Best Wilson Buckley CrossRoads Magazine - Issue 8

crossroads Issue Eight

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Published by Best Wilson Buckley Family Law

T H E CO N T E N T S N O R T H L A K E S L OC A L S.. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jennifer Ryder, General Manager l Best Wilson Buckley Family Law

LIKE SANDS THROUGH THE HOURGLASS.................................................................................. 3 Alecia Connor, Associate l Best Wilson Buckley Family Law

CO N S I D E R I N G A N I N V E S T M E N T P R O P E R T Y ? B U Y E R B E WA R E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Craig Brennan l Crowe Horwath

W H Y I DO W H AT I DO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Alecia Connor, Associate l Best Wilson Buckley Family Law

WA I T , A M I A L R E A D Y M A R R I E D ? T H E R E COG N I T I O N O F O V E R S E A S M A R R I AG E S I N AU S T R A L I A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Carla Franchina, Senior Solicitor l Best Wilson Buckley Family Law

W H I T E C H OCO L AT E F U DG E .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Neal Wood, Associate l Best Wilson Buckley Family Law

A R B I T R AT I O N A N D S TA M P D U T Y.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Reagan Wilson, Legal Partner l Best Wilson Buckley Family Law

K AT E L OW R Y | R E C E P T I O N I S T.. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 M A X S U T TO N | G R A D UAT E S O L I C I TO R / PA R A L E G A L .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 F D R FA S T F I V E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Kiara Greenway, Graduate Solicitor / Paralegal | Best Wilson Buckley Family Law

I N T E R I M F I N A N C I A L A R R A N G E M E N T S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Neal Wood, Associate l Best Wilson Buckley Family Law

FA M I L Y CO U R T A N D F E D E R A L C I R C U I T CO U R T TO M E R G E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 Andrew McCormack, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law

T H E D E V E L O P M E N TA L N E E D S O F C H I L D R E N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Extract Vincent Papaleo, Developmental Considerations in Contact and Residence Disputes

B E S T F R I E N D S : W H AT DO W E DO W I T H T H E D I A M O N D S A N D DOG S ?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 John Patterson, Senior Solicitor l Best Wilson Buckley Family Law

YO U R C H E C K L I S T – S E E K I N G T H E A S S I S TA N C E O F A S O L I C I TO R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Kara Best, Legal Practice Director & Accredited Family Law Specialist l Best Wilson Buckley Family Law

B A R R I S T E R S A N D S O L I C I TO R S I N FA M I L Y L AW – A Q U I C K Q & A .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 Rebecca Horsley, Barrister-at-Law

YO U WA N T TO S TO P B U T YO U DO N ’ T N E E D TO S TO P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 Neal Wood, Associate l Best Wilson Buckley Family Law

S O N G A I N S ACC E S S TO PA R E N T S ’ 1 9 7 7 FA M I L Y CO U R T F I L E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Zoe Adams, Associate and Hillary McVeigh, Paralegal l Best Wilson Buckley Family Law

HILLARY MCVEIGH | PARALEGAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5 JENNIFER JASKIEWICZ | ADMINISTRATION OFFICER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 SEPARATION AND STRESS.. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 Family Court of Australia / Federal Circuit Court of Australia

NAME GAME – HOW DO I CHANGE MY SURNAME AFTER MARRIAGE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 Kiara Greenway, Graduate Solicitor / Paralegal and Andrew McCormack, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law

CAULIFLOWER AND BLUE CHEESE SOUP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 healthyfoodguide.com.au

BOOK REVIEW – “WHEN BREATH BECOMES AIR”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Josh Schonfeld, Paralegal l Best Wilson Buckley Family Law

(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

(07) 3812 1392 - Ipswich

(07) 3490 1390 - North Lakes

PO Box 840, Ipswich QLD 4305

PO Box 1207, North Lakes QLD 4509

205 Brisbane Street, Ipswich QLD 4305

107/1642 Anzac Avenue, North Lakes QLD 4509

info@bwbfl.com.au bwbfamilylaw.com.au

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N O R T H L A K E S L OC A L S Jen n i fer R yde r, Gene ra l Mana ger

In the bush you often hear that it takes three generations buried in the dirt before you are considered a local. That is definitely not the case in North Lakes, or at least not judging by the incredibly warm welcome that Best Wilson Buckley has received in our newest community. Our North Lakes office opened in March 2018 and the local community helped us to throw one heck of an office warming party. Best Wilson Buckley started as a small firm in Toowoomba in 2009 and while we’re now the largest specialty family law team in Queensland, with a presence in Brisbane, Ipswich and now North Lakes in addition to Toowoomba, we still believe that local is lovely. This may seem like an odd step to take in an increasingly technologically driven world but, quite simply, we want to meet our clients in person, be part of their community, and support our team members to practise as a team in a place where they want to live. Alecia Connor, Associate, leads our North Lakes office and is a resident of the local region and has been a valued member of our team since late 2016.

Having practised exclusively in family law for seven years, Alecia combines this experience with a degree in psychology and a diploma in children’s services, an interesting combination that delivers so much insight into family law matters and especially those involving children. Of practising family law Alecia says “I can help make life a little bit easier for people going through one of their most stressful and challenging times. I love the amount of contact I have with my clients and the relationships we develop. It is fantastic to see their growth over time and the relief when you can assist them to see the light at the end of the tunnel”. Kiara Greenway joins Alecia in the North Lakes office in a dual junior solicitor/paralegal role providing a primary point of contact for clients in the area. Rounding out the team is Joy Andrews on reception who brings with her extensive experience in the industry and meaning that everyone who steps through the door is instantly in capable and welcoming hands. Alecia, Kiara and Joy, as well as the greater Best Wilson Buckley team, are excited about being a member of such a warm and welcoming community.

We’re mostly excited to be able to provide a high quality and dedicated family law service locally without the need to travel into the city for that advice and to work with local advisors to ensure a way forward.

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LIKE SANDS THROUGH THE HOURGLASS … SO IS THE TIME TA K E N TO DO A PROPERTY SETTLEMENT A l eci a Connor, Assoc ia te One of the first questions I am often asked when discussing property settlement is, “How long will it take?”. Whilst I recognise that this is one of the main concerns held by people when travelling down the unfamiliar path of family law, it is also one of the most difficult to answer. Largely, the time taken for a property settlement to be reached relates to the complexity of the issues and the personalities of the people involved. Although I may be at risk of oversimplifying the state of affairs, generally we see people who fall into one of the following three categories when it comes to property settlements: 1. they already have an agreement and want to formalise this; 2. they don’t agree at the moment, however want help negotiating to reach a resolution; 3. they will fight at all costs for each cup and saucer and will be stuck in the quicksand of this dispute until someone (the judge normally) pulls them out of it. Generally between 70% - 80% of the matters we see fall into the second category. There are always the few people who are in a fortunate position where they have reached an agreement with their former partner as to how their property is to be divided and they come to us with an agreement already formed. In these situations we are able to formalise the agreement they have reached, within one to two months at a much lower cost. Sometimes there are factors outside the parties’ control which result in some delay in resolving the issues.

