is complied with. If this is the case though, is it really a gift?
An adult child entering into a financial agreement with their partner/spouse that provides for the repayment of the contribution from the parents to either the parents, or, to the child prior to any further distribution. For example, if the parents gifted $500,000 to the child, then upon separation, prior to dividing a pool of assets worth $1 million, the child (or child’s parents) are to receive $500,000, before the remaining $500,000 is divided between the child and their partner.
We commonly see agreements prepared in the absence of family lawyers such as caveats on the title of properties, loan agreements and mortgages that do not meet the requirements of the Federal Circuit and Family Court of Australia. When that occurs the Court must ask whether the funds were a gift (and if so, to whom), or a loan. If they are found to be a gift, then the funds are ordinarily part of the pool of assets available for division between the parties.
What you should not do

If ever there is a thought or intention that funds gifted are to be repaid make sure you action it early. We sadly see good intentions and wishes so often forgotten. So do not sit on your hands and hope it will be an amicable separation where intentions are honoured and you see eye to eye. In our experience that does not occur and there is often a disconnect between parents, their child and the child’s spouse.

Unless you are willing for your gift or early inheritance to be included in a property settlement make sure to speak to a lawyer before any movement of money.

Historically, furry friends were given little consideration with respect to formalising a settlement following the separation of a couple. They were generally classified as property and if they were included in a settlement at all, they were considered to be a “chattel”. In practice, however, it was not very common that much consideration was given to pets when formalising an overall settlement.

However, by way of the Family Law Amendment Bill 2024, the government has recently proposed further amendments to the Family Law Act to place a greater emphasis on addressing pets when finalising a settlement.

The specific amendments proposed apply particular consideration to pets in determining who will continue to own the pet as a part of a property settlement, which will allow the Court to make Orders providing for the ownership of the pet to one party following separation. The government has suggested that the proposed amendments will work towards ensuring the safety of all family members following separation, including pets, in circumstances where regrettably pets are often used and abused in cycles of family violence.

To enable the Court to make such an Order with respect to the ownership of a pet, it will have to consider some specific factors, including:

1. any history of family violence during a relationship and who the perpetrator of said violence was;

2. the extent to which each person has cared for the pet historically;

3. any history of cruelty to the pet by either person; and

4. the relationships of either person, or a child of the relationship, with the pet.

These proposed amendments hope to solidify the significance that pets have in many Australian families and recognise them as a unique type of property in a way that they have not been recognised historically.

If you have a family law matter, please reach out to us at 02 9523 5535 or at info@southernwaters.com.au. At Southern Waters Legal we have an experienced team of family law solicitors who can assist you.

As family lawyers, we are often told by our new incoming clients that their ex-partner is a “true narcissist” or that their psychologist has warned them that the examples they have been provided as to their ex-partner’s behaviour lend the psychologist to believe their ex is a narcissist.  What does that mean, is the term thrown around lightly, and what are the implications now that you have to navigate your separation from a narcissist?

Determining whether your partner is a narcissist is a complex and sensitive issue. Narcissistic Personality Disorder (NPD) is a mental health condition characterised by a specific set of traits, and it’s important to approach this question carefully. Here are some common signs of narcissistic behaviour that might help you assess whether your partner exhibits these traits:

Common Traits of Narcissistic Behaviour
  1. Excessive Need for Admiration: Narcissists often require constant praise and validation. They may frequently seek compliments and become upset or angry if they don’t receive the attention, they feel they deserve.
  2. Lack of Empathy: One of the hallmark traits of narcissism is an inability to empathise with others. If your partner shows little understanding or concern for your feelings, needs, or experiences, this could be a sign.
  3. Grandiosity: Narcissists often have an inflated sense of self-importance. They may exaggerate their achievements or talents and expect others to recognise them as superior, even when there’s no evidence to support such beliefs.
  4. Manipulation and Exploitation: A narcissistic partner may manipulate others to get what they want, using tactics like guilt-tripping, gaslighting, or playing the victim. They might also exploit relationships for personal gain without regard for the other person’s well-being.
  5. Sense of Entitlement: Narcissists often believe they are entitled to special treatment. They may expect others to cater to their needs and become angry or frustrated if those expectations are not met.
  6. Difficulty Accepting Criticism: Narcissists typically have a fragile ego, and they may react strongly to any form of criticism, whether constructive or not. This can include becoming defensive, angry, or dismissive when confronted.
  7. Control Issues: A narcissistic partner may try to control various aspects of your life, from your appearance to your interactions with others. This control is often exerted through subtle or overt manipulation.
  8. Superficial Relationships: Narcissists often struggle to form deep, meaningful relationships. Their connections with others may be superficial, with a focus on how those relationships benefit them rather than genuine care or affection.
What to Do If You Suspect Narcissism

