crossroads Issue Five
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Published by Best Wilson Buckley Family Law
T H E CO N T E N T S O U R Y E A R I N R E V I E W . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 by Jennifer Ryder, General Manager l Best Wilson Buckley Family Law
N O W I N , N O F E E – N O G O I N FA M I L Y L AW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 by Alecia Connor, Associate l Best Wilson Buckley Family Law
A R T & S C I E N C E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 by Dr Timothy Sullivan l Northpoint Medical Centre
W H AT T H E F E D E R A L B U DG E T M E A N S F O R T H E FA M I L Y L AW S Y S T E M .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 by Neal Wood, Associate l Best Wilson Buckley
J E N N I F E R R Y D E R | G E N E R A L M A N AG E R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A M Y H O L L I S | PA R A L E G A L . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 W H Y I DO W H AT I DO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 by Carla Franchina, Senior Solicitor l Best Wilson Buckley Family Law
“ I N T H E B E S T I N T E R E S T S O F T H E C H I L D ” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 by Teigan Jones, Senior Solicitor l Best Wilson Buckley Family Law
L E M O N M E R I N G U E C U P C A K E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 by Teigan Jones, Senior Solicitor l Best Wilson Buckley Family Law
T H E D E V E L O P M E N TA L N E E D S O F C H I L D R E N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Extract Vincent Papaleo, Developmental Considerations in Contact & Residence Disputes
TA M M Y W R I G H T | PA R A L E G A L . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 L AU R E N K R U G E R | PA R A L E G A L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 T H E D U N E D I N S T U D Y .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 by Best Wilson Buckley Family Law
FA M I L Y B U S I N E S S S U CC E S S I O N : W H E N TO PA S S CO N T R O L ?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 by Kylie Wilson l Holding Redlich
C I N N A M O N S C R O L L S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 by Neal Wood, Associate l Best Wilson Buckley Family Law
W H O G E T S T H E FA R M ? W H AT ’ S I T A L L W O R T H ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 by Neal Wood, Associate l Best Wilson Buckley Family Law
FAC T O R FA I R Y TA L E ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 by Kiara Greenway, Paralegal l Best Wilson Buckley Family Law
PAT H TO B R I G H T E R T I M E S .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 by Shine Lawyers
OMG: DANGERS OF FACEBOOK & FAMILY LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 by Kara Best, Legal Practice Director & Accredited Family Law Specialist l Best Wilson Buckley Family Law
A SMILE CAN OPEN A THOUSAND DOORS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 by Kristina Cain | Refresh Dental
THE CONSEQUENCES OF FAILING TO PAY CHILD SUPPORT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 by Andrew McCormack, Senior Associate & Accredited Family Law Specialist | Best Wilson Buckley Family Law
CO N N E C T W I T H U S info@bwbfl.com.au
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bwbfamilylaw.com.au
(07) 4639 0000 - Toowoomba
(07) 3210 0281 - Brisbane
(07) 3812 1392 - Ipswich
PO Box 3701, Toowoomba QLD 4350
PO Box 1735, Brisbane QLD 4001
PO Box 840, Ipswich QLD 4305
135 Margaret Street, Toowoomba QLD 4350
Level 5, 190 Edward Street, Brisbane QLD 4000
205 Brisbane Street, Ipswich QLD 4305
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OUR YEAR IN REVIEW by Jen n i fer Ryder, Gene ral Mana ger
Every family has their annual traditions and for us it is to take stock at the end of the financial year and consider what we have achieved with our clients and as a business. This year we may be peaking a little early, although it does feel like the year has gone incredibly quickly and the end of the financial year will have been and gone before we know it, said no accountant ever. Client outcomes Each year we enjoy sharing the fantastic outcomes we have achieved with our clients for them and their families. Here’s what some of them had to say: “Thank you! I’m so pleased to have this resolution, and to be able to see a light at the end of the tunnel. It will be wonderful once the house is sold, and the financial commitments untangled. You have all been so helpful, supportive, clear and patient during this process. I truly appreciate your unflagging support.” “I just wanted to reiterate my absolute deepest thanks for everything you are doing for my boys. I’m extremely relieved about the outcome for today.” “Thank you for your outstanding help, support and the most professional way you handled my matter today. Nothing whatsoever gets past you, you are a true asset to BWB and have been a literal Godsend to my family and me.” “Your empathy and explanation of the options available led to a positive outcome, particularly in relation to the custody of the children.” “I can see the light! Thank you for all your help. You have been wonderful.” Improving the client experience Like any business, we would not exist without our clients and, in our line of work, ensuring our clients
receive the best possible service is key. This year we engaged a consumer experience firm to conduct a mystery shopper exercise across our entire firm to help us understand whether the service we actually provide to clients matches the service promises we make to ourselves and them. Unsurprisingly, our team was shown to provide an empathetic and professional service, although there was still room for improvement. As a team we have worked through the results in depth and made a commitment to each other and to our clients, colleagues and referrers, that we will aim to do better. While we will not bore you with the details of that, we do invite you to let us know where you think we can improve. In the new financial year we will also be inviting back our mystery shoppers to see whether we have met our new targets and to identify our next challenges in providing an everimproving client experience at Best Wilson Buckley. 7 Year Itch In November 2016 we celebrated our seven year anniversary as a firm. To prove that lawyers do have a sense of humour (and humility) we aptly titled our celebrations as our “7 Year Itch.” It was wonderful to celebrate the milestone with staff members of days gone by in addition to our current team as well as our clients and colleagues. Our parent company also celebrated a milestone in 2016 with Shine Lawyers celebrating 40 years since their establishment, in 1976 in Toowoomba. It was an honour to be included in the celebrations, especially rubbing shoulders with the effervescent Erin Brockovich for whom we have an enormous amount of respect and admiration.
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Ipswich office Off the back of celebrating where we all came from, a major foundation stone was laid in the path to where we are going; to become the first truly national family law practice, with the establishment of our Ipswich office. This was officially opened in late February 2017. While the cynics may mock that all we really did was open a half-way point office between our existing Toowoomba and Brisbane locations (it is remarkably convenient though) the true believers will recognise that we are now in a position to deliver dedicated family law services to the Ipswich region, truly the first firm to provide a specialised service in the fastest growing region in Queensland. To top it all off, we had Amity Anderson join us from a major Brisbane firm to lead the team together with another experienced and empathetic family lawyer, Alecia Connor, and Lauren Kruger as paralegal. We’re incredibly proud of this team and the quality of family law advice we are providing in Ipswich. Leading family law firm We were named as the Leading Family Law Firm in the Toowoomba and Darling Downs region for the second consecutive year and a Recommended Family Law Firm in Brisbane. Our Reagan Wilson, Kara Best, Dan Buckley and Andrew McCormack were all mentioned as leading family lawyers in their respective regions, with Reagan named as the only Preeminent Family Lawyer in the Toowoomba and Darling Downs region. This list is the result of a rigorous, independent review of lawyers in all areas of practice with input from clients and colleagues alike and we’re grateful for the recognition from these people. Lawyers Weekly nominations The awards nominations didn’t stop there though. Reagan Wilson was named as a finalist for the Lawyers Weekly Family Law Partner of the Year. While he didn’t take out the top gong, it was a win for regional practice with Reagan being one of only two regional practitioners recognised in the awards. Our Katherine Marshall was also recognised for her commitment to family law and named as a finalist in the Lawyers Weekly 30 under 30 Family Lawyers
These awards are not due to be announced until late June although Katherine is already a winner in our eyes. Yes, it’s corny, and we’re okay with that. Growth Our team continued to grow in 2016-17 and we now have a team of 36 lawyers and support staff across our three offices. We were pleased to welcome Lynn Armstrong to our crew. Lynn has been practising family law for over 11 years in Toowoomba and came to join our team in 2016. In addition, we now have a pipeline of wonderfully talented, earnest and enthusiastic future family lawyers: Annabel Myatt was admitted as a solicitor in October 2016; Kiara Greenway has completed her Practical Legal Training (PLT) and is due for admission in August 2017; Max Sutton graduated from university in April 2017 and is currently completing his PLT; and we have budding lawyers in students-by-night and support-staffby-day Josh Schonfeld, Matt Gemmell, Madeline Dowling and Lauren Kruger. We also welcomed Kim Bolte, Kate Lowry and Jodie Handley to the ranks. Then there are those on our team burning the midnight oil to undertake a very demanding course administered by the Queensland Law Society to become Accredited Family Law Specialists. Better people make better family lawyers has always been our philosophy and our bunch sure is made of some tough stuff. That just about brings the year to a close, and after all that we must admit that if we were on the outside looking in we would be thinking: How did they do it all? What a bunch of over-achievers. Sure, you did all that… That’s fair. Especially that we’re over-achievers. We intentionally set out to get the absolute best result for our clients, team and greater community and in 2016-17 I think we can safely say we did that. This year has been an absolute cracker and hopefully is only just a sign of things to come from Best Wilson Buckley.
