crossroads Issue Four
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Published by Best Wilson Buckley Family Law
Thi s e d i t i on of Cros sroads coinc ides with the opening of our I pswi ch of fi ce, wh i c h we la unc hed on 27 F ebrua r y. Our Legal Partner, Amity Anderson, heads up our Ipswich team and the office provides the opportunity to provide the Ipswich community and surrounding areas with specialist family law advice. Together with our Toowoomba and Brisbane offices, we continue to service our south east Queensland, Queensland and interstate clients. In addition to the launch of our Ipswich office, 2017 has seen the firm again recognised by the independent Doyle’s Review with the Toowoomba office recognised as the only first tier firm on the Darling Downs and Western Queensland for 2017, the second successive year this recognition has been achieved. The Brisbane office was also recognised as a recommended family law firm in the Review and individual recognition was achieved by a number of our solicitors.
Wi t h sum m er n ow beh i nd us and hopef ully some good ra in for our farm ers h e ading into the coole r months, we t rus t you wi l l again e njoy this e dition of C rossroa ds an d we l ook for ward to he aring from you with any feed b ac k for f uture e ditions. Re agan Wilson
T H E CO N T E N T S B R A N C H I N G O U T I N TO I P S W I C H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Best Wilson Buckley Family Law
R E AG A N W I L S O N – FA M I L Y L AW PA R T N E R O F T H E Y E A R F I N A L I S T .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A M I T Y A N D E R S O N - L E G A L PA R T N E R , I P S W I C H.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A L E C I A CO N N O R - A S S OC I AT E , I P S W I C H .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A S W E E T M O M E N T F O R S U R R OG AC Y .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 by Kara Best, Legal Practice Director & Accredited Family Law Specialist | Best Wilson Buckley Family Law
M I S CO N C E P T I O N S I N FA M I L Y L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 by Amity Anderson, Legal Partner | Best Wilson Buckley Family Law
H OW DO I F I N D T H E R I G H T FA M I L Y L AW Y E R ? .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 by Alecia Connor, Associate | Best Wilson Buckley Family Law
D E L I C I O U S H E A L T H Y B A N A N A B R E A D .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 by Alecia Connor
T I P S F O R T E AC H E R S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 by Dan Buckley, Legal Partner | Best Wilson Buckley Family Law
H O N E Y , I D I S I N H E R I T E D T H E K I D S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 by Ian Tindale | Redchip
A DAY I N T H E L I F E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 by Zoe Adams, Associate | Best Wilson Buckley Family Law
S A M A N T H A I W E R S - S O L I C I TO R , TOO W OO M B A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 T E I G A N J O N E S - S E N I O R S O L I C I TO R , TOO W OO M B A .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 W H AT I S A D E FAC TO R E L AT I O N S H I P ? I T ’ S CO M P L I C AT E D .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 by Andrew McCormack, Senior Associate & Accredited Family Law Specialist | Best Wilson Buckley Family Law
L E A D I N G & R E CO M M E N D E D FA M I L Y L AW F I R M. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 S T E P - PA R E N T S A N D PA R E N TA L R E S P O N S I B I L I T Y .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 by Samantha Iwers, Solicitor | Best Wilson Buckley Family Law
DOMESTIC VIOLENCE PROTECTION ORDER APPLICATIONS: HOW CAN THEY HELP YOU?. . . . . 3 1 by Carla Franchina, Senior Solicitor | Best Wilson Buckley Family Law
T H E S U CC E S S I O N C R O S S R OA D S .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 by John Moor | Resource Consulting Services Australia
D U T Y C H A N G E S I N Q U E E N S L A N D .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 by Kylie Wilson | Anderssen Lawyers
W H O G E T S T H E FA R M ? T H E F I R S T S T E P S TOWA R D S R E S O L U T I O N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 by Neal Wood, Associate | Best Wilson Buckley Family Law
L OO K I N G TO A DO P T ?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 by Katherine Marshall, Senior Solicitor | Best Wilson Buckley Family Law
DO I N E E D TO F O R M A CO M PA N Y ?.. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 by Craig Harrison | businessDEPOT
N AV I G AT I N G T H E WAT E R S W H E N C H I L D P R OT E C T I O N A N D FA M I L Y L AW CO L L I D E .. . . . . . . 4 3 by Lynn Armstrong, 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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BRA N CHIN G OUT INTO IP SWICH
On 27 February 2017 we opened the doors on our Ipswich office at 205 Brisbane Street in the Top of Town district. Best Wilson Buckley Family Law is the only dedicated family law practice in Ipswich and we look forward to bringing a fresh approach to the practice of family law in the town and greater region. This is a step towards realising our vision of becoming the first truly national family law practice and bolsters the ranks of our firm as a named leading family law firm in Queensland by independent review, Doyle’s Guide. The team is led by Amity Anderson as Legal Partner. Amity is proud to say that she was born and bred in Ipswich and is very excited to be directly involved in the Ipswich community through her role as a founding member of the Best Wilson Buckley team in the area. Having practised in family law for more than nine years, Amity brings with her extensive experience in advising and counselling family law clients honed during her time at a top tier family law firm in the Brisbane CBD. Of practising family law Amity says “I find it rewarding to work with people during quite possibly the hardest period of their life, when going through a separation. The ability to provide people with a level-headed approach, high degree
of support and a sense of comfort despite what they are experiencing is a real privilege.” Joining her is Alecia Connor, Associate. Alecia has been practising exclusively in family law for six years in another Brisbane firm. Her reasoning for practising family law is not indifferent, citing that if she can make life a little easier during an incredibly stressful and challenging time then it is all worth it; “I love the amount of contact with clients and the positive relationships we are able to build when they are experiencing quite the opposite.” Prior to her life in family law Alecia was a child care director for seven years. It was this experience that she feels gave her a special insight into children’s behaviours, special needs and family dynamics. Both lawyers and Paralegal Lauren Kruger are excited about the prospect of providing a high quality, dedicated family law service locally in Ipswich without the need to travel to Brisbane for that advice, as well as working with their clients’ local team of advisors such as tax lawyers, estate lawyers, accountants and financial planners to ensure that the way forward meets their current and future needs.
Ipswich’s only dedicated family law practice.
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R E AG A N W I L S O N – FA M I L Y L AW PA R T N E R O F T H E Y E A R F I N A L I S T
Our Reagan Wilson has been named as a Finalist in the Family Law section of the Lawyers Weekly Partner of the Year Awards for 2017, and we couldn’t be more proud. Reagan is a founding partner of Best Wilson Buckley Family Law along with Kara Best, and in 2009 they delivered on a vision to establish the first specialist family law practice in Toowoomba. Reagan and Kara were then joined by Dan Buckley in 2013 with an expansion into Brisbane. While the vision has grown and developed over the years, dedication and follow through towards achieving it have not. These Awards recognise legal partners that excel in their chosen field of practice, have successfully contributed to the growth and financial performance, and culture and strategy of their firm and area of law. Only six finalists were named from firms throughout Australia and the Awards acknowledge outstanding
performance by partners across a broad range of practice areas with Reagan recognised for his exceptional achievements in family law. Reagan has practised exclusively in family law since 1999, and he has been recognised in the Doyle’s Review of Australian Lawyers in 2012, 2014, 2015, 2016 and 2017. In 2017 he was named as the only Pre-eminent Family Lawyer in the Toowoomba and Western Downs region. The whole team at BWB is extremely proud of Reagan, and as always are in awe of his ability and amazing capacity to provide superior family law advice as well as play an integral role in managing the firm’s Toowoomba operations.
The Lawyers Weekly Partner of the Year Awards will be presented at a ceremony in Sydney on April 28.