If you recognise several of these traits in your partner, it’s important to consider your feelings and well-being. Living with a narcissist can be emotionally draining and damaging. Separating can be even harder, particularly if you have instigated the separation. Here are some steps you can take:

  1. Seek Professional Help: Consider speaking with a therapist or counsellor who can help you navigate your relationship and your removal from the relationship.
  2. Set Boundaries: Establishing clear boundaries can protect your emotional health. A narcissistic partner may test these boundaries, so it’s important to be firm.  Consider barriers that may need to be put in place to assist in negotiating including having a legal representative to advocate for you.
  3. Educate Yourself: Learning more about narcissism and how it manifests can help you understand your partner’s behaviour and develop strategies for coping.
  4. Prioritise Self-Care: Ensure that you are taking care of your mental and emotional well-being. This might include seeking support from friends, family, support groups and professional assistance in navigating the Family Law process.
  5. Consider Your Options: If your partner’s behaviour is causing significant distress, you may need to consider how you co-exist moving forward. Do you need to co-exist because there are children involved, if so, what tools can you use to minimise the impact on your health?
Final Thoughts

It’s important to remember that only a qualified mental health professional can diagnose Narcissistic Personality Disorder.   A diagnosis may never be forthcoming as your ex may not recognise their behaviour or the impact it has had on you and the family.

If your ex-partner exhibits several of the traits listed above and you have separated, consider obtaining advice from a specialist in family law who can assist you in navigating this process and who understands the challenges and negotiation involved with a person who exhibits these traits.

At Southern Waters Legal, our team of family law solicitors are experienced in dealing with separation from a narcissist and is here to offer you expert legal assistance.

The child support system in Australia plays a crucial role in ensuring that financial responsibilities are met between separated parents. However, recent revelations highlight significant issues within this system, particularly concerning the manipulation of tax returns to avoid child support payments. At Southern Waters Legal, our Family Law team is dedicated to helping clients navigate these complexities.

The Growing Problem of Non-Compliance

Recent data reveals that over 160,000 parents in Australia’s child support system failed to lodge their tax returns last financial year. This non-compliance has significant implications, as Services Australia, which administers the child support scheme, referred 168,082 parents to the Australian Tax Office (ATO) for overdue tax returns in 2022-23.

Failing to lodge a tax return is a common tactic some parents use to reduce their child support obligations. This practice often involves underreporting income, using cash-in-hand work, or complex business structures to evade proper child support assessments. Such actions can be seen as a form of economic abuse, significantly impacting the receiving parent, who is predominantly female and already facing economic disadvantage.

The Impact of Non-Compliance

The failure to lodge tax returns can severely affect the calculation of child support payments. Without accurate tax returns, Services Australia estimates income based on previous returns or average earnings, may not reflect a parent’s true financial situation. This discrepancy often results in unfairly low payments, depriving children of the financial support they need.

The repercussions are far-reaching. According to an interview conducted by the ABC with Lara Freidin from Women’s Legal Services Australia, this issue is a form of ongoing violence and economic abuse. It undermines the stability of children’s lives and places undue stress on the receiving parent, who must often initiate investigations or legal proceedings to address these discrepancies.

An additional impact on those who are tardy and have yet to update their income with child support is that the child support agency can issue a debt if they discover you have not been paying child support at the correct rate and your income bracket.