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NO WIN, NO FEE N O G O I N FA M I L Y L AW by A l ecia Connor, Assoc ia te
I am sure that you have all seen the big signs as you are driving down the highway “NO WIN NO FEE. CONTACT US TODAY.” Understandably, when faced with the overwhelming and daunting prospect of legal fees, I imagine that these signs would certainly draw your attention and appeal to many. ‘No Win, No Fee’ generally refers to what is called a contingent-costs agreement. This means that whether or not you pay legal fees is contingent on securing a win. If you do not win then you do not incur any fees.
compromised result, whether this was by agreement or as ordered by a judge. It is unusual that someone walks out with everything going their way. Whilst this may sound like the fun police are in town, when considered more closely, seeking to define a win in family law can cause many problems. Just consider the issues facing people in these scenarios: 1. You achieve orders which provide for you to have the children more than half of the time.
These types of agreements are normally found in personal injury disputes whereby the ‘win’ is clearly characterised as being a successful outcome. Sure the quantum or amount you receive may vary, however if you receive a payout then this is generally classed as a win and therefore you are required to pay fees. Of course, there are regulations in place which cap the fees to be charged, however no win = no fee.
A win? Not necessarily. Consider circumstances where you believe the children should be in your care solely due to concerns you have about the children being at risk whilst in the care of the other parent. This outcome is unlikely to feel like a ‘win’.
In family law we often get asked whether we work on a ‘No Win, No Fee’ basis. The answer is quite simply no. There are many reasons as to why ‘No Win, No Fee’ simply has no place in family law, with the main difficulty being, what is a ‘win’ in family law?
A win for some perhaps, however probably not so for the person who came into the relationship with all of the assets and therefore I imagine is now feeling very ripped off and not at all like a winner.
If only there was an easy answer to this question. When dealing with family law matters the outcome achieved should be one which is in the best interests of the children when determining parenting arrangements, and one which results in a just and equitable division of property when dividing assets. Generally neither of these processes result in a throw your hat in the air, yahoo at the top of your lungs type win. Normally they result in both parties receiving what is likely to feel like a somewhat
Whilst a particular outcome may be a win to some, to others in different circumstances it might be quite the opposite. This is the main reason why ‘No Win, No Fee’ does not exist in family law. Naturally there are also concerns that this would encourage parties to litigate matters, where the better outcome is often achieved by negotiation or other dispute resolution practices such as mediation.
2. T h e o u t c o m e re s u l t s i n y o u re t a i n i n g m o re than 50% of the property available for division.
Are you now seeing the problem?
There is light at the end of the tunnel however….
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Whilst ‘No Win, No Fee’ is a ‘no go’ in family law, there is sometimes another option for people who are unable to pay legal fees up front in property settlement matters. You may be able to enter into a deferred fee arrangement. This means that you do not pay your fees on an ongoing basis, instead, you pay your fees and an uplift component upon finalisation of the matter, out of funds you receive from the settlement.
Of course, you generally have to meet certain criteria to be eligible for this, however this can be a good option for people who may be in a weaker financial position and therefore otherwise unable to obtain legal advice. Another option is using smaller regular payments to establish trust monies or a payment plan. We know that seeking legal advice can be daunting enough, let alone with the unknown of paying legal fees that you never expected to be paying.
Just because you may not be able to pay up front to obtain advice or representation, this does not necessarily mean that you have to navigate the family law world alone.
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ART & SCIENCE by Dr Ti m ot hy Sul l i va n, Northpoint Me dical Ce ntre www. n ort hpointmedical.com.a u
Apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilisms... and …remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.” The above oath, taken by all doctors at graduation, can present certain dilemmas within the realm of mental health and wellbeing, especially during difficult times such as the breakdown of a relationship. Relationship breakdown and the associated stress are common catalysts for the development of a reactive depression or anxiety issue. It is considered natural for the human being to react to what is encountered in the environment around them and this is not necessarily an “abnormality”. During stressful times we are all going to experience feelings of low mood, panic or anger; just to name a few. Facing the loss of time with your children, dealing with an unfaithful partner or looming financial stress are all going to be difficult situations to fathom.
At such times, many patients present requesting the “chemist’s drug” and most are dismissive of engaging in psychological interventions as they don’t foresee how “just talking to someone” can result in a solution. Evidence based medicine disagrees and recognises the “art” in psychological intervention. Another reason that such support is often dismissed is because of the additional cost at an already difficult financial point in one’s life. If considered appropriate, there are options available including mental health care plans whereby certain subsidies are implemented, removing any further financial hurdle. I would strongly encourage anyone in this situation to discuss things further with their general practitioner. In keeping with our oath, the knife and the drug is not always the answer.
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W H AT T H E F E D E R A L B U DG E T M E A N S F O R T H E FA M I L Y L AW S Y S T E M by N eal Wood, Assoc ia te
A media release from the Australian Attorney-General following the federal budget in May refers to a number of measures that are said to be of great assistance to family law in Australia. The reversal of announced cuts to some community legal services are very welcome and will assist the valuable work of those organisations that help the most vulnerable self-represented parties. There is also increased funding for more family consultants which hopefully will go some way towards reducing the time between when an order is made for a Court funded family report to be prepared and the parties and the Court receiving that important piece of evidence. The Attorney-General has also announced that the Law Reform Commission will be tasked with carrying out a review of the family law system as a whole to ensure that it continues to meet the changing landscape of Australian families. The precise work that the Commission will be asked to do (called their terms of reference) are yet to be released but it is suggested the Commission will be asked to report back by the end of 2018. A longer term goal of helping to find efficiencies in the family law system which reduce the number and length of matters going to Court can only be a good thing. My personal opinion and one which is shared by some other family lawyers is that the parts of the Family Law Act dealing with parenting disputes have become increasingly complex over the years and could benefit from being refined. The parenting parts of the Act have gradually grown to include objectives, principles underlying the objectives, primary considerations with different weight, additional considerations and a rebuttable presumption. At one time or another the addition of those matters have been promoted as helping to
guide parents and the Court about the process to be followed when making decisions that are in the best interests of children. As lawyers we are used to navigating that pathway and crafting our client’s case to subtly direct and persuade a judge or another lawyer to a conclusion that meets the children’s best interests. However, I often wonder, and regularly see in Court, how parents struggle to understand how the current law applies to their children let alone being able to explain that to a very busy judge. The end result is that matters that do end up in Court tend to take longer as the reasons that must be given to support a particular decision are more detailed and may take many weeks to deliver. Whether the parenting management hearings that have been foreshadowed in the most recent announcement to address those types of disputes will be effective will be interesting to see. While reviews, family consultants and community legal services are helpful, I doubt that those measures in isolation will deliver any real gains to the daily experience of clients that find themselves in the Family Court system at present. Despite what some may suggest, in my experience, if parties are in Court they are there for a genuine reason and need a judge to make a decision in their matter sooner rather than later. I can but only agree with the words of other lawyers, judges and commentators who have passionately expressed that the Family Court system is now in crisis due to a lack of funding.