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Q. Why family law? A. Family law is surprisingly rewarding. The balance in providing people with compassion, empathy and practical, commercial advice during quite possibly the hardest period of their life is always challenging but the ability to provide people with a level-headed approach, high degree of support and a sense of comfort despite what they are experiencing is a real privilege. Every day is different and I love the diversity of the law and processes that family law provides. One day you can be in Court litigating and the next you are at a mediation, collaborating with the other side to achieve an outcome. We also have the opportunity to work with so many other professionals and advisors to assist our clients.
Q. What do you most look forward to in Autumn? A. The clothes! Autumn weather is cool enough to bring out some jackets and boots. Q. Number one on your bucket list? A. Croatia or South America. Q. Best concert or sporting match you have been to? A. Seeing Michael Jackson at QEII in Brisbane was phenomenal and watching Liverpool beat Everton at Anfield was one of the greatest experiences of my life. Q. Favourite place to eat in Ipswich? A. I have to say home. Mum always manages to cook exactly what I feel like without me even asking, but my favourite meal of hers is curried prawns (I am very much a homebody). Q. Favourite holiday destinations? A. New York and Rainbow Bay. Q. Who was your childhood hero growing up? A. Embarrassingly - Lleyton embarrassingly - Buffy.
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Q. What is your favourite movie? A. There are too many to choose from but Dirty Dancing is always my fall-back answer. Q. Who would be your ultimate five dinner guests? A. Bill Clinton, Rudy Guiliani, my Nanna (Stella, she passed away when I was 7 and from my memories, she was amazing), Victoria Beckham and the fictional Olivia Pope.
Q. How do you unwind? What do you do in your spare time? A. I try to get to the gym or go for a run most days which helps me unwind. Otherwise, lying on the lounge binging on Netflix or having dinner with my whole family. Q. What did you think you were going to be when you grew up? A. People who know me well will find this hilarious for a number of reasons but when I was very young I wanted to be a doctor. I can’t stand the sight of blood and have fainted on more than one occasion in the cinema during a violent or graphic movie. Luckily I found law. Q. What did you have for Sunday dinner growing up? A. It was usually a ham and cheese toasted sandwich at the Briggs Road Hockey Complex in Ipswich. My dad, siblings and I all played hockey so we spent nearly every weekend, ALL weekend, at the hockey grounds. Now, we try to do family dinner most Sunday nights rotating between Mum and Dad’s house, or at my sister’s or brother’s homes. Q. What song always makes you happy when you hear it? A. Turn Back Time, Cher. Q. What book is on the bedside table right now? A. I sound like an American political junkie but at the moment, Hillary Clinton’s autobiography and Fifty Shades Darker.
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Q. Why family law? A. I can help make life a little bit easier for people going through one of their most stressful and challenging times. I love the amount of contact I have with my clients and the relationships we develop. It is fantastic to see their growth over time and their relief when you can assist them to see the light at the end of the tunnel.
Q. What do you most look forward to in Autumn?
Q. What do you do in your spare time?
A. The cooler weather, picnics in the park, trips outside which no longer involve oodles of sunscreen.
A. This changes regularly, however at the moment island hopping around the Greek Islands. It looks like such a gorgeous part of the world.
A. I am a netball coach and therefore spend a lot of time out on the court coaching, which I love. I am also on the Board of Directors at Brisbane Netball Association, so am very involved with the administrative side of the association. I enjoy baking and also spend quite a bit of my time at the gym (to work off the baking!).
Q. Best concert you have been to?
Q. If you didn’t study law where would you be?
A. The Lion King on West End.
A. I would be a travel agent. I love planning and dreaming of holidays. I also really enjoy hearing other people’s stories and sharing my travel experiences.
Q. Number one on your bucket list?
Q. Favourite place to eat in Ipswich? A. The Fourth Child, great food at any time of the day. Q. Favourite holiday destination? A. Europe - I have just come back and I love the history, culture, people and most importantly the food! Q. Who was your childhood hero growing up? A. The Spice Girls - I would have trouble deciding which one in particular - either Ginger or Baby (and no I never called them their real names, they are forever Ginger Spice and Baby Spice to me). Q. What is your favourite movie? A. The Sound of Music - I am a musical fan and I do sing along at the top of my lungs.
Q. What did you have for Sunday dinner growing up? A. Sunday roast - every week. The meat varied, beef, pork, chicken, lamb and if we were really lucky even duck! We still go over to my mum’s house every Sunday for roast night. Q. What song always makes you happy when you hear it? A. Slice of Heaven - many fun karaoke nights were had with this song. Q. What book is on the bedside table right now? A. Small Great Things by Jodi Picoult. Well truth be told it is in my phone as an audio book, if that counts! Great to listen to while driving.
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A SWEET MOMENT F O R S U R R OG AC Y by K ara Best, Le gal Pra c tice Direc tor & Accred i ted F a mily Law Spec ialist
I like to think that our team can be distinguished from many, many family law practitioners on the basis of our genuine emotional investment in our clients and their journeys. Whilst that investment can leave you very vulnerable, and often exhausted, it also allows for the emergence of enduring relationships with our clients and real pride in helping a client and friend to move from a point of desperation and grief to a place of renewed hope. I think I can genuinely say that I have never felt more invested in a client’s journey than on a day in January this year, whilst on my feet in the District Court in Brisbane awaiting a determination by a Children’s Court judge. The view from the Court in question is stunning and pans over the Brisbane River. The Court itself is modern, attractive and very, very different to the District Court of old where I started my career as an Associate. The nervous tension and emotion was palpable, and beyond even that which plagues the Federal Law Courts. Unlike the great abundance of my workload, the Court was not host to a parenting dispute or financial argument arising from separation, but rather the Court was asked to make an order by consent allowing for a baby girl to become the daughter of a beautiful couple, my clients in this instance. That little girl was born into the loving arms of her mother’s sister, her aunt, in circumstances where her biological mother was not able to carry her to birth. All parties wanted desperately for the order to be made, and have shown the most incredible commitment to each other and to that baby girl. The application was complicated by a technical matter which necessarily dictated that the Court may have determined to decline the application and, whilst a remote possibility, it remained a risk and a cause of great concern leading up to that Court date. The surrogacy process is an incredibly complicated one. To suggest that it can be negotiated without a lawyer is arguably foolish - any failure to meet one of the prerequisite requirements could preclude
even the bringing of the application, or possibly its success. There is a distinct order to the surrogacy process, with reports to predate advices which need to predate the formal signed agreement and all before conception of course. Whilst it will be my aim to try and simplify this process and make it cheaper for future clients, it remains an intense process for a lawyer, let alone the beautiful family that shared their journey with me most recently. The cost of this sweet girl’s conception, coupled with the legal machinations was enormous for my young clients. Similarly, the white noise around surrogacy is such that most people have a view, but often communicated without stopping and thinking about the love that is core to a desire to parent, and the love that is core to the sacrifice of bearing a child for another. Commercial surrogacy is not an option in this country, and hence why I say love remains central to this legal process. This is confronting as a legal practitioner whom is schooled in maintaining emotional distance and objectivity at all times. It’s also a refreshing contrast to the emotion that plagues marriage breakdown. And so I return to that morning in Court in Brisbane, and the desperate feeling that I was endeavouring to keep contained. The feeling of nausea was not unlike a feeling I had when I made my first appearance in the Sandgate Magistrates Court in 2001, but for completely different reasons. I have found so much joy in my own daughters in recent years, and I feel an acute, almost physical pain when thinking about those that want desperately
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to hold their own babies and cannot. That pain, coupled with the pure dedication and sacrifice which is manifest in a willingness to grow and birth a baby and then hand that baby to another, is to be witness to something beyond that which I think any of us get to see ordinarily. I remain of the view that surrogacy is not for everyone - the legality, whilst complicated, is easy to negotiate when compared with the complexity of need and emotion evident in the raw commitment to be a surrogate. There is so much at stake that mistakes can’t be made in judging the dynamic within the invested parties.
