crossroads Issue Three
2 01 6
Published by Best Wilson Buckley Family Law
Our t h i rd edi t i on of C rossroads is publishe d with t h e a n n ual sen t i m en t of tr ying to unde rstand how quic kly a n o t her year p ass es and our thoughts turn to celebra ting Ch ri s t m as an d enjoying the wa rmer months. It also provides the opportunity to reflect on another year that seems to have passed in the blink of an eye, and look forward optimistically to what 2017 and beyond may hold. On behalf of the entire Best Wilson Buckley Family Law team, we wish you good cheer and good health and prosperity heading into the festive season and 2017.
We l ook for ward to seeing you again in the new year.
T H E CO N T E N T S F E AT U R E D A R T I C L E S 7 Y E A R S O F B E S T W I L S O N B U C K L E Y FA M I L Y L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1- 2 by Kara Best | Best Wilson Buckley Family Law
C A L L I N G H A L F - T I M E AT C H R I S T M A S .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4 by Alecia Connor | Best Wilson Buckley Family Law R E L AT I O N S H I P B R E A K DO W N A N D YO U R W I L L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 Beware the loose ends! - by Sheelagh Gray | Clifford Gouldson
A F I N E B A L A N C E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 -8 Australian Indians and family law - by Deepal Raniga | Best Wilson Buckley Family Law
L A S T M I N U T E C H R I S T M A S C A K E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1 0 by Tammy Wright | Best Wilson Buckley Family Law
N E A L W OO D - A S S OC I AT E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 L Y N N A R M S T R O N G - S E N I O R A S S OC I AT E , ACC R E D I T E D FA M I L Y L AW S P E C I A L I S T .. . . . . . . . 12 CO - PA R E N T I N G F R O M A D I S TA N C E .. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1 4 by Andrew McCormack | Best Wilson Buckley Family Law
E U S T R E S S V D I S T R E S S . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-1 6 by Sally Broadhurst | Vibe Natural Health
PA R E N T + S C H OO L = E X T R AO R D I N A R Y I N D I V I D UA L .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-1 8 by Mia Patterson | Christian Outreach College Toowoomba
H O L I DAY D I V O R C E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20 by John Patterson | Best Wilson Buckley Family Law
M A K I N G L E M O N A D E W H E N L I F E S E R V E S U P L E M O N S :.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3-24 Could parenting coordination be an ingredient? by Anne Purcell | Resolution Partners
COC K TA I L S . ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5-26 DO N ’ T P R E S S S E N D ! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7-28 5 tips for times when your family lawyer is not available - by Neal Wood | Best Wilson Buckley Family Law
C A R L A F R A N C H I N A - S E N I O R S O L I C I TO R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 D E E PA L R A N I G A - S E N I O R S O L I C I TO R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0 S P E C I A L VA L U E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 -32 by Tim Cavanagh | Webster Cavanagh
PA R E N T I N G O V E R T H E H O L I DAY S E A S O N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3-34 by Lynn Armstrong | Best Wilson Buckley Family Law
R E C R U I T M E N T A N D T R A I N I N G F O R S M A L L B U S I N E S S .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36 by Brendan Willliams | Industry House
W H O G E T S T H E FA R M ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-38 Property settlements where adult children are involved - by Neal Wood | Best Wilson Buckley Family Law
CO N N E C T W I T H U S info@bwbfl.com.au
|
bwbfamilylaw.com.au
(07) 4639 0000 - Toowoomba
(07) 3210 0281 - Brisbane
PO Box 3701, Toowoomba QLD 4350
PO Box 1735, Brisbane QLD 4001
135 Margaret Street, Toowoomba QLD 4350
Level 5, 190 Edward Street, Brisbane QLD 4000
COMING TO IPSWICH SOON!
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7 YE A RS OF BEST WILSON BU CK L EY FAMILY L AW by K ara Best, Legal Pra c tice Direc tor
Family law, differently. That was the premise behind our practice when we started seven years ago, and is a sentiment that we remain committed to seven years later.
When Reagan Wilson and I started this journey in 2009, we were joined by Rebecca Harding and Stephanie Wilkinson together with a team of five support staff to open Toowoomba’s first boutique family law firm. The likes of Best Wilson Family Law were a unique sight in the legal landscape at that time (and in many ways we still are), choosing to deliver personal legal services in a niche area of the law. Reagan and I wanted to embrace exceptional outcomes for our clients for a reasonable cost, with a strong focus on being pragmatic and achieving a holistic outcome for every client and their family. We have also consistently prioritised the importance of cultivating a positive team environment offering our staff the opportunity to be all that they can be. We have been incredibly fortunate to attract great lawyers from throughout South East Queensland, and the trust of a network of valued local professionals whom routinely refer work to us.
In November 2013, Dan Buckley joined the firm as a partner and we opened our Brisbane office. While our regional roots are strong, and we personally recognise the presence of the Toowoomba community, opening a Brisbane office signalled to many in the legal fraternity ‘down the hill’ that Best Wilson Buckley Family Law had arrived. In October 2015, Best Wilson Buckley Family Law was acquired by Shine Corporate, another proud Toowoomba local. The synergies between our firm and the Shine Group are evident, and especially so in the importance of being passionate and authentic about what we do every day. With Shine we have the opportunity to become the first truly national specialised family law practice, and to bring our humble way of practising family law to those in need right across Australia. So, here we are fresh from celebrating our one year anniversary with Shine, and with a 7 Year Itch signifying our seven years as a firm, where we have come from and the bright vision for where we are going.
Rest assured that the only itch that we need to scratch is an overwhelming desire to thank you: our clients, our team, our referrers and our colleagues. Those people that believed in Best Wilson Buckley Family Law somewhere along the way and helped us to realise our dream to practise family law, differently.