This can include, for example, where it is necessary to exchange financial documents or obtain valuations on assets such as houses, businesses or other items, prior to being able to resolve the question of who keeps what. Even if this is required, it is still possible to move through the process with minimal delay, provided the parties are relatively cooperative. Unfortunately, often times things are delayed by one or sometimes both parties taking an unreasonable position in the negotiation process. Although this is not ideal, with the assistance of legal representatives, matters such as these can still often be resolved, without the need for Court intervention. They just may take a little longer. Unfortunately for people who fall into the third category, it is likely that they will have a long and slow path ahead of them. In some situations, for whatever reason the parties remain caught up in this intractable dispute, often as a result of them holding inflexible views about issues or due to there being a significant dispute about a particular fact. Naturally, when both parties take this position, it is difficult to achieve any forward movement and this can often result in the parties ending up in Court and sometimes requiring a judge to make a decision for them after a trial. It is common for a trial date to be between 18 months to two years after the parties commence Court proceedings. This can result in a lengthy period of uncertainty as people’s lives are put on hold whilst they immerse themselves (voluntarily or otherwise) in the messy world of Family Law Court proceedings.

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The long and short is that it is possible to achieve a property settlement within a relatively short period of time, however this requires some level of cooperation between the parties. The lack of any goodwill or genuine cooperation does not necessarily mean you are headed to Court, however may result in some delay in achieving an outcome.

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CO N S I D E R I N G A N I N V E S T M E N T P R O P E R T Y ? B U Y E R B E WA R E Crai g Brenna n, C rowe Hor wath www. crowehor wa th.com.a u In years gone by, many Australians, not just those that could be classed as wealthy, have bought investment properties as a means of offsetting their income to save tax. This method is called “negative gearing” and is under scrutiny from both the Federal Government and also the Federal Opposition.

As with the Government, these plans are designed to slow down spiralling property prices, in particular in major cities.

How does it work?

To quote from the Opposition’s announcement, “Labor will limit negative gearing to new housing from 1 July 2017”. The important word here is “new”. If a taxpayer has bought an investment property in November 2017, for example, that has been previously lived in, under the Opposition’s plan they will not be able to negatively gear that property to obtain immediate tax benefits. Being aware of this proposed change may have a significant bearing on the taxpayer’s decision to buy the property in the first place. Interestingly, in the same announcement, the Opposition stated that “from 1 July 2017 losses from new investments in shares can still be used to offset investment income tax liabilities”. Therefore, taxpayers who want to negatively gear would be more likely to borrow to buy a share portfolio from 1 July 2017, rather than a previously lived in property.

Negative gearing in property simply means buying property and using the taxable loss generated by that property to offset income to save tax. As an example, a taxpayer on a wage of $80,000 with a property showing a $10,000 taxable loss would save approximately $3,450 tax per annum. This taxable loss is derived by declaring rent received and offsetting such rent with cash and non-cash costs. Cash costs are those which the landlord pays out of his or her own pocket every year and include rates, repairs, insurance and loan interest to do with the property. Non-cash costs include depreciation and a write-off for eligible construction costs. It is these non-cash costs that assist significantly in maximising a rental loss and maximising the tax benefit to the taxpayer. The changes, both legislated and proposed In the Federal Budget in May 2017, the Government announced that from 1 July 2017, depreciation deductions for rental properties would be limited to outlays “actually incurred” by the landlord. Therefore, for property that has been lived in the past, a landlord will be denied deductions for pre-existing fixtures and fittings such as carpets, curtains, air conditioning, etc when purchasing the property. This will have a significant impact for taxpayers when assessing tax benefits for a proposed property investment. However, the Federal Opposition has recently released its “Positive Plan to Help Housing Affordability”.

Practically, the Federal Opposition’s announcement and timing will be subject to a Federal election and passing of such legislation. This writer’s opinion is that the 1 July 2017 changes may be difficult to implement. Taxpayers, for example, will be filing their tax returns starting in July 2018 for 2017/18 and those who have purchased property from 1 July 2017 will still be able to treat their investment property under current legislation until the Opposition’s proposed changes come into effect, if they do at all. This, of course, will be subject to the next elected Federal Government and exactly when this election takes place. As with any financial decision, specific advice should be sought from your accountant and/or licenced financial adviser before any decision is made.

Craig Brennan CPA is a partner at Crowe Horwath based in Dalby. He has over 20 years’ experience working as an accountant in public practice advising clients throughout Southern Queensland and beyond. He is a strong believer in building down to earth relationships with clients to assist them in reaching their financial goals.

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Every taxpayer’s position and life goals vary, and such success long term is dependent upon a close relationship with your trusted adviser.

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W H Y I DO W H AT I DO A l eci a Connor, Assoc ia te

Owning up to being a family lawyer is often met with looks of shock and the age old question, “Wow, that must be so emotionally draining! How and why do you do it every day?”. Truth is, being a family lawyer isn’t (always) just about jumping into the middle of a full blown custody battle or fighting tooth and nail for an outcome that’s “right”. For me, a big part of my identity is influenced by the relationships I build with those I meet in my life. Family law is an area which allows me to build relationships with people who are in very difficult and stressful situations. I would be lying if I said this wasn’t challenging, however there are so many experiences which make it so rewarding. When contemplating what it is that makes me do what I do, my answer is, quite simply, it is about the people. People like these… »» The father who had almost no relationship with his children after the mother had removed them from their school to home school them, and severed their relationships with their father, friends and the outside world … who now enjoys a strong loving relationship with his children. »» The parties who come to me happy and want to finalise their property settlement, however maintain their amicability and this is achieved. »» The father who had no time at all with his precious children for many months and had to overcome many hurdles … who now sees his children regularly and is someone who epitomises childfocussed parenting. »» The mother who has the sole responsibility of her much cherished adult son with a disability, who seeks and secures financial support from the father to assist her in providing him with the opportunities he requires.

»» The couple who are unable to have a child and come to me with dreams of becoming parents and walk away with a surrogacy agreement and new hope. »» The wife who feels so financially vulnerable and as though she will never be in a position of parity in negotiating … who secures a property settlement for her that provides her not only with a sizeable amount of the property pool, but also with the peace of mind in knowing that she can now move forward. »» The de facto partner who comes to me having been in the Court system for three years and having spent tens of thousands in legal fees in his property matter ... whose matter we resolve within two months. »» The mother who was the victim of sustained domestic violence over a period of four years … who sought to shield the children from exposure to this after separation and has been empowered to take steps to protect them. »» The grandmother who has stepped up and become the primary carer for her two young grandchildren when their parents were unable to and is now the most consistent and stable person in their lives. It is for these people and so many other clients that practising family law is not a chore but rather a choice that I made many years ago and embrace with enthusiasm every single day.