I do think it’s imperative to examine the motivation of a surrogate in each case, and ensure that the process will meet that expectation. The only person happier than my clients when that Court adjourned was the woman that gave this beautiful little girl life and now proudly calls herself an aunt. In my case, whilst the worry was intense, so too was the joy when the order was made by his Honour. That little girl is so loved, by so many - and I would challenge any critic of surrogacy to do other than be deeply moved by this beautiful little girl and the courage that went into her emergence into this world.
I hope I’m privileged enough to do this work again, and I’m genuinely committed to being sure that I don’t take for granted what we can be witness to when faced with the gift of surrogacy.
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M I S CO N C E P T I O N S I N FA M I L Y L AW by A m i t y A nde rson, Legal Partner
It is the nature of the industry that family lawyers work in, that so much of our initial time and advice to clients relates to their re-education about the system and shifting their beliefs away from commonly held misconceptions.
When new clients first meet with us, they often say - “will she take me for everything I’ve got?” or “she said she’ll take me to the cleaners” or “I know he’s hiding assets and bank accounts”. These fears are shared by so many people who are either contemplating separation or are already navigating their way through the often complex process. However, they needn’t worry. Thankfully, despite its pitfalls, our family law system is far more sophisticated, fair and reasonable. Since 1976 when the Family Court commenced operations, judges and solicitors have seen every trick in the book and have developed rules, processes and procedures to ensure that the family law system is just and equitable for all people seeking refuge and an outcome. Below, we have addressed and corrected a number of the commonly held misconceptions in family law. 1. It’s always 50/50 This is probably the most common misconception in family law. However there is no law, rule or case that stipulates that on separation the assets and liabilities are divided equally between the parties. The Family Law Courts adopt a four step process in determining the division of assets, liabilities and financial resources in which parties have an interest. That process includes undertaking an ‘audit’ of the assets and liabilities; analysing the relevant facts and circumstances of the parties’ relationship including their financial and non-financial contributions and their contributions to the welfare of the family; having regard to their future circumstances including
their ages, incomes, health, care of children; and then ultimately determining the division based on what is fair and just. Whilst there are many cases where 50/50 is the ‘right’ outcome, it is not a hard and fast rule that it’s always 50/50. 2. I want a divorce Many clients, when they first meet with a family lawyer, seek advice about divorce. However, after a brief discussion, they realise that what they are actually seeking is a division of property (property settlement) and an agreement in relation to the care of their children. This is not divorce. Divorce (in some respects like a marriage certificate) is a piece of paper symbolising the end of the marriage. It does not deal with the division of net property or the care arrangements for children. Some parties decide never to divorce unless, for example, they wish to remarry. There are three requirements for parties to be eligible to apply for divorce: » » Their marriage has irretrievably broken down;
» » they have been separated for a period of 12 months (ideally this would be living separately, however this can include being separated under one roof); and
» » the care arrangements for any children under the age of 18 years are adequate. The division of property between parties at the end of their relationship is property settlement and is usually a more complex process.
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3. My children are old enough to tell the Court where they want to live In all parenting disputes, what is in the best interests of children is the paramount consideration. People often believe that once their children are 12 or 15, then they are old enough to decide. Parents can of course agree between themselves what care arrangements should be implemented for their children and they can, in making that determination, have regard to the wishes of their children. However, if the Court is required to judicially determine care arrangements there is no law or practice where, after a child is say 12 years of age, they can decide. 4. But he/she cheated The Australian family law system is a ‘no fault system’, which can often be a very difficult and upsetting concept for the aggrieved party to understand. Our Court system generally does not punish a cheating party by awarding them less property settlement or less time with their children. There are of course always exceptions but establishing an exception to this is extremely rare and very, very unlikely. 5. It was mine before we met… and ...I bought it after we separated All of the assets, liabilities and financial resources that parties have an interest in at the time of their agreement or Court determination are relevant to property settlement (unless there is a pre-nup).
It is not the case that if you owned an asset before the relationship, then it’s excluded and likewise, if you bought a property post-separation, it’s quarantined and excluded from the net asset pool. As part of the four step process referred to above, parties will get ‘credit’ for their individual contributions including assets they brought to the relationship, but that does not mean they are excluded from the negotiations and agreement. 6. If he/she wants a pre-nup, then what’s the point in marrying
Yes, for most the thought of discussing the terms of a pre-nup and what they’ll get if they separate is not something they want to think about. We agree, it’s not the most romantic discussion for a betrothed couple to discuss. But the reality is for some people it provides a way to move forward knowing they have financial protection. Financial agreements are incredibly useful and beneficial for people who might be entering into a second marriage and have accumulated their own assets and wealth. For others, they might stand to inherit significant wealth in the future. Or, increasingly common, is where one party works in a very successful family business and their parents are insisting on a pre-nuptial agreement. The Australian family law system is sophisticated and reflects that no two relationships are the same and therefore no two separations are the same.
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H O W DO I F I N D T H E R I G H T FA M I L Y L AW Y E R ? by A l ecia Connor, Assoc ia te
Your family lawyer should be someone who you will build one of your strongest relationships with, outside of your close friends and family. It is important that when you take that step, you make the right selection. Here are some things for you to consider.
Ask for recommendations Ask for recommendations from people you trust. Often people like accountants, lawyers, financial planners and other professionals who have had dealings with you will be able to make recommendations based on their knowledge of you personally. You wouldn’t see a new doctor without a recommendation; why would this be any different for your family lawyer. Talk to them Do you like their style? Are they easy to understand? Are they really listening to you or are they simply giving you their stock standard advice about processes? You will be sharing with them some of the most intimate details of your life; you need to be comfortable with them. Read their website And not just for details on how experienced they are or what awards they have won. Read between the lines; you can find out a lot about the level of care you will get from a law firm by the information on their website. How much information is there, what is their approach? How do they approach their staff, are they celebrated and elevated?
Don’t stop there though; look at their Facebook page, LinkedIn page, Google them and find out as much information as you can. Beware of the win at all costs lawyer Sure you want the best outcome, and you want someone to get you there, but think about the cost of achieving such an outcome. Particularly if you have a parenting matter, beware of the bulldog - you may achieve what you want, however at the cost of ruining any relationship you have or may ever have with the other parent. Choose a lawyer who specialises in family law Family law provides much fodder for political figures. As a result, the legislation surrounding child support, children’s issues, superannuation, pre-pups and cohabitation agreements is constantly changing. It is important that you have a lawyer with their finger on the pulse. Selecting a law firm who specialise in family law means you will get expert advice from people who are practising in this area every day. They know the mediators, counsellors, barristers and valuers and can give you the best advice about who will be best for your situation.
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A lawyer who practises in this jurisdiction daily will be familiar with the judges and their preferences. Knowledge is key!
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DELICIOUS HEALTHY BANANA BREAD A warm i n g treat on a n Autumn day by Alec ia Connor
Ingredients ⅓ cup melted coconut oil or extra-virgin olive oil ½ cup honey or maple syrup 2 eggs 1 cup mashed ripe bananas (about 2½ medium or 2 large bananas) ¼ cup milk 1 teaspoon baking soda 1 teaspoon vanilla extract ½ teaspoon salt ½ teaspoon ground cinnamon, plus more to swirl on top 1¾ cups whole wheat flour Optional: ½ cup delicious additions like chopped walnuts or pecans, chocolate chips, raisins, chopped dried fruit or fresh banana slices. Method
» » Preheat oven to 165 degrees Celsius. » » In a large bowl, beat the oil and honey together with a whisk. Add the eggs and beat well, then whisk in the mashed bananas and milk. » » Add the baking soda, vanilla, salt and cinnamon, and whisk to blend. Lastly, switch to a big spoon and stir in the flour, just until combined. If you’re adding anything, gently fold them in now.