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CA L L IN G HALF -TIME AT CHRISTMAS by A l ecia Connor, Assoc ia te
So whilst many people are making lists (and checking them twice), locking in Christmas party dates, buying a new ham bag, ordering your ugly Christmas rashie (a definite on my to-do list) and looking for that perfect advent calendar, many people also have the worry of what are we doing with the kids hanging over their heads at this time of year. This time of year can cause much stress and anxiety in separated families. Not just for the adults, who are trying to ensure that everyone receives their piece of the cake, but for the children. In newly separated families, this might be the first time that the children have to contemplate spending time on Christmas Day without both parents. If this is the case parents will also have to grapple with the idea that they will not spend all day with their children, on what can be their most exciting day of the year. Whilst this places a large amount of pressure on everyone involved, here are some tips to survive the crazy season while also protecting your children from any potential madness. Plan early. Don’t wait until the week before Christmas to raise this. Have discussions early so that both the parents and the children know what lies ahead. Hopefully some sensible discussions may lead to an agreement being reached about this day. However if this is unsuccessful, then you may even need to engage a mediation service or obtain legal advice to assist in helping you sort it out. It is worth thinking about as early as June (yes before the Christmas music even starts in Myer!). Consider the need to travel on Christmas Day. Many people immediately think that the best and perhaps fairest way to manage Christmas Day is to split it down the middle, ie changeover at midday at a halfway point. Whilst at the outset this may appear to be in the best interests of the children,
consider carefully whether this in fact is in your situation. Consider things such as what does your family normally do for Christmas? Do you travel to visit extended family? Are the children used to going from one house to another for Christmas Day (ie between grandparents) or have they traditionally remained at one house for the duration of the day? How do the children cope with change? All of these factors will impact on what the best arrangements are for your children for a post-separation Christmas. Consider what the relationship is like between yourself and your partner and each of your respective families, particularly if you are considering a Christmas Day changeover. Many children count down the days to Christmas and if changeovers are not always completely amicable consider whether it is worth the risk of potentially exposing your children to this on their favourite day. Look at other options for Christmas Day. Whilst what I will refer to as the ‘Christmas Day swinger’ option (ie changeover halfway through Christmas Day) is often the preferred method particularly when the children are young, sometimes it may be better to alternate the Christmas period from year to year. The children therefore can spend a relaxed, enjoyable Christmas period (whether that be two days, three days, or longer) with one parent and know that the following year they will do the same with their other parent. Whilst it may be hard for the parent who does not see the child on Christmas Day
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in that particular year, why not use the opportunity to create a second Christmas Day celebration on another day. After all what more could a child want than two Christmases? And lastly…communicate with your kids. Once an agreement has been reached, tell them the details of this. This eliminates any stress for them, particularly if they are thinkers or planners.
This issue is close to my heart, professionally as well as personally. As a child, I generally fell into the category of a “Christmas Day swinger.” My brother and I would generally spend the first half of the day with one parent, and then endure normally at least an hour or so in the car travelling and an awkward changeover, to then spend the second half of the day with the other parent. All the while hoping that when Mum and Dad saw each other for those very brief handover moments, that they may wish the other a Merry Christmas or spread the festive spirit in some way, to reassure me that those I loved so dearly still had respect for each other.
For many years Christmas caused a lot of stress for me. I didn’t always know where I was going, for how long, or how my parents would respond to each other on this day. Therefore I urge all parents to consider the above when having discussions and making decisions about what I think is the most wonderful time of the year.
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R EL ATIO NS HIP BREAKDOWN A ND YOUR WILL B E WA RE T H E LOO S E E N D S ! by Sh eel agh Gray, C lif ford Gouldson www.cglaw.com.a u
Worrying about what your Will says is probably the last thing on your mind when you’re going through a separation or divorce. But if you don’t take care your family could be left dealing with some tricky, legal loose ends! Don’t take the risk of a wait and see approach Once you’ve seen your family lawyer and know you are proceeding with a separation you should take a careful look at your Will and any other estate planning documents including Enduring Powers of Attorney and superannuation binding death benefit nominations.
While this ensures they will no longer be your executor and will not receive gifts the document made to them this is not a substitute for a new document. Simply removing clauses or gifts from a Will can have unintended consequences if those gifts now fall to the next beneficiary in line or into a catch all clause.
The key reason to take immediate action is that the process of separation, including arranging a property settlement and parenting arrangements, will have NO impact on what your Will says and how it will be applied if you pass away.
It might also mean that gifts made to children (particularly if they are under 18) end up in the control of your former partner (acting on your children’s behalf) if you don’t take steps in a new Will to make other arrangements.
The person you’re busy untangling your life from could end up with the money, property and custody of your children that you’re busy trying to stop.
Property uncertainty is no reason to delay
Talk to an experienced estate planning lawyer as soon as you can. Let them know what’s going on with your family law matter and they can ensure your documents are updated. Divorce helps – sort of! If you have completed a formal divorce or termination of a civil partnership the law assists you by automatically annulling (think of it like drawing a line through) those parts of your Will which refer to your former partner.
A common reason for putting off estate planning is that people going through a separation don’t know what their eventual financial or property position will be. You might wonder “If I don’t know who is getting the house how do I do my Will?” For an experienced estate planning lawyer this is not a problem. Your Will can be crafted to take account of some level of uncertainty and can also be easily updated later when you are able to more specifically refer to particular property. It is preferable to refer to your property in a general way in your Will than have your former partner end up with everything.
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Don’t forget your other documents Understandably, most of us concentrate on our Wills as the critical part of our estate planning but other documents can also be critical. The contents of your Enduring Power of Attorney is a perfect example. In the case of an injury or illness you may also find that your former partner is in a position to make medical or financial decisions on your behalf. If you no longer want to be in a
relationship with them do you really want them able to make these decisions? Binding death benefit nominations (used to ensure your super ends up with the right person in the event of your death) should also be immediately updated. For most people their super is a major asset and if combined with a death benefit can be a substantial sum of money. Again, you really want to make sure this money ends up where your new family situation needs it most.
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A FINE B AL AN CE AUS T RA L I A N I N D I A N S A ND FA M I LY L AW by Deep al Ra niga, Senior Solic itor
With an ever-growing migrant and local community, the way in which we best represent family law clients from ethnic backgrounds is a fine balancing exercise in achieving an outcome which takes into consideration familial, cultural and religious norms, traditions and celebrations together with adhering to the overall intention of the Family Law Act.
Even in circums t a nces where a n individual contemplates obtaining advice and approaches a professional for advice, there may be a reluctance to pursue the appropriate avenues of assistance in fear that the professional will be dismissive of their position or simply lack an understanding of the various dynamics that may be at play.
The roles these aspects might play when a marriage or relationship has broken down within a western cultural setting which has historically and politically been based on the Westminster legal system used in Great Britain, may impact on the advice and overall strategy and service that we provide to our clients.
Our role as legal practitioners firstly, is to be aware of the various dynamics at play when clients with an Indian background approach us for advice. This may include:
One may take it for granted that when facing family law or relationship issues, it would be obvious to seek legal advice or support. However, it is not necessarily that straightforward for individuals with an Indian background. Sometimes, simply reaching out for assistance when experiencing difficulties in a relationship/marriage or otherwise when contemplating separation may, in itself, be a barrier for clients to obtain advice. When family disputes or separation do arise within an Indian family, it is quite usual for there to be discouragement or even an inherent ban on seeking advice from professionals or people outside of the family circle. Compounding this issue is the immense pressure on the couple to remain in an intact marriage and simply ‘put up’ with the issues when a relationship has broken down which unfortunately, may result in family violence. The view is that such matters are ‘family business’ and it is feared that if outsiders become aware of the issues experienced by the individual and/or family, this will damage their standing in society, cause disrepute and bring about shame on the individuals and the entire family. Consequently, such strong practices and beliefs act as a powerful deterrent for seeking family law assistance in the event of a familial breakdown.
