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When Is It Ok To Stop A Child From Seeing The Other Parent?

27 August 2015 3:00 pm Comments Off

When parents separate, the overall message from all of the literature and good counsel is that each should do everything in their power to keep their children out of the fight. In many cases however, low levels of trust driven by high levels of perceived parental incompetence can provoke a parent into the belief that it would be better for the children to be shielded away from spending any time or even communicating with the other parent.

In what circumstances then is it OK for a parent to act in this way?

The full answer to this question could quite easily fill an encyclopaedia or even provide the script for an entire television drama series, but there are some “short speak” answers that act as a good guide.

First, both of the biological parents to a child(ren) are considered, at law, to have a joint right/responsibility to retain the child(ren) in their care and make decisions for their welfare. Although this right is “joint”, a parent who acts solely and seeks to exclude the child(ren) from the other parent, does not (at least in the first instance) commit a crime under any law. Juxtaposed to this however are positive obligations imposed by the Family Law Act by which each parent is required to do all things reasonably necessary to ensure that the child(ren) continue to have a meaningful relationship with both parents. A parent therefore who blocks the other from seeing the child(ren) in defiance of this general obligation will usually see their dispute escalated to the Family Court where a judge will decide (and order) what time a suspect parent spends with the children and on what conditions.

When can a parent block the children from time or communication with the other parent in defiance of a Court Order?

Whilst a parent who breaks a court order won’t instantaneously burst into flames, contravening an order does carry the risk of serious sanctions and these can only be escaped if the parent can give a “reasonable excuse”. From case law, a reasonable excuse historically has been accepted where:

The order was breached because the parent did not at the time understand the obligations it imposed…. AKA the “ignorance excuse”; or
Where the parent believed on reasonable grounds that the contravention was necessary to protect the health or safety of the child or another person (including themselves); and
The contravention was not longer than was necessary to protect the health or safety of the person referred to…. AKA the “protection excuse”.

These days, “ignorance” excuses rarely work because modern court orders are accompanied by an explanatory memorandum that clearly sets out the obligations under the orders and the consequences for breaking them. The “protection” excuse remains solid but it is always a question of fact and degree.

What happens to a parent that is found to have inappropriately blocked time with the other parent?

The Court these days has a number of powers open to it which include:

Order an attendance to a post-separation parenting program;
Compensate for time lost with the child as a result of contravention;
Require the respondent to enter into a bond;
Impose a community service penalty or a fine;
Order the Respondent to spend a stint in jail; or
Varying the primary Order – this could include an Order that says that the child is now to start living with the other parent.

Are there any overriding policy considerations that a Court is generally required to apply?

Whilst the short answer here is no – each case must turn on its own facts, a helpful statement made in a previous case was that when deciding these matters, it is not for the Court to try to make an example out of a parent who has breached the Orders as a means of trying to deter other parents from doing likewise, but instead, the Court’s focus must be to make Orders which will better ensure future compliance as opposed to a “general deterrence or policy”. In practical terms what this means is that if a parent has repeatedly and defiantly failed to comply with an Order, but on analysis it is discovered that the Order is just not practicable or even doable, then the Court instead will change the Order rather than punish a party.

What happens when the child refuses to go?

This is a very common and highly problematical area, but again from case law, some general principles have been laid down. These principles say:

The resident parent must actively encourage the child to attend contact;
It is not open to that parent to simply bring the child to the front entrance/gate and then invite the child to walk of its own accord off to the other parent – merely standing by with “folded arms” doing nothing more to either encourage the child to walk to the other parent or discourage the child from remaining still is not enough;
Merely requesting that the child make a telephone call, or to come to the phone is insufficient;
It is not open to a parent to say to the child, “you go if you want to”, or “you make up your own mind”;
Instead it should be the resident parent who tells the child that it is that parent’s wish that they go on contact with the other parent – this is an important point, it is not sufficient for the parent to say it is the other parent’s wish that they go;
It is expected that the resident parent bring to bear the authority that they have over the child just as they would ensure that the child attends school;
The resident parent is not entitled to treat the other party as an enemy who is to be thwarted wherever possible by either active steps or passive resistance;
Even where a parent is in disagreement with the Order, the parent cannot carry on a campaign of non-compliance or defiance against it, the parent must change their attitude and conduct themselves as if it was a decision reached by them of their own free will. If a parent persists in the belief that the Order is wrong, then it is for that parent to convince a Court to change the Order. Short of that action, compliance is required.