As lawyers we have an important role in assisting to reduce the current Court delays where we can, by helping parties resolve matters without the Court’s assistance or at least limiting the issues where they do. B E S T WIssue ILSON Five BUCKLEY
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JENNIFER RYDER G e n e ra l M an ager swich Q. Why family law? A. Family law and I fell in love over a period of time. For me, I work at Best Wilson Buckley because of our team and the vision to deliver family law differently. Q. What do you most look forward to in Winter? A. I love the colder weather and especially the prospect of soulful food, a wood fire and a deserving red wine. Q. Best concert you have been to? A. Mumford and Son’s on a beautiful summer evening in Vancouver, Canada. Q. Favourite place to eat in Toowoomba? A. Toowoomba’s food scene is gaining ground so rapidly that it is hard to say. For a well-earned celebration I couldn’t go past Zev’s Bistro. The food is always adventurous and the wine list is perfectly matched. Q. Favourite holiday destination? A. Tasmania holds a very special place for me. All that goodness – fresh air, amazing scenery, food and wine, with the occasional bout of snow. Perfect. Q. Who would be your ultimate five dinner guests? A. Five’s hard but four is easy – my husband and my lovely younger sisters, all unique and outrageous in their own special way. Our fifth guest would have to be someone controversial to get the blood pumping.
Q. How do you unwind? What do you do in your spare time? A. I love to read and cook and have finally accepted that I do like to garden and I plan to do so while ageing graciously. Q. What did you think you were going to be when you grew up? A. I flirted with things including a hairdresser, a teacher and marketing and advertising. Q. What did you have for Sunday dinner growing up? A. If it had been a weekend spent at home, a roast and Mum always has the best crackle. If it had been a weekend away at netball or visiting far-flung family, then tomato soup and a toasted sandwich. Q. What song always makes you happy when you hear it? A. It’s a Long Way to the Top by AC/DC. Always. Q. What book is on the bedside table right now? A. Well there is a pile of business books that I will read at some point as well as Harry Potter and the Half-Blood Prince. It’s good for the soul to read the whole series once a decade and escape for a while I think.
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AMY HOLLIS P a ra le g a l Brisbane
Q. Why family law?
Q. Who was your childhood hero growing up?
A. Providing some small relief to clients, and assisting people through what is, in most cases, the toughest situation they will have to go through in their lives is highly rewarding.
A. Sailor Moon.
Q. What do you most look forward to in Winter?
Q. Who would be your ultimate five (5) dinner guests?
A. As much as I hate the cold, I do enjoy being able to layer up during winter with jackets/scarfs. Q. Number one on your bucket list? A. I really want to skydive but am still working on building up the courage to actually get there. Q. Best concert you have been to? A. This is a hard one – Roger Waters concert was my highlight, but a close second would be Cyndi Lauper, whom I got to meet back stage.
Q. What is your favourite movie? A. Pursuit of Happiness.
A. Given my family are in New Zealand and I haven’t seen them for a while, I would love them to be my dinner guests. Q. What did you think you were going to be when you grew up? A. I always thought I would be a primary school teacher. Q. What did you have for Sunday dinner growing up?
A. My favourite place to eat in Brisbane at the moment would probably be The Manhattan Line.
A. A roast was always on the table for Sunday dinners at my grandparents’ house. My nana always used to make my favourite dessert - jelly with bananas throughout.
Q. Favourite holiday destination?
Q. What book is on the bedside table right now?
A. Rome has been my favourite destination so far. I can’t wait to go back there for an extended holiday.
A. Big Little Lies.
Q. Favourite place to eat in Brisbane?
Q. How do you unwind? A. Relaxing at home is always a treat.
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W H Y I DO W H AT I DO by Carl a Franc hina , Senior Solic itor
If I had to hazard a guess, I would say that at least one in three clients have said to me at some point during their matter “I don’t know how you do this every day!”.
Funnily enough, this same sentiment is often echoed by people you meet when that age old ‘so what do you do’ question comes up. I understand this comment from a client; after all it is their life, and it comes as no surprise that for them their matter can seem an all-consuming, never-ending beast (and it’s our job as lawyers to help clients overcome this). But when this comment comes as some form of condolence, I’m sometimes left feeling a little bit miffed. Family law is inherently challenging – but with great challenges often come great rewards. As family lawyers, we are employed to apply our knowledge and skills to help people move on from a dark time in their lives. We are there to support our clients to get to the other side and to assist them to make strategic and smart decisions at a time when they are likely feeling vulnerable and perhaps not thinking clearly. A good family lawyer will never just be the mouth piece for their client, but will guide them with well informed and realistic advice. It is important to think pragmatically for your client and to help them create and achieve the most appropriate outcome that suits their particular circumstances and their family.
It is challenging but, as family lawyers, I think we are trained to approach matters in a manner fundamentally different to other areas of law. While we can often wear many and varied hats – lawyer, counsellor, financial advisor, confidant, advocate – we must take a holistic approach to our practice and recognise that not all issues facing our clients are legal ones, and encourage them to seek and accept whatever help they might need. But back to where we started, how do we do this every day. The key is achieving a professional detachment without losing empathy, understanding and compassion. Family lawyers acquire a special kind of thick skin; thick enough to protect our clients while protecting ourselves in the process. However, family law isn’t always about the end of a relationship or navigating a bitter battle. While admittedly less frequent, we also have the privilege of assisting with the start of relationships and the creation of families too (adoption and surrogacy also fall into the realm of family law).
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I know I do this every day because I enjoy a challenge, enjoy being a problem-solver, and enjoy constantly learning from both my clients and my colleagues.
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“IN THE BEST INTERESTS OF THE CHILD” by Tei gan Jone s, Se nior Solic itor
What does “in the best interests of the child” really mean in the context of shared parenting? In such matters, the phrase itself is the most important consideration of both the relevant legislation and the Court. In determining what this means in a practical sense, the Court takes into account both the “primary considerations” and the “additional considerations”. Primary considerations » » The benefit to the child of having a meaningful relationship with both parents; and » » the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (the Court must give this factor the most weight out of the two).
» » the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or other person who the child has been living with; » » the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense w i l l s u b s t a n t i a l l y a ff e c t t h e c h i l d ’s r i g h t t o maintain personal relations and direct contact with both parents on a regular basis; » » the capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs;
Additional considerations » » A n y v i e w s e x p re s s e d b y t h e c h i l d a n d a n y factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to how much weight the Court should give to the child’s views; » » the nature of the relationship between the child and each parent as well as with other people (e.g. grandparents or other relatives); » » whether the child’s parents have taken, or failed to take, the opportunity to spend time with and communicate with the child and take part in major long-term decisions about the child; » » the extent that each parent has fulfilled their obligations to financially maintain the child;
» » t he ma t ur it y, s ex , lifes t yle a nd ba ck ground (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant; »» t h e a t t i t u d e t o t h e c h i l d , a n d t o t h e responsibilities of parenthood, demonstrated by each of the child’s parents; » » any family violence involving the child or a member of the child’s family, including any family violence Court orders in existence; and » » any other fact or circumstance that the Court t h i n k s i s r e l e v a n t i n c l u d i n g t h e c h i l d r e n ’s heritage and culture.