» » interested third parties such as in-laws or siblings with a vested interest in: i. the asset division in light of norms regarding dowry, money and gold gifting together with arrangements for family businesses and the intermingling of assets whether in Australia or overseas; and/or ii. the parenting arrangements particularly in the case of grandparents whom play a significant role in the raising of children; » » the role and standing of females and males within the family and how this may impact negotiations; » » the inadvertent role of the matriach/patriarch of the family generally the father-in-law and/or the mother-in-law in negotiations; »» t h e c o n c e p t o f A u s t r a l i a b e i n g a ‘ n o - f a u l t ’ jurisdiction; » » religious and customary celebrations participated by the family in light of parenting arrangements separate to those usually identified in the western culture such as Christmas and Easter; and »» c o n c e p t s a r o u n d p a r t i c u l a r l y a u s p i c i o u s days for signing court documents and/or finalising matters.
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We must tailor our approach to appropriately reassure and accommodate our client’s particular familial, cultural and religious norms, traditions and celebrations and provide an empathetic yet strategic approach in order to achieve a holistic outcome for that client.
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LAST MINUTE CHRISTMAS CAKE Som et h i n g to s hare with friends who drop over at C hristma s.... by T a mmy Wright
Ingredients
2 teaspoons bicarbonate of soda
300g unsalted butter, chopped
1 ½ cups (375 ml) water
420g raw sugar
½ cup brandy or rum
380g raisins
2 teaspoons grated nutmeg
180g pitted prunes
2 teaspoons cinnamon
160g sultanas
4 eggs, lightly beaten
90g currants
2 ½ cups wholemeal plain flour
90g pitted dates
100g pecan halves to decorate
Method » » Melt the butter over medium heat in a pan large enough to hold all cake ingredients. Add the sugar and stir for 1-2 minutes to partially dissolve. Add the fruit, soda, brandy and water. Increase heat to medium-high and stir to dissolve sugar. Stop stirring, bring to the boil, then reduce heat to medium and simmer for 4 minutes. Keep an eye on it and adjust heat, as it will froth up because of the soda. Turn off the heat and cool to room temperature in pan.
» » Stir nutmeg, cinnamon and eggs into fruit mixture. Mix in flour and stand for a few minutes. Pour into pan and level the top. If using nuts decorate the top of the cake.
» » Preheat the oven to 150 degrees (fan forced). Grease a 23cm springform pan and line base and sides with buttered baking paper.
»» Cool cake completely in pan then remove and enclose in plastic wrap or foil, and store in the fridge for up to 1 month.
» » Bake for 2 hours 30 minutes or until cake feels firm in middle and a skewer inserted into the centre comes out clean. After an hour check the top, if it is a good rich brown, cover loosely with foil.
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B E S T WIssue ILSON Two  BUCKLEY
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Nea l Wood A s s o c i a te Toowoomba
Q. What do you most look forward to in summer and the holiday season? A. Long summer days. Those extra few hours of sunshine in the early mornings and late afternoon make such a difference to being able to spend more time outside.
Q. Number one on your bucket list?
Q. Why family law?
A. I’d love to have a crack at tagging a 200KG plus Black Marlin.
A. With so many areas of law involved no two days or matters are exactly the same.
Q. Best concert you have been to?
Q. What do you do in your spare time?
A. Ben Folds.
A. Pretty much anything water related; boating, kayaking and fishing.
Q. Favourite place to eat in Toowoomba?
Q. If you didn’t love the law where would you be?
A. Gip’s.
A. Probably opening a café, restaurant or bar somewhere. These days I just enjoy cooking, food and wine for the fun of it.
Q. Favourite holiday destination? A. Fraser Island. Q. Who was your childhood hero growing up? A. Voltron.
Q. What did you have for Sunday dinner growing up? A. Roast pork and veg made a regular appearance.
Q. What is your favourite movie? A. The original Bourne Trilogy, but if I had to pick one, The Bourne Identity.
Q. What song always makes you happy when you hear it?
Q. Who would be your ultimate five (5) dinner guests?
A. Don’t Stop Me Now by Queen. Q. What book is on the bedside table right now?
A. Will Anderson, Paul Kelly, Heston Blumenthal, Keira Knightly, and Uma Thurman.
A. Solo - Lost at Sea the biography of adventurer Andrew McAuley.
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L y n n A rmstrong S e n i o r A s soci ate a n d Acc r e di ted Fam i l y L aw S p e c i a li s t Toowoomba Q. What do you most look forward to coming into the summer and holiday season? A. The fantastic Toowoomba weather - which I love. The sunny days and cooler nights are just wonderful.
Q. Number one on your bucket list?
A. Overseas travel – I am really keen to go everywhere, and particularly China to visit my brother who is over there. Q. Best concert/sporting match/event you have been to?
A. My favourite Toowoomba band is Tinted Sun, and I enjoy seeing them, as very young performers, growing in style and performance. Toowoomba is a great area for young performers and it is great to see. In the last few years I have seen many fantastic larger concerts but I think Keith Urban at Caboolture was the best. He had an amazing way of connecting with the huge audience which was really spectacular. Sheppard (from Brisbane) performed before him and they were awesome as well. Q. Favourite place to eat in Toowoomba?
A. I like the great hotel food at the Irish Club and Tapestry. Q. Favourite holiday destination?
A. At the moment, Caloundra. It is nice and close to Toowoomba, has lovely weather and lots to do. Such a lovely relaxing spot! Q. Who was your childhood hero growing up?
A. My dad. In the small isolated town where I grew up, he fought to keep the local hospital open, and the hospital remains open 30 years later. Q. What is your favourite movie?
A. Dr Zhivago – it shows struggle and it doesn’t follow a “usual” movie format which is interesting. It has been my favourite movie since I was a teenager. Q. Who would be your ultimate five (5) dinner guests?
A. Jon Bon Jovi, Freddie Mercury, Ed Sheeran, David Bowie, and Meatloaf. It would be fantastic to hear the story of their careers, views of the world and politics, and just sit back to watch the interactions.
Q. Why family law?
A. I like to use my knowledge and understanding to help people during what can be the most difficult time of their life. I went through a marriage breakdown at the same time as commencing my legal studies, and felt confronted by the way some lawyers practised family law. I want to show that there is another way to do family law, a better way. Q. How do you unwind? What do you do in your spare time?
A. I like to hang out with friends and family, and listen to live music.
Q. What did you think you were going to be when you grew up?
A. The story goes that when I was 5 my father was watching LA Law and I told him I was going to be a lawyer. I am also a trained Registered Nurse, and I have some ambulance training – so if not law, then probably nursing or paramedic work. Q. What did you have for Sunday dinner growing up?
A. Sunday dinner was usually with my parents and family. We lived a long distance from other family so our family unit was small, and every meal had discussions about politics, music, economics and psychology. My parents ran a newsagency in a very tiny town on New Zealand’s West Coast. Q. What song always makes you happy when you hear it?