Does the situation change at all where the arrangement is recorded in a parenting plan?

A “Parenting Plan” is a document recognised under the Family Law Act as a simple agreement entered into between the parents to record care arrangements for their children. Because these Agreements are not submitted for prior Court sanction, any parent who breaches its terms is not, initially, at risk of any punishment for doing so. Instead in this scenario what typically happens is the innocent parent who seeks to enforce the Parenting Plan, makes special application to the Family Court asking for the Court to basically convert the Parenting Plan into formal Court Orders and usually Judges are happy to comply absent any compelling argument to say different. Once the Parenting Plan’s terms have been elevated up to become a formal Court Order, the arrangements then carry the full force of the Family Law Act and consequently any parent who subsequently reoffends and breaches the settled time and communication arrangements will face all of the usual court sanctions which were covered off in Part 2 of this series. A parent therefore who interferes with another parent’s rights to spend time or communicate with children under a Parenting Plan effectively faces a “strike 1/strike 2” situation.

What should be done when the child is expressing extreme resistance to spending time with the other parent?

We have previously covered off on this subject under another series of articles entitled “Does the child ever get a say”. The short answer for this paper however is that if the child is expressing extreme resistance to spending time with the other parent, then two initiatives should be activated immediately:

firstly, efforts should be made to get the child to counselling or some form of therapeutic treatment to either assist them in overcoming whatever anxiety or resistance they may have towards the other parent, or obtain independent verification of some serious threat of abuse from which mandatory reporting to police and child welfare authorities must follow; and/or
if there is time and money available a specially recognised Court expert known as a Family Report Writer should be appointed and the child(ren) should be allowed to be interviewed by that independent person so that the wishes can be adduced in a way that counters a suggestion that it was primed or scripted from one parent;

and in both cases, the other parent should be involved in the selection of the relevant service to which the child is to be taken.

Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

Divorce- Do the Children ever get a Say

27 March 2014 11:14 am Comments Off

Relevance of Children’s Wishes

On the breakdown of a family unit, decisions obviously need to be made about where the children are to live. For many, a good dose of common sense and child focus make it possible for agreements to be reached and adhered to with minimal quarrel. Sadly for others, the blinding effect of emotional distress, anger, hurt and mistrust towards the other parent can make it seem almost impossible to reach any agreement on any issue concerning the children at all. For both the high conflict cases and anything lying along the spectrum between the extremes, the question is often asked, why can’t we ask the children where they want to live or who they wish to see?

The answer is in fact children’s views are relevant to the determination of their living arrangements and are routinely considered in a number of different ways.