In taking these considerations into account, the Court acknowledges that each family is different and that what is in one child’s best interests might not be the same for another child – even from the same family.
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LEMON MERINGUE CUPCAKES by Tei gan Jone s, Se nior Solic itor
Ingredients
Cupcake batter
Lemon curd
125g butter, softened
4 egg yolks
2 teaspoons grated and diced lemon rind
⅓ cup caster sugar
⅔ cup caster sugar
⅓ cup lemon juice
2 eggs
40g butter
¾ cup desiccated coconut 1¾ cups self-raising flour ⅓ cup milk Meringue 4 egg whites 1 cup (220g) caster sugar
Method Lemon curd
» » Bake for approximately 20 minutes. Your cupcakes will be cooked when they bounce back to shape when pressed with your finger.
» » Combine ingredients in a small heatproof bowl over a saucepan of simmering water. » » Stir constantly until mixture thickens slightly.
» » Cool cupcakes on wire racks.
» » Remove from heat. »» I m m e d i a t e l y c o v e r h e a t p r o o f b o w l w i t h plastic wrap.
» » When cool, cut a 2cm deep hole in centre of each cupcake. Eat the centre.
» » Refrigerate until cold.
» » Fill cupcake with lemon curd.
Cupcake batter
Meringue
» » Preheat the oven to 180°C (160°C fan forced).
» » Increase oven to 220°C (200°C fan-forced).
» » Line 12 hole cupcake pan with paper cases.
» » Combine egg whites and sugar in a small bowl, beat with an electric mixer until thick and glossy.
» » Beat butter and sugar in a small bowl with an electric mixer until light and fluffy. » » Add rind and eggs (one at a time) to small bowl, and continue to beat for 2 minutes on medium to high speed. » » Stir in the coconut, then sifted flour and milk. » » Divide mixture among cases.
» » Spoon meringue into a piping bag fitted with a 1cm plain tube. » » Pipe meringue on cakes and place on oven tray. »» R e t u r n c u p c a k e s t o o v e n a n d b a k e f o r approximately 5 minutes, or until the meringue is slightly tanned.
Enjoy! Issue Five
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T H E D E V E L O P M E N TA L NEEDS OF CHILDREN Foreword by K ara B e st, Le gal Pra c tice Direc tor E x t ract from p aper by Vince nt Papaleo, C linical Psyc hologist
This is a really complex area, and the reality is that any assessment of your child’s best interest will be premised on their unique developmental needs, not general principles. That said, in reality-testing your proposals for time arrangements it is often helpful to have recourse to literature around what would usually be appropriate for a child of a particular age. There is an abundance of literature in this regard, some with dramatically different views, but the vast majority with some common themes. What role does theory play? Again, without doubt, the most effective approach is to seek the view of a specialist psychologist in relation to your specific situation, knowing that the relevant professional will no doubt be influenced by a library of research and writings on child development. Often, experienced family report writers will not make reference to specific authorities, but rather work from a foundation of theory in their assessments. The Court is not unaccustomed to parties seeking to offer theoretical evidence to support their parenting proposal, but it is important to allow your family report writer the opportunity to consider their position in the light of that theory before any hearing. Similarly, both parties should be afforded a copy of any research, and an opportunity to consider its content well before any family interviews or final hearing.
separation can have an effect of disrupting that forward process, leading to regression in behaviour and developmental achievements. How is it best to respond then? Arguably the most optimal response will maintain a child’s stability and minimise loss; optimise the relationship between the child and each parent; and allow for the child’s ongoing development to be unimpeded. In simplistic terms, if a child is too stressed by living or contact arrangements to focus upon mastering developmental tasks, then they are likely to regress in behaviour. The following summary is reproduced with the permission of the author, clinical psychologist Vincent Papaleo from his paper, Developmental Considerations in Contact & Residence Disputes. Vincent has extensive experience in the assessment of families in conflict, and is widely renowned as an authority in this area. Whilst in many instances the theory expounded by Vincent will apply, obviously there will be children who are less or more developmentally advanced such that the prescriptions set out do not apply. A full guide from infancy to 17 years of age is available on our website and we will bring each age group to you in upcoming editions of Crossroads, starting with infancy to 2½ years in this edition.
What is healthy development?
Infancy to 2 ½ years
Healthy development is often characterised as a progressive, cumulative process with one milestone leading to the next. Without doubt, parental
The primary developmental task of infancy is to form a strong attachment through the development of basic trust in the world and to primary carers.
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THE D E V E L O P M E N TA L NEEDS OF CHILDREN
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Attachment develops through the child having its basic needs met, in a consistent and predictable manner, leading to the experience of the world as a safe place in which to live. The primary attachment figures not only satisfy these basic needs, but also relieve the child of their discomfort and fears, and allow the development of a basic confidence in the world that lays the foundation for later satisfying relationships. The initial phase of infancy, up until about 1 month of age, is described as the period of “normal developmental autism”. The child is not interactive with the world and instead spends its entire time eating and sleeping. At the age of between 2 and 3 months there is a notable increased social interaction; the infant gradually learns about the expressions of their feelings and reaction to their primary carers. For example, if a baby smiles the parent will smile back; at this time the parent will start to identify different cries as meaning different things. Between the ages of 7 to 9 months, there is a significant increase in development, when strangers elicit a fearful response and a distressed reaction from babies. At this stage, infants will also react painfully to the loss of their primary carer, and this coincides with the developmental task of achieving object permanence. This is the developmental stage when the child comes to realise that just because a familiar object is not fully in direct sight that it continues to exist. At this stage, for example, a child when confronted with a situation when a favourite toy is placed behind a pillow, instead of that toy simply disappearing from existence, the child will reach behind the pillow to seek it out. The importance to the child of this developmental stage as it relates to its primary carers is significant, that is, the child can experience a sense of loss. It is however not clear whether infants have the capacity to remember their primary care taker when this person is out of their sight, albeit that observational studies do not show that when someone important in the child’s life disappears, even briefly, the infant appears anxious and fearful. In the second year of life, children become increasingly aware of themselves and the world around them, through increased social relatedness, motor development and the development of communication skills. They begin to develop autonomy, and experiment with separation and embark upon the initial phase of separation and individuation.