» » Pour the batter into a greased loaf pan and sprinkle lightly with cinnamon. If you’d like a pretty swirled effect, run the tip of a knife across the batter in a zig-zag pattern. » » Bake for 50 to 55 minutes, or until a skewer inserted into the centre comes out clean. Let the bread cool in the pan for 10 minutes then transfer it to a wire rack to cool for 20 minutes before slicing.
Enjoy warm with butter (perhaps not as healthy now…) and try not to eat the whole loaf in one sitting!
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As part of the firm’s community involvement, we have been offering workshop style presentations to schools providing “Tips for Teachers”.
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TIPS FOR TEACHERS by Dan Buc kley, Le gal Partner
So far we have given that presentation to five schools in Brisbane and Toowoomba and have been lined up to present to a primary school in Ipswich.
The Tips for Teacher presentation gives some details around family law but essentially runs through a number of scenarios where parenting issues and the school intersect, mainly around school changeovers between parents. This includes scenarios where there are parenting orders in place and/or domestic violence orders. The reason for wanting to give this presentation to schools, and in particular teachers, is simple teachers have played, and continue to play, a very important role in all of our lives. In my case, my mum was a teacher. Growing up, my brother and sister and I got fairly used to Mum referring to her students as her “kids”. We also got fairly used to being tricked into doing things by mum too (teachers know far too much about child psychology!). Most of my teachers at school had a significant positive impact on me, but some of them were special. These were the ones that really cared, that got involved in my life and left it infinitely and permanently better.
There was Lola Harris, my Year 1 teacher that stood up for me every time I got into a fight, including in front of other teachers. She “understood” me. There was Alan Ball, who taught me history in Years 9 and 10. He gave me the confidence to do debating and inspired a love of literature and history. He was also a great rugby forwards coach. And finally, Ken Edwards. As coach of three of my teams at school, as well teaching me HPE, he probably had the biggest influence on me of all. There were several times when he really stood up for me and supported me – in the face of other teachers, my dad and other coaches. He got involved in any aspect of my life that he knew was important to me. All of the people I have spoken to at Best Wilson Buckley about their school teachers have similar stories. The goal of the presentation is to help teachers to continue to play that very important pastoral care role, in addition to their teaching role, and continue to be able to involve themselves in their students’ lives but without putting themselves, or their school, at risk.
* Please note Best Wilson Buckley Family Law only acts for spouses who have separated - we are not seeking to provide any legal advice or
services to schools. We are only seeking to give some practical tips that can easily dovetail with the school’s own policy around these issues.
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HONEY, I DISINHERITED THE KIDS by Ia n T indale Re dc hip www.redc hip.com.au
You can pick your friends, but you can’t pick your family. In the same way you can choose your beneficiaries, but you can’t overlook your family obligations. Creating an Estate Plan and a Will involves allocating your assets to those people you wish to benefit when you pass away. There are, however, legal obligations as to who should benefit from your estate – including your spouse and any children or dependents. Even estranged family members have a right to receive an inheritance. If you overlook these obligations, disappointed parties have the right to contest your Will, causing stress and financial burden to those you are closest to. The best drafted Will in the world will not stand scrutiny when your legal obligations as a Will maker to provide for your family have been overlooked. Let’s look at some recent examples. In 2016, a decision was made by the District Court in Queensland for two adult children to benefit from their late father’s estate, despite his express wishes to the contrary. The children had not been a part of their father’s life for many years and were not included in his Will, but were together awarded 40% of his estate. In this instance, there was no evidence that the children had done anything to cause the estrangement.
As is commonplace in law, there are always exceptions to the rule. A judgement was handed down in the Supreme Court in Western Australia earlier in 2016 where an estranged child was disentitled from benefiting from his mother’s estate. The difference between these two cases was that in the latter there was evidence of abusive and violent behaviour of the child towards his mother resulting in their estrangement. The Court found that his conduct was so unacceptable it caused the child to be excluded from his mother’s estate after her passing. This was the first judgement of this nature for many years, and will likely only apply in extreme circumstances. A Will that disinherits a child is likely to be successfully challenged unless there is evidence of extreme circumstances, such as the child’s abusive behaviour, which disentitles them to a share of the estate proceeds. The mere fact that the relationship has broken down is not enough to prevent a child from making a claim for provision from the estate of a deceased parent, particularly if there is evidence that the parent contributed to the breakdown of the relationship.
To be effective, you need specialist estate planning advice with appropriate strategies to structure your assets beyond the reach of a disappointed beneficiary.
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E S TAT E PLANNING ADVICE
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A DAY I N T H E L I F E … By Z oe Adams, Assoc ia te
Like any self-respecting lawyer should, a day at the office starts with a strong coffee.
Whilst letting that caffeine circulate, checking emails and mail is normally the first task of the day including a review of any notifications of activity on Court files. If one is lucky enough, they will hit the jackpot with the mail delivery and have a courier, or client, deliver reams of documents; also known as disclosure documents. The day is then planned out – with the assistance of an ever energetic and enthusiastic paralegal; prioritising tasks from the urgent to high priority; as there is very little that in family law that can be characterised as a low priority. If a day at Court awaits a brisk walk across town to the Commonwealth Courts building helps bring focus to the appearance before the Court. One then waits patiently to pass security, remembering that no nail files, deodorants or scissors should be found in one’s briefcase or suitcase, to avoid the lottery that is taking a ticket to collect said precious belongings on departure. Days at Court are long, tedious, and rarely rewarding. For clients, I am sure the day is equal parts boring and nerve racking. For all, no matter how prepared one is, there is the element of the uncertainty – the lengthy list of matters before the judge often wreaking havoc on plans for a matter to be heard and a decision made.
If a day at mediation awaits everyone involved is focused on resolving disputes and outcomes. There is often a sense of empowerment for clients involved in the mediation process – feeling that they own the outcome; and knowing that the conflict and dispute that has been ruling their lives (sometimes for many months, possibly years) will end. However it’s also tough. Clients are being asked to make compromises; and the importance of the decisions they are being asked to make can often feel overwhelming. At those moments, it’s important to remind clients about the greater risks, and greater uncertainty, that is involved in turning the matter over to the Courts. Despite these challenges, days at mediation are undoubtedly some of the best days at work. You have the opportunity to focus and concentrate on one client; and provide them with your undivided attention, assistance and advice. On the days that are spent in the office, the day is spent ploughing through emails, calls, and correspondence with clients, assisting professionals, other lawyers and the Court. There also seems to be a never ending list of documents to prepare, whether it be financial or child support agreements, schedules, orders, an array of Court documents or parenting plans. Juggling these tasks becomes an art form; and colourful stationary and lists become your very closest of friends.
No two days are ever the same; and the reward to be taken out of the day is knowing that in every small action you are taking, you are taking one step forward with your client to resolving the conflict that is in their life.
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“You are braver than you believe, stronger than you seem and smarter thank you think.” Unknown
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“All you touch and all you see is all your life will ever be.” Unknown
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SAMANTHA IWERS S o li c i to r Toowoomba
Q. Why family law? A. I think that family law is very different to many other areas of law. There are rarely any winners and losers in family law, and the best outcome for everyone involved is often achieved by working towards an agreed resolution, particularly in parenting matters. Of course the involvement of the Court is necessary in some matters; however negotiation and compromise continue to play a crucial role in limiting the financial and emotional stress for our clients. Family law is always challenging with no two matters being the same, but with the challenge comes a great deal of satisfaction in being able to guide clients to the other side of a very difficult stage of their life.
