crossroads Issue Two
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Published by Best Wilson Buckley Family Law
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 01 .
B AC K TO B A S I C S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1- 4 FAQ & Common Misconceptions in Family Law - by Emily Myatt
02 .
R E I M AG I N I N G FA M I L Y L AW .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 by Dan Buckley
03.
KO KO DA 2 0 1 6 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 BWB Wanderers take out Kokoda 30km Corporate Challenge
04 .
T H E S E M A N T I C S O F S E PA R AT I O N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1 4 by Kara Best
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C AU G H T I N T H E C R O S S F I R E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-1 6 The Role of the Grandparents in Family Law Proceedings - by Samantha Iwers
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R U R A L S U CC E S S I O N A N D CO N T I N U I T Y .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-1 8 by Andrew McCormack
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P R E PA R I N G F O R YO U R I N I T I A L A P P O I N T M E N T .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3-24 by Samantha Iwers
08 .
W H O G E T S T H E FA R M ? .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7-28 by Neal Wood
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P R E PA R I N G F O R YO U R DAY I N CO U R T .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 -32 by Reagan Wilson
CO N T R I B U T E D A R T I C L E S 01 .
PA R E N T I N G A F T E R S E PA R AT I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20 by Sue Long
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M E D I AT I O N - T H E A L T E R N AT I V E TO L I T I G AT I O N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34 by Jenny Rimmer
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D R I V I N G C U L T U R E C H A N G E . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36 by Dan Gabbett, Robertson Scannell
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Q U E S T I O N S & A N S W E R S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-38 with Dan Gabbett, Robertson Scannell
B W B S TA F F P R O F I L E S 01 . 02 . 03. 04 .
A N D R E W M CCO R M AC K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 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 Z O E A DA M S - A S S OC I AT E .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 K AT H E R I N E M A R S H A L L - S E N I O R S O L I C I TO R. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 J O H N PAT T E R S O N - S O L I C I TO R . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
RECIPES 01 .
S AV O U R Y L A M B C A S S E R O L E . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1 0 by Tricia
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H OT B U T T E R S COTC H P U D D I N G . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5-26 by Tricia
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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BACK TO B ASICS FAQ & CO MMO N M I SCO N C E P TI O N S IN FA M I LY L AW by E m i l y M ya tt, Gra dua te Solic itor
We have compiled a quick list of some frequently asked questions and common misconceptions in order to dispel some myths, and to provide an understanding of the family law process. Myth: Family law proceedings are heard by a Judge and a jury. Family law proceedings are heard before a Judge, and a Judge alone. There are no jury trials in the Family Law Court system. Myth: Family Law proceedings are public. Courts are not only places that must do justice, but they must also be seen by the public to do justice, and do so independently. To this end, almost all proceedings before a Court in Australia are open to the public. Family law proceedings are held in open Court unless the Court orders otherwise. However, it is considered an offence to disseminate to the public the specific names of parties involved in family law proceedings. Judgments are published on the Family Law Courts website, as well as on free public databases such as AustLII and paid databases. Judgments are anonymised, which involves the removal of all identifying information. Myth: I have to go to Court to get divorced. The Court plays a role in all divorces, but depending on your circumstances the level of involvement may vary significantly. To apply for divorce, an Application must be made and lodged with the Courts. These Applications can be lodged personally with the Court, or online via the Commonwealth Courts Portal.
If you are making an Application for Divorce and the parties to the marriage have no children under the age of 18, you do not have to attend the Court hearing. If you are making a joint Application for Divorce, with your spouse, and the parties to the marriage have a child or children under the age of 18, you do not have to attend the hearing. If you are making a sole Application for Divorce and you have a child or children under the age of 18, you must attend the hearing. The other party is only required to attend if they have lodged a Response to Divorce and seek to oppose the Application. Please note: A divorce hearing will not deal with property settlement or with parenting issues. Those issues will be dealt with separately. Myth: I have to go to Court to reach a property settlement. If an agreement is reached and encapsulated in a Binding Financial Agreement or Application for Consent Orders then no attendance at Court is required. If no agreement can be reached, you will be required to make application to the Court. Myth: I don’t have to pay any child support, as I do not see my children. A person has a financial obligation to provide for their child or children, regardless of the amount of time spent with them.
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Myth: Only a child’s parents can seek an Order in relation to the time that a child spends with them.
Myth: A de facto relationship only occurs if we both declare we are in one.
Parenting Orders are orders made by the Court that set out care arrangements for a child. Parenting Orders are normally applied for by a child’s parents, however any person concerned with the care, welfare and development of the child may apply.
A de facto relationship for the purposes of the Family Law Act requires that both parties live together in a relationship on a genuine domestic basis. Parties are not required to “declare” their relationship as de facto for it to be so.
Myth: Property will be divided in a 50/50 split.
In some rare cases a de facto relationship can exist even where a couple have not been living together, such as those working far from home.