In the second year of life, children become increasingly independent and less in need of the primary care taker’s constant presence, albeit comfort for the child in this age range stems from a strong sense of connectedness to a special, significant person, that normally being the primary carer. The period between 15 and 30 months is particularly important. It is during this period that children start to experiment with becoming more separate from their parents, at times running away from them for brief periods, and experimenting with the experience of being less connected. This phase is known as rapprochement and has a characteristic process of “emotional refueling” during which time the child needs to check back frequently with the primary carer to refuel a sense of nurturing, and to feel that this source is still there, and then to be reassured that their basic needs will be met. As the toddler develops a greater sense of awareness and independence, they also need reassurance and affirmation that their primary carers are able to share in their subjective experiences of the world by checking this behaviour, which also provides the secure base to allow increased interest and increased capacity to explore the world around them. The child begins to gradually develop the ability to feel safe and comfortable in the world away from their primary care takers, and at the same time neurological development allows for greater mobility and language development. This is also the period when a child’s language starts to express a sense of individuation from the world around them, the word “no” differentiates their world from that of another, and is also a time when children are able to develop the capacity to grasp symbolic ideas and to apply learning from one situation to another. The importance of transitional objects (e.g. a special blanket or toy) symbolises comfort and security because of its connection to a primary carer and to a familiar environment. The transitional object to a toddler comforted with an unfamiliar situation allows the toddler to feel assured that familiar adults and the secure environment still exist, even when out of sight. The impact of divorce on a toddler Separation during this stage of a child’s life confronts a child with an experience of loss that he cannot understand, the impact of which can be all the more pronounced if there is a major disruption to the consistency of an existing primary attachment. Because children are unable to express the loss in words, common symptoms may include regression
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problems with feeding, sleeping, difficulties with self-soothing, increased irritability, and in particular separation anxiety can be exaggerated. From a developmental perspective, the task that confronts the toddler is the mastery of the concept that when an important person is out of sight, they still can return, and therefore a consistent, predictable contact routine is essential. For children in this age range, a developmentally sensitive contact plan focuses on consistency and predictability of contact, and the contact plan should emphasize more frequent contact of less duration than less frequent of longer duration. Overnight contact should be limited by the history of involvement in the child’s life by a non-resident parent, and by the child’s temperament. As a rule, overnight contact should be viewed more conservatively, as children in this stage of development cope less well with too many transitions and disruptions to primary attachments, and cope better if they remain in predominantly one environment. As little disruption as possible to night time routine is encouraged, as night time is often an uncomfortable period for children; they are tired, their normal defences are diminished, and their ability to cope with stress is reduced. It is generally better for younger children to sleep in the same place as sleeping away from the primary carer can be a frightening experience to an infant and a young child, and in the case of non-residential parents, the insistence of overnight contact may undermine the young child developing a strong relationship with that parent in the future. Individual differences in the child and their temperament will obviously affect how and when overnight contact is introduced. When the care of the child is shared for even one night of contact, similarity of routine across households is essential to ease the transition, and to encourage relative stability.
Parents who can communicate about the child and the child’s needs, who share and accept the understanding of the infant and the toddler’s specific routines, and who can collaborate on such important routines as meal time, sleep schedules, and soothing techniques, will contribute much more to a successful negotiation of this phase of a child’s life. In cases where parents are in very high conflict, very young children appear to benefit more from schedules that resemble pre-separation patterns of contact with each parent, and from an evaluation perspective, what needs to be established is a balance between the child’s attachment with each parent so that the need for stability, predictability, security, and routine is maintained. A parent’s right to contact must be secondary to the developmental needs of the child, and this may lead to situations that might seems unfair to one parent. It is essential that the needs of parents not compromise the child’s development of a secure sense of trust and attachment to his or her primary carer. Relocation considerations In matters where relocation involves very young children, for a contact arrangement to work it requires a level of cooperation by separated parents which may be well in excess of what most separated parents can tolerate. Ideally, one parent should do most of the travel, and there should be a complete avoidance of any long periods of separation for the child from the primary carer. Ideally, the nonresident parent should go where the resident parent resides, and do so as frequently as possible, and obviously considerable good will must exist between the parties. In this group of children, there is a strong recommendation against long distance, lengthy, overnight stays, as this is likely to create significant distress in the child and compromise future development. In the absence of good will and a preparedness to sacrifice one’s needs for the welfare of the child, it can be difficult to assure a non-resident parent that, in fact, the aim is to work towards a level of cooperative parenting, and that the relationship will develop later.
Our next edition of Crossroads will look at the 3 to 5 years age group.
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“It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change�. Charles Darwin
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“Learn from yesterday; live for today; look to tomorrow; rest this afternoon.” Peanuts
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Q. Who was your childhood hero growing up?
TA M M Y W R I G H T
A. My aunty, who not only worked a dairy farm for many years but also raised a number of my cousins who lost their mum very early in their lives plus managed to find time for her work with CWA and other organisations and also found time for me to come and stay.
P a ra le g a l Toowoomba Q. Why family law? A. It just happened. I have been working as a paralegal now for too many years to count and family law has always been a constant, even in those years where I mainly worked in estates and succession. It is an interesting and emotional area of law, not unlike estates in some ways and there is a sense that you are helping someone through one of the most challenging experiences of their life. Q. What do you most look forward to in Winter? A. The cold weather and all that it brings: the opportunity to dust off your boots and shop for more, red wine, the footy and if I am really lucky a holiday somewhere for my birthday. Q. Number one on your bucket list? A. To have a white Christmas with all the trimmings including a sleigh ride in the snow. Q. Best event you have been to? A. AFL Grand Final in 2004, even though the Lions lost, closely followed by all three Springsteen concerts I have been lucky enough to go to, and Adele was also amazing and funny. Q. Favourite place to eat in Toowoomba? A. Junk at Walton Stores is my Toowoomba favourite, but my favourite dinner experience would have to have been at Stillwater in Launceston.
Q. Who would be your ultimate five dinner guests? A. Julie Bishop because she is an interesting woman who has achieved much both in domestic politics and on the world stage, plus I sense that she may have a great sense of humour; Eddie Betts (footballer with the Adelaide Crows); Liane Moriarty (Australian author); Bruce Springsteen; and Adele. Q. How do you unwind? A. I unwind by trying out new recipes, reading and going for walks with my dog. I also enjoy weekends away when my husband and I take our camper trailer and kayak and spend time paddling and fishing, mainly along the Northern NSW coast and rivers, and can spend hours on the water. Q. What did you have for Sunday dinner growing up? A. That is a long time ago, but I do recall eating a lot of fish growing up, and I can recall the family dog stealing the Sunday roast once. Q. What song always makes you happy when you hear it? A. Depends on the mood I am in and what I am doing at the time that I hear a song. Some songs aren’t necessarily happy songs but I always like listening to them; INXS’ Can’t Tear Us Apart, Lonely Boy and Gold on the Ceiling by the Black Keys, at the moment I am enjoying Human by Rag n Bone Man - just to name a few.
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L AU R E N K R U G E R P a ra le g a l Ipswich Q. Why family law?
Q. Who was your childhood hero growing up?
A. After working in the commercial corporate industry for so many years it is amazing to now be in a role where I have contact with clients regularly and I am able to build relationships with them. Even if at times for them it could just be as simple as a friendly voice on the phone that helps them feel at ease. It is really rewarding to know we are assisting people through most likely one of their hardest parts of their life and to know we are working towards achieving the best possible outcomes for each client’s situation.
A. Kieren Perkins. I remember when I was younger I was swimming at Southbank with my family and cousins. We spotted Kieren walking along and my cousins and I chased him in our swimsuits; we were lucky enough to get a great picture with him.
Q. What do you most look forward to in Winter? A. Definitely the winter clothes and boots. Q. Number one on your bucket list? A. To see snow and also a trip to Norway for a tour to see the Northern Lights that includes travel via husky dog sledding! Q. Best concert you have been to? A. Mary Poppins on Broadway in New York City. Q. Favourite place to eat in Ipswich? A. Ellen & Rod or Dancing Bean for a good breakfast.
Q. What is your favourite movie? A. Grease. Q. How do you unwind? A. I love going to the gym or for a run – both always with headphones in and music on. On weekends I love to get away for day trips adventuring, could be to the beach, a hike, a theme park or a quick trip to Melbourne to see family and a game of AFL at the MCG! Q. What did you have for Sunday dinner growing up? A. Without a doubt Sunday roast with lots of vegetables and the meat usually changed each week. I still enjoy the occasions when my parents invite us over for roast dinner. Q. What song always makes you happy when you hear it? A. Footloose.