At what age may their views be considered: Many years ago, the Family Law Act stated that any child aged 14 and above may have their views considered. That provision however has long since been removed since there is obviously no magical transformation between 13 and 14 that would suddenly convert a child’s views from untrustworthy to relevant. These days the law instead permits the views of children conceivably from as soon as they can talk as something for a Court to consider. The level of consideration and influence those views may have over a Judge however will be very much affected by the degree of maturity the child or children are assessed as having.
Can the views of one child speak for another: Generally, Family Courts prefer not to see sibling groups split up so that some children are living predominantly with one parent and others with the other parent. In cases therefore where there may be several children with some children (usually the older children) expressing a strong view for living with one particular parent and the other children expressing views which are more ambivalent, the child with the strongest views can certainly seal the fate for the entire sibling group.
How are the children’s views expressed: Firstly, the children are never interviewed by any Judge who might be hearing the case. Under a special exceptionary rule in the Evidence Act, parents may give evidence about what their children have told them (which would normally be excluded on the grounds that it is hear-say evidence) and that evidence can be accepted by a Judge. Where the hear-say evidence from the child relates to abuse or fear the child may have towards another parent or associate, Courts will usually take heed due to the need to act swiftly to protect the children in case the allegations are true. In practically every other circumstance however, evidence of this sort is typically ignored or given little weight due to the strong probability of contamination from bias one way or the other.
Is there an independent person who could be used to ascertain the children’s views in a non-bias way: Working within the Family Law system, there is a very large array of Social Workers and Psychologists who specialise in assisting combatant couples and Family Courts in resolving parenting disputes. In private practice, these persons can be engaged by either one parent or (preferably) both to interview the children and the parents to ascertain not only what the children’s views are on a particular issue, but more importantly why those views are held. This information is then typically written up into a lengthy document called a “Family Report” and that report is usually evidence which can be put before a Court if need be. In plenty of cases however, gaining the report is enough for both parents to resolve the dispute and fall into line with recommendations which are usually made. Within the Family Court system itself, there is also a group of Family Report Writers who can be engaged to prepare an in-house report (sometimes called a Section 11F report) and whilst these sessions follow the same format as a private family report, they are very truncated and consequently limited.
To what extent should the children be allowed to decide their own fate: Even though the children’s views are relevant, it is considered highly imprudent to put the children under the pressure of making them decide the particular issue which is dividing the parents. To do so, it is considered it is placing too much pressure on and placing too much power in the children and each can have long term disastrous effects on their emotional development. Their views instead are weighed in balance with a great number of other factors such as the level of child focus and insight that either parent is demonstrating towards the particular issue and the attitude which they are demonstrating towards the other parent. It is only after considering all of these factors that a Court is then in a position to make a decision on the relevant point.
Are there are other places from which the children’s views could be ascertained: If the children had been interviewed by welfare workers from the Department of Child Safety or Police Officers investigating child abuse allegations then those statements are freely admissible through the Family Court system. On a lesser level, teachers in the State School system can provide reports, but this is usually refused unless the request has come through a Lawyer who has been especially appointed to represent the children (commonly referred to as an Independent Children’s Lawyer or ICL) by order of the Court.
What can be done if there is a suspicion that the children’s expressed views had been coached by the other parent: Generally speaking, as children age and mature, they become less susceptible to indoctrination however younger children are most certainly at risk. The best protection against this is to ensure that the person doing the interview is appropriately credentialed under the Family Law system as they are generally trained to tell the difference between views which are actually coming from a child’s own heart compared to views which have been coached into a child’s head.
Is there an age at which the children’s views would be followed without question: There is a general saying in the Family Court that children aged 15 – 16 and above are considered to vote with their feet and typically once children reach this age, Courts are very reluctant to make any Orders. By this age therefore, the children’s views generally hold sway and the Court largely considers itself powerless to intervene. However, until the children turn 18, there is of course still the ability for the Department of Child Safety to intervene where a child is in a situation which is clearly inappropriate.
Is it ever appropriate for a Lawyer to speak with the children: According to Family Law “best practice guidelines”, Lawyers should only interview a child if they have first been given leave of the Family Court to do so. This leave however, is rarely granted and even applying for leave is likely to be frowned upon. In cases however, where an Independent Children’s Lawyers has been appointed for the children, it has been the practice for many years in other states of Australia such as New South Wales for those Lawyers to interview the children and report on the outcome of those interviews directly to the Court. In more recent years, this practice is now also taking hold in Queensland and so this does set up a more fluid, less formal, line of communication between the child and the Court.

As can be seen above, children most certainly are given a say in circumstances where their parents cannot agree however, for very good reason, children are never assigned to the position of being the Judge, jury and executioner of their own fate. Instead, their views are something to be weighed in balance against all other relevant considerations.

Step-Parent Adoption – Obtaining Adoption Orders

31 January 2013 9:11 am Comments Off

Where a step-parent has been performing the role of an absent/disinterested biological parent for a long time, the urge to “normalise” the relationship understandably holds strong. One way to achieve this is through step-parent adoption. Part 1 of this series discussed the effect of an Adoption Order. In this instalment we discuss the process by which an Adoption Order might be obtained.

The process differs from State to State and time to time. At present in Queensland the following are the steps which must be taken:

First, to be eligible, the step-parent must have lived with the child and the remaining biological parent for at least 3 years and the child must be between 5 and 17 years of age. De facto spouses of the same gender are ineligible to apply.
Next, an application must be made to the Australian Family Court for a “leave to adopt” Order. There are no hard and fast rules, but generally cases involving a long history of neglect from the exiting biological parent, a strong bond between child and step-parent and a general positive attitude (within the bounds of safety) to the possibility of the exiting biological parent re-entering the child’s life, are generally approved. The exiting biological parent must be served with the Application and has an opportunity to object, but there is also a process by which service can be dispensed with if the biological parent’s whereabouts are unknown.
With a “leave to adopt” Order in hand, an Application to Adopt is then lodged with the Queensland Department of Child Safety (DOCS). The exiting biological parent must sign the form to signify their consent to the adoption. If not, an Application must be made to the Queensland Children’s Court (QCC) for an Order to dispense with consent. The QCC is of course entitled to exercise its own judgement but generally, the evidence put to the Family Court to gain the “leave to adopt” Order should be sufficient.
Next, a sub department of DOCS, Adoption Services Queensland (ASQ) will provide the child with age appropriate information and counselling to ensure the child has gained an understanding of what adoption means and the alternatives. ASQ will then undertake an assessment as to the suitability of the prospective adoptive/step-parent. Typically this involves an interview and visit to the step-parent’s household where observations as to the nature and closeness of the child’s relationship with the step-parent can be assessed. ASQ will also consider whether alternative arrangements such as parental responsibility orders, or permission to change a surname might be a more desirable outcome. At the conclusion of the assessment, ASQ will complete a “suitability report” which is released to the parties. If the report concludes that adoption is “suitable” then the step-parent and remaining biological parent can apply back to the QCC for a “final Adoption Order”. The application must be served on DOCS and again on the exiting biological parent, although again, that service can be dispensed with if his or her whereabouts are unknown. In the hearing of this final Application, the ASQ’s suitability report will be presented to the Court for its consideration. Again the QCC is entitled to exercise its own judgement but it would be highly unlikely for the Court to refuse an adoption where ASQ has determined suitability.

In the next instalment, we discuss theoretically simpler/easier alternatives to formal adoption such as change of surname or Family Court Parenting Orders.

Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes to contact Michael for advice phone 3385 0999.

Step-Parent Adoption – Effect of an Adoption Order

9:08 am Comments Off

Statistically, one fifth of separated families these days eventually transform to include a full time step-parent following the re-partnering of one or other of the biological parents.

For some of these families, non-participation of the other biological parent may lead to the step-parent becoming the only “other” parent figure in the children’s life. Not surprisingly in these situations the family might seek to normalise the relationship by permitting the step-parent to legally assume all of the rights and responsibilities for the children as if he or she were their biological parent. Whilst this yearning might be seamless and natural, the legal processes by which it can be achieved feature some complexity. Effectively, the choices available to the couple fall into four broad categories as follows:

Adoption,
Parenting Orders,
Change of surname; and
Inheritance rights.

The decision on which choice to make is best guided by considering both the process and effect of each option.

Adoption: The effect of a formal adoption can be summarised as follows:

The step-parent may now be replaced on the child’s birth certificate in place of the exited biological parent and the child’s name may, if desired, be changed to the step- parent’s name by a relatively simple administrative process.
Decisions for the children’s long term and short term welfare such as schooling, medical procedures, discipline etc, will now be held exclusively by the remaining biological and new adoptive parent jointly, and the exited biological parent will no longer have any say.
Any previous Family Court Consent Order or Parenting Plan signed between the remaining biological parent and the exited biological parent are terminated and no longer of any force or effect.
The exited biological parent’s liability for payment of any future child-support and/or repayment of accumulated past areas in child-support are automatically discharged.
The step-parent is now fully legally capable of being named and holding a position of nominated guardian for the child in the event of the untimely death of the remaining biological parent and the exited biological parent will no longer have any automatic right to seek for the children to come into his/her care.

It is important however, to note that even a formal adoption of a child by a step-parent does not absolutely and forever eliminate all and any rights that the exited biological parent might have. This is because the Family Law Act still recognises that any adult who has an interest in the care of a child has the right to come to the Family Court and seek Orders to permit that adult to participate in the child’s life. Under this broad sweeping provision therefore, it is conceivable that even a biological parent who has been exited out of parental responsibility via an Adoption Order would still have the standing to at least go to the Family Court and seek Orders albeit from a position of relative weakness.

Parts two and three of this series will discuss the process by which an Adoption Order can be obtained and the effect and processes involved in the other options identified above.

Links

Part 2: Step-Parent Adoption – Obtaining Adoption Orders

Paternity Issues and Child Support

29 June 2012 9:34 am Comments Off

Following the breakdown of a relationship, any parent who retains the care of a child under the age of 18 years is entitled to receive financial support from the child’s other biological parent to assist with the day to day cost of living. These payments are assessed and child support assessments can add up to many tens of thousands of dollars and so in circumstances where a father believes he may not actually be the biological parent of a child, there is an understandable motivation to establish in truth, who the child’s father really is. Paternity is also important for considerations such as medical histories of familial genetic disorders such as diabetes, cancer etc and any psychological welfare of the child which might be linked to questions over self identity.