It’s a choice that allows me to make a positive, tangible and unquantifiable difference to not only my clients’ lives but also their children’s and families’ lives.   B E S T WIssue I L S OEight N BUCKLEY

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So, for me, that is the how and why behind being a family lawyer. 

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WA I T , A M I A L R E A D Y M A R R I E D ? T H E R E COG N I T I O N O F OV E R S E A S M A R R I AG E S I N AU S T R A L I A Carl a Fran china, Senior Solic itor

Many Australian couples are opting to trek overseas for their big day. While every wedding involves significant planning and decision making, destination weddings usually have the added issues of flights, accommodation and what we might refer to as the “post wedding administration”. Often people believe that weddings which take place overseas are not recognised as valid in Australia unless the happy couple takes steps to register their marriage upon their return. It follows then that there is a belief that if steps are not taken to register the marriage, and the couple later separates, the marriage was not valid in Australia in the first place. However, taking steps to register your marriage in Australia following your destination wedding is essentially administrative only – it is not a requirement to having that marriage recognised. An overseas marriage (which, thanks to positive recent amendments to the Marriage Act 1961 now also includes same-sex marriages) will usually be considered valid in Australia if at the time of the wedding ceremony: 1. the marriage was recognised as valid under the law of the country in which the wedding takes place; 2. it would have been recognised as a valid marriage under Australian law if the parties had married in Australia – that is, the parties are not already married, are of marriageable age, are not in a prohibited relationship (such as siblings), and the consent was real consent; and

So why do people register their overseas marriage? Essentially, registration results in the issuing of an Australian marriage certificate which can then be used for official purposes, such as proof of change of name, proof of relationship status for tax purposes, banking records and so forth. This is helpful in circumstances where, for example, organisations may not accept an overseas marriage certificate as sufficient evidence of a change of name. The distinction between overseas marriages and marriages in Queensland is that in the latter, your registered marriage celebrant is responsible for carrying out the registration on your behalf. Why is this important? You cannot legally marry another person in circumstances where you are already married. If this occurs, the second marriage is considered null and void because the marriage is bigamous. Bigamy continues to be a criminal offence in Australia. So if you or someone you know are of the view that you do not need to obtain a divorce because you never registered your overseas marriage in Australia, this may be incorrect. It could be extremely upsetting to discover that your second marriage is not recognised because your first was not properly dissolved. There is of course also the fact that bigamy remains a criminal offence at the current time and, while we certainly aren’t seeing bigamy cases prosecuted regularly, it is surprisingly not unheard of.

3. there is a marriage certificate or record of marriage from the relevant competent authority in the foreign country where the marriage took place.

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W H I T E C H OCO L AT E F U DG E N eal Wood, Assoc iate

Ingredients 125g butter 1 can sweetened condensed milk 1 cup brown sugar 2 tbsp liquid glucose 180g white chocolate (or dark chocolate if you prefer) ½ cup chopped & toasted macadamia nuts (or pecans for dark chocolate fudge)

Method 1. Stir all ingredients (except chocolate) in a glass jug/bowl. Microwave on high for 2 minutes. Check/stir and then microwave again on high for another 2 minutes. Reduce microwave heat to medium for last 4 minutes (check at 2 minute interval and stir if necessary). Mixture must have boiled.

2. Stir in chocolate. 3. Line a small square slice tin with baking paper or foil. Pour in mixture and set in fridge.

Th e easi est (and tastie st) f udge re c ipe you will ever find!

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A R B I T R AT I O N A N D S TA M P D U T Y R eagan Wilson, Legal Partner

For separating parties giving consideration to their options for resolving and formalising their financial arrangements upon separation, the Queensland Office of State Revenue has clarified its position in terms of the application of exemptions for matters resolved by way of an arbitration award. Prior to the recent response provided by the Office of State Review, there was uncertainty as to whether an arbitration award would attract the stamp duty exemption. Clarification was sought through the Queensland Law Society as to whether the Office of State Revenue would recognise a family law arbitration award as a matrimonial instrument or a de facto relationship instrument pursuant to section 424 of the Duties Act 2001. The Office of State Revenue’s position is that an arbitration award, registered pursuant to the Family Law Act 1975, is indeed a matrimonial instrument for the purposes of section 420(2)(B) of the Duties Act 2001 and will be treated the same way as if it was an order of the Court. In Australia, transfers of property between parties to a marriage or a de facto relationship are subject to various revenue laws, at a federal and state level. The Commonwealth can recover capital gains tax on a transfer of property from one spouse to another or from one spouse to a third party and the State can recover stamp duty on dutiable property or transactions. If, however, parties transfer property pursuant to a Court order or a financial agreement, the capital gains tax rollover provisions apply and, similarly, exemptions from stamp duty can also be obtained if the parties have entered into a Court order or a financial agreement.

It is a common question raised by separating parties as to how this rollover or exemption relief applies and, in simple terms, the benefits of formalising a financial settlement by way of a Court order or agreement also brings the benefit of the rollover relief and exemptions. Such relief can obviously be significant. There was uncertainty for those parties entering into an arbitration process as to whether an arbitration award would attract these benefits. There are two types of arbitration. Firstly, there is what is called a section 13E arbitration where there has been an order or referral for arbitration made by the Court. The second type of arbitration is where parties have agreed to privately arbitrate. For an arbitration award to be enforceable, it needs to be registered and once it is registered with the Court it has the effect as if it was a decree or order made by the Court. There is no compulsion, however, to register an award and the parties may be willing to comply with an award without it being registered. The Income Tax Assessment Act specifically makes provision for arbitration awards to attract the rollover relief provisions in the same manner as an order or financial a g r e e m e n t ( s e c t i o n 1 2 6 . 1 5 o f t h e I n c o m e Ta x Assessment Act 1997).

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What is arbitration? Arbitration is a process in which the parties have an arbitrator determine the outcome of their property dispute. The decision is delivered by way of an award and the parties are able to present their evidence (and make submissions) to an arbitrator. Many aspects of the arbitration process allow parties to maintain control of the process in terms of electing to participate in the arbitration, the selection of the arbitrator and determining how the arbitration process is to be undertaken. For example, parties can elect to not undertake cross-examination but have the matter determined “on the papers� in terms of the presentation of the evidence by the way of written statements (affidavits) and written submissions advancing their respective positions. It is important to be aware that presently arbitration is only able to be conducted in relation to property (financial) matters.

From the most recent available data from the Federal Circuit Court, in the 2016/2017 year there were 17,791 applications for final orders filed. During the course of the year, 17,239 matters were finalised and a further 17,786 matters were pending. Put simply, after hearing cases for a year, the Federal Circuit Court had 552 more applications filed than they were able to finalise in the same period. Given the extensive delays in matters advancing to final hearing, due ostensibly to a terribly under-resourced system and the financial and often emotional cost involved in that process, parties need to be advised as to the option of considering the arbitration process. At Best Wilson Buckley, both Reagan Wilson and Kara Best are registered arbitrators and a number of our solicitors have undertaken training focused upon lawyers representing parties in the arbitration process.