Government Response and Reforms

In response to these challenges, the recent federal budget allocated $5 million for reforms aimed at improving compliance and enforcement within the child support system. The reforms include enhanced scrutiny of tax return compliance and measures to better enforce payment obligations.

Despite these efforts, the ATO’s enforcement program only managed to recover a fraction of the outstanding child support debts. For many parents, navigating this complex system can be daunting, especially when dealing with hidden income or intricate business arrangements.

How to Address Child Support Issues

If you’re facing challenges with child support payments—whether as a payer or a recipient—seeking professional legal advice is crucial. A family law lawyer can assist in several ways:

  1. Reviewing financial disclosures: Ensuring that all income and financial information is accurately reported to prevent disputes and discrepancies.
  2. Navigating complex cases: Dealing with hidden income, business structures, and cash transactions requires specialised knowledge to ensure fair assessments.
  3. Enforcing payments: Legal action may be necessary to enforce payment obligations and recover owed amounts.
  4. Appealing assessments: If you believe the current child support assessment is unfair, a lawyer can help you appeal and seek a revised assessment.
Get the Support You Need

At Southern Waters Legal, our experienced Family Law team is here to help you navigate the complexities of separation and child support. We understand that every family situation is unique and requires a tailored approach to ensure fair and just outcomes.

If you are struggling with child support issues or need assistance with your family law matter, contact us today for a consultation, and let us help you secure the support you deserve.

Mediation can offer a constructive and efficient way to resolve parenting and property matters. By choosing mediation, you empower yourself to actively participate in the decision-making process, while attempting a more amicable solution to court, whilst still being guided by an expert in family law who helps you navigate all the views you need to consider and who advocates for you.

Going through a separation or leaving a partner can be a challenging and emotionally taxing time. And in today’s digital age, ensuring your privacy and safety on your Apple devices is paramount. If you’re finding yourself in this situation, here’s a guide to help you protect yourself and your data if you hold an Apple device:

Stop Location Sharing:
  • Navigate to Settings > Privacy > Location Services and turn off location sharing for all apps.
  • If you have shared your location with someone using the Find My app, you can stop sharing by tapping on “Share My Location” and disabling it.
Change Apple ID Password:
  • Go to Settings > [your name] > Sign In & Security > Change Password.
  • Choose a strong and unique password to prevent unauthorised access.
  • Consider enabling 2-factor authentication, if you haven’t already done so, for further security.
Family Sharing:
  • If you have Family Sharing set up, it’s essential to review what access your ex-partner has to your data.
  • Go to Settings > [your name] > Family Sharing and review what is being shared.
  • You can remove your ex-partner from Family Sharing by tapping on their name and selecting “Remove”.
iCloud and Subscriptions:
  • If you share an iCloud account and your ex-partner cancels their subscription, you may lose access to data shared under that subscription.
  • To avoid this, consider setting up your own iCloud account and unlinking any devices that are not yours.
Photos, Videos, and Messages:
  • If you share an iCloud account, your ex-partner may have access to your photos, videos, and iMessages.
  • Consider backing up your data and creating a separate iCloud account for your personal use.
  • This may not be the case unless you share an Apple ID or they have the password. It is recommended that you change the Apple ID password or create a new separate Apple ID if you were sharing one (see above for these steps).
Apple ID and Wallet:
  • Sharing an Apple ID could potentially give your ex-partner access to your bank or Apple Wallet card details.
  • It’s recommended to create your own Apple ID for privacy and security purposes.
Linked Devices:
  • If you have left a device with your ex-partner that is linked to your Apple ID, they may be able to access data stored on that device.
  • It’s best to unlink the device from your Apple ID.

Remember, these are real concerns and it’s crucial to take steps to protect your privacy and safety. If you have any questions or need further assistance, don’t hesitate to contact Apple Support for guidance. 

In times like these, seeking professional legal advice can also be helpful. At Southern Waters Legal, we have extensive experience in assisting people through separation and can provide the guidance and support you need. Feel free to reach out to us for a confidential discussion with one of our experienced Family Law Solicitors today at 02 9523 5535. 