There is no set formula for the Court to use when determining a property settlement. Property settlement splits are determined on a case-by-case basis.
To qualify for divorce in Australia, parties must satisfy the Court that there is no reasonable likelihood of resuming married life.
Myth: You can apply for a divorce and be granted one within a week/fortnight/month. To qualify for divorce in Australia, parties must satisfy the Court that there is no reasonable likelihood of resuming married life. To do so, parties must not have lived as husband and wife for at least 12 months. Further requirements also exist for newly married couples seeking a divorce. Myth: During the period of separation required for a divorce, parties cannot see each other or live in the same house. Separation can take place under one roof in certain cases.
To do so, parties must not have lived as husband and wife for at least 12 months. Myth: My lawyer can provide me with all the taxation and financial advice I will require. Your family lawyer is not in the best position to advise you in relation to complex issues of taxation and financial planning. Best Wilson Buckley works closely with your Accountant and Financial Planner to ensure the best possible combination of legal and financial advice.
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B E S T WIssue ILSON Two  BUCKLEY
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R EIM AGINI N G FAMILY L AW by Dan Buc kley, Le gal Partner
I met with a new client the other day. He and his former spouse had reached agreement on how they would divide their assets between them. Their relationship had been struggling over the last 18 months, and they had reached a crisis point in December last year, when they decided to end the marriage. Over the last three months, both had worked very hard with individual Counsellors (and in my client’s case, a life coach too) to get their relationship back to the point where they were friends again. They were then able to meet to discuss financial matters over a glass of wine. As a result of this they had reached agreement as to how they would divide their property. Both spouses appeared horrified that so many family lawyers were so readily willing to agitate their agreement. He and his former spouse had consulted with a number of family lawyers (all specialists). In his spouse’s case, she consulted with three Brisbane family lawyers. According to her, each of them had told her (in one way or another) that they could put some real pressure on the husband to get more cash and assets for her - but it would cost her. I cannot think of a less rewarding role than one which creates new conflict between two former spouses who have just resolved conflict. In effect, opening up relationship wounds that had so recently just started to heal. It’s also bad for business. The wife is now acting for herself, whilst we will be preparing the documents (on behalf of her former husband) to formalise the agreement they had reached. In 2016, we need to reconsider our role as family lawyers - we need to be more flexible, more nimble, more aware of the need to meet our clients’ specific needs and be more in tune with the expectations of a modern user of professional services.
It’s an age where so much information is so readily accessible - it is said that more than 40% of “searches” are undertaken on mobile devices, and the trend appears to be for this information being released in an increasingly more digestible form - short and sharp blog articles summarising the legislation, “how to” videos showing lay people how to run a particular application and webcasts about how to prepare for and approach a private mediation! In this context, in a client relationship, we need to be providing something much more than just a rehash or interpretation of the law but pragmatic and commercial solutions as to how to best navigate their particular circumstances. By way of an example, in the same client’s matter, we should be nimble enough to facilitate instructions from that client where we are simultaneously: 1. A sounding board only with respect to the children’s living arrangements, with the parents negotiating terms directly between themselves; 2. Providing advice to our client about the financial support of their children, but leaving them to negotiate things directly with the other parent; and 3. Negotiating the financial issues directly with their spouse’s lawyer, with the assistance of both parties’ Accountants. In addition, our mission must be to get the client’s matter resolved as quickly as possible.
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Sound counterproductive to the “business” of family law? Imagine the number of future referrals you would get from a client who, having heard the horror stories from friends and family, has had their matter finalised, to their satisfaction, within three months. Sound unrealistic? All this would take is for two family lawyers, acting independently on behalf of each spouse, to commit to resolving the matter within this timeframe. As practitioners, we must immediately put an end to some of the practices that have become commonplace: » » Charging clients based on the number of words (or “folios” as some practitioners call them) - it promotes verbosity and rewards inefficiency. Our communications should be to the point and easily understood. We should only charge based on value and how our work has advanced the client’s matter. » » Commencing of the asset some minor have run out
proceedings based on pool, because there delays or where you of ideas as to how to
the “size” had been think you resolve it.
» » Stop taking things personally. The client’s matter i s n o t a b o u t y o u o r y o u r e g o . F u r t h e r, y o u r personal opinion is irrelevant. » » Before you seek to make a point in a letter to the other party’s lawyer, ask yourself firstly, is it relevant to the issue(s) in dispute? Secondly, is it going to help advance or resolve the matter? » » D o n o t t re a t e v e r y m a t t e r f ro m t h e s t a r t a s though it is destined for litigation. Exhaust all opportunities to resolve the matter first. Exercise some creative problem solving initiatives. Call the other party’s lawyer. We are there to try to resolve issues between clients and their former spouses, not create them. So, BWB has come up with a list of core values, including behaviours we expect to observe and those we don’t expect to observe. The values that relate specifically to the services we supply to our clients are:
» » We ensure every client is fully aware of the impact of the law (and process) upon them personally.