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Q. What do you most look forward to in winter? A. Not a lot. I hate the cold…although it is nice to curl up with a blanket, a bowl of popcorn and a nice glass of wine to watch a movie. Q. Number one on your bucket list? A. Machu Picchu in Peru and South America in general, which will be realised in August this year. Q. Favourite place to eat in Toowoomba? A. Encores. It’s my family’s go to place for celebrations. I have never had a bad meal there and their steak is to die for. Q. Favourite holiday destination? A. I love to travel and explore so I don’t tend to return to the same place twice but I do have a top three most memorable destinations which are Zanzibar, the Maldives and Iceland - all too beautiful for words. Q. Who would be your ultimate five dinner guests? A. Jesus, Muhammad, Buddha, Brahma and L Ron Hubbard. I would sit back with a good bottle of wine and let the discussion unfold. What a conversation that would be…. Q. What do you do in your spare time? A. I enjoy watching movies, taking photographs and planning my next travel adventure.

Q. What did you think you were going to be when you grew up? A. I had planned on being a flight attendant until I found that there were height restrictions to qualify (back in the day) so I changed my focus to archaeology. I was drawn to the travel, the exotic locations and exciting discoveries until the requirement of a high level of maths halted my ambition as I struggled to add one and one together and get the same answer twice. So, as I was still drawn to the travel and exotic locations, I packed my bags for London and explored the world for 20 years instead. Best decision of my life. Q. What did you have for Sunday dinner growing up? A. Roast lamb or chicken and vegetables, with fruit salad and ice cream for dessert. Q. What book is on the bedside table right now? A. I have two as I can get bored easily. The first is Once While Travelling – The Lonely Planet Story, which is the true story of Tony and Maureen Wheeler’s Lonely Planet publishing company and the second is a guide to travel photography which is coincidentally published by Lonely Planet. Q. What song always makes you happy when you hear it? A. Anything by Armin Van Buuren. I am a massive dance music fan and a little obsessed with his work. My clubbing days in the UK were the best times of my life and although those days are well and truly over the music will always remain in my life to make me smile.

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Q. Why family law?

Q. Who would be your ultimate five dinner guests?

A. I had never really thought I would be a family lawyer until I started working at Best Wilson Buckley Family Law where I found working with clients during what is quite possibly one of the most difficult times in their life to be fulfilling and rewarding.

A. Elon Musk, Arnold Schwarzenegger, Stephen Fry, Carl Barron, Bruce Dickinson.

Q. What do you most look forward to in winter?

Q. What did you think you were going to be when you grew up?

A. My wood fire, a peaty single malt and the impending fog that seems to cover Toowoomba during the winter months.

Q. What do you do in your spare time? A. I work out, work on my house and watch Netflix.

A. For many years I thought I would be a palaeontologist, then a historian.

Q. Number one on your bucket list?

Q. What did you have for Sunday dinner growing up?

A. To travel around Australia in a camper van.

A. A nice, juicy roast, whether it be pork, lamb or beef, but always with Yorkshire puddings!

Q. Best event you have ever been to? A. Too many to count but if I have to choose one, it would have to be Whiskey Live. Q. Favourite place to eat in Toowoomba? A. Jilly’s – great coffee, great food, great people. Q. Favourite holiday destination? A. I love travelling in general! Anywhere where there is culture, different food, maybe also a beach!

Q. What book is on the bedside table right now? A. iPad and Netflix! Q. What song always makes you happy when you hear it? A. I enjoy listening to the likes of Metallica and Iron Maiden, especially when I wind down or at the gym, which makes me happy.

Q. Who was your childhood hero growing up? A. Goku – Dragon Ball Z.

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FDR – FAST FIVE Kiara Gre enway, Graduate Solic itor / Para legal

Separation can be an emotional, mental and physical roller coaster. It is often an extremely difficult and stressful time for those involved, particularly where the separation has not occurred on good terms. In situations where parties are finding it difficult to reach an agreement on matters, such as parenting arrangements for the children or division of assets, Family Dispute Resolution (FDR) may be an appropriate course of action. This article outlines five fast facts about FDR that you need to know. 1. What is Family Dispute Resolution (FDR)? FDR is a process through which people who are in conflict are able to communicate with each other in a supportive environment, with the aim of reaching an agreement about their dispute. FDR provides an avenue for people to discuss and resolve issues about parenting arrangements, property settlement, decisions relating to a child’s behaviour and development, and the options available and next steps required. FDR is a cost effective and efficient method of resolving a family law matter, when compared to the Court process. It is designed to encourage and allow parties to make decisions by exploring the options available and considering the needs of their children and themselves. 2. Who facilitates FDR and what can I expect? FDR is facilitated by an independent third party, referred to as a family dispute resolution practitioner. The practitioners are highly trained in resolving family law disputes. They remain impartial through the entire process, and remain focussed on helping the parties reach an appropriate and amenable outcome.

When engaging in FDR, all participants must be willing to listen to each other and be willing to make compromises in order to reach a solution. Throughout the FDR process, the practitioner will assist all involved in discussing the issues, listening to the everyone’s perspective, remaining focussed on what is important (particularly in relation to children), considering the options available, and determining the best way to reach an agreement. The process is completely confidential. FDR can be done through a private FDR practitioner or with various government funded services, depending on the preferences of the parties. Private FDR can be costly and must be funded by the parties. However, FDR through government funded services can be done at minimal cost. 3. What happens if we reach an agreement at FDR? If an agreement is reached at FDR, the agreement itself is not legally binding. Agreements ought to be formalised into documentation. There are two options to formalise an agreement: »» Parenting Plan – this document records an agreement reached in relation to parenting matters. Parenting plans must be in writing and signed by both parties to be considered binding. It is important to note, however, parenting plans are not legally enforceable. » » Consent Orders – this document reflects the agreement reached, and is lodged with the Court. Consent orders are legally binding and able to be enforced in the Court.

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4. Is FDR only for circumstances where I am separating/divorcing? FDR is not confined to the post-separation period. FDR is often utilised to resolve issues and disagreements that can arise later down the track, even where orders are in place. For example, parties can attend FDR to assist where they cannot agree on a major long term decision for a child, such as the school the child is to attend. Further, parties can also engage in FDR where there is a discrepancy in the interpretation of orders, or to amend/renegotiate a parenting plan. 5. Do I have to do FDR? FDR is a voluntary process and is not necessarily co m p ul s or y t o re s o l v e y o u r fa m i l y l a w m a t t er. For example, matters can be resolved through direct negotiations between parties and/or their legal representatives. In respect of parenting matters however, participating in some form of FDR is generally required prior to filing a Court application, except in specific circumstances where the Court grants leave for an application to be filed without engaging in FDR.