We are not Apple specialists and cannot guarantee these steps alone will fully protect you. This blog is meant as a guide to educate and guide you on risks you may not have considered when separating. We recommend you contact Apple support to be assisted through these steps and gain more clarity if needed.

As we approach the 6th of May 2024, it’s important to be aware of the significant changes to the Family Law Act that will soon come into effect. These amendments have been introduced to prioritise the wellbeing of children and streamline the legal processes.

In summary 4 of the key changes include:

More streamlined approach

The courts will adopt a more straightforward approach in determining the most suitable care arrangements for children by introducing a parenting framework overhaul, focusing on the best interest of the child.

A new set of factors in section 60CC will guide the court in determining what’s best for the child, which in summary provide:

  • protection from violence, abuse, neglect,
  • consideration of the child’s expressed views,
  • emotional, developmental, psychological, and cultural needs,
  • the capacity of each person with parental responsibility to provide for the child’s needs,
  • the benefit to the child of having a relationship with each parent and the other significant people in the child’s life, when it is safe to do so,
  • any other factor that is relevant to the circumstances of the child.

The presumption of equal shared parental responsibility will be removed

This important change allows the court to determine parental responsibility based solely on the child’s best interests in each individual case.

Final parenting orders can only be modified under specific conditions

Whether existing Parenting Orders have been made by the Court or by Agreement, historically there has been a particularly high threshold to satisfy the Court in relation to whether Final Orders are to be reconsidered by a Court.

The amendment offers clarification about when Final Parenting Orders may be reconsidered. While it remains that a Judge must consider if there has been a significant change in circumstances (when compared to when the Final Orders were made) it also now requires the additional consideration of “best interests” factors for the child/ren and if the matter being reopened will achieve a better outcome overall.

The ICL’s role

In circumstances where an ICL (Independent Children’s Lawyer) is appointed to represent the best interests of a child, they must:

a) Meet with the child (when aged 5 and over) ; and

b) Offer the child the opportunity to express their view (in relation to the specific matter)

While many ICL’s opted to meet with the child, now it is mandatory.

For those navigating the family law system, it’s essential to understand how these changes may affect your situation. Whether you’re involved in new or existing matters, except where a final hearing has commenced, these amendments will apply.

Should you require any assistance in your family law matter, please do not hesitate to contact us on (02) 9523 5535. We are more than happy to help, and our extensive experience in family law matters enables us to provide a high quality service designed for your needs.

The end of a marriage or relationship can be emotionally exhausting, leaving you feeling vulnerable and unsure about the future. Often amid all the stress and worry, many forget to take the time to look after their mental and emotional wellbeing.

When you’re navigating a separation, it’s natural to feel overwhelmed and emotionally drained. There are a whirlwind of emotions that many experience including sadness, anger, confusion, grief, and sometimes relief. During this turbulent time, self-care is essential. This means listening to your body, getting enough sleep, eating well, and seeking support from friends, family, or a psychologist if needed.

It is crucial not to ignore the legal side of things, having a trustworthy lawyer can provide peace of mind. Knowing that your legal matters are being handled competently and efficiently can allow you to focus more on your well-being.

A lawyer can guide you through the legal processes of separation, such as property or asset division, parenting or child arrangements (if there are children involved), and support payments. Having an expert by your side can make all the difference, reducing your stress and anxiety.

Self-care example guide:
  1. Allocate Time: Try to schedule at least 30 minutes each day for self-care, just for you.
  2. Identify what helps you to relax: Make a list of activities that rejuvenate you emotionally and physically (considering activities that are realistic in terms of time and budget). This could include activities like journaling, mindfulness or meditation exercises, taking a bath or more physical things like yoga or a beach walk. 
  3. Try to be Positive: Even if you’re not feeling it, the simple act of smiling can help boost your mood.
  4. Exercise: Doing regular exercise can also assist in creating mood boosting endorphins and help to release cortisol – the stress hormone, as well as clear the mind.
  5. Reach out to others: Don’t be afraid to ask for help even if simply a regular phone call or walk with family or friends. Having a support network around you is important to avoid feeling overwhelmed and alone during a very difficult time.