The only consideration for filing proceedings in Court must be if your client has specifically instructed you to do so after you have ensured they have clearly understood all of the implications for doing so.
» » We build a trusting relationship with our
For example, he or she understands what the Court’s role is (i.e. it will not seek to “punish” your spouse); he or she understands the effect on the children; he or she understands the effect on the future of the co-parenting relationship; he or she understands the significant costs and delays in a Court system that is heavily under resourced; he or she understands that the result of having a Judge determine your matter carries an element of unpredictability. Spend the time having the tough, confronting and challenging conversations with your client.
» » We review our accounts to ensure that we
This is harder for you than just following their instructions but you owe it to them. They may not be in a position to be thinking as rationally or as logically as they would outside of the stress they are currently under. These clients will thank you in the long term.
clients, we seek to understand and have an awareness of their experience and we engage empathetically. have imparted value to our client.
» » We don’t judge our clients for their choices. » » We don’t have a blind focus on only the legal outcome. We look to the implications of every decision, whether financial, emotional or practical.
» » We don’t undertake work that doesn’t need to be done.
» » We guard against unnecessary aggression
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and antagonism in our communication with other practitioners and litigants in person.
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A n d rew M cCormack S e n i o r A s soci ate Acc r e d i te d Fam i l y L aw Specia list Toowoomba Q. What do you like best about winter in the Darling Downs region? A. You actually get a real change of season the autumn hues of the leaves are lovely.
Q. What is number one on your bucket list? I’d love the chance to study somewhere like Cambridge. It was founded in 1209. My alma mater, UQ, has only been around since 1909. Q. Favourite place to eat in Toowoomba?
I need to work with other professionals who are trained in these areas and can provide answers or solutions. At the end of it, I get a lot of satisfaction knowing that I have tried to help someone as best as I can. Q. How do you unwind? What do you do in your spare time?
A. The Angel Café at Southtown. Q. Favourite holiday destination? A. Inverness, Scotland. “My hert’s in the heelands.” Q. Who was your childhood hero growing up? A. It’s a toss-up between Satler and Waldorf from the Muppet Show or The Count from Sesame Street.
A. Yoga and gardening. Most Saturdays you’ll find me at Bunnings or Masters in my yoga gear with my daughters in tow. Q. If you didn’t study law where would you be?
A. I lean more towards TV series and can quote from The West Wing verbatim, and my current favourite TV shows are Janet King and DCI Banks.
A. There’s a genetic defect that runs in my family. My father’s a solicitor, I’m a solicitor, my sister was a solicitor, and I’m married to a solicitor. But for the genetic defect, I probably would have ended up in Canberra as a career public servant or as a speech pathologist.
Q. Who would be your ultimate five (5) dinner guests?
Q. What did you have for Sunday dinner growing up?
A. Stephen Fry, Leo McKern (as Horace Rumpole), Eleanor Roosevelt, Sir Robert Menzies, and Germaine Greer. It would be entertaining.
My mother hails from Sicily. It was generally pasta.
Q. Why family law?
A. I spent most of my high school and university college years in choirs. Scottish folk tunes and psalms sung in 4 part harmony are very uplifting.
Q. What is your favourite movie?
A. Lots of my colleagues ask me why I wanted to do family law and why have I stayed working in the area. The answer is pretty simple. I love a challenge. Practising in family law means that you need to know more than just family law. On a daily basis I am trying to help people. I don’t always know the answers to their questions and I readily admit that. To help them
Q. What song always makes you happy when you hear it?
Q. What book is on the bedside table right now? A. I mostly listen rather than read. I’ve got an unhealthy obsession with podcasts and audio books.
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TH E S EMAN TICS OF SEPARATION by K ara Best, Le gal Pra c tice Direc tor
The a s soci at i on b et ween ‘separa tion’, ‘divorce ’ and ‘property s et t l em en t ’ i s a cl os e one , but of te n misunderstood. Separation is the act of communicating an intention to suspend or end a relationship. A couple needn’t agree to separate but there is a need for one party to communicate the intention to separate to the other. A couple can be separated under one roof. Divorce is a formal application to the Court that follows separation. The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage established by a period of separation for 12 months or more. Unlike our American friends, a `quickie’ divorce is not possible. Where there are children of the relationship, there is a need to satisfy the Court that there is proper provision for their wellbeing before the Divorce Order will be granted. Upon the Order taking effect, remarriage can take place. A divorce does not prompt property settlement, nor prevent any claim against property per se. Many effect a property settlement but do not divorce. Some divorce, but choose not to effect a property settlement (generally on the basis that there is very little or nothing to divide). If the Court’s intervention is necessary to effect a property settlement then it must be sought within 12 months of a Divorce Order taking effect, so I recommend that property settlement issues are sorted prior to making Application for Divorce. Whilst some have property settlement terms agreed within weeks of separation, it generally takes time for one or both parties to adjust to separation, and more often than not property settlement is sorted out around the first anniversary of separation.