Parties must first make a genuine effort to resolve the dispute prior to filing with the Court. Some exceptions to engaging in FDR can include circumstances where: »» the application is made for procedural orders, interim orders or consent orders; »» t h e a p p l i c a t i o n i s m a d e i n c i rc u m s t a n c e s of urgency; »» the Court has reasonable grounds to believe that: »» family violence or child abuse has occurred; »» there is a risk of violence or child abuse if there was to be a delay; »» it is not practicable for the person to participate in FDR (for example, incapacity, geographical remoteness); »» a party has contravened and shown a serious disregard for a Court order made in the last 12 months. An experienced family law practitioner can assist with any enquiries you may have about FDR, engaging in the process and formalising any agreement reached.

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INTERIM FINANCIAL ARRANGEMENTS N eal Wood, Assoc iate

In a family law property settlement, a lot of time is spent focused on the end game but what happens in the short term can sometimes be more important.

When it comes to interim property orders, there are various types that the Court may need to deal with to preserve or sell assets, deal with who is remaining in the home or change child support assessments. The Court can also deal with issues like making sure that the bills get paid or that some cash is freed up in the short term for living expenses. While it may not be appropriate in every situation, the Court has the power (and does exercise it) to provide a party with access to cash or assets before it is known what is happening on a final basis. There are three main types of interim property orders that the Courts tend to look at in these circumstances: 1. maintenance: a weekly or lump sum amount towards the reasonable living expenses of a party that cannot meet their own expenses from income or assets; 2. part property settlement: getting some money or assets released to a party before a final property settlement is completed that is taken into account as having already been received by them when final orders are made; 3. payment towards legal fees: whether a lump sum or payment at various stages, the Court has wide discretion to make orders towards payment of a party’s legal fees.

Maintenance The Family Law Act gives a judge broad discretion to make orders that are proper for the maintenance of a party. The language of the Act is in neutral terms and it does not matter whether you were a stay at home mum or dad, or a person that has stopped work for another reason such as retraining or retirement. The Court is really interested in the detail of each party’s income and expenses and what is a reasonable standard of living for both parties in the short term. As to what is “reasonable” or “proper”, that question is a lot harder to answer and what may be appropriate in one situation may be very different from another. While in some circumstances there may be an abundance of income and assets to be able to comfortably support two households after separation, that situation doesn’t tend to be the case very often. In the majority of circumstances the first few months (or years) after separation may be very difficult financially while both parties set about the task of rebuilding. The list of the expenses that the Court can take into account is not exhaustive but, to give you an idea, the list of expenses from the Court form is reproduced at the end of this article. To be clear, just because the Court can take into account discretionary spending on things like entertainment, holidays, books and magazines, gifts and hairdressing, those expenses tend to be the first items to be cut as unreasonable.

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Part property settlement When it comes to paying out funds to a party before there is agreement about the final outcome, the Court tends to be cautious. At an early stage, the Court may not have a clear idea about what the assets are worth and what each party is likely to receive on a final basis. Where possible, the Court tends to prefer to make one set of final orders that will deal with all of the property rather than dealing with things in a piecemeal way. However, sometimes that situation can’t be avoided. For example, after separation there may be no option other than for the house to be sold and the mortgage repaid before your property settlement is complete. One or both parties may need to ask the Court for an order for an amount from the sale proceeds to be released to them towards the costs for them to re-establish themselves in a new home with things like bond payments, rent in advance, basic furniture and moving costs. In that situation, the Court may be persuaded to give each party a modest amount from the sale proceeds towards those costs while the balance remains invested in a trust account. Again, it all comes down to the circumstances and there are lots of other situations where a party may need an amount of their property settlement before the final outcome is known. Payment towards legal fees The starting point in family law matters is that generally each party is responsible for paying their own legal fees. The Court accepts however that in some situations, like where one party has been out of the workforce for some time or where all the assets are controlled by one party, it may be necessary to help level the playing field by releasing funds to pay legal fees. Getting funds released early can be tricky but in the right circumstances it may be the best option. It’s a careful balancing act between ensuring that there is a level playing field between parties to be able to afford their choice of legal representation and on the other hand the rights of both parties to a fair property settlement on a final basis. The judge hearing the matter has to carefully weigh up the competing rights of a party that says they genuinely need funds to be able to pay their legal fees as against what each party says they should receive on a final basis.

Expenses that may be taken into account by the Court in determining maintenance orders: »» income tax »» compulsory superannuation payments »» mortgage repayments / rates or rent »» insurance premiums »» vehicle registration »» lease or loan repayments »» credit card payments »» food »» household supplies »» house repairs »» gas »» electricity »» heating fuel »» telephone »» motor vehicle - petrol & maintenance »» fares / car parking »» clothing and shoes »» children’s activities »» child minding »» medical, dental and optical (not including health insurance premiums) »» entertainment / hobbies »» holidays »» education expenses, including fees and levies »» chemist / pharmaceuticals »» gardening / lawnmowing »» cleaning (house/pool) »» repairs – furnishings and appliances »» dry cleaning »» books and magazines »» gifts »» hairdressing, toiletries »» other necessary commitments

It i s e s s e n t i al to h ave q ual i t y legal a dvice a bout whether the se t y p es of o r d e r s are l i kel y to ap p l y to your situa tion before sta rting inte r im p r op ert y set t l em en t ne gotia tions or Court proce edings. BEST WILSON BUCKLEY

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FA M I L Y CO U R T A N D F E D E R A L C I R C U I T CO U R T TO M E R G E A n drew McCormac k, S en i or A ss oci ate & Acc re dited F a mily Law Spec ialist

In late May, Federal Attorney-General Christian Porter announced a merger of the Federal Circuit and Family Courts of Australia as part of the Federal Government’s reforms for the family law system to allow for improved efficiency in the resolution of family law disputes.

From a practitioner’s point of view, reforms to the processes of the Court are long overdue. Having to be aware of and apply two sets of rules, two sets of forms and advise clients about the differing procedures between both Courts can be time consuming and costly.

In his press release, the Attorney confirmed that a new single Court, the Federal Circuit and Family Court of Australia, will be established, merging the trial divisions of the Family and Federal Circuit Courts.

At this stage, it is unknown whether the circuits to rural and regional areas which were established by the Federal Circuit Court of Australia will continue. Again, from a practitioner’s point of view, this is essential to ensure access to justice for people living in rural and regional Australia.

