Michael Lynch Family Lawyers

THIS ISSUE - No. 168

  • Seminar Series – Don’t Miss Out!
  • “Close-Up” Edition
  • What Nullifies a Marriage?
  • Considering “Changing” Wishes
  • Consequences for a Serious Breach of an Order
  • Q & A

Seminar Series – Don’t Miss Out!

The latest public seminar series has got off to a great start, with good attendances. There are only 2 more chances for you to attend these informative sessions.

By attending you will receive practical information, useful handouts, the opportunity to ask questions and learn from the questions of others. You will also receive a Special Offer!

Read some of the comments from people who have previously attended.

Attendance is only $20 (payable at the door).

“Separation & Property”

  • Brisbane City: 1:00pm – 2:00pm – today – Tuesday 6 March, The Sebel Suites, 95 Charlotte St.

“Separation & Children”

  • Springwood: 6:00pm – 7:00pm  – Wednesday 7 March, Springwood Hotel, Cnr Springwood & Rochedale Rds.

Seats are still available, book now! Phone (07) 3221 4300 or email [email protected].

“Close-Up” Edition

Should a property settlement be determined by looking at all the property “globally” and then dividing, or addressing the property on an “asset by asset” basis? The difference can have a serious impact on a spouse’s entitlement. The Court uses both approaches- find out when – read “Determining a Property Settlement – One Asset at a Time?

What Nullifies a Marriage?

A recent Family Court decision has found that failure to disclose a medical condition before marriage will not be enough to make the marriage void.

The Facts:

  • The wife was diagnosed with AIDS 6 months prior to the marriage. She did not disclose her medical condition to the husband.
  • The husband argued that the wife’s failure to inform him of her medical status constituted fraud, and that as a result he had not property consented to the marriage.

The Court Decision:

  • The Court found the marriage was valid.
  • The husband knew who he was marrying and the marriage ceremony had been valid.
  • The fact that the wife had lied to the husband to gain financial benefit did not constitute fraud.

For information on other grounds of nullity, refer to our previous articles “Divorce or Nullity” and “When a Marriage is not a Valid Marriage”.

Considering “Changing” Wishes

When considering a child’s care arrangements, the Family Law Act requires that the child’s wishes be considered. But how much weight does the Court place on those wishes and what happens if the wishes of the child change over time?

Michael Lynch Family Lawyers

The Court recently considered such a situation:

The Facts:

  • The child was 11. The parents had separated when the child was 3.
  •  For the first 6 years after separation the child spent equal time with each parent. The father then sought to move inter-state and brought an Application for the daughter to move with him.

Court found:

  • Neither parent was more preferable than the other in terms of who the child should live with. It therefore came down to considering the views expressed by the child.
  • A Psychologist prepared 2 Family Reports in the matter, both of which expressed that the child was emotionally mature for her age.
  •  In the first report (2009) the child told the report writer that she wanted to live with her father. However (after an unfortunate delay in the matter of a couple of years) the child’s views had changed and in the second report she expressed her desire to remain with her mother and continue to see her father on school holidays.
  • The father sought an Order for an annual review of the care arrangements to take into account the child’s wishes in the future.


  • The child remain living with the Mother.
  • There should be no formal review mechanism- if there were“the issue would be constantly on everyone’s mind, particularly the child’s …and that is not in her best interests”.


Consequences for a Serious Breach of an Order

The Court takes the breach of a Court Order (particularly a parenting Order) very seriously, and may potentially impose a prison sentence.

In a recent case, the Court made Orders that the child live with the father, and that the mother not approach the child’s school. In breach of these Orders, the mother took the child from the school and fled interstate.

The Court Ordered that the mother be sentenced to 6 months imprisonment after considering the seriousness of the breach, the interests of the child and the need to deter the mother, and the wider community from contraventions of Children’s Orders.

When an Order is given providing for the care of a child, the parents must take all reasonable steps to adhere to those Orders. If you are in doubt as to your obligations under an Order, it is important that you seek legal advice to ensure you are not in breach.

Q & A

Q: My ex-husband has paid me child support for our son as assessed by the CSA, since separation. I have been the sole carer for my son. My son turns 18 at the end of the year however a month ago he obtained an apprenticeship and moved out of the house to be nearer to his work. My ex-husband says that my son’s moving out should at least reduce child support, if not terminate it due to the reduction in my percentage of care. Is he correct?

A: With the limited information provided, it is not possible to provide an answer. Child support is assessed based on the “care” and “financial needs” of the child. It will depend on both of these factors but particularly the level of care you are still providing to your son. You should seek legal advice relating to your specific circumstances.

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