There is no right, or wrong way. If separating from a de facto partner, it is necessary for property settlement proceedings to be initiated in Court within two years of separation. Fortunately, the majority of cases are resolved by agreement and formalised with the appropriate documentation without knocking on the Court’s door. I cannot overstate the value of a facilitated separation process, where a couple work with an appropriately qualified mediator or therapeutic professional to reach a consensus on the big ticket items like: » » Is separation the answer? » » How do we safeguard our children if we are not to remain together? » » How will we remain on one page when it comes to parenting our kids? » » How do we maximise what we do have financially in order to protect the interests of the whole family unit? » » Do we wish to formally divorce? » » How do we transition our kids to the prospect of new relationships? » » H o w d o w e p re v e n t t h e c o n f l i c t s p i r a l ? C a n w e a g re e a b o u t h o w w e ’ re g o i n g t o h a n d l e differences of opinion in the future?
It ’s impo r t a nt t o a sk y ou rs e lf th e se qu e stion s , an d to se e k a p p ro pr ia t e a dv ic e fro m a profe ssion al w h e n n e gotiatin g th e separation path . BEST WILSON BUCKLEY
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T HE RO L E OF GRAN DPAREN TS IN FA M IL Y L AW PROCEEDIN GS by Sam antha Iwe rs, Solic itor
F o r m o s t fam i l i es wi t h i n our c ulture today, intergene ra tional fa m il y li fe co n ti n ues to be an i m portant fa c tor in the developme nt a nd d y n am i c of fa mily relationships. For many families, a significant part of this dynamic involves grandparents assisting in the care arrangements for their grandchildren on varying levels. Sadly, the impact of separation between a couple or a relationship breakdown between family members can often result in children feeling disconnected and isolated from their grandparents and vice versa. The current state of play Earlier reforms to the family law legislation ensured that grandparents had standing to bring an application before the Court to spend time with their grandchildren and to reduce the potential for parental separation on the grandparent–grandchild relationship. Under section 65C of the Family Law Act, a Parenting Order in relation to a child can be applied for by either or both parents, the child, a grandparent or any other person concerned with the care, welfare or development of a child. In addition to this, there has been further acknowledgement within relevant sections of the Family Law Act that recognise the important and significant role that extended family members (including grandparents) play in a child’s life.
Section 60B(2)(b) of the Act states that “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”. Whilst this may come as a relief to many grandparents, it is important that they understand that in the absence of a Court Order, they still hold no rights in relation to their grandchildren. In the event that a formal agreement between the relevant parties cannot be reached, an application to the Court may become necessary to resolve the issues that are in dispute. Should this be required, it is important for grandparents to understand that the Court when considering their application, still must have regard to the same factors that it would consider in determining a dispute between two parents of a child. Those factors relate to the best interests of a child and are set out under section 60CC of the Family Law Act.
G r a n d p a rent s who ha v e fo u n d th e ms e lve s fe e lin g dise n fran ch is ed f ro m t heir gr a ndc hildren shou ld se e k le gal advice in re lation to the o pt io ns t hat are available to th e m. Issue Two
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RU RA L SUCCESSION & CON TIN UITY By A n drew M cCo rmac k, Senior Assoc iate a nd Accred i ted F a mily Law Spec ialist
Recently, I participated in a Rural Succession and Continuity Roadshow that toured through Central Queensland. My colleague Kylie Wilson from Anderssen Lawyers roped me in to give a different, but important perspective when looking at succession planning. Along with members of Resource Consulting Services from Yeppoon and The Entello Financial Group from Brisbane, we presented a series of seminars in Emerald, Biloela, and Rockhampton.
business structuring and estate planning and offfarm investment strategies to provide options for investment and expansion.