A new Family Law Appeals Division of the Federal Court of Australia will be established to determine appeals from the new Court and from the Family C o u r t o f We s t e r n A u s t r a l i a . We s t e r n A u s t r a l i a remains the only State jurisdiction to have its own Family Court which administers the same legislation as the combined Federal Circuit and Family Court of Australia. The Attorney commented in media that the current system requires structural change and the amalgamation of the two Courts is designed to dramatically increase the number of family law matters finalised each year. The Attorney cited the delays in dealing with family law matters and, in particular, the delay that is created when matters are transferred between the Courts. The merger announced in May will allow for a single point of entry for all family law matters needing to be dealt with by the Courts. This means that there will be a streamlining of processes, including one set of rules, one set of forms, and consistent practices and procedure across both Courts.

The Toowoomba and Ipswich circuits, which were established by the Federal Circuit Court of Australia, p ro v i d e f o r m o n t h l y c i rc u i t s t o re g i o n a l a re a s . However, given the strain on the number of matters through the Court system, increased circuits and increased funding will be appreciated by both litigants and practitioners alike. The structural changes to the Courts may allow for this to occur. As highlighted in the last edition of Crossroads, the Australian Law Reform Commission is currently undertaking a review of the principles and legal provisions of the family law system and a merger of the Courts would most likely have been one of the ALRC’s main recommendations. The Attorney has stated that the merged Court will be established and will operate from 1 January 2019. Having a merged Court with a consistent approach will assist clients and allow for greater certainty in outcome and the timeline for that outcome.

That said, only more judges than the current number will allow for a meaningful change to the current backlog and more timely and responsive outcomes for families negotiating separation.   Issue Eight

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“Be thankful for what you have and take each day as it comes as tomorrow is a brand new day.”

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T H E D E V E L O P M E N TA L NEEDS OF CHILDREN E x t ra c t from p aper by Vincent Papaleo, C linical Psyc hologist

The following summary is reproduced with the permission of the author, clinical psychologist Vincent Papaleo from his paper, Developmental Considerations in Contact & Residence Disputes. In previous editions of Crossroads, we have brought you extracts from Vincent’s paper relevant to children from infancy to 2 ½ years of age, from 3 to 5 years, and from 6 to 12 years. In our final instalment, we now turn to look at the 13 to 17 year age group in more detail and, specifically, how to maintain their stability, minimise their loss, optimise the relationship between the child and each parent, and allow for the child’s ongoing development unimpeded. This is a very complex area, and the reality is that any assessment of your child’s best interest will be premised on their unique developmental needs, not general principles. Whilst in many instances the theory expounded by Vincent will apply, obviously there will be children who are less or more developmentally advanced such that the prescriptions set out do not apply. Adolescence - 13 to 17 years The major task of adolescence is the establishment of even greater individuality and autonomy. Adolescents are preparing to leave home by psychologically detaching from parents and more stringently identifying with their peer group. The behaviour of the young adolescent is not that dissimilar to the behaviour of the 2 year old who is embarking upon the first stage of separation and individuation, and so common features of their behaviour include resistance and rebelliousness, whilst forming their own identity.

Even though adolescence appears a time when children need their parents the least, it is, in fact, the time that they need their parents the most to be clear and unambiguous about their expectations for adolescent behaviour so as to provide to the children a clear and unambiguous yardstick against which they can measure their own behaviour. Separation during this phase creates particular challenges for the adolescent, and especially so if it coincides with the development of their own sexuality at a time when one or other parent is experiencing a significant re-evaluation of their own circumstances, which may or may not involve them pursuing another relationship. The younger teenager experiences enormous pain when their parents separate, and worry about the loss of family life, in a combination of guilt, anger and responsibility. It is not uncommon for children to experience anger regarding the disruption caused to them as they tend to view the world from a somewhat ego-centric perspective. The absence of one parent from their lives may c o n t r i b u t e t o a c o m p ro m i s e o f t h e p ro c e s s o f detachment about which they feel, creating for them the dilemma about how to detach from something that is falling apart or which is no longer the firm and secure base that it once was. Parents who separate during the adolescent stage of their children’s development need to be cautious about not inadvertently looking to their teenagers for support and inviting from them pseudo-maturity.

Vincent Papaleo is a clinical psychologist with extensive experience in the assessment of families in conflict, and is widely renowned as an authority in this area. Issue Eight

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Whilst it is essential for parents to maintain connection to their teenagers, it is important to not blur the boundary by inviting greater collusion against the other parent, and enlisting their support as a friend, but rather continue to provide a stable base against which the teenagers can continue to fight, resist and negotiate whilst they pursue their own identity, amidst constant, clear and unambiguous boundaries. In cases where parental conflict escalates and becomes intractable, teenagers may actively seek avoidance from that battleground but return to a more positive relationship with either parent once the conflict has subsided. It may be that the avoidance of parents who burden them with loyalty conflict is a more adaptive way of coping, and especially so as this is likely to be a time when children become more aware of their parents’ flaws. Assessment during this stage of development really should focus upon which parent is able to sustain the parental role, provide structure and rules, whilst able to deal with mood swings and adolescent turmoil.

An essential consideration when conceptualising a contact plan must be to focus upon which of the parents seems better able to promote independence and autonomy and not embroil their children into the dispute, or by seeking confidences. Any contact plan, of course, will require substantial input from the adolescent, who will be directing most of their focus to their peer group. The teenager who becomes burdened by their parents’ conflict will feel responsible for their parents’ behaviour and feel a strong pull for alignment from both parents, can suffer under such burden, and flee towards their peer group as a way of escaping such conflict. Limits, containment and predictability across the two households is essential, and at no time in the child’s development is it more important for even separated parents to have clear, unambiguous expectations about their children’s behaviour, to stand united and provide a consistent approach and to support each other and not undermine the other’s authority.

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BEST FRIENDS: W H AT DO W E DO W I T H T H E D I A M O N D S A N D DOG S ? Joh n P at te rson, Se nior Solic itor

It would be nice to think that the most insightful and passionate legal debate in this country occurs inside courtrooms or the chambers of parliament. On many legal issues however, the Sunday afternoon backyard barbeque gets just as heated. Yet to grab the attention of our politicians, the question of “who got the friends in the divorce?” is nonetheless one of the barbeque’s all-time greats. While I’m yet to come across an order setting out time arrangements for the sharing of mutual friends, disputes over “best friends” of a slightly different nature can come across our desk from time to time. If the dog is man’s best friend and diamonds are a girl’s best friend, is it that simple when lawyers get involved? The short answer is…no. In the eyes of the Family Court, on most occasions Fido and the Heart of the Ocean are both simply assets of the marriage or de facto relationship. Both are treated in the same manner as the other houses, cars, investment portfolios, and stamp collections which make up the “pool” of assets to be distributed. That said, the law is not without a sense of sentimentality. As recently as 2016, the Court made orders allowing a mother to keep the family dog even though the child was to live with the father. The Court considered factors such as the mother’s stress and her long-term bond with the dog.