A. Katie Perry’s Roar, I like the self-empowerment of the song. One time a few years ago I was at a band performance at Gatton where very young children were singing the song and doing the actions. It was gorgeous. Also Queen’s The Show Must Go On, it is another song about keeping moving through difficult times. We all have them and we all have to keep going. Q. What book is on the bedside table right now? A. Jeffrey Archer’s Sons of Fortune.
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While distance can be a barrier it can be overcome, and proper parenting arrangements put in place that ensure the best interests of the child are met and they maintain a meaningful relationship with both parents, regardless of where they are.
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CO -PA REN TIN G F ROM A DISTAN CE by A n drew M cCo rma c k, Senior Assoc iate a nd Accred i ted F a mily Law Spec ialist
Parenting is hard enough at times without having to factor in issues of distance. It can be hard on both parents and children when you are trying to co-parent from a distance. This can be made much harder if one parent decides that they want to return home to where they grew up and where their support networks of family and friends are. Everyone has the right to freedom of movement, although the Family Law Courts recognise that children have the right to a meaningful relationship with both of their parents and that both parents should, wherever possible, be part of their children’s daily routines. The result is that a parent may find themselves in a place or subject to a routine that is not optimal for them or the children. The tyranny of distance can mean that it simply isn’t possible to put in place equal care arrangements. The courts recognise that in some instances the logistics of travel, when factoring in school and extra-curricular activities, mean that the more ‘garden variety’ parenting arrangements will not be either appropriate or in the best interests of the children. This could mean that the primary carer of the children will have to be creative in terms of fostering a relationship between the other parent
and the children. For example, sacrificing the bulk of the holidays so that they children can spend quality time with the other parent or further travel during school terms to facilitate time or be part of sporting or other activities. Technology is an option for bridging the gap made by distance, albeit not always an option for many rural and remote areas of Australia. If you do have access to suitable technology, options can include c o m m u n i c a t i o n by Skype or Face-Time which provides a ‘real’ experience, and I’ve even heard of instances of parents that live away reading bedtime stories or doing homework via Skype. This type of communication can allow children to include a distant parent in their day-to-day lives. There are also websites and apps that can help parents to communicate and co-parent, such as www.ourchildren.com.au and the SharedCare app. These provide everything from secure communications, to a shared calendar and photograph sharing.
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EU STRESS V DISTRESS by Sally B roadhurst Vi b e Natura l He alth www. vi be na turalhe alth.com.au
Stress is something that we all experience to varying degrees throughout our life. One type of stress, known as eustress, is a positive type of stress and is used to help us achieve our goals in a productive way. But what happens when the pressure and worry of everyday life starts to get on top of you? For some it might be work, for others finances, assignments, family, health - you name it, it is probably on someone’s list as a source of worry and frustration. The stress response that is intrinsically wired into our brains was designed millions of years ago to prepare ourselves for what is known as “fight or flight” - as in - do we stay and fight the sabre-toothed tiger that’s about to attack or do we run away from it and hide in our cave? These days there are no actual tigers stalking us, but there are plenty of situations that can trigger the nervous system to slip into this “fight or flight” response. And it’s when this survival system is triggered on a daily, weekly and monthly basis that our minds, bodies and spirits start to suffer and break down.
When we learn to handle our stress effectively and make a commitment to ourselves to put our health and wellbeing first, the positive benefits are amazing and priceless: 1. w e s l e e p w e l l a n d h a v e b e t t e r m e m o r y a n d concentration; 2. o u r d i g e s t i v e s y s t e m s f u n c t i o n w e l l a n d o u r immune systems stay strong; 3. we are healthy and we are happy; 4. w e g e t t o e n j o y a h a p p y a n d b a l a n c e d l i f e where there is time for everything - work, play, relationships, study and fun. There are endless options of things to do and try when it comes to soothing your worries and increasing your feelings of relaxation and happiness! The best part about this is that it means there is something out there that will suit you, your personality and lifestyle - no forcing yourself to try something because you think it’s good for you!
Making healthy choices is all about choosing what feels right for you and what fits with your lifestyle; and remember that if stress and anxiety are beginning to significantly impact your health, sleep, relationships or productivity, to seek the advice of a trusted health professional. Issue Three
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EUSTRESS V DISTRESS
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PA RE NT + SCHOOL = E XTRAO RDI N ARY IN DIVIDUAL By M i a P at terson, Deputy Princ ipal ( P-12 ) Ch ri st i an Out re ac h College Toowoomba www.coc t.qld.e du.au
In a society where literacy and numeracy rates are falling at an alarming rate, and an environment where negativity and blame is all that is reported in the media around the topic of schooling, there is still hope when solid partnerships are formed between home and school.
When an atmosphere of mutual respect, trust and communication is evident, extraordinary results can occur. Having taught in many different school settings for over 30 years, I have observed a change in the role of parents and caregivers in the education process. Some change has been welcome, other change is the result of trust erosion which can have a detrimental impact on educating the whole child. Step 1: Choosing a ‘good’ school A wise man once told me that in order to do the best for your children in regards to education, you must “choose their friends”. Having preteens at the time, I could only laugh at this suggestion. My children would not allow me to choose their breakfast cereal at the time, let alone interfere with their friend choice! This man quickly quipped that we choose our children’s friends by choosing the ‘best fit’ school; this being the school that most closely matched our personal values as parents. Interestingly, we searched and decided on a school that we had no connection with prior to this process. We were looking for a strong caring, culture that encouraged each child, no matter what their giftings (or lack thereof); a school that encouraged each child to strive for their best while offering the best academic opportunities possible because, after all, that is why we send our children to school, isn’t it? Step 2: Trust and step back This at times can be extraordinarily difficult when there seems to be some outrageous injustice occurring to our precious offspring.
Hindsight showed that while difficult, trusting the school proved to be the best way to grow resilience in our children. Jumping to their defence at every turn would not have been as constructive for them or us or the school. Resilience is possibly one of the most important skills to possess in a society that can at times seem to attack from every angle. Resilience breeds good mental health and high self-confidence which leads to good self-esteem. Unfortunately, resilience is also not a downloadable skill, neither can we grow it from reading about it. Like fitness, it must be established over time, and can often be an onerous and tedious road to navigate. Step 3: Partner with your school Parenting with the school in your child’s education is like the art of pottery. If we think of the child as a beautiful quality lump of clay on the potter’s wheel, one potter’s hand represents the school and the other the parents. Without both constantly holding fast and moulding together, the beautiful work of art will never be created. Both parties need to have a very good idea of what they would like the end product to look like, and both need to labour together to make it work. Good communication needs to be consistently practiced, along with equal amounts of support and encouragement between both parties; school and home. Both need to acknowledge that the other has very particular and unique skills and qualifications which together give the perfect environment for growing a child. Criticism of one by the other does nothing but hinder progress. And, most importantly, TRUST must be an ‘understood’ component of the process.