One of the aims of the Roadshow was to showcase the different issues that can arise when intergenerational Succession planning and working out how assets will succession planning isn’t put in place or is done so pass from one generation to another can be a topic in a less than optimal manner. This can cause issues that some people don’t want to think about. It can be when one generation passes control to the next. quite emotional when you are dealing with family farms Capital gains tax and stamp duty issues, or poorly or enterprises that have been in the family sometimes implemented family company/trust structures can for generations. cause nightmares. This One of the major issues isn’t a nightmare just for that we dealt with I like to think of these types the next generation but during the presentations of agreements as an insurance also for the professional was the fact that it advisors like Accountants policy. For the family that has can be awkward about and Financial Planners. It contributed property, having these types of can be extremely difficult discussions with family it can provide certainty about for a professional advisor members. Claudia how family property will to undo some of the big Power from RCS has knots that we see as a result be treated on the breakdown first-hand knowledge of poor or non-existent of a relationship. of how poor succession succession planning. planning can affect An issue that is frequently generations to come. experienced (and was the subject of a number Her own family’s succession issues led her to ensure of questions that I fielded) is the fear of control that when she and her husband decided it was time passing down generations and the possibility of to pass the baton, it was done properly. Sometimes family farming properties becoming the subject of getting clients to think about this requires the property settlement claims on the breakdown of a assistance of a rural consultant or facilitator to get family relationship. discussions started and to provide some options moving forward. Several types of estate planning strategies can be used to reduce the risk of these issues arising. As part of the Roadshow, we covered a number of The most common is for Financial Agreements to topics including planning for the next generation, be entered into between spouses which provides farm management and education programs to assist for what might happen on the breakdown of families in running and expanding enterprises, Issue Two
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PARENTING AFTER S E PA R AT I O N By Sus an Long, Psyc hologist www.s usanlongpsyc hology.com.a u
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PA RE NTIN G AF TER SEPARATION By Susan Long, Psyc hologist Separation and divorce can be a stressful and difficult time for all involved. Adjusting to the emotional, financial, and practical changes often results in enormous strain and distress. It is helpful to acknowledge that it is a difficult time and that it is important to take care of yourself and your children during this adjustment process. Understanding what your children are going through will help you to meet their needs and help them to feel loved despite the changes in their lives. How you handle the separation affects how your children will also cope. It is important to remember that you can positively impact how well your children adjust. When parents consider and meet the practical, emotional and developmental needs of their children, most children will recover well and continue to lead normal and healthy lives. It is important that as parents, you are able to separate the conflict you experience with each other from the role and responsibilities as a parent. Exposing children to ongoing conflict during a separation is the most harmful factor. It will negatively affect your child’s capacity to cope and adjust to a separation. It is more constructive for parents to develop strategies to manage their own conflict and ensure their children are not a part of this. Children also adjust more positively when their separating parents do not negatively criticise (implied or overtly) the other parent to the children. This often places your child in a very difficult situation, and can lead to them experiencing feelings of confusion and sadness, and that they must take “sides”. Persistent conflict and criticising of the other parent can often result in an increase in stress levels and anxiety for children. When parents are able to be positive about the other parent this will give the child positive permission that it is “okay” for them to continue to have a loving relationship with both of you.
Unless there are concerns regarding safety, it is vital your child is encouraged to maintain a connected relationship with both parents. While the marital/partner relationship may have ended, now is the time for parents to strengthen the relationship with their children. This can be done by: » » Reminding your children they are loved regularly and you are there for them; » » Remind your children they are in no way to blame for the separation; » » Continuing to maintain your child’s stable routine (as much as possible); » » Spending regular and positive time together including doing fun activities; » » Taking time out to listen to how your child is feeling and coping; » » Giving your child permission to be unhappy, sad, or angry, about what is going on and assure them it is okay to have these feelings. Another way parents are able to support the wellbeing of their children is to take positive steps towards effective conflict resolution, and work towards a level of respectful communication rather than investing in ongoing dispute and division with their ex-partner. Co-parenting arrangements will have healthier outcomes for children if parents are able to communicate in a way that is respectful moving forward. Parents may also find it useful to seek out professional support to assist them to cope, to develop strategies for communicating with their exspouse, and to better support their children through the process.
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P RE PA RING F OR YOUR IN ITIAL A PPOIN TMEN T By Sam a ntha Iwe rs, Solic itor Doing some preparation prior to meeting with a family lawyer for the first time can help you to make the most of your appointment time. As it can be difficult to recall all of the relevant details, it may assist you to prepare a brief chronology. A chronology is a timeline of important events including the dates and description of each event. Your chronology may include the dates of cohabitation, marriage, separation, the birth of any children, and the dates on which any significant assets were purchased. This chronology will provide a snapshot of your relationship, and it can be used by your family lawyer throughout the process. Parenting Matters Take the time to make some notes regarding the care arrangements that have been in place for your children, including the arrangements that were in place during your relationship and following separation. It is also important to give some thought to the arrangements that you think might be best for your children moving forward, and whether those arrangements are practical in your circumstances. In particular, you might consider: » » Any concerns that you may have about your children, including special needs or significant health issues; » » Where your children might live; » » What time your children might spend with the other parent, including any arrangements for time on special occasions; » » How and when your children may communicate with each parent; and » » Whether you and the other parent will both be involved in making major decisions about the children.
If you have copies of any prior Parenting Plans or Parenting Orders, documents filed in the Court, or a Family Dispute Resolution Certificate, bring these documents along to your appointment. Property Matters If you are seeking advice about how to distribute property following separation, the first step is to identify the assets, liabilities and superannuation held either jointly or solely by you and your former partner. You may like to prepare a list of these together with your estimated values for each prior to your initial appointment. Again, it can be helpful to refer to notes throughout your initial appointment with respect to the financial circumstances of your relationship. These may include: » » Whether either of you held any significant assets, liabilities, or superannuation when your relationship started; » » What each person contributed during the relationship, including financial and non-financial contributions such as earning an income, homemaker duties, or caring for the children; » » Any significant inheritances, gifts or lottery wins received; and » » Any health issues or other matters that may impact each person’s capacity to earn an income in the future. If you have copies of any documents filed in the Court, Property Orders or Financial Agreements, you should bring these along with you. Your family lawyer will discuss with you at your initial appointment the other relevant documents required to be disclosed during the property settlement process.