The same can be said for jewellery. While normally treated as any other part of the “pool” of assets, in some instances the Court can make findings in relation to particular pieces based on individual circumstances. H i s t o r i c a l l y, o u r c o m m o n l a w p ro v i d e d t h a t a n engagement was a “contract to marry”, the breach of which resulted in the forfeiture of any entitlement to the associated jewellery. While those principles still exist, in practice many relationships now fall within the Family Court’s jurisdiction in relation to married or de facto partners and “contracts to marry” therefore cease to be as relevant. It’s important to approach any family law matter with a balance of sensitivity, flexibility, and commercial sense. In many cases our clients are happy to avoid arguments over pets and jewellery, and simply move forward to the next step in their lives. Most of us have also had times however, where a short-term schedule for the care of the dogs or an order in relation to a family heirloom is the most appropriate and therapeutic way in which to help our client.

Our goal is always to have you back at the barbeque as quickly as possible, hopefully chatting about something a little more fun.

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YO U R C H E C K L I S T – S E E K I N G T H E A S S I S TA N C E O F A S O L I C I TO R K ara Best , Legal Pra c tice Direc tor & Accred i ted F a mily Law Spec ialist

When relationships break down our clients are often seeking the assistance of a solicitor for the first time (other than perhaps for a conveyance or a will). For that reason, we appreciate that it’s hard to know what to expect, and many of our clients have come to us after being disappointed by a previous solicitor.

Whilst fundamental, we’ve identified what you should be demanding of your family law solicitor: 1. Expertise - the complexity of the law demands specialisation and experience. 2. An exceptional capacity to communicate making the complex more understandable. 3. Honesty - you need to know the bad news up front. 4. Expectation - it is reasonable to want to know what to expect and to hold your solicitor to that advice. 5. Respect - it’s important that your solicitor has the respect of the Court and of his or her colleagues; it makes a material difference. 6. Rapport - a capacity to build genuine rapport.

7. Availability - your family life doesn’t stop after business hours, so a good solicitor appreciates that there will be after hours contact, and a need to respond urgently if required. 8. Value - this is hard to measure but given the often significant cost of legal advice and representation, it’s important that you feel in control of your legal fees and that you are achieving a positive outcome. 9. Pragmatism - it is futile to win the battle, but lose the war. Incurring disproportionate legal fees to what you stand to achieve is a poor outcome. 10. Tough love - beware the solicitor that actively intensifies your feelings of anger. A good lawyer will challenge you to reduce conflict with your former partner if possible and will make you acutely aware of the long term implications of maintaining any negative emotion for all of you.

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B A R R I S T E R S A N D S O L I C I TO R S I N FA M I L Y L AW – A Q U I C K Q & A R eb ecca H orsley, B arrister-at-Law www. i n n sofcourt.com.au/ re becca -horsley What is the difference between a barrister and a solicitor?

I already have a solicitor, why would I need a barrister in my family law matter?

Occasionally you will spot a barrister, or “Counsel”, hovering around the precinct of the Family Law Courts wearing a jabot (a bright white collar, with tails), along with a black bar jacket and flowing robes. Fortunately (or unfortunately, depending on who you’re asking) we aren’t permitted or required to wear - the delightfully expensive and yet somewhat itchy horse hair - wigs in the family law jurisdiction, though most of us do own one for the sake of ceremonial sittings in other Courts.

Your solicitor is usually the one responsible for:

Solicitors really only get to wear suits, but it’s not just the clothes which separate the two branches of our legal profession in Queensland. Solicitors are able to work together in a “law firm” setting, which involves partners, associates, trainees, law clerks, paralegals, receptionists and so on. Much of their work is office-based (involving letters, emails, telephone calls and appointments). Barristers, on the other hand, are self-employed and fly solo as practitioners. It is usually only the case that two barristers would work together when a solicitor has instructed both senior Counsel (sometimes referred to as a “silk” - again it’s about the clothes) and junior Counsel on their client’s behalf. The average business day in a family law barrister’s life involves attending Court or a mediation on behalf of their client. There are quite distinct roles which your solicitor and your barrister respectively are responsible for. Both are important.

1. assisting you in every step of the legal process, both before and after any Court involvement; 2. liaising on your behalf with your former partner or their legal representatives on a day to day, or week to week, basis; 3. preparing you for, and attending with you at, a mediation in the early stages of your attempts to resolve the dispute; 4. drafting your Court material including your orders sought, your affidavit (and if necessary, your financial statement and notice of risk); 5. representing you in preliminary Court appearances (such as mentions, directions hearings or conciliation conferences). Often it will be your barrister who: 1. represents you in more complex mediations or significant Court events (for example, an interim hearing or final hearing); 2. provides advice to you and your solicitor (either orally or in writing) about: » » a particular point of law; » » an evidentiary issue; and/or » » your prospects in Court. There can be significant benefits if your solicitor involves a barrister early on in your family law dispute, including: 1. focussing, refining and “reality-testing” your draft Court material; 2. providing an “outsider’s view” or objective analysis of your case as it stands; and 3. developing a case theory or case plan. Part of your barrister’s role is to consider the evidence and explain to both you and your solicitor the likely outcomes which are achievable in Court. Often you will have already had advice from your solicitor about these matters – but it can be incredibly helpful to obtain that second opinion.

Rebecca Horsley is a barrister with Win Paten Chambers on Level 14 of the Inns of Court and specialises in the areas of family law, alternate dispute resolution and appellate matters.

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In the next edition of Crossroads, Rebecca will address the barrister’s role before, during and after Court.

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YO U WA N T TO STOP BUT YOU DON’T NEED TO STOP N eal Wood, Assoc iate

I’ve recently chalked up three years since I moved with my young family from our home of over 15 years in Brisbane to the relative calm of Toowoomba. In the years I had been living in Brisbane there would not have been many weeks when I wasn’t out on the Brisbane River or the coastal waterways of Bribie Island and the Sunshine Coast a couple of times paddling my 18ft racing sea kayak. While not a competitive racer, those regular 2 – 3 hour paddles with a bit of chop from the passing CityCats or downwind with a building swell and wind at my back would leave me feeling physically tired but mentally exhilarated. Another guy I paddled with used to tell me how much he enjoyed watching me regularly bite off more than I could chew and then chewing like mad to get through it. He wasn’t far from the truth.

While discussing my frustration about the lack of water, a colleague told me about the local triathlon club and suggested we should have a crack at one of the beginner events at the end of the year. I’d done a bit of road cycling but had never really been a runner or swum more than a few hundred metres at a time. Ready to try anything at that point, I agreed to give it a go. After a couple of weeks of Parkrun and a few extra k’s on the bike, I had a go at some of the winter duathlon (run, bike, run) events held by the Toowoomba Tri Club. Before I knew it, I had met some really encouraging people and found myself hooked on not only one but three sports rolled together.

The thing I always loved about sea kayaking was the self-reliance. You work out very quickly that trying to have a break in a narrow kayak sitting in one spot of rough water without paddling forward usually ends up in a cold swim. It didn’t matter how tired I was or how far from land, the only way I was getting back was by continuing to put that paddle back in the water one stroke at a time.