Under our current legal system, a male person will be legally recognised as the parent of a child if he signed the application for issue of the child’s birth certificate, legally adopted the child at any subsequent stage or the child was conceived at a time when the man was in either a marital or de facto marital relationship with the mother.

In the adoption scenario, the biological father becomes irrelevant as the adopted father is then legally recognised as if he was the biological father. In all other scenarios, the legal recognition of the male person as the biological father can be extinguished by application to a Family Court Judge. These applications are typically called Applications for Non-Paternity Orders. In the old days, these applications involved fairly colourful evidence about elicit affairs, secret liaisons, phone tapping, private investigators, photographs and the like. Thankfully, these days with the development of scientific DNA testing techniques, all of the stress, trauma and cost of these styles of applications can now be avoided.

Put simply, the DNA testing procedure takes a sample of genetic material (usually a swab taken from the inside of the mouth) from the mother, the child and the suspected father. The procedure relies upon the scientific discovery that every child inherits precisely one half of their DNA make up from their mother and the other half from their biological father. As the biological mother and child are obviously known, a DNA test simply therefore looks at that portion of the child’s DNA which is not referable to the mother and compares it with the DNA of the alleged father. If the DNA matches then the alleged father is concluded to be the biological father with 99.99% certainty. If not, then the test concludes with 100% certainty that the alleged father could not have parented the child.

To gain an Order for paternity testing, an Applicant (be it by the mother or the father) merely needs to provide the Court with some plausible evidence that there may have been a different father responsible for conceiving the child. A sworn Affidavit from the mother or the father about an alternate male partner at the time of the child’s conception will usually be sufficient. With this evidence, the Court will then typically make Orders obligating the mother, the child and the suspected father to undergo the DNA test. Because the Family Court does not have the power to sanction an assault, neither the mother or the father can be forced to deliver up a sample of DNA however a refusal by either parent gives the Court special powers to draw an inference of guilt by avoidance and make an Order that the suspected father is the biological father, even though the test was never performed.

If all of the persons participate in the DNA test, the cost of the test is currently around $800.00 – $900.00 and results take approximately 10 working days. Special procedures in the testing labs insure that false samples cannot be provided and both the Court and the parties have the liberty to make Orders compelling one or either of the parents to pay for the test or for the cost for instance to be shared equally initially with the suspected father then either forced to reimburse the mother for her half of the cost if the test is positive and for the mother to reimburse the father if the test is negative.

Once the test results are known and delivered back to the Court, the Court can then make the Order of paternity or non-paternity based on the test conclusions. If non-paternity is concluded, then the Child Support Act states that the father is immediately entitled to recovery of all money paid to the mother on account of child support from the point of the very first dollar paid under any assessment which is issued. The Court however, has a discretion as to how these payments are to be made and may choose between the options of either a lump sum, a periodic amount or possibly even an off-set of these amounts against child support due against other biological children for which paternity between the father and the mother is certain.

So far cases which have gone before the Courts however, have confirmed that any voluntary payments (ie. an amount outside or beyond the amount which has been assessed as payable) being made from the non-biological father to the mother for the support of the child cannot be ordered to be reimbursed.

Supervised Contact of Children

25 May 2012 1:27 pm Comments Off

Introduction

The area of residence and contact litigation is often fraught with highly emotional opinion. When involved in such litigation it is important to consider first and foremost the best interests of the children.

According to law in Australia, the children have the right of contact on a regular basis, with both their parents and with other significant people in their lives, so far as it does not overlap with their best interests. The Court is empowered to make orders only when it is satisfied that it is in the best interest of the child to do so. Such an order may include providing that a party have contact with a child or children only if that contact is supervised by another person.

What is Supervised contact?

Supervised contact is the situation where the non-resident parent (the parent with whom the child does not live) has contact with the child under supervision of another person. It is the responsibility of the supervisor to ensure that the best interests of the child are protected whilst on a contact visitation with the parent or person.

When can a Supervised Contact Order be made?