Q. What do you most look forward to in Autumn?
Q. Who was your childhood hero growing up?
A. My birthday! Any excuse for a celebration with family and friends. I also love walking through the streets of Toowoomba when the leaves on the trees have turned that beautiful earthy brown and orange colour.
A. This might sound corny, but as a little girl I always looked up to and thought the world of my dad. He was (and still is) a super hero in my eyes.
Q. Best event you have been to? A. Definitely the Hogmanay New Year’s Festival in Edinburgh, Scotland. The streets were transformed with music, food, and culture, and the atmosphere between the locals and those who had travelled from far and wide was incredible. Q. Favourite place to eat in Toowoomba? A. I’m loving the Asian street food at Junk, and there is always a really great vibe, no matter which night of the week you go. Q. How do you unwind? A. I love getting back to nature, whether that’s bushwalking or having a swim in rivers, lakes or beaches. I’m constantly in awe of how beautiful nature can be, and it always leaves me with a sense of balance and calm. Q. Number one on your bucket list? A. Hmm, my bucket list seems to be endless, but I would have to say that seeing the Northern Lights in Alaska would be right at the top. Q. Favourite holiday destination? A. This is a tough one because I seem to fall in love with every destination I travel to for some reason or another. I’m going to say the Beaujolais wine region in France is my favourite though, purely for the combination of cheese, wine and breathtaking scenery.
Q. What is your favourite movie? A. This is tricky because I’m not a huge movie buff – if anything I’m more into binge watching a good TV series. I do love a good tear jerker though, so maybe the The Notebook, or My Sister’s Keeper. Q. Who would be your ultimate five dinner guests? A. I would invite Hamish and Andy (they count as one guest, right), Keanu Reeves, Anne Frank, Emma Watson, and my mum. Q. What did you think you were going to be when you grew up? A. I was always going to be a teacher. I even applied to study a Bachelor of Education and then changed my application to law at the very last minute before applications closed. I haven’t looked back since. Q. What did you have for Sunday dinner growing up? A. I don’t know that it was necessarily Sunday dinner, but spaghetti bolognaise made a regular appearance on our dinner table. It’s still a favourite. Q. What song always makes you happy when you hear it? A. Wonderwall by Oasis. I know it’s overplayed, but it is an absolute favourite, and brings back so many good memories. Q. What book is on the bedside table right now? A. Lonely Planet - Canada. I think Canada might be next on the list.
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TEIGAN JONES S e n i o r S o l i ci tor Toowoomba
Q. Why family law? A. I enjoy helping people when they are at their most vulnerable to find pragmatic solutions to matters most important to them, their children and property. In family law, just like every family, every day is different, making for interesting and challenging issues to work through in a compassionate and respectful manner.
Q. What do you most look forward to in Autumn?
Q. What do you do in your spare time?
A. The change to the cooler weather as well as planning to make winter desserts. This particular Autumn it has to be getting married to my partner.
A. My “spare time” is very much occupied by two active little people who very much brighten my day.
Q. Number one on your bucket list?
Q. What did you think you were going to be when you grew up?
A. To travel around the UK.
A. It was law or medicine, and the law won out.
Q. Best event you have been to?
Q. What did you have for Sunday dinner growing up?
A. I am a little obsessed with Christmas Carols, so Carols in the Domain was wonderful, and will definitely be frequented again.
A. The Tweed Coast.
A. Sunday nights were usually the children’s nights to cook. We would select the recipe, make a list of ingredients for mum to purchase and we would cook for the family on a roster system. As long as we ate what we made the recipe selection was not challenged.
Q. Who was your childhood hero growing up?
Q. What song always makes you happy when you hear it?
A. A little cliché but my mum – she is wonderful.
A. Smile, Uncle Kracker (I’m full of clichés).
Q. What is your favourite movie?
Q. What book is on the bedside table right now?
A. Love Actually.
A. Where is the Green Sheep? by Mem Fox (my daughter’s current favourite).
Q. Favourite holiday destination?
Q. Who would be your ultimate five dinner guests? A. I love family dinners, so my favourite people to share meals with will always be my children and my partner.
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DE FACTO RELATIONSHIPS By A ndrew McCormac k, Sen i or Assoc ia te & Acc re dited Family Law Spec ialist
“When does a de facto relationship start?” is a question I often get asked. The reason that it is a common question is that there are different definitions for different purposes. There have never really been any hard and fast rules about when people are in a de facto relationship.
Courts have determined that to be in a de facto relationship, two people must be living together on a “genuine domestic basis”. However, living together under the same roof is a bit of a misdescription. There have been, as a result of the unique circumstances of the case, findings that couples were in a de facto relationship even though they were not living under the same roof. See, it really is complicated.
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W H AT I S A D E FAC TO R E L AT I O N S H I P ? I T ’ S CO M P L I C AT E D There are a number of factors that can be used to determine you are in a de facto relationship. These include: »» »» »» »» »» »» »» »»
the duration of the relationship; the nature and extent of common residence; whether a sexual relationship exists (or existed); the degree of financial dependence on each other and the financial support that has occurred; whether there has been any property (real estate or other assets) that have been purchased together; whether there was a degree of mutual commitment to a shared life; whether the general public believed that people were in a de facto relationship; and whether there were children of the relationship and the care arrangements for the children.
In making a determination about whether a relationship exists, a Court does not have to find that all of the criteria mentioned above exist for it to make a declaration that a relationship existed. A Court can use its discretion and give weight to the factors it thinks are appropriate when making this type of determination. Registering a relationship In Queensland, the Civil Partnerships Act 2011 allows two people (regardless of their gender) to have their civil partnership or de facto relationship recognised and registered. To enable this to occur, two adults can apply to the Registrar of Births, Deaths and Marriages to have their relationship registered. This can occur as part of a commitment ceremony with a civil celebrant or simply by lodging the necessary forms to have the relationship registered. By registering a relationship, this gives legal recognition to the fact that the relationship started on a specific date. If they later separate, one of the parties to the civil partnership or de facto relationship can apply to the Registrar to record when it ended. Centrelink Centrelink needs to know when you are a “member
of a couple”. This is because any benefit that you might receive can be paid differently if you are in a relationship as your partner’s income is taken into consideration when they calculate what rate your benefits are paid at. Centrelink have their own procedures for telling them when a relationship has started or finished. Visit the Department of Human Services website (https://www.humanservices.gov. au/customer/dhs/centrelink) to find out more. More than one relationship can co-exist It can be the case that multiple de facto relationships can exist at the same time. This might be as a result of a polyamorous relationship or the case that someone who is legally married might also be in a de facto relationship at the same time. Traditional polygamous marriages from different cultures can fall into this situation. This means that persons in these circumstances can make claims for property settlement. There are a number of cases where Courts have had to deal with the property settlement of a married couple at the same time as the property settlement between one of the parties to the marriage and their former de facto partner. Estate planning and de facto relationships A de facto partner can have a claim on your estate even if you have not made provision for them in your Will. A de facto partner falls into the category of people who can make a family provision claim to ensure that they are properly provided for after death. This is sometimes mistakenly referred to as “challenging a Will”. All states and territories have legislation that ensures that spouses (married or de facto) and dependents are properly provided for after the death of a spouse. It’s a good idea to update your Will, Power of Attorney, and Advanced Health Care Directive when you start or end a relationship. You don’t want to find yourself in a situation where someone you no longer are in a relationship with, or that you no longer care about, has the right to make important decisions about you if you have lost capacity.
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“I don’t measure a man’s success by how high he climbs, but how high he bounces when he hits the bottom.” George S Patton Jr
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L E A D I N G A N D R E CO M M E N D E D FA M I L Y L AW F I R M Voted by Doyle ’s Guide
Best Wilson Buckley has again been recognised in the independent Doyle’s Review of Queensland law firms.