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THE DUNEDIN STUDY d un edinstudy.otago.ac .nz
This June our Lynn Armstrong travels back across The Ditch to take part in the world’s longest running multidisciplinary survey and we are utterly fascinated.
While originally designed to study child development and the prevalence of health problems in 3 year olds, the study now leaves no stone unturned. It examines mental health, physical health, lifestyle choices, brain development and family issues of the original study participants as well as their parents/ carers and now their children.
Now in its fifth decade, the Dunedin Study has been following the lives of 1,037 babies born between 1 April 1972 and 31 March 1973 at the Queen Mary Maternity Hospital in Dunedin, New Zealand, since their birth.
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This year study members are entering into their twelfth assessment, with these having been conducted every two to three years on average since birth. Convening each assessment seems like no mean feat considering that the study has a 96 percent retention rate, the largest ever recorded for a study of this breadth, in addition to the worldwide distribution of study members with 25 percent now residing outside of New Zealand. So what does one do with all of this data you may wonder? To date, the Dunedin Study findings have been used in the USA to determine whether persons under 18 years of age have the brain capacity to act as an adult; consequently this saw the removal of the death penalty for minors.
It has also been determined that some mental health conditions previously believed to occur in late teenage years, can now be shown in early childhood in many instances. They have changed the way kindergarten and early childhood education is undertaken in New Zealand and explored the age old question of nature versus nurture and specifically how different genetics can predispose a person to domestic violence and lifelong crime. It’s possible that this is only the tip of the iceberg and especially so with an ageing population in an increasingly globalised world. We’re excited to hear about what Lynn and her children will undergo this year and especially how that data will be used to inform our future health, wealth and wellbeing.
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FA M I L Y B U S I N E S S S U CC E S S I O N : W H E N TO PA S S CO N T R O L ? WATC H O U T F O R TA X & D U T Y T R A P S by K y l i e Wilson, Holding Re dlic h www. holdingredlic h.com
A common question for family business succession, and particularly for primary production family business, is when control of the business should be passed to the next generation without risking the valuable assets of the business if something goes wrong.
There are multiple options that: 1. enable security for the next generation to be able to continue to conduct a family business to support their own family; 2. provide off-farm/non-business siblings with an inheritance in due course that can be considered to be fair, even if it is not equal; and 3. protect large assets in the event, at least for a period of time, that the next generation runs into any form of financial difficulty, whether that be from creditors, death, total and permanent disability or divorce. Unfortunately, it is far too common to see the first generation wishing to retain control of large assets due to a perceived risk of what may happen to those assets if passed to the next generation.
With appropriate structuring and advice, the next generation can have a level of involvement in the business that involves a transition of management first before any transition of valuable assets occurs. It is, however, important in these circumstances to ensure that in the process of any transition of management control, parents are still involved in the conduct of the business to some extent, both for the purposes of capital gains tax (CGT) and duty in some states. Frequently we see situations where the business itself has been fully transitioned to the next generation, with the parents retaining only ownership of the land without any other involvement in the business conducted on the land, and this can become extremely costly when it is necessary to transfer the land in due course. An example of this is below. Case Study
With appropriate advice and planning, this risk can be minimised, and ultimately the first generation needs to be aware of the potential risk to the family and the business as a consequence of not appropriately transitioning an intergenerational business during their lifetime.
Margaret inherited a cattle station on the death of her husband. She did not want to remain involved in the business after the death of her husband, but wanted to retain some security for having access to capital assets in the event that she had any health issues later in life.
Conversely, it is very important to ensure that the next generation is, in fact, invested in the business and fully trained on all aspects of the business (particularly the financial aspects of the business) before a full transition occurs.
Her accountant advised her to transition some of the land to her son and daughter in law, who were fully conducting the business on the land in their own discretionary trust entity. Three quarters of the land was transferred to the son and daughter in law, with one quarter retained by Margaret.
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For the next 20 years, the next generation conducted business on the land in their discretionary trust. Margaret was not involved in the business and did not receive any distributions from the relevant trust entity. She had an alternative source of income. Over that period of time, the value of the land rose from an original cost base of $4 million to a market value of $15 million. One of Margaret’s other children, who was suffering severe financial difficulties, made reference at a family Christmas that he expected to receive a share of the property on Margaret’s death. Margaret therefore sought advice in respect of transferring her quarter share of the property completely to her son and his wife. Unfortunately, as the relevant CGT asset was not used by her or by an entity connected with her in a business for at least 7 ½ years, the land did not satisfy the active asset test in respect of Margaret to enable her to access the small business CGT concessions. Other than the general CGT discount, the gain would otherwise be fully taxable at Margaret’s marginal rate. In this situation, for the purposes of duty in Queensland, the transfer of control of the business well before the transfer of land is also problematic as it is arguable the business is no longer carried on by Margaret, whether alone or with others, as required under the terms of Part 10 of the Duties Act 2001.
There is no easy answer in respect of maintaining control as to some extent the timing of passing control will depend upon many factors including the business acumen of the next generation. Having said that, if parents are no longer involved in the business and the capital required to fully fund the parents in retirement is able to be secured for parents, then passing full control of the business needs to be properly considered, along with passing of the assets that are needed to conduct the business, so that the next generation is secure with a viable business moving forward for themselves and their family. Ultimately, the capital required in retirement should be of a sufficient amount that it generates the income needed in retirement, without debt, and without the capital being reduced for the remainder of the parents’ lives, so that off-farm siblings are able to take an inheritance in due course. If this is not able to be achieved, a carefully structured agreement between family members may need to be considered to limit the exposure of the business to any potential family dispute in respect of business assets.
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CINNAMON SCROLLS by N e al Wood, Assoc iate
Ingredients
Cinnamon filling
Bread
About ¾ cup firmly packed brown sugar
About 4 cups of strong baker’s flour
150g unsalted butter
1 tblspn dried baker’s yeast
1tblspn ground cinnamon
350 – 400 ml of warm water
1 tspn mixed spice
2 tblspn sugar 100ml good olive oil Good pinch of salt
Method 1. In a small bowl combine the water, sugar and yeast. Stir and allow to stand in a warm place for about 15 minutes until it is foamy. 2. In a large bowl combine the flour and salt. Using a butter knife or finger tips rub the oil into the flour until incorporated. 3. Make a well in the centre and gradually add the yeast mixture working in a circular motion with a knife or hands until the yeast is incorporated into the flour and the mix comes together to form a soft and slightly sticky dough. All flours are a little bit different so add more warm water or a little more flour as necessary. 4. Turn out onto a floured board and knead for at least 10 minutes. Place the dough in a large bowl with a little oil to limit it sticking and cover with a tea towel. Leave in a warm place for 1 – 2 hours until the dough has doubled in size.
6. Roll the dough out to a rectangle about 60cm long and 30cm wide and about 1cm thick. 7. Make cinnamon filling by combining the butter, brown sugar, mixed spice and cinnamon in a bowl. 8. Spread the dough evenly with the sugar mixture. 9. Starting at the longest side, roll up into a long sausage shape. Using a sharp knife, cut into about 12 even rounds. Place each scroll with the cut side up in a greased baking tray. Allow to rise on tray until it has not quite doubled in size again. 10. B ake at about 200 degrees for 20 minutes until golden brown and hollow sounding when tapped. Cool on a wire rack. 11. W hile still warm, glaze with a mix of honey or a little more sugar with melted butter brushed over the top.
5. Knock down the dough, turn out onto a floured board and knead again for 2 or 3 minutes. Rest for 20 minutes. Issue Five
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W H O G E T S T H E FA R M ? W H AT ’ S I T ALL WORTH? By N ea l Wood, Assoc iate The legal structures at play in the background of a farm or rural business are often complex and deserve due consideration when in the context of a family law property settlement.