Before the Court makes or approves an Order it must be satisfied that to do so will be in the best interests of the child. Such a situation may include that in which there is a risk to the child that he or she may be abducted on contact, or there may be some risk that the child may be subjected to violence while with the contact parent or person. It can also include those situations where the contact parent has deficient parenting skills or requires the aid of another person to care for the child. For example, where the parent of a baby is a young man or woman who is not confident or able to care for the child by him or herself.

When will a supervised contact order not be made?

The Court will not make a supervised contact order if it is satisfied that there is no risk to the best interests of the child if such an order is not made. If the Court is not convinced of the reasonable need to ensure the safety of the child to have contact supervised it will not make or approve the order. For example, the Court will not make an order for supervised contact if it is satisfied that the only reason the resident parent is making the request is to annoy the other parent or cause them difficulties.
If contact, albeit supervised, is still contrary to the child’s bests interests.

How restrictive is a supervised Contact Order?

Supervised contact orders can be extremely varied. Depending on the particular set of circumstances they can be either very flexible or very rigid. An example of the flexibility of a supervised contact order may be allowing a young father to have contact with his young baby under the supervision of the father’s mother whilst at their home. An example of the rigidity of a supervised contact order may be requiring a mother to have contact with the child in a specially designated care facility under the supervision of a registered nurse. Clearly, the level of supervision will greatly depend on the individual case.

Is a Supervised Contact Order final?.

An Order for supervised contact is usually made for a specific period of time with the aim of eventually nurturing a relationship between the child and other parent to the extent that supervision is no longer required. If Orders have previously been made for supervised contact and the Orders do not provide that the supervised contact was to end at any specified period of time the contact parent can make a new application to the Court to have the Order varied.

Who can be a supervisor?

As long as the person who has agreed to be a supervisor has been found by the Court to be appropriate in the circumstances anyone can be a supervisor. The Court cannot nominate someone to be a supervisor if they do not want to. The prospective supervisor must be aware that should they agree to become supervisor they may be required to give evidence in Court should any disagreements arise out of the period of supervised contact. It can also be an extensive commitment of time. It is possible to have more than one supervisor appointed but all supervisors must be approved by the Court and specified in the orders as supervisors.

There is always the possibility that a child may grow afraid or suspicious of the other parent if supervised contact is ordered for no good reason, thus hampering the ability of the child and the parent to develop a warm and loving relationship. On the other side of the coin, however, it may be just as harmful to the child to allow them to go on contact with the non-resident parent without proper supervision. The decision of the Court to provide for supervised contact will therefore need to be based on objective and reliable information and evidence.

If you are concerned that supervised contact is necessary in your case for the best interests of the child, or conversely, that supervised contact will not be in the best interest of the child, you should talk to Michael Zande an Accredited Family Law Specialist who will be able to critically analyse your situation and give you the best advice.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

Caring for Orphans

29 March 2012 4:20 pm Comments Off

One of the greatest concerns for parents, when it comes time to make a Will, is to ensure that their infant children are properly looked after in the event of an untimely death. Below are some of the most frequently asked questions and the answers on the topic:

Where will the children live? The Will should nominate a guardian and it will be with this person(s) that the children live.

Who will look after the money for the children until they attain their qualification age? The person or persons named as Executor(s) (there can be up to four) will have the responsibility of managing the money on behalf of the children until they attain either the age stipulated in the Will (for example 21) or if no age is stipulated, 18. If the named Executor(s) is/are unable or unwilling to act then they can formally relinquish the role in favour of any named backup Executor in the Will, or if none is nominated, to the Public Trustee of Queensland or any private person appointed via Supreme Court Order.

Are there any rules in place to make sure the Executors manage the money responsibly? Yes, the Will can specify investments or general types of investments which are either authorised or prohibited. Beyond this, the Trusts Act authorises any form of investment provided the Executor exercises a level of care diligence and skill to a level consistent with that which a prudent person of business would exercise in the managing of the affairs of other persons. If the Executor however is a professional funds manager then the level of care is elevated to the professional standard of care such a person would have in advising his or her clients. Otherwise the Executor must at least once a year review the performance of the investments and should obtain advice from an accredited financial planner although this is not mandatory.

Can the Executor use any of the money for the day to day financial upkeep pending their attaining the qualification age? Yes. Both standard drafting in Wills and provisions of the Trusts Act authorise the Executors to provide monies out for the children’s advancement, preferment or education which extends from paying a HECS bill down to a pack of corn flakes if the outlay is needed in the reasonable opinion of the Executor.