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WH O GETS THE FARM? by N eal Wood, Assoc iate
For rural families the farm is often the focal point of life. It is a place where families gather together and the lines between life and work not only blur but were arguably never there in the first place. Whether it’s been in the family for generations, built up in one life time or acquired since the children were born, the future of a farming enterprise or partnership when a new relationship begins or a relationship comes to an end can present one of the biggest challenges. In particular whether the farm as a whole can be retained by one party or whether some of it may need to be sold or divided can have a profound impact both financially and emotionally. While there are previously decided cases which help inform the Court and lawyers about the precise legal principles to be applied, when it comes to a farm it normally comes down to the individual facts and circumstances of each case and what is fair having regard to the contributions and future needs of the adults and children involved.
The short answer to the question of who gets the farm as part of a family law property settlement is that there truly is no short answer.
2. What does it do? Is it a grazing property with stock? Are there small crops for the local market or thousands of hectares with crops or stock awaiting export? Is it a Feed Lot? Cattle Stud? A vineyard? Orchard? Aquaculture? Something else entirely? 3. Who owns what? Is it held by one person, as a partnership, company or Trust? Is it owned and worked by the same couple that have separated? Is it owned by the previous generation and worked by one or more of their adult children with the expectation it will one day be theirs? Is it owned in one spouse’s name but the other person has spent their life time working it? 4. Where did it come from? Was it acquired and built up by the efforts of past generations and passed on via a will or testamentary trust? Is it part of a succession plan where it is being paid off to a parent or grandparent during their lifetime? Has it been acquired as part of a single generation’s efforts or a matter of years? 5. Who else is involved?
In the first instance we, as family lawyers, need to know as much about “the farm” as possible. As a starting point we ask a lot of questions to understand the unique facts and circumstances of each matter.
Are cattle on agistment by others? Is there an LNG gas well with a right of access? Are there tenants renting one of the out buildings? What does the bank have security over? Is there an exclusive supply contract?
1. What is it?
6. What is your optimal outcome?
Is it in one location on one block or is it spread across many properties in different local areas or in multiple locations in different states? Is the plant and equipment and machinery owned outright or is it leased? Is there a water allocation and what are its limits?
Depending upon your involvement, the stage of your life and the state of your relationship, the outcome that you are looking to achieve can be one of the most important considerations. For example, if you are in partnership with an adult child that is about to enter into a new and untested relationship,
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there are steps that can be taken to protect the partnership from being drawn into a property settlement if that relationship fails. If you are in an existing relationship that has ended, it may be that your highest priority is to ensure that there is proper recognition of the work of previous family members and the contributions they have made to the current wealth. If you have worked alongside a spouse on the farm for many years and raised a family together but your name has never been legally included on the paper work it may be that your highest priority is securing your own financial security.
Once we have an understanding of what the farm is and your optimal outcome we work with those involved, including accountants, valuers and other experts to consider the range of options which will best meet that outcome. The short answer to the question of who gets the farm as part of a family law property settlement is that there truly is no short answer. What is clear however is that no matter what your involvement in the farm has been to date or its value, the farm is more than just another asset to be moved around on a balance sheet.
It is important and we take the time to work through each of the issues carefully because we understand that it can, and does, make a big difference to your future financial security and indeed your whole way of life.
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J O H N PATTERS ON S o li c i to r Brisbane Q. What do you like best about winter in the Brisbane region? A. Socks and thongs, and temperatures under 30 degrees. (I grew up in Toowoomba).
Q. What is number one on your bucket list?
Q. Why family law?
A. I like to pretend I’m brave and athletic enough do the running of the bulls.
A. I can’t think of anything more fascinating, or more important to get right.
Q. Best sporting match you have been to?
Q. What do you do in your spare time?
A. State of Origin Game 3 2012, and the Australia v Russia Davis Cup tie in Brisbane in 1999.
A. I’ve recently discovered Netflix, so my spare time is spent buffering, and then I unwind later on by finally being able to watch something. I also play a bit of sport from time to time, subject obviously to Netflix and my wife’s chocolate brownies.
Q. Favourite place to eat in Brisbane? A. At home, when my wife makes lasagne and chocolate brownies. Q. Favourite holiday destination? A. Niseko, Japan. Q. Who was your childhood hero growing up? A. Dead heat between Lleyton Hewitt and Captain Planet. Q. What is your favourite movie? A. Remember the Titans. My high school rugby coach used to play this on the bus to our away games to try to inspire us to get within 10 points of our opponents. It usually didn’t work, 5 years without a win. Q. Who would be your ultimate five (5) dinner guests? A. Muhammad Ali, Darth Vader, Karl Stephanovic, my Pop, and my Dad.