The completely independent review has named Best Wilson Buckley Family Law as the leading family and divorce law firm in Toowoomba and Western Queensland, and as a recommended family and divorce law firm in Brisbane.
Dan Buckley was named as a Recommended family lawyer in Brisbane. The exhaustive review of family law firms in Queensland is compiled through extensive telephone and face-to-face interviews with clients, peers and relevant industry bodies.
All of our name partners have been personally recognised as expert family and divorce lawyers in their locales. Reagan Wilson was listed as the only Preeminent family lawyer in Toowoomba and Western Queensland, Kara Best as a Leading family lawyer in the region, and Senior Associate and Accredited Family Law Specialist Andrew McCormack as a Recommended family lawyer in his debut in the listing.
This recognition reinforces our approach as expert family lawyers that provide a tailored and personal approach to your family law matter where it matters most. Family law, differently. It also demonstrates the quality of our leadership and the team that we have built at Best Wilson Buckley Family Law. Congratulations to Reagan, Kara, Dan and Andrew, and also to our wider team. Well done to you all.
Thank you to those colleagues and clients involved in the review process, and congratulations to all of our colleagues across Queensland that were recognised in the list.
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S T E P - PA R E N T S A N D PA R E N TA L R E S P O N S I B I L I T Y By Sam a ntha Iwe rs, Solic itor
The nuclear family is a concept that is becoming less and less common, with many children living or spending time in more than one home, and the immediate family unit expanding to include step-parents and step-siblings.
This raises questions about the role that a stepparent plays in the life of a child, and particularly the legality behind it. Defined under the Family Law Act, a step-parent includes any person who: » » is not a parent of the child;
» » is, or has been, married to or a de facto partner of, a parent of the child; and
» » treats, or at any time while married to or a de facto partner of the parent treated, the child as a member of the family formed with the parent.
The definition of a step-parent also includes any person that is or has been in a same sex de facto relationship with a parent of the child. Although step-parents often undertake parenting roles, they do not automatically have parental responsibility for their step-children. Without having parental responsibility, a step-parent is not legally able to make decisions about major long-term issues, including authorising medical care, applying for passports, signing school enrolments or permission forms, or obtaining legal documents such as birth certificates for their step-children. In circumstances where there is not a parenting plan or parenting orders in place, there is a presumption that each of the biological parents of a child has parental responsibility for the child. Both biological parents equally share decision making about major long-term issues for their children, including, for example, education, health issues and medical treatment, and religion.
These duties and responsibilities continue after separation, divorce or remarriage, and can only be changed by obtaining a parenting plan or parenting order. It is possible for a step-parent to acquire parental responsibility. For example, adoption can be considered by step-parents in certain extenuating circumstances, including when the biological parent is deceased or not actively involved in the child’s life, or if it can be established that adoption is in the child’s best interest. The adoption process can be very lengthy and difficult, and it is important that you obtain and carefully consider the legal advice from a family lawyer prior to undertaking this step. An alternative option to acquire parental responsibility is to obtain a parenting order, either with the consent of the biological parents or by making an application to the Court. A parenting order may deal with a number of matters, including parental responsibility, the child’s living arrangements, and how much time and/or communication the child will have with each parent. Again, the primary position adopted by the Court is that parental responsibility is shared by the biological parents of a child, and a parenting order providing a step-parent with parental responsibility may only be made in special or exceptional circumstances. The circumstances of each family are unique and, prior to taking any steps, it is important that you are fully informed of the options available to you.
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DOM ES TIC VIOLEN CE PROTECTION O RDE R AP PLICATION S H OW CA N TH E Y H E LP YO U ? by Carl a Fra nc hina , Senior Solic itor
We are all too frequently reading reports of domestic violence in the media. As this issue remains in the spotlight, domestic violence protection order applications are on the rise, as are the incidents reported to police for breaches of domestic violence orders.
» » trying to locate you;
Understandably, more media coverage breeds more questions, and we often see people asking exactly what protection is offered to victims of family and domestic violence. We have all heard the stories with a tragic ending despite a party obtaining a protection order. So what does a protection order do for you?
named on the order.
A protection order is made by the Court to stop threats or acts of domestic violence by putting limits on the other party’s behaviour. If you are in immediate danger or require urgent assistance, you can apply for an urgent temporary protection order which will remain in force until you get to your first Court date. You can also ask the Court to include the names of your children on the order, or the names of other persons requiring protection (such as relatives, friends or workmates). It is mandatory for any protection order to provide that the respondent must be of good behaviour and not commit domestic violence against the persons named on the order. The other conditions on a protection order vary from case to case, and can include stopping the respondent from: » » going to where you live or work;
» » going to places where your children frequently visit, like their school or day care centre;
» » having any contact with you or other people Essentially, a protection order is a method of prevention. Once it is made, breaching it is a criminal offence. While these orders are a protective tool, obtaining a protection order can be a confronting and costly process. Sometimes the end of the relationship also means the end of any intimidating or harassing behaviour. If after separation you do not fear for the safety and wellbeing of you or your children, a protection order application ultimately may not benefit you both from an emotional point of view and a financial point of view. The Court must find that the protection order is necessary or desirable to protect you or your children from domestic violence before it may make a final protection order. Unfortunately, as family lawyers we also often see protection order applications being used as a weapon against a former spouse in the context of a dispute regarding parenting matters. In our experience what these parties fail to realise is that if an application is found to be vexatious or false, this could reflect poorly upon a party relevant to their capacity to support a relationship between the children and their former spouse in any future parenting proceedings in the Family Law Courts.
These applications should never be used as an attempt to influence the outcome of a dispute about children’s care arrangements.
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THE SUCCESSION CROSSROADS
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T H E S U CC E S S I O N C R O S S R OA D S by John Moor R esource Consulting Ser vice s Austra lia www. r c sa ustra lia .com.a u We will all get to a point in our lives where we look back on our achievements and actions.
We will be extremely proud of certain things and there will be other areas where we could have done better. When it comes to succession planning, will we choose a road that leads to opportunity and prosperity for our families or one that leads to family destruction and division? There are many names one can use for the plans we have for our future: succession planning, continuity planning, transition planning, preferred future planning … Interestingly they all have a common word; PLANNING! Just like preparing for a journey, it takes time, effort and a few key decisions to reach your final destination. Let us use the analogy of a crossroads. As we approach the intersection, we have three choices: left, right and straight ahead. Regardless of the direction we choose, we would need to stop, assess the situation and then proceed with caution. This applies to succession planning. We always have choices. When you get to the “crossroads of succession planning”, which of the three directions will you choose? The road of denial The easiest option would be to go straight ahead without so much as a brief pause, failing to see the traffic coming down the side roads hooting and shouting for your attention as you single-mindedly cross the intersection. This, I believe, is the “road of denial”, the “my way or no way track”, the “dead end” and will almost always lead to a pile up of broken relationships, divided families and hardship. Fortunately you still have two other options at the crossroads. Turn left this time and you will find … The road of good intentions You have taken the decision to turn left down this road because you are a family willing to discuss
your plans for the future, your needs, aspirations and dreams. A family that is more interested in the collective needs of everyone rather than those of themselves. You have great plans and are prepared to meet and discuss the future, including all stakeholders. Your one misguided decision however, is the belief that you can do this all on your own. The first meeting is held around the dining room table in Mum and Dad’s house. To your dismay things don’t go according to plan: emotions run high, words are difficult to find, things are said that will be regretted later, someone storms out and the meeting is over. Down the road, a second meeting is called in an attempt to fix what happened at the first meeting and no one is prepared to attend, leaving everyone feeling like it would have been easier to just proceed straight on ahead at the crossroads and get on with their lives. Alternatively, there is the final option to turn right. The road of good outcomes It’s the same willing family, only this time there are sign boards along the road before the family farm entrance. Our advice is to stop and turn in at each of these sign boards, using the professional advice of trusted associates and over time, with a trained professional facilitator at each meeting, build a robust succession plan that is both flexible and tough enough to withstand change as and when it comes… and it will. Missing any of these “turnoffs” on the Road of Good Outcomes, will delay you reaching your final destination at the end of the road. Just remember it is a journey and not a one-off event.