In previous editions we have considered the origins of the farm; scenarios for retaining the farm; and what it is and who owns it now. Now comes the time to start putting a current value on those items that will form part of “the pool” to be divided between the parties. In family law terms, we are always talking about the net asset position and it is just as important to understand the debts as it is to understand the assets. When it comes to the debts they tend to fall into three categories: » » The debts secured against the land: the main bank loans or overdrafts which are secured by
one or more mortgages over the real properties; » » The debts secured against the “stuff”: the
equipment finance or lease liabilities secured over the plant, machinery, vehicles, equipment or stock that have been purchased using borrowed money;
» » The other debts: The business credit cards,
money owing on goods or services that are paid on account, unpaid tax to the ATO, loans owed by the business to third parties, or loans owed to the owner or a related legal entity such as another company or trust.
The debts are usually quite easy to value. The bank and loan statements, tax returns and financial statements for the last three years are all that are required to verify how much is owed and to whom. There are a few exceptions when it comes to debts that are owed to “friendly” parties and whether they are genuine or not. For example, debts that are owed by a company which is solely controlled by one of the parties can be treated differently where it seems pretty unlikely that a person is going to sue themselves to recover the debt.
The assets can be a little more complicated but, again, they normally fall into a few different categories that can then be valued accordingly: » » The land This normally includes anything that is land, built on it or permanently fixed to it like the house, out buildings, sheds, yards, tanks and silos. Whether it is freehold or leased from the Government, it still has value. A licenced real property valuer may be required. » » The equipment Chances are if it is in the shed or stored on or around the farm then this is what we are talking about. The list is almost endless but we often come across things like the tractors, harvesters, sprayers, seeders, plows, augers, trucks, trailers, utes, motor bikes, four wheelers, work shop equipment, tools and guns. There are independent chattels valuers with industry specific expertise that may be required. » » The stock, cattle and crops If it’s an animal or plant that is grown for commercial use then it probably has a value that needs to be taken into account. If it’s a small property then it may be as simple as counting a few head down in the yard or working out the average yield per acre. If it’s at the other end of the scale then it may be time to bring in the helicopter to muster the whole place for the first time in years or require the assistance of an agriculture specialist. I’m yet to come across a commodity that can’t be valued in some way whether it is the number of fingerlings in a growing out pond, prime breeding bulls or an orchard full of citrus about to be picked. There are expert quantity valuers, agents and auctioneers that can and do prepare independent valuations for family law purposes. • T
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» » The business It can and often does have an underlying value that is more or less than its parts and it is not always as simple as just adding up the assets and taking away the liabilities to work out a figure. Sometimes an entire industry or location can be severely affected by market forces such as overseas imports or mother nature which make the highly specialised assets used in the business almost worthless to anyone else. If, on the other hand, the business is highly profitable and has returned a good profit over many years then it may have a commercial value that it can be sold for, whether to someone looking to enter the industry, a competitor or a neighbour. If there are concerns about the independence or expertise of the family accountant then a forensic accountant may be required. So by now your mind is probably racing across the list of items set out above and thinking it is going to take months and thousands of dollars to get all of this stuff valued by four different experts. The reality is that values of assets can and do get agreed to all the time. The statistics show that only a small proportion of matters ever end up seeing the inside of a Court room and that means that the majority of matters can be resolved, including being able to agree to the value of the assets to be divided without a Court determination being required. If someone wants to retain an item then you may be able to agree on estimates, the average of a few market appraisals, online price guides or its “book value” in the financials. In another situation, you and your former partner may decide that it’s better to sell and let the market determine what it is worth after an agreed sale process.
After some sensible discussions and your partner can agree on items and a joint valuation is the “big ticket” items like the the business.
it may be that you the value of most only required on real property and
Each matter is different and it is impossible to suggest what should or should not be valued in your circumstances. As lawyers, we are not here to tell you what something is worth. We are here to guide you about what can and should be valued and the process for getting it right the first time. Some valuations can be of great assistance to resolving your matter and others can have exactly the opposite effect. For example, if your bank engaged a valuing firm to value your property a couple of years ago for lending purposes they may have arrived at a very different value compared to the same valuer being instructed for family law purposes. Why? It’s all about the instructions they were given. What the bank is looking to achieve from valuing your property (ie. knowing how much they should lend you if they need to sell you up to ensure they are repaid quickly) compared to a family law valuation (knowing how much you could expect from an orderly sale of the property after proper marketing over a period of time) can produce very different results. Even though your matter may never be one that goes to Court, it can be comforting to know that the experts involved in valuing your asset pool know what they are doing, know their obligations to you and the Court and are prepared to stand behind their report if it needs to be relied on and tested. So once we have a property pool and know what it is worth it is time to start looking at some realistic options to resolve things and how to achieve your optimal outcome. We’ll explore that in the next edition.
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FAC T O R FA I R Y TA L E ? by K i ara Greenway, Para legal
They’re the stories and legends that many of us fell in love with during our childhood. The 2011 amendments also included a new definition which sets out the various situations that may constitute a child being exposed to family violence; for example, if a child overhears or witnesses the assault of a family member by another family member or is present when emergency services attend a scene involving an assault of a family member by another family member.
Whether it be Rapunzel’s beautiful, luscious hair being released down the side of a 10 foot castle, or Cinderella’s rags to riches triumph, we’ve all followed and admired the mystical path of these characters at some point in our younger years. However, an initiative introduced by the Victorian government earlier this year has seen these tales come under fire, jeopardising their future in the fiction section of the school library.
Where allegations of family violence are made, the Court must take prompt and appropriate action in order to protect the parties and/or children. In matters involving parenting, the existence of family violence is taken into consideration when determining what is in the best interests of the child in respect of the time the child spends with each parent. It is ultimately a balancing act between:
The initiative, which has been introduced as a means of addressing family violence, argues that traditional fairy tales establish a sense of male dominance and causes a sense of entitlement in boys. Critics allege the fairy tales introduce children to notions of gender-based violence too early, ultimately resulting in an increasing incidence of family violence. Consequently, there has been a push to either completely eliminate the stories from schools and pre-schools, or alternatively, encourage children to analyse the roles men and women play in the stories and identify any “gender bias” in the tales.
1. the benefit of the child having a meaningful relationship with both parents; and 2. the need to protect a child from harm (physical or psychological), abuse, neglect and family violence.
Irrespective of whether fairy tales are banned or not, this does not take away from the seriousness of family violence and how it is treated in a family law context. In 2011, the Family Law Act was amended to prioritise the protection of children from family violence and abuse. The most significant change was the expansion of the definition of family violence, and the prioritising of protection from harm. The definition has been extended to mean any “violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family, or causes fear”. Examples of such behaviour may include physical assault, repeated derogatory comments, financial abuse or control or social isolation.
If the matter does not involve children, parties are able to seek a domestic violence order to protect themselves or others. The terms of these orders vary depending on the circumstances. For example, the order may prohibit someone approaching you, your friends or relatives at home or at work; or prevent them from staying in the home you share. Whether fairy tales are contributing to the situation or not, family violence is a serious issue and your family lawyer can assist you in seeking, or responding to, a domestic violence order.
If your situation is life threatening in any way, please call 000 for urgent assistance. Issue Five
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PAT H TO B R I G H T E R T I M E S by Shine Lawye rs ww w.shine .com.a u
Last year we received 40,000 calls from people seeking to right wrong following a personal injury incident. Then in 2012, Kim’s life was thrown into disarray following an incident and she was forced to be the dependant, experiencing fear and isolation. For four years, she was unable to drive and unable to return to the work she loved. Kim became a different person and felt that she had almost lost everything.