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Qualities of a ‘good’ school
Legal boundaries
While schools have not changed dramatically in their physical appearance from the outside, most have had to alter their pedagogy (teaching and learning) to accommodate technology and what can be called the ‘available information explosion’. Teachers are no longer the ‘font of all knowledge’ but rather facilitators for learning. Content is so available today, and as a result teachers need to be able to develop strategies to ensure that students are high functioning scholars who are able to critically engage, analyse and evaluate the vast array of information available to them. Schools need to encourage social justice, self-discipline and ethical awareness in students as they interact with information they have at their fingertips. All this means that schools today are not only involved in the academic education of students, but are far more involved in their moral, social and emotional education. It is in this area where sometimes boundaries blur and communication between home and school is paramount. Trust must be a priority!
Schools must also be highly versed in ‘school law’; a growing area and at the moment a ‘black hole’ of possible pitfalls. Because of the changing role of schools in social education, and the ongoing evolution of the ‘typical family unit’, it is imperative that schools are up to date on the rights of the child, the teacher, the parents and the school. Education of teachers in school law, coupled with excellent communication between home and school have today become two of the most important elements in a home-school partnership which provides the best possible environment for optimum learning and positive growth. Every school needs to be affiliated with either independent or system-based legal counsel. Access to up to date training in this area is vital for all staff. So…. find a school that really matches your value system, cares for the individual student and looks to develop your young person into all that he/she can be, but also has a good handle on the most relevant and up to date information and professional development for its staff. Then support it and put your trust in it while communicating encouragingly and often.
You will find if you do put your hand on the clay on the potting wheel and partner with an excellent school that shares your values, hopes and dreams for your child, together, with mutual trust and communication, you will mould an extraordinary individual.
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H O L I DAY DIVORCE By Joh n Pa tterson, Solic itor
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H O L IDAY DIVORCE By Joh n Pa tterson, Solic itor
A colleague of mine refers to being a lawyer as being similar to suffering from a “genetic defect”. I tend to agree. Many of us have been, at least in part, inspired to a life in the law by friends or family members who share in the misfortune of bearing the traits necessary to be a proficient lawyer. For better or for worse, I am no different. I have an uncle who is a lawyer, and a very good one at that (not that he’ll admit to it). And as my mother will attest, there is no doubt that he and I are both equally “defective”. Aside from the invaluable tips on tormenting my siblings, my scholarly uncle has given me a number of pieces of advice, one of which is to never make career decisions between November and January. After a long year, by Christmas time a career as a bartender in the Caribbean can appear nigh irresistible. Whether the decision to remain in our offices postChristmas is a good one is a question to be addressed after a few more drinks, but a recent study from the University of Washington has suggested that my uncle’s logic does not seem to be regularly heeded when making decisions involving separation from a partner. The study found that there are two peak divorce periods each year, following the summer and winter holidays. Those behind the study have explained that their expected reasoning for the pattern is the tension, pressures, and expectations that arise in relationships around family holidays and cultural celebrations. Such statistics are not necessarily reliable in Australia, given that, in this country, the date of divorce very rarely reflects the time that a separation has actually occurred. Despite this however, similar trends have been recognised here by organisations such as Relationships Australia.
It goes without saying that many decisions around separation are made in a state of severe emotional turmoil. If these decisions, and their ramifications, are not appropriately addressed, this turmoil has the potential to be transformed from a relatively brief phase of difficulty, into an extremely long, arduous, and painful journey. We have found that many clients react with surprise when we explain that, in most circumstances following a separation, throwing on the suit of armour and charging into a series of angry letters and emotive accusations, or worse, an adrenalin fuelled court battle, is very much our last resort. After this surprise subsides, most clients then also indicate an overwhelming sense of relief. We have an obligation to discuss with clients the possibility of reconciliation before undertaking any formal steps involving the Family Court system. In the event that reconciliation is not appropriate or realistic, there is no doubt that our clients’ lives are made exponentially easier by an approach to matters that favours open and meaningful discussion, reasonable negotiation, and constructive communication. The aim, in large part, is to try to ensure that decisions made by our clients in the midst of heightened stress and conflict do not have irreversible, long-term, adverse side-effects on their lives.
In most circumstances we can be of limited assistance in deciding whether to separate from a partner. That is not our place. By adopting an understanding, empathetic, and insightful approach to assisting our clients however, we can certainly assist in making life after a separation more optimistic.
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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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“Be who you are, and say what you feel. Because those who mind don’t matter and those who matter don’t mind.” Dr Seuss
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MA K ING L EMON ADE WHEN LIF E S ERVES UP LEMON S CO UL D PA RE N TI NG COO R D I NATI O N B E A N I N GR E D I E NT? By A n n e Purce ll PhD, Princ ipal R esolution Partners
Need a recipe to make lemonade when you, or someone you know, may have been served a life of lemons? Following a parenting plan during and after a divorce or separation can be difficult for some. A parenting agreement has been developed or has been settled. Now what? Have the conflicts with the other parent regarding the children suddenly stopped just because there is an agreement? How about communication; does signing an agreement suddenly make it so that the parents magically start to effectively communicate? Likely not. Many parents have no real idea what shared parenting is much less how to incorporate it in their day-to-day lives. Quite often it is rarely the big, life-altering issues that cause the greatest amount of disputes between parents. Here are some tips to develop resilience and work towards resolving minor disputes involving your children. Can a parenting coordinator help? A parenting coordinator may be able to help with day-to-day co-parenting issues as well as ultimately how to make decisions together and reduce daily conflict over ordinary decisions. This assists parents to establish and maintain a healthy co-parenting relationship by reducing parental conflict and the risk factors that influence a child’s post-divorce adjustment. Parenting coordinators can reduce and often eliminate much of the lawyer involvement that often occurs with the ongoing parental conflict, saving time and money. How is parenting coordination different from mediation? A mediator’s work is often completed in a closed, confidential way. They cannot provide detailed
education and recommendations to the parties. Their job often ends when the agreement is signed or the parties fail to agree. The parenting coordinator role is different. They have been specifically trained to work with a family before, during and after they have reached their final court orders. A parenting coordinator helps to assess the parenting issues, educate the parties about the impact of separation on their children, manages and monitors the parenting plan and ongoing potential conflict, and provides recommendations when parents cannot agree. They may need to speak to a variety of professionals the family has been involved with in order to design ongoing interventions or make further professional referrals. How does it work? Parents voluntarily engage with, or can be ordered to work with a parenting coordinator for a given period – usually several months, or up to a year or two. Parenting coordinators work with the parents as and when the issues arise. This may be ad hoc and outside of normal appointment times. The benefit to the family is that the issues are addressed immediately they occur. Additionally, there are regular sessions with the parenting coordinator. Through education, ongoing dispute resolution and case management, the family’s progress, post-separation, is monitored to assist the parents to ensure the best possible outcomes for their children, offering them the opportunity to grow in home environments free from the devastating stress of being caught in the middle of parental conflict.