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DUTY CHANGES IN QUEENSLAND R E D U C E T H E CO S T O F T R A N S I T I O N I N G I N T E R - G E N E R AT I O N A L FA M I L Y FA R M I N G BUSINESSES by K y l i e Wi lson, Anderssen Lawyers www. ande rssens.com.a u At Anderssen Lawyers, we have been involved in assisting primary producers to transition their businesses between each generation for over 50 years. Over that time, it has been clear that there are two golden rules for ensuring that family primary production businesses are successfully transitioned from one generation to the next:
However, under the relevant provisions of the Act, business property includes only:
1. the older generation should be able to retire comfortably without relying on the farm as their only source of income; and
» » personal property used to carry on the business
2. the next generation taking over the business must be satisfied that they are taking over a viable business, once the cost of achieving golden rule number 1 has been determined. Setting out the above rules is simple. Achieving them can be very complicated and fraught with difficulty. The imposition of transfer duty in Queensland has, for many years, caused the transition of many family farming businesses to be postponed or abandoned altogether. This changed on 1 July 2016 when, as a result of amendments to the Duties Act 2001 (Qld) (the Act), the dutiable value of business property used to carry on a business of primary production in Queensland is now taken to be nil, provided the other requirements of Part 10 of the Act are met. Previously, if the next generation took over the debt associated with the primary production land when land was gifted, the amount of the debt would be dutiable. For example, if the next generation refinanced a debt of $5 million, the duty payable on the transfer of the land on which the business was conducted was in excess of $268,000. Therefore the change from 1 July 2016 was significant in reducing the transactional cost burden for many generational primary production enterprises.
» » the land used to carry on a business of primary production; and
of primary production on the land.
This meant that the dutiable value of nil that applied to business property only applied where land and personal property such as livestock, plant and equipment and motor vehicles were being transferred. It did not include, for example, water entitlements. Water entitlements remained dutiable property upon which transfer duty would be assessed even if the business property was transferred in compliance with Part 10 of the Act. In a further move to assist primary producers with the transition of family farming businesses, on 20 December 2016, the Queensland Office of State Revenue issued Ruling DA105.3.1, confirming an administrative arrangement announced by the Queensland Treasurer on 16 December 2016. For all transactions entered into on or after 12 October 2016, the administrative arrangement, as confirmed in the Ruling, now extends duty relief for primary production businesses, so that the reference to business property in the relevant part of the Act is taken to be a reference to dutiable property. This extends the concession to include such things as water entitlements, brands and business names that previously fell outside of the terms of the concessions set out in Part 10 the Act. This is welcome news for farming families, particularly for succession purposes, where water entitlements are often an essential part of the family business that is being transitioned to the next generation.
* A copy of the relevant ruling can be found here: https://www.treasury.qld.gov.au/taxes-royalties-grants/duties/da105-3.php. Issue Four
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W H O G E T S T H E FA R M ? Th e fi rst steps towa r d s r e s o l utio n W h a t i s i t and w h o ow ns it now ? B y N e al Wood, Associate
The essential goal of any family law property settlement is to create legal certainty following the end of a relationship.
After completing a property settlement each spouse ultimately obtains control of their own separate assets and liabilities with any previous joint property transferred one to the other or otherwise sold and divided. In family farming situations the extent of the physical, financial and emotional connections created over a long period of time can be particularly difficult to unravel. While at the outset it may seem an insurmountable task, the reality is that it can be done. An end, not only to the emotional reliance on another person, but the financial reliance on another person is often the most powerful and long lasting outcome of a property settlement. In this article I wanted to look a bit more practically at how we begin the process of working out who gets the farm and the process for working out the answers to a few relatively simple questions: 1. What is it and who owns it now? 2. What is it worth? 3. Who wants to keep it and is that realistic? 4. What is the best way to achieve that result? 5. What are the best legal mechanisms and timing to achieve that result?
What is it and who owns it now? As lawyers, we start by asking questions of the individuals involved to get a sense of whether the farm is owned by them personally or whether it is owned with other people or in legal entities. While the combinations of legal ownership of farms and rural businesses can be incredibly diverse they normally fall into four broad categories: 1. Personal ownership and sole traders The land, the stock and the plant and equipment are owned by the person that purchased or inherited them and they have direct control over it. Sometimes that person may have a trading or business name but in legal terms it is just the same person. 2. Partnerships The land, the stock and the plant and equipment may be owned in the names of two or more people as Partners. There may be a formal Partnership Agreement or it may be regulated under the Queensland Partnership Act. The partners are usually known to one another and may be any combination of Husband, Wife, Grandparents, adult children and others. The physical work may be carried out by one or more of the partners during the year but come tax time, the income from the farm is divided “on paper� between the partners in a certain way when in reality the income may have been used throughout the year differently.
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3. Private companies
What is it worth?
The land, the stock and the plant and equipment may be owned in the name of one or more people as directors of a trading company.
Once we know what types of structures we are looking for, the next step is to carry out a range of searches to confirm the ‘bare bones’. Land Title searches show us the names of the legal owners and can show any mortgages secured over the land by the bank.
The company has a Constitution that sets out what the company can and cannot do and how it goes about it. The physical assets are legally owned by the company and appear in the Financial Statements and Balance Sheets of the company. The individuals involved are often named as either directors or shareholders (or both). Normally the directors have day-to-day control of the company and the shareholders share in the profits. The income from the farm is then reflected in the Financial Statements and Tax Returns as “drawings” by the directors or as dividends paid to the shareholders. 4. Discretionary Trusts The land, the stock and the plant and equipment may be owned in the name of one or more people as trustees of a discretionary trust. The Trust is regulated by a Trust Deed that sets out details of who controls the trust, who can benefit from the Trust and what the Trust can and cannot do. The person(s) with overall control are the “Principals” or the “Appointors”. The day to day control is with the Trustee(s). The other individuals involved are the beneficiaries who may either be paid money from the trust by way of “distributions” or they owe money to the Trust because the income from the business has been paid out to them as a “loan” which must be repaid at some point in the future.
ASIC searches provide the details of any companies involved including the Directors and Shareholders. PPSR Searches show whether banks or suppliers are owed money which is secured over stock or plant and equipment. With the bare bones established we can then look to the documents that will begin to put some meat on the bones. A review of the Tax Returns, Financial Statements and bank statements can show us all manner of details and give a reasonably good idea of what assets there are, who is in control of them, what debts are owed, and to who, and the sort of income that has been generated over the years. Depending on how much involvement each party has had we may then need to fill in any gaps by asking others that have access to the missing information we need. We may need to speak or write to your former spouse or their lawyer and ask them to provide tax returns, financial statements, bank statements, livestock tag numbers or receipts going back over a period of years. We may need to meet with you and your accountant or book keeper and ask them to provide a clearer overview of what has been happening “on the books” over the years compared to what everyone thought has been happening. Once we have a good idea of how things are owned at the present time we can begin the path towards dividing the assets in a way that achieves the desired outcome. What that outcome may be really comes down to the individuals and each case is different.