While this is just a guide, try to prioritise your mental health and well-being and be kind to yourself so you can support yourself through a very stressful and emotional time. At Southern Waters Legal, we have an experienced team of family law solicitors who are ready to help, please reach out to us today on 02 9523 5535 or at info@southernwaters.com.au.

Working as a lawyer takes several years of study, commitment, and a strong moral compass to navigate the ethical complexities of finding legal solutions.

The prevailing reason most lawyers in our team decided to study law and thereafter work as a lawyer, is to help people. It is this that drives us each day as we assist people during what is often the most challenging time of their life.

As family lawyers, we help people navigate their separation and post-separation life, working through financial and parenting issues, and the emotional difficulties that invariably stem from this. It takes empathy, problem-solving and strong communication skills to finalise any matter, as well as technical expertise.

Whilst it is not a job that is accurately reflected by the glamour of Suits, nor the suspense or drama of Your Honour or Better Call Saul, it is resolving matters for our clients in unique and practical ways that brings us the greatest joy.

It is the same for our commercial and estates team. Working to find solutions to commercial problems, or dividing an estate, is what our team is passionate about.

The reason our team specifically likes working at Southern Waters Legal is because we genuinely enjoy spending time together. We are so lucky to have a team with a range of experts across practice areas that we can rely upon. But more than that, each team member’s commitment to our shared values fosters genuine friendships between us all.

Our team at Southern Waters is hand-picked for their alignment with our firm values of:

  1. Excellence;
  2. Empathy;
  3. Team-work & communication;
  4. Can-do attitude; and
  5. Integrity

We meet to discuss how we and our team members are living those values each week.

Working at Southern Waters and being a lawyer is a privilege that none of us take for granted.

We recently posted a blog titled ‘Who Gets the Dog?’. We have received many questions about pets and how they can be dealt with. As such, we have created this blog to consider what options you have to determine your pet’s future post separation.

  1. Binding Financial Agreement

Binding Financial Agreements (“BFA”) can be entered into at any stage in a relationship – before cohabitation, during cohabitation, or post separation. A entered into prior to or during cohabitation will have the effect of pre-determining what will happen to each person’s property in the event that you separate in the future. This gives you certainty about what will happen to your assets, and you can include your pet in such agreement.

  1. Negotiate

Negotiation between the Parties directly or between their respective legal representatives is usually the first step to settle a property matter. This could save a lengthy legal battle and costs. Further, you have raised your pet, you know what is in its best interests. One option may be that the pet moves between each parent’s house with the children.

  1. Mediate

In the event that negotiation does not work, the next step is generally to attend a mediation session with an independent third party who will assist with settlement discussions.

  1. Make an Application to the Court including Orders for your Pet

In the event that your matter proceeds to Court, the Court will consider a range of factors including:

  • who purchased the pet and what the purpose of such purchase was;
  • who is the legal owner of the pet, that is, whose name is the pet registered to;
  • who cared for the pet;
  • who spent more time with the pet; and
  • who took on more of the responsibilities such as feeding, walking and training the pet.

These considerations, however, are based on who should receive ownership of the ‘property’ rather than what is in the best interests of the pet.

It is important to keep in mind that the Court has wide discretion in the Orders that it makes. The Court could Order that one party keeps the pet, that the pet moves with the Children, or that the pet be sold and the proceeds divided.

Further, the Court cannot make an Order for shared time with a pet. In Davenport & Davenport (No 2) [2020] FCCA 2766, the Court decided it could not make a shared custody order which was sought by the Husband, as the FLA provides no statutory basis for the “shared custody” of property following separation (at [38]).

Link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2020/2766.html

How can Southern Waters Legal Help?

Southern Waters Legal can help in the event you require assistance with your pet custody matter or your family law matter generally. Our team of solicitors can assist in negotiation, mediation, and proceeding to Court if required. We understand that pets are more than simply “property”, they are your family.