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Does parenting coordination have an established track record? The process is well-established in North America and Canada with most States licensing specially trained professionals and mandating parenting coordination for high conflict parents through court orders. The Association of Family and Conciliation Courts (AFCC) have had a parenting coordination taskforce and guidelines in place since 2005.
Parenting coordination may be a consideration for clients who are struggling to develop resilience after divorce, separation and family transition. It may be part of a recipe to assist them to make lemonade when they feel that life has served them lemons.
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COCKTAILS A sneaky cocktail (and a mocktail for the kids) can hit the spot nicely on a summer day.
For you: Pomegranate Pimms Ingredients Makes 6 servings
1 cup lemonade or ginger ale
200ml Pimm’s No. 1 Cup™
¼ continential cucumber, thinly sliced
200ml pomegranate juice
1 orange, thinly sliced
Ice cubes
¼ cup mint leaves
1 cup soda water Method
Combine Pimm’s, juice and ice cubes in a serving jug. Add soda water and lemonade or ginger ale. Place the cucumber, orange and mint in the jug and serve. Enjoy. For the kids: Fruity Mocktails Ingredients Makes 5 servings 1 x 250g punnet strawberries
1 litre mango juice
5 passionfruit
1 litre lemonade or soda water
Method 1. Dice 5 strawberries and place each in a serving glass along with the pulp of a passionfruit.
4. Garnish with strawberries and a cocktail umbrella for effect.
2. Fill half of each glass with mango juice.
5. Enjoy.
3. Fill the other half of each glass with lemonade or soda water. Do not stir to combine, it’s best the way it is!
Learn from yesterday; live for today; look to tomorrow; rest this afternoon Peanuts
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DO N’T P RESS SEN D! 5 T IPS F OR TI M E S WH E N YO U R FA MIL Y L AW YE R I S N OT AVA I L A B LE by N eal Wood, Assoc iate
We have regularly written about the importance of getting independent, specialised family law advice about your individual circumstances at an early stage. There is no substitute for it. In family law there are very few general principles that apply irrespective of your circumstances. Having said that, what do you do if your relationship comes to an end when our office is closed or if you are only just thinking about separating? In short, it’s about keeping your feelings, actions and emotions in check until you can get the advice you need and know where you stand. While there are very few absolutes in family law, below is my list of the top five things that I wish I could tell parties going through separation before they even pick up the phone to make that initial contact with us. 1. D o n ’t p re s s s e n d … . y e t . We g e t i t . I n t h a t moment you are feeling angry, frustrated, hurt, confused, upset, sad, grief stricken or annoyed. Whether it’s the phone call you just had, that text message that just hit your phone, that post that just got shared with you, that # added to their comment or what they yelled at you out of the car window. Chances are you are right. They should not have done it. They know how to press your buttons and they knew it would get to you. As much as you’re passionate right now and poised to click send or post on that perfectly timed response… Stop. Do. Not. Press. Send. Once you have put your response out there you have lost control of what happens next, including where that comment may end up, who may see it and what it may be used for. Before you press send you still have control of what you say and how you say it. Give it a minute, an hour, a day, overnight or the weekend. However long it takes to pause and really ask yourself the question “Would I be happy for a judge to read this and make assumptions about me
and who I am based on this”. If the answer is no then don’t send it. Remember that no response at all may be the best solution. 2. Secure your privacy. Unless you have been lucky enough to avoid the modern world for the last 20 years you probably have dozens of email accounts, online profiles, portals and Apps which each have their own password and login. When you and your spouse are together everyone had everyone else’s login details and passwords and no one thought twice. When you and your spouse separate it’s a good idea to set up a new email account so that you can be sure that no one is intercepting your private communication. At a minimum, change your passwords for your private accounts. Also remember things like Cloud-based accounts that may be available on multiple devices, like the iPad that the kids have, that old laptop or another device that is laying around which may be accessed by the other person and where your private information is backed up to. 3. S e n t i m e n t a l i t e m s . E v e n t h e m o s t h a rd e n e d minimalist will still likely have kept one or two keep sakes, mementos, treasures or lucky charms from over the years that reminds them of something special. Whether it is that trophy you won with the A-side footy club for the Under 18’s, the christening gown that has been in your family for three generations, the snow dome from that Christmas you spent in New York, great-grandma’s wedding dress or even that jar of Vegemite 2.0 that you hope will one day be the collectable of the future; chances are that it has great sentimental value to you but is of limited monetary value to anyone else. While personal property can be the subject of a property settlement dispute, if a person has retained an item
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that is of minimal monetary value it can be difficult to justify the legal costs to secure its return when it is suddenly said that the item you desperately want back is now “lost”, “stolen” or “gone”. To be clear, emptying the house of all home contents for “safe keeping” is not the solution. However, securing those couple of low value sentimental items before they disappear can save a lot of time and stress.
Remember the best argument is the one you don’t have to have. 4. T h e f a m i l y p e t . L a w y e r s a r e v e r y g o o d a t assisting when it comes to helping you work out the arrangements which are in best interests of your children. Most of us however are not as skilled at working out the views expressed by the family pet as to where they would like to live and their attachment to each of their parents. Whether you loved the family dog or cat or could not stand them, separation is not the time (nor is there ever a right time) to take out your frustration on your former spouse by threatening to harm or dispose of a beloved family pet or animal. The issue of what is going to happen with the family pet is best negotiated and agreed to early if at all possible and before anything happens
to the animal. When someone does something in the heat of the moment it can and does come into family law matters in different ways and rarely in a good sense. However, if a pet has been put down, given away or sold by a callous partner, while there may be good arguments why the conduct was wrong and hurtful to you or the kids, the best legal argument is not going to return that loving pet you held in such affection. 5. The informal property settlement - it does not work. You and your spouse have separated. You have negotiated directly. You have reached an agreement for all of your property. You have written it all down. You even had it put in a Stat Dec and witnessed by a friend that is a JP. You have both carried it out. You don’t need a lawyer? The answer is without a doubt, yes, you need to see a lawyer now! There are so many things that you don’t know you don’t know until it’s too late. The risks are, and it happens all too often, that the amicable property settlement you reached together does not work as you hoped. Your informal property settlement is not binding in any way and your rights are at risk. No matter how amicable things are now there is no substitute for getting independent legal advice and taking steps to legally finalise a property settlement in the right way with the assistance of a solicitor.
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Q. What do you most look forward to coming into the summer and holiday season? A. Picnics and beach days.
Q. Number one on your bucket list?
Q. Why family law?
A. I’d love to see a show on Broadway in New York.
A. It is a privilege to be in a position where you can make a real impact on people’s lives in a positive way, especially during such a hard time. I think family law is a challenging area but it can be as equally rewarding.