Q. What did you think you were going to be when you grew up? A. I always wanted to be a fighter pilot, but my Mum wouldn’t let me and I’m nowhere near cool enough. Q. What did you have for Sunday dinner growing up? A. Roast beef fritters and patty cakes. Q. What song always makes you happy when you hear it? A. Everybody (Backstreet’s Back) – The Backstreet Boys. Q. What book is on the bedside table right now? A. My bedside table is occupied by lots of very important items that wouldn’t fit on my wife’s bedside table, like jewellery boxes and tiny sets of drawers.
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PREPARING F O R YO U R DAY IN COURT
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6 KEY TIPS by R eagan Wilson, Le gal Partner
It is typically the case that only a small number of family law matters ultimately end up in Court. However, when such matters do, there can often be a significant degree of angst and anxiety experienced by the parties. Here are 6 key tips to prepare for your day in Court. 1. Get a very clear understanding from your lawyer about what to expect. Wha t ’s t he p ro c e ss ? W h a t d o y o u n eed t o bring? What arrangements do you need to put in place? 2. Forget anything and everything you have seen on American TV shows. While it may be disappointing for lawyers that we can’t stroll around the Courtroom and deliver a theatrical performance, the reality is that the Family Court and Federal Circuit Court are very different. 3. Very rarely will you actually have to speak to the Judge directly yourself or give evidence. Typically lawyers and Barristers address the issues of the Court directly. As a general rule it is only in the latter stages of a final hearing that you may have to give evidence and/or be cross examined. 4. Make sure your lawyer has all of your Court documents available on the day.
5. Not all family law matters end up in Court, and very few actually do. Resolution in family law matters is often achieved by way of negotiation, either through legal representatives undertaking discussions and exchanging offers; or through a mediation process. 6. Mediation is required before progressing to litigation in most matters. The Court process is actually geared towards resolution, and as such requires mediation in most cases, other than instances of significant urgency and where family violence factors mean it wouldn’t be appropriate to have parties involved in a mediation process and come into contact with one another. The Court process can be a particularly slow and cumbersome one, not to mention expensive. Much of the family law system is designed to guide parties towards a resolution before considering litigation as an option, and really seeing it as a last resort.
Preparedness is key to the whole process.
There are a lot of good, cost effective, options available to resolve your family law matter, whether it be negotiation led by legal representatives, a round table conference without legal representation, or a facilitated mediation. The most important factor is that the outcome is a just and equitable one, one that is fair in all circumstances.
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M EDIATION THE A L T E RN AT IV E TO CO U R T LI TI G ATI O N by Jenny Rimmer www.j en ny ri mme rmedia tions.com.au
When people separate they find themselves in a state of high emotion. They need to make plans and arrangements for their children and their financial futures while in this state. Often they cannot communicate well with their former partner. How do they navigate their way through this confusion to safe and well thought out outcomes? They are faced with choices. Do I mediate those outcomes or go to Court to achieve those outcomes? After 34 years in family law undertaking the role of a lawyer, a Judge and now a mediator, I realise that most people do not need a Court. Most people need a safe place and process with the right team of people to help them to negotiate safe outcomes. Most lawyers in family law also support and encourage their clients to make this choice. Do not get me wrong, Courts are necessary for some matters and some families, but they are in the minority not the majority. So what does mediation offer you? In mediation the two parties get to decide everything themselves. That does not mean they can simply get what they want in all respects from the mediation, as there are still two parties who generally want different things. That is normal. The party’s are usually assisted by a team consisting of each party, each party’s lawyer and the mediator. The mediator provides the process where safe communication of ideas and options about the outcomes can be discussed. The party’s lawyers should not be there to battle with each other, but to assist the dialogue and offer different options that they have explored with their clients in preparation for the mediation. The mediator guides the opposing parties through the process so that common ground can be found. This is done privately with each party and their lawyer so that people can think clearly, and reality-test their positions without feeling under pressure from the other party.
Mediation gives the parties the privilege and responsibility to make the decisions for their own families and finances. Court does not. In Court the parties are required to run a case and it will be their best case. It must be supported by properly admissible evidence. If the evidence is disputed or contested by the other party, the Judge gets to rule or decide on which party’s evidence is correct or indeed listen to both parties and determine that neither of them are entirely correct. This means that from the moment parties enter the Courtroom they have lost control of what might happen for their children or their property and finances. They hand to the Judge the power to decide all of that for them.