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L OO K I N G TO A DO P T ? by K at h eri ne Marshall, Senior Solic itor
If you are considering adoption, we have good news! The Queensland Government has recently amended the Queensland adoption laws to broaden the category for those able to apply to adopt. On 2 November 2016, the Queensland Parliament passed the Adoption and Other Legislation Amendment Bill 2016. This new law amended a number of aspects of the existing adoption laws and, most importantly, expanded the eligibility criteria to enable the following persons to be considered as adoptive parents and ultimately to have their name entered on the adoption expression of interest register: » » same sex couples;
» » single persons; and
» » persons undergoing fertility treatment. Other amendments contemplated by this Bill also included improving processes for adopting a stepchild, facilitating the release of certain information where required and also generally clarifying existing provisions of the Act and correcting drafting issues. There are a variety of reasons why you might be considering adoption: infertility problems, experiencing pregnancy issues and/or miscarriages, being from a gay and/or lesbian relationship, being adopted yourself or you simply haven’t found the right person to have children with. The adoption process is notoriously difficult to navigate in Queensland, lengthy in nature and can be quite expensive. The process is also dependent on what you are ultimately trying to achieve, i.e. are you wanting to adopt a child from Queensland; would you prefer to adopt a child from overseas; are you trying to adopt your step child?
Let’s try and break it down. If considering adopting a child from Queensland or overseas, you must complete an Adoption Expression of Interest Form. For Queensland adoptions, an assessment of your eligibility will be undertaken. Provided you meet these requirements, your name will be entered on the Expression of Interest Register. In relation to an overseas adoption, you will also need to meet the eligibility criteria of the particular country you wish to adopt from prior to being entered on the Register. These requirements can be found on the Queensland Government adoption website. Once on the Register, if you are selected to have your suitability assessed, you will shortly thereafter receive a Notice of Selection for Assessment. The assessment fee for a Queensland adoption is $636.70 and for inter-country adoption will be $4,573.25. Persons who are assessed as “suitable” to be an adoptive parent will be entered onto the Suitable Adoptive Parents Register. It is from this Register the adoption agency will select people who are the most appropriate for a particular child who requires adopting. If you are selected you will receive a placement proposal which you are able to accept or decline. If you do accept this proposal, an application will be made to the Children’s Court for an interim adoption order. A child must be in your care for a period of at least 12 months before a final adoption order can be made. Prior to adopting, we recommend that you seek advice from Queensland Adoption Services and a family lawyer.
The Queensland and Inter-country Adoption Handbook is also a useful tool that might provide you with some insight into this process and can be found on the Queensland Government website.
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DO I N E E D TO F O R M A CO M PA N Y ? by Crai g H arrison, businessDEPOT www. businessdepot.com.au
I’m talking to a lot of people at the moment who have innovative ideas looking to get their business up and running. One of the key things to get right at the start is what business structure to use. There are options to choose from, but these are the main ones: 1. sole trader (trade in your own name); 2. partnership (trade with someone else); 3. trust (a structure that trades on behalf of you and potentially others);
The key participants are: 1. the company - the legal entity which carries on business 2. the director(s) - the individual(s) who make day to day decisions on the company operations 3. the shareholder(s) - ultimate owners
4. company.
Shareholders
Each has its advantages and disadvantages, but for innovative businesses a company is generally the best option.
A company issues shares, which are bought by shareholders. Shareholders don’t own any specific asset of the company but have an underlying interest in the overall net assets of the company in their relevant ownership percentage.
What is a company? A company is a separate legal structure. It has the same rights as a person to: » » earn income; » » incur expenses and debts; » » pay tax; » » sue or be sued. A simple company structure looks like this:
Co mp any P t y L td D i r e c tor - P erson # 1
Shareholders are not generally liable for any debts of the company. Directors The directors are people that manage the company and its assets on behalf of the shareholders. Directors have obligations under the Corporations Act. The key obligations as a director are to ensure that you: »» a r e h o n e s t i n y o u r d e a l i n g s o n b e h a l f o f the company; » » understand and meet your legal obligations; » » ensure the company keeps proper financial records, and that you understand the company financial position; » » ensure the company can meet its debts when they fall due; » » do not incur a debt that you know the company
S hareh ol ders
will not be able to repay; » » get professional advice if you are unsure of anything related to the company.
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So, why would you form a company?
Company formed – what next?
There are costs to setting up a company, but there are benefits: » » limited liability of shareholders – unlike trading in your own name, a shareholder is generally not liable for the debts of the company; »» f l a t t a x r a t e o f 3 0 % - o f t e n l o w e r t h a n t h e personal tax rate, leaving more money to invest in growth; » » easy to bring in new investors –new shares can be issued at any time and existing shareholders can also sell their shares; » » access to grants – some grants require you to operate in a company structure; »» a c c e s s t o r e s e a r c h a n d d e v e l o p m e n t t a x concessions – to be eligible a business must be carried on in a company structure. »» t a x c o n c e s s i o n s f o r i n v e s t o r s – e n c o u r a g e investment in “Early Stage Investment
» » register for a tax file number and Australian Business Number; » » get an internal accounting system set up; »» g e t a s h a r e h o l d e r s ’ a g r e e m e n t – r e a l l y important to minimise future disputes between shareholders, and to formalise rights and responsibilities of shareholders; » » open a company bank account; » » ensure that the company and directors have the appropriate insurance in place to mitigate business risks; »» m a k e s u r e y o u r i n t e l l e c t u a l p r o p e r t y i s protected; and that you are not using someone else’s; »» p r e p a r e f i n a n c i a l f o r e c a s t s t o u n d e r s t a n d expected cash burn, and when capital injections will be required; » » find out what grants you may be entitled to.
Companies”; you need the business to be operating in a company for these concessions to be available; » » protection of company name – you may still need to register a business name and trademarks or copyrights.
As important as everything above is finding the right advisors to help you with everything! There will already be enough demands on your time and the right advisor can make this as efficient and painless as possible.
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N AV I G AT I N G T H E WAT E R S W H E N C H I L D P R OT E C T I O N & FA M I L Y L AW CO L L I D E by L y n n A rmstrong, Se nior Assoc iate & Accred i te d F a mily Law Spec ialist
Is your family situation one where child protection proceedings have commenced but nothing seems to be happening? Or one where you are in Children’s Court for matters you believe are more family law related? It may be that your situation is one where family law proceedings are more relevant to your actual issue, and you are “trapped” in the wrong jurisdiction.
occurs, the Family Law Courts can be applied to for contrary orders.
In family law there are often situations which involve both federal Courts (such as family law matters) and state Courts (such as child protection proceedings). When this happens, there can be argument as to which court is the most appropriate.
This may enable the parent seeking the time to seek a family report (rather than social assessment report) which can look at all of the best interests of the children pursuant to section 60CC of the Family Law Act. The requirements for the best interests of the child are different and may assist your case, as opposed to the different matters the social assessment reports look at.
A long held (but not always correct) view is that the state Courts, exercising the child protection proceedings, have the ultimate jurisdiction. The reason that this is not always the correct view is that if the Children’s Court proceedings have an order which is not deemed to be a child protection order for the welfare of a child “under the care of a person under a child welfare law”, the judge of either the Federal Circuit Court or Family Court can order a contrary order with jurisdiction. To determine this you need to look at the type of order you hold.
Another benefit to a family report being ordered by the Family Law Courts is that the parties have more of an opportunity (if privately funded) to choose a report writer or be part of the choosing process. As well, the parties can ensure that all of their court documents and relevant materials are provided to the report writer, whereas the Department of Communities (Child Safety) staff usually arrange and provide details and documents to the social assessment report writer, often without a lot of inclusion of the views of the parties.
If the order from the Children’s Court is a directive order or protective supervision order - which usually simply direct the parties as to how the time of one parent occurs - this may not in fact be classed as a “child protection order” and when this
This is certainly available to parties, and can be a treacherous area to enter without the proper assistance to calm the waters and head you in the right direction.
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CO N N E C T W I T H U S info@bwbfl.com.au
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