Q. Best sporting match you have been to? A. I wasn’t at the actual match but I was lucky enough to be in Barcelona in 2012 when Spain won the European Football Championship. We watched the game in a local bar and the atmosphere and celebration was incredible! Q. Favourite place to eat in Brisbane? A. The movies – I am a popcorn fanatic. But if we are talking about real food I love the Little Greek Taverna at West End. Q. Favourite holiday destination? A. Take me to Europe. Q. Who was your childhood hero growing up? A. I hate to admit it but I was crazy for the Spice Girls as a kid. Q. What is your favourite movie? A. Hard to narrow it down but a classic that I can never go past is Steel Magnolias. My mum and I would always watch it together.
Q. What do you do in your spare time? A. I like to read and listen to music, but I am also easily sucked into a Netflix binge on a Friday night. The true crime series are my favourites. Q. What did you think you were going to be when you grew up? A. I always had an interest in the law and decided I wanted to be a lawyer by the time I finished high school. Before that I fancied myself as a bit of a musician (which was a pipe dream at best). Q. What did you have for Sunday dinner growing up? A. Usually pasta or lasagne. Q. What song always makes you happy when you hear it? A. Wonderwall by Oasis, it reminds me of singalongs with friends.
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Q. What do you most look forward to coming into the summer and holiday season? A. Spending time with family and friends, relaxing and overindulging in food.
Q. Number one on your bucket list? A. To travel around the UK and Europe. It’s something I’ve wanted to do for years and is certainly next on the agenda. Q. Best concert you have been to? A. I went to the Ed Sheeran concert in New Zealand last year. It was so good I ended up going again when he came to Australia! Q. Favourite place to eat in Brisbane? A. Having lived in Melbourne for the past 4 years, there’s a bit of competition but I do love Jamie’s Italia and Canvas Club in Woolloongabba.
It’s also a diverse area of law which taps into other specialist areas. This means I’m continuously collaborating with and learning from professionals with different legal, business, social and medical expertise within the same context. It’s interesting and rewarding knowing I have done my very best to provide a holistic and sustainable outcome for my client. Q. How do you unwind? A. I like to read, listen to music and watch movies with my husband. Q. If you didn’t study law where would you be?
A. Queenstown, New Zealand.
A. I always knew I wanted to study law but if it wasn’t to be for some reason, I have always gravitated towards architecture, interior decorating and design.
Q. Who was your childhood hero growing up?
Q. What did you have for Sunday dinner growing up?
Q. Favourite holiday destination?
A. My dad and Batman. Q. What is your favourite movie? A. Still Alice and a Bollywood movie, but not the typical sort, called 3 Idiots.
A. Rich vegetable korma with paneer and purls made by Mum. Q. What song always makes you happy when you hear it?
Q. Who would be your ultimate five (5) dinner guests?
A. Happy by Pharrell Williams, and Can’t Stop the Feeling by Justin Timberlake.
A. Albert Einstein, Gandhi, Ellen, Pharell Williams, and my uncle, Judge Ajit Swaran Singh.
Q. What book is on the bedside table right now?
Q. Why family law? A. It’s an area which is personal, emotional and filled with sensitivity therefore inherently challenging within the legal framework. That challenge is what I love. Guiding individuals during what can be a difficult and trying time in their lives is truly fulfilling.
A. Mao’s Last Dancer by Li Cunxin and (L’Art de la Simplicite, How to Live More with Less) by Dominique Loreau.
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SPECIAL VA L U E
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SPE C IAL VALUE by T im C ava na gh Webste r C ava na gh www.webstercavana gh.com.au In a recent valuation exercise I was asked to comment on special value with respect to rural land. What is special value? Bignold J said in the Land and Environment Court in New South Wales in Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of New South Wales (1998) 101 LGERA 30 at 38: “Special value is an element of the concept of ‘value to the owner’ and is the additional sum above market value which the owner would have given for the land sooner than fail to obtain it at the time of a hypothetical sale.” Unlike market value which determines the value assuming a hypothetical vendor and purchaser, special value assumes the owner is the hypothetical purchaser. The concept of special value was established by Lord Moulton who said in the Supreme Court of the State of New South Wales in Pastoral Finance Association v The Minister [1914] AC 1083 at 1088-1089: “That which the appellants were entitled to receive was compensation not for the business profits or savings which they expected to make from the use of the land, but for the value of the land to them. No doubt the suitability of the land for the purpose of their special business affected the value of the land to them, and the prospective savings and additional profits which it could be shewn would probably attend the use of the land in their business furnished material for estimating what was the real value of the land to them. But that is a very different thing from saying that they were entitled to have the capitalized value of these savings and additional profits added to the market value of the land in estimating their compensation. They were only entitled to have them taken into consideration so far as they might fairly be said to increase the value of the land. Probably the most practical form in which the matter can be put is that they were entitled to that which a prudent man in their position would have been willing to give for the land sooner than fail to obtain it. Now it is evident that no man would pay for land in addition to its market value the capitalized value of the savings and additional
profits which he would hope to make by the use of it. He would no doubt reckon out these savings and additional profits as indicating the elements of value of the land to him, and they would guide him in arriving at the price which he would be willing to pay for the land, but certainly if he were a business man that price would not be calculated by adding the capitalized savings and additional profits to the market value.” Special value must arise from some attribute of the land, some use made, or to be made of it, or advantage derived, or to be derived from it, which is peculiar to the claimant and would not exist in the case of the abstract hypothetical purchaser. Wells J said in the Supreme Court of South Australia in Commissioner of Highways v Tynan (1982): “It seems to me that the principles to be applied where special value is an issue are virtually the same as those laid down in Spencer’s case, though extended and qualified slightly, to accord with the changed inquiry. What the court is being asked to determine is the price at which a person in exactly the same position as the claimant ‘would come together’ with a hypothetical person on the point of dispossessing him, in circumstances in which the claimant, would in order to retain the land under threat, pay a sum representing the market value of the land, together with the value of its special advantages to him but would not in addition to the market value pay more than the provable commercial value to him of those special advantages.” Determining special value is difficult; there are few cases where the courts have allowed special value because of its unique characteristics. Almost every property is special in some way to the owner/s, however caution is required if it is to be assessed, and it must be clear that the owner would pay a premium to secure the land.
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PA RE NTIN G OVER THE H O L IDAY SEASON by L y n n A rm s t r ong, Senior Assoc iate a nd Accred i ted F amily Law Spec ialist
With the Christmas holiday season quickly approaching, now is the time to prepare for the season and ensure your current parenting arrangements are appropriate and agreed by each of the relevant parties. As family lawyers, we often see families in distress at this time of year, particularly when trying to make arrangements for children.