The mediation is private and confidential so that the parties can do their very best to resolve things and make whatever compromise they wish to get things resolved without the worry that if ultimately it does not settle, that they will be held to those compromises. They often do not consider what they may feel if the Judge does not decide things in their favour. They just focus on winning! In mediation, people do not get judged or blamed for what has happened in their marriage breakdown. They are treated with respect and dignity and it
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is acknowledged that this is a very difficult and stressful time for all involved. Parties are supported and encouraged to make necessary compromises. They are supported so that they know what it is they are doing and why they are doing it. If their emotional responses to the separation are acting as road blocks to making compromises or decisions, they are assisted to find a pathway through this. Of course, there is absolutely no place for emotions in a Judge’s decision. The Judge must only focus on relevant facts and the law. Parties in mediation can focus on what is important to them and their family. The mediation is private and confidential so that the parties can do their very best to resolve things and make whatever compromise they wish to get things resolved without the worry that if ultimately it does not settle, that they will be held to those compromises. It provides privacy so that their personal business is not discussed in an open forum such as a busy Courtroom. The parties are given the time they need to fully consider all the ramifications of not resolving their issues.
In terms of the financial and emotional cost to the parties and their family, mediation is much cheaper and brings the dispute to an end much more quickly than going to Court and getting a Judge to decide. However by far the most important outcome from getting resolution in mediation rather than in Court with a Judge’s decision, is that the parties minimise the damage they do to themselves, their children and the financial damage that comes from wasting their limited and precious family resources on legal costs that result for protracted litigation. Families can move forward to their futures without the legacy of the damage of attacking each other in the Court and without the resentment that one of them has “won” and one of them has “lost”. In my experience, that is something that families never get over and remember that as families last forever, even if the parents’ marriage or relationship has come to an end, so does that damage done. After spending years of my life in the Court, deciding cases and seeing the damage and hurt sustained by nice people who are really just try to do their best, I am passionate about working long and hard to keep them from that experience. Most people end up in Court for all the wrong reasons.
Mediation allows them to face those reasons and reality-test whether they will in fact get better outcomes in the long term from taking control of their own outcomes, rather than handing those decisions on outcomes to a Judge. BEST WILSON BUCKLEY
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DRIVING CULTURE CHAN GE S T RAT E GI C P L A N NI N G B y D an Ga b bett, Rober tson Scannell w w w.ro b e r tson- scannell.com .au.
In my line of work I hear a lot of business owners complain to me about their staff. While they like their team and admire their loyalty, business owners are often concerned that staff are just going through the motions. In many cases, the business needs a bit of a shake up, a culture change, and as the leader it’s up to the owner of the business to drive that change. But where to start? An article by John P Kotter in the Harvard Business Review title “Leading Change – Why Transformation Efforts Fail” establishes a framework to help you drive change in your business. Kotter’s process provides 8 steps to help you transform the culture of your organization. I’ve thrown in my own commentary along the way. Establish a sense of urgency Examine market trends and the competitive realities of your industry. Identify and discuss current crises, potential crises and major opportunities for your business. Get competitive, look at your business and where it sits in your industry with fresh eyes and face the realities you find. Use risks and opportunities as motivation. Form a powerful guiding coalition Assemble a group with enough power to lead the change. Encourage the group to work together as a team. You’ll need a strong team who have enough authority to make decisions and implement them within your business. This team will be integral to the overall success of your change efforts so choose wisely. Create a vision Create a clear vision to help direct the change effort. Develop practical strategies and steps to achieve
that vision. What culture do you want your business to have? What needs to change for you to achieve this? How will you make the necessary changes? Communicate the vision Use every method possible to communicate the new vision and strategies. Use your guiding coalition to lead by example from the top down. Every aspect of your business needs to reflect the change you’re trying to implement. Your staff need to see you walking the walk not just talking the talk. Lead by example and make sure the message you’re sending your staff is consistent. Empowering others to act on the vision Get rid of obstacles to change. Change systems and structures that undermine your new vision. Encourage risk-taking and non-traditional ideas, activities and actions. The change you need to implement will most likely be bigger than you first expected. Stand your ground and do what’s necessary to see your vision through. Don’t be surprised if you see staff come out of their shells with new ideas or suggestions. Encourage them. Plan for and create short-term wins Plan for visible performance improvements.
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QU ES TION S & AN SWERS wi t h Dan Gabbe tt, Robe rtson Scannell
Q: Best thing about winter on the Darling Downs?
Q: How do you unwind?
A: Warming up with flat white from Urth Café.
A: Exercise. Running. Crossfit. A day at the beach with the family.
Q: Favourite place to eat in Toowoomba? A: For a casual occasion I love having a chicken burger at The National Hotel or an extra fine dining experience you can’t go past Encores. Q: Who was your childhood hero growing up? A: Allan Border.
Q: What did you think you were going to be when you grew up? A: CEO of an NRL club. (I have been President of the Wests Cricket Club in Toowoomba – which is as close as I will get). Q: What is your favourite drink?
Q: What is your favourite TV show? A: I am addicted to Suits on Netflix – they don’t make shows like that about accountants!
A: Peroni Leggara. Q: What is your favourite destination to travel to? A: I had an awesome time visiting Italy 3 years ago for my brother’s wedding, and we finished the holiday in Nice (France) which was just amazing.
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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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