Can the estate money be used to assist the Guardians with buying or renting a bigger house? Yes. However, if a home is to be purchased the proportion of the estate monies used must be recorded as proportional ownership of the property on trust for the children. If a home is to be rented, the Guardians would need to show a compelling case to demonstrate the practical and financial impossibility of housing and/or otherwise providing for the children without recourse to estate monies.
Who makes the decisions for the children’s day to day welfare which are not financial? The Will should appoint a person or persons to act as Guardian for the children. The Guardian does not need to be the same person as the Executor who has the responsibility for management of the money.

What happens if the persons appointed as Guardian or Executor are considered by others to be unfit for the role? The Supreme Court has the power to remove an Executor and appoint an alternate private person or the Public Trustee. The criteria for removal are not spelt out in the legislation. However, failure to comply with the statutory duties set out in the Queensland Succession Act seems to have been taken as sufficient grounds for dismissal. Challenges to the appointment of a Guardian are made to the Australian Family Court. The Family Law Act contains a number of specific criteria to guide a Judge in such a dispute however, the overriding principle is a determination of what would be in the best interests of the children.

What is the Executor’s obligations in regards to risky/imprudent investments made by the deceased which are still in place at the time of death? The law states that an Executor is not liable for losses to the Estate incurred from retaining such investments. A prudent Executor though should ideally take appropriate financial advice about the pros and cons of selling out of the investment with a view to investing the money elsewhere.
Can the Executor or Guardian borrow money from the Estate? No, however, if there are expenses which are genuinely and solely relating to the children then the estate money should be paid out to those expenses (ie. not lent to the Executor or Guardian to pay on behalf of the beneficiary). Temporarily or permanently borrowing money from the estate for other purposes is a complete breach of the Executor’s or Guardian’s duties to not act in a conflict of interest situation and would be grounds for removal from the position.

What is the extent of liability of an Executor for losses from improper investments? If the Executor lends money to a third party on security (example – a mortgage over a property) which ultimately fails, the Executor is protected so long as the loan did not exceed two thirds of the value of the security as assessed by an independent appropriately qualified person (example – a registered valuer) at the time. The Executor is similarly protected from failed investments of other types provided the Executor took advice on the investment from an appropriately qualified Financial Planner before the investment and reviewed those investments annually. Also in either case, the gains on any other investment made under the Executor’s stewardship can be offset against any of the losses incurred on other investments. Beyond these protections the Executor is liable to make good the loss.

Can the Guardian move into the children’s family home? Yes, and in those circumstances typically the Guardians do not pay rent to the estate for their personal occupancy of the home, but technically the market rental value for the property should be ascertained and the Guardians should pay to the estate a proportion commensurate with their occupancy – for example, if they are two of four occupants in the home, they should pay half.
Can you name a backup Executor or Guardian in case your first choice is unable or unwilling to act? Yes. The parent’s Will can specify a successive line (ie: first, second, third choices) with the stipulation that persons lower down the line are to act only if the persons named immediately above them become unable or unwilling to act. If the appointed person chooses to retire from the job and the Will does not stipulate a replacement, then there is still power under the Trusts Act for that person to choose their own successor and pass the job onto them so long as it is either two individual private persons or a professional trustee corporation. There is also power for the trustee rather than retiring to employ an agent like a financial institution or trustee corporation to do the work on their behalf.

Are there any caps on the amount of capital that can be provided out to the children for their support during their infancy? Yes. The total amount that can be paid out for the maintenance and assistance of the children cannot exceed $2,000.00 or one half of the capital allocated to that beneficiary (whichever is the greater) anything more requires court authorisation.
Does any home used to house the children have to be sold when they reach a qualification age? No. Once the beneficiaries become entitled to receive their assets, they can agree to retain the asset as either their personal residence or an investment and can have the property transferred directly into their names for this purpose. There is no stamp duty or capital gains tax payable upon the transfer however, the property will thereafter be subject to tax if it is held for investment.

Is the Guardian’s need for estate money to assist with living costs relevant in a contest with other persons seeking the guardianship role? Questions of a guardian’s financial capacity or incapacity to appropriately care for the children from their own monies would be relevant but hardly determinative of which person(s) should be chosen. Factors such as a prospective guardian’s level of emotional insight, child focus and affinity with the children and (previously) their parents have always held much greater sway over the outcome of a guardianship dispute than how much money one candidate may have over the other.

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