A family lawyer’s role is to assist the parents (or other parties) to make appropriate arrangements for children, taking into account the particular family situation. This is undertaken with the best interests of the child at the forefront, as required by section 60cc of the Family Law Act. There are some simple steps that can be taken to assist the season to be enjoyable: » » Work out what you believe is best for the children, and do it early. If everyone knows what is required and expected, there is less chance of disputes occurring on or around the special days. » » Remember that parents don’t have rights. The children have the right to spend meaningful time with both parents (provided they are safe and protected from harm). This does not always mean a child will see a parent every Christmas. As each family has different needs, distances to travel, and other matters to consider, it is really about what suits your family and how that can work best for the children. » » Ensure that the telephone/Skype or webcam arrangements that you believe should happen have been agreed to. Often with people travelling they may have different requirements for such
communication, however with the invent of mobile telephones this is not as much of an issue generally as it has been in the past. » » It is very important if you have concerns for safety or that you feel the child is not going to be returned, that you seek legal advice as soon as you can – prior to it happening if possible. There are more children that are not returned or are not handed over around this time of year than any other time of year. To complicate matters further, the courts and most legal offices have time off over the Christmas break period. If you have concerns talk to us to have a plan put in place prior to the holiday. » » Seek consent early to passport applications and overseas travel if you are hoping to travel outside of Australia with your child over the holidays. If there are issues or consent is not forthcoming, you are certainly able to seek advice as to what steps are available to you to still seek to obtain a passport. » » If you are concerned the other party is going to take the child outside of Australia, and you have worries about this, we can also assist, and again, this is much easier to assist with prior to the travel occurring if possible.
At the end of the day, the most important thing to remember is that it is in the children’s best interests to not be exposed to conflict within a family at any time. If arrangements can be made early, the situation may not reach the level of conflict it can if the arrangements are being made at the last minute. Issue Three
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R ECRU ITM EN T AN D TRAIN IN G FO R S M ALL B USIN ESS B y Br endan W illiam s Industr y House w w w.i ndustr ygr aduates.com
Recruitment and training is a significant investment for small and medium sized businesses. The cost often derails many training plans before they get started and leads to business owners managing their own recruitment, rather than pay significant fees or employ dedicated resources. Unfortunately, unless you are in a large company, the notion of a recruitment and training budget is unlikely. The good news is there are options for small and medium sized businesses!
» » networking with other businesses and industries to identify new employees;
In industries such as retail and hospitality, the most common educational pathway for new entrants to the workforce is vocational training. Having a plan for recruitment and development of staff, allows business owners to access government and industry funded training and subsidies for current and future employees. The financial benefits can be:
» » s h a re d t r a i n i n g , m e n t o r s h i p a n d n e t w o r k i n g opportunities for professional development.
» » payroll tax exemptions (4.75%) for employers with a payroll over $1.1M per year;
» » communication issues - a disconnect between the employee’s values and those of your business; equally, they are not communicated to about the businesses values, goals and aspirations for the future;
» » subsidised training and incentives for existing employees – Cert III Guarantee and Higher Skills t ha t c a n f un d p ro fe s s i o n a l d e v e l o p m ent a nd training for current staff. In addition, leveraging services from memberships such as your local chamber of commerce, can save thousands of dollars in the form of: » » employer / human resource advice;
Ultimately, holding onto your best employees is the optimal way to reduce recruitment and training costs. The reality is people will leave your business, however, a few simple things can minimise this risk. The top reasons people leave any business are:
» » lack of reward and recognition – let them know when they are doing a great job; » » mentoring – most people are looking for coaching from a leader to guide them on the right path; » » lack of perceived future - for career, personal growth and development.
It doesn’t cost a lot to ensure these issues do not become part of your business culture. Often these common sense and inexpensive strategies are the ones that make the biggest difference to employee engagement and retention. Issue Three
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WH O G ETS THE FARM? P ROPE RT Y S E TTLE M E NTS WH E R E A D UL T C H IL D R E N A R E I N VO LV E D by N eal Wood, Assoc ia te
In a previous article I wrote about the general approach that we work through when assisting clients to determine who may retain the family farm when a relationship breaks down. In this instalment I will go through a number of different scenarios about how a court may be asked to decide issues about the division of a family farming property. In this scenario, consider the situation of the next generation son or daughter that is now an adult and has been working the property owned by their parents for many years for limited financial return. There has always been the promise that by working the property rather than pursuing a life and employment elsewhere, one day the family property will be passed to them. Before the time comes when the farm is to be transferred to the next generation, the parents separate and need to resolve their own property settlement in a way that properly reflects the contributions that the parents themselves have made over many years. The son or daughter is left in the precarious position where their work may go unrecognised if the promise of the ownership of the farm is left unfulfilled. The arrangement which seemed to work so well when the family was intact now presents a difficult balancing act between the property rights of the parents on the one hand and the legitimate promises made to the adult child on the other. In a family law property settlement, identifying the legal owner of the property is the starting point and a quick search of the land title records will confirm the current legal owners. In many situations, that is where the ownership issue ends. There are, of course, exceptions and in the case of rural farming properties, the exceptions occur more frequently than you might expect and the impending transfer of a farming property from one generation to the next is common.
There is a separate body of law outside of the family law process which recognises that in some situations the “legal” owner of a property may have done things or encouraged other people to believe that the legal ownership would not be relied on and that really the property belonged to them. If the legal owner is able to rely on their ownership of the property to sell up everything as part of their property settlement and give nothing back to the son or daughter that improved the farm by their own labour, this could result in an incredibly unfair outcome. The body of law that has been developed over many years to overcome that unfairness is referred to as the law of equity. It is not like the Family Law Act that has been written by parliament. It has been built up over many years by judges deciding cases where legal principles have been established to arrive at fair outcomes and which prevent legal owners from going back on their promises in a way which would be unconscionable. The reality is that in farming cases, we often see a situation where the legal interest in the farm is sought to be challenged by an adult child to reflect what has already been substantial contributions over many years based on the promise of future ownership. In the Family Court and the Federal Circuit Court, the Court can, in appropriate circumstances, hear from and permit an adult child who has made contributions to the farming property, to be joined in their own right as a party to the proceedings between their parents.
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In practice this means that rather than having to go to two separate Courts where on the one hand a child and their parents are required to deal with the law of equity and the parents must then go to a different Court to determine their property settlement under the Family Law Act, the one Court can deal with both matters at the same time. Such an approach makes a lot of sense where the intertwining of the family relationship, property and the matters that need to be considered are all part of the same dispute. The same judge can hear the
full story from everybody and then work out what should happen by applying the different law which applies to the property settlement between parents and the law of equity which relates to the interests of those third parties. Again, what is most important is the facts and circumstances of each individual matter and how those facts are likely to be taken into account. Where there are third party rights involved, obtaining quality independent legal advice at an early stage can make a very big difference to the end outcome.
What is clear is that if there are competing rights of parents and adult children when parents separate they can be resolved through one process at considerably less expense and delay.
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“Two things define you: your patience when you have nothing; and your attitude when you have everything”. Unknown
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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 135 Margaret Street, Toowoomba QLD 4350 PO Box 3701, Toowoomba QLD 4350
(07) 3210 0281 - Brisbane Level 5, 190 Edward Street, Brisbane QLD 4000 PO Box 1735, Brisbane QLD 4001
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