Each of these people has a unique story and has been on a courageous journey to a brighter future in partnership with our compensation law experts. One of those clients is Kim, whose life changed in seconds and without warning after an incident. As a home care assistant, Kim was used to caring for others and never thought she would one day need the same support. When Kim was not provided with the support required to recover by her insurance company, Kim sought assistance from the team at Shine Lawyers. Together, they secured the funds Kim and her family needed to help get their lives back on track.
Kim was entitled to a range of financial support from the defendant’s CTP insurer; support that would better enable her to regain control and get back on her feet. But when obstacles were unfairly thrown in Kim’s path she needed a team behind her that had the skill and strength to speak out on her behalf. Kim and her legal team were able to secure the funds that Kim and her family needed to get their lives back on track.
Kim’s children have always stood at the heart of all she’s done. She was a mother, a teacher, a giver and a soother of pain. In her work as a home care assistant she was no different. She looked out for the vulnerable and the lonely and supported them through their darkest times. She loved her work and would have continued until the day she retired. With a job that fulfilled her and allowed her to provide for her family, Kim felt that she was in control of her future and there was no reason for her life to change.
While her incident led to one of the most difficult times in her life, Kim says the dark times revealed her resilience and she now feels ten times stronger than she ever was before. At her 50th birthday celebrations last year, it was clear that a new chapter has begun; a chapter for travel, for adventure, for doing the things she loves but also, doing what she can to help others who are suffering like she once was.
Kim has just returned from her first overseas boat cruise and is now volunteering her time to support others facing crisis following injury.
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O M G : DA N G E R S O F FAC E B OO K & FA M I L Y L AW by Ka ra B e st, L e g a l P ract i ce Di rector & Acc re dited F a mily Law Spec ialist
There is a growing incidence of the use of ‘Facebook evidence’ in Family Law Court proceedings. Extracts from Facebook, printed by a `friend’ and provided to the other parent are routinely annexed to affidavit evidence and the Court asked to infer something negative about the publishing parent. It is imperative that parents be conscious of the consequences of placing any negative comments about another parent on an internet site such as Facebook. “Friends” may no longer be friends in the context of separation and a heated parenting dispute, and comments made in the heat of the moment may ultimately form the basis for a Court’s decision about time that a child is to spend with a parent. This will be particularly damaging evidence in circumstances where a child has access to a parent’s site and the capacity to view derogatory comments. The attitude of parents to each other is an important consideration under the Family Law Act, as is the capacity of a parent to foster the other parent’s relationship with a child. Status updates like “My ex is a loser” or “I just smashed her in Court” are unlikely to encourage a positive parenting relationship. The Court tends to view such comments as a desire to publish to the world at large, rather than something as discrete as an email or a chat over coffee with a friend. Everyone deserves the opportunity to
vent; it is simply important to choose the right avenue. There are specific provisions of the Family Law Act that prohibit parties from discussing court proceedings in a public forum and provide serious penalties for any publication. It is imperative that children are distanced from verbal or written comments of a derogatory nature. There is an abundance of psychological evidence that clearly establishes the damaging effect upon a growing psyche of being exposed to parental conflict. Posting photographs or location updates on Facebook can also be used as evidence. For example, in one Family Court decision, a parent was ordered to spend time with the child at his home during contact visits however, a photograph later surfaced on Facebook with the father and the child at the beach. The Court subsequently found that the parent had breached the order with serious consequences. Whilst we are all human, best to keep the above in mind when next updating your Facebook status.
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A SMILE CAN OPEN A T H O U S A N D DOO R S B y K ri sti na Cain, Refr esh Dental w w w.refr eshdental.com .au
Lots of things break down over time, it’s a fact of life. Regardless of the circumstance it’s not ideal and quite frankly biology and mechanics are not the best of partners or our best of friends. It also seems that our teeth seem to do breaking down when we are at our most vulnerable - trying to sleep at night, ready for an important day and that all important meeting, when the budget is stretched a little too close for comfort, and of course during times of great emotional upheaval when we’re already not feeling like the most confident and secure version of ourselves.
What can we, as dentists, offer you to restore your confidence? With ever-changing technology the opportunities are seemingly endless. Your dentist spends a lot of time up close and personal with your face and combined with our enthusiasm for aesthetics and anatomy, chances are your dentist already knows what could be done to help you feel like the best version of yourself.
While we all too often tend to think of dentistry as a reactive measure, the focus should be on how your teeth and your smile make you feel. Confident and secure, able to tackle any issues that inevitably will arise versus self-conscious, anxious and less in control. It is a valid and important issue in our daily lives.
Ultimately it’s up to you to make going to the dentist a positive endeavour. Ask yourself, when was my last visit exactly? Face the challenge, empower yourself and rest assured, you won’t be alone on the journey!
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T H E CO N S E Q U E N C E S O F FA I L I N G TO PAY C H I L D S U P P O R T by A n drew M cCorma c k, Senior Assoc iate & Accred i ted F amily Law Spec ialist
Child support is the means by which money changes hands relative to the financial needs of a child. In some instances it is determined by agreement between separated parents, more often by application of a child support formulae administered by the Child Support Agency (“CSA”) (which is within the Federal Department of Human Services) and very occasionally by order of the Court. A recent article by The Australian highlights that nationally more than $1.4 billion is owed in child support payments. There is a clear means by which an assessment made by the CSA can be challenged if premised on incorrect information. Accordingly, if no challenge is made, or the assessment upheld after a challenge, then the presumption is that the support is properly payable and any failure to pay is deliberate and actionable. The Federal Government, through the Department of Human Services, can enforce payments in a variety of ways. Some of these methods include: » » Employer deductions The Department can ask employers to make employer deductions from an employee’s pay to account for money owed. In these situations, the employer will make child support deductions directly from a parent’s pay to the Department. Presently, 62,700 child support cases are subject to employer deductions. » » Taxation deductions All child support parents are required to lodge a tax return unless they are exempt by the Australian Taxation Office (ATO). This allows the ATO to update the Department of Human Services on each parent’s income, and ensure that his or her assessments are correct. Furthermore, the ATO advises the Department before paying out a tax refund to eligible child support parents. The Department
may take this refund to meet outstanding support payments. By intercepting tax refunds, $114.6 million in owed payments were recovered by the CSA in the 2015/2016 financial years. » » Centrelink & DVA deductions Deductions can also be made from benefits received from Centrelink or Veterans’ Affairs pensions. In 2015/2016, $69.4 million in current and previously owing child support was collected by direct deductions. » » Travel restrictions The Department of Human Services is able to issue a departure prohibition order against parents that are planning on travelling outside of Australia, have outstanding child support payments owed, and are refusing to make those payments. This order prohibits the person from leaving Australia until the order is lifted. The order is lifted once the overdue child support is paid, or a satisfactory payment plan has been arranged. Such an order does not require Court approval to issue. In 2015/2016, $7.9 million in outstanding child support was paid due to departure prohibition orders. » » Court related remedies As a last resort, the Department can seek a Court order to collect outstanding payments. In 2015/2016, $6.4 million worth of property was seized as a result of Court orders. The Department may also initiate criminal proceedings where there is evidence of criminal fraud, or other criminal activities by one parent in relation to child support payments. In most cases, parents do the right thing by their children and pay what is required of them but it is a reminder to parents of their responsibilities. There are no winners and often it is the children that suffer.
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“I can be changed by what happens to me, but I refuse to be reduced by it.”
Maya Angelou
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