Those same people put me in touch with a great tri coach and swim coach and then the hard work really began. Pre-dawn swim squad sessions, stroke correction lessons, stationary bike sets, hill runs and weekend ride/run “brick” sessions became the norm. What kept me going during those harder early morning training sessions were the words the coach would repeat along the lines of “you want to stop but you don’t need to stop” and “get comfortable feeling uncomfortable”.

In the first two years after I moved to Toowoomba I tried to keep the passion for sea kayaking alive by paddling on the local dams when I could and the occasional five hour return trip to the coast on the weekend when time allowed. By April last year, the combination of general family commitments making it harder to justify a whole day to get to the coast, and with dwindling dam water levels, I finally reached the point where paddling in circles in muddy dams meant that it was time to find another activity a bit more suitable to the inland Toowoomba lifestyle.

After three months of 4am starts and weekends of “brick” sessions (so named because your legs feel like bricks afterwards), I realised that the teaser event I initially had in mind was no longer going to be enough. The short course teaser tri at Highfields ended up being just a training run and I signed up for my first Olympic distance triathlon in Kingscliff in December 2017.

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I’d set myself two goals for the Kingy tri – 1. finish the event in under three hours; 2. don’t throw up (in that order of priority). Simple enough. Come race morning as I checked my bike into transition for the first time, I was feeling fit and confident from weeks of training but the scale of just finishing a 1500m swim, 40 km bike ride and 10 km run as a total newbie was still extremely daunting. As I marshalled for the start of the swim with a few hundred seriously fit athletes and another 20 pro triathletes out the front, those feelings of biting off more than I could chew from my sea kayaking days came flooding back. Once the horn went off, the first 10 minutes were like nothing I had ever experienced with a crazy combination of adrenalin, the shock of cold water and being surrounded on all sides by thrashing and kicking feet. In those few minutes trying not to panic, I found myself thinking how others repeatedly informing you about what to expect still hadn’t prepared me for the intensity of what was actually going on all around me. Much to my relief and after the initial shock subsided, the pack thinned out and I found a place where I could follow the feet of those better swimmers, settle into my own rhythm and get on with the race plan I’d practised in training. While not exactly an endurance event for those that have done a few triathlons, for me there were definite times towards the end of the run where the previous two hours of going hard had left me feeling tired. The muscles in my legs were burning, sweat was starting to sting my eyes and the increasing heat wasn’t exactly helping. I really wanted to be heading into the finish but instead I was turning for the second 5km run leg. I found myself focusing on just breathing and channelling those calm words from my coach “you want to stop but you don’t need to stop”. I remembered those times I had found myself in rough water in my kayak where I needed to put one paddle stroke in after the next to get me back to shore. Those words and images were enough to keep me going. I finished my first Olympic distance tri in a bit over 2½ hours which, while by no means fast, was immensely satisfying given I was going to be happy just to complete it in under three hours without losing breakfast.

In the months since, I have increased my training again and put down a faster time when I returned to Kingscliff in March 2018. I can’t wait to compete in some half ironman events later this year. While the above is just a reflection on my experience of taking on a new sport, during those long solo training rides I keep thinking on the parallels of my own experience of starting out in triathlon and other aspects of my work and what my clients go through in those difficult family law matters. 1. Things in life change. Sometimes you initiate it and sometimes it seems to happen on its own whether you intended it to or not. Just because something has previously left you feeling great does not mean it will always stay that way. While time can help you decide, there is not a lot of point being in a sea kayak if you are not near the sea. 2. When you have a new challenge ahead of you, spend a bit of extra money on the professionals that are recommended to you and follow their advice. They may not be the cheapest but if you want an efficient outcome their expertise can help you use your energy more efficiently and get you a far better result than you set out to achieve by going it alone. Their words come from experience and will help you the most when you are struggling. 3. When you are doing something big that is new and unfamiliar, even the best preparation and guidance won’t be enough to truly prepare you for the reality of doing it yourself. Do your best to know what to expect safe in the knowledge it won’t be enough. When the intensity hits, roll with it and push through the initial shock so that when things settle you can get into your rhythm and maintain it until the end. 4. You want to stop but you don’t need to stop. At times during the process, you will doubt yourself and what your professional guides have told you along the way. You will be a long way into it but still not at the end where you so desperately want to be. When it hurts and you want to give up, focus on those calm words and know that you have met challenges before.

Even that single next step that keeps you moving forward is getting you closer to where you want to go and you will get there. BEST WILSON BUCKLEY

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S O N G A I N S ACC E S S TO PA R E N T S ’ 197 7 FA M I L Y CO U R T F I L E Zoe Ad am s, A s soci ate a nd Hilla r y McVe igh, Pa ra legal

When dealing with parents feeling aggrieved by the other parent’s conduct, or a Court’s decision, it is not uncommon to hear “one day I will tell my kids what happened” or “one day they will know the truth”. We cringe at the thought of parents to family law proceedings exposing or even involving their children in their dispute about future care arrangements, and subsequently ensure that parents are informed that the consistent message from research is that parental conflict, both before and after the separation, is extremely detrimental to the mental health and wellbeing of children. The Courts have always sought to protect children from their parents’ conflict, trying to shield them from the sometimes acrimonious disputes. Experts and legal professionals have consistently emphasised the risks of harm from children’s exposure to or even participation in the litigation process. However, the Full Court of Australia in Carter [2018] FamCAFC 45 has recently handed down a judgement on appeal which asserts that adult children have the right to know of their parents’ family law proceedings. T h e A p p l i c a t i o n re l a t e d t o 1 9 7 7 F a m i l y C o u r t proceedings involving the 53 year old appellant’s parents, following their marriage breakdown in 1976. After his parents’ separation, the appellant lived with his mother and three siblings until the age of 15 when he was sent to live with his father, and from age 17 boarded with another family. The appellant, Mr Carter, who suffers from mental illnesses, sought access to his parents’ Court file in the hope of “mak(ing) some sense of” why Court orders were made which resulted in his family becoming “dysfunctional”, and to better understand why he was separated from his siblings. The parents of the appellant originally refused the application, but both later wrote to the Court and consented.

At first instance, the primary judge permitted the appellant to view the consent parenting orders but dismissed his application to search the balance of the Court file. Her Honour Johns J refused access on the basis that she did not believe the appellant would “derive any benefit” from inspecting the file and further expressed concerns about the “impact on the appellant’s mental health” and his “already difficult relationship (with) his family”. However, the Full Court (Ainslie-Wallace, Murphy and Aldridge JJ) allowed the appeal, concluding that the primary judge’s reasoning gave regard to irrelevant matters when determining the question of reasonableness of the request for access. Instead, the Court re-emphasised that “the question was not whether the appellant’s pursuit of such information is reasonable, but rather whether the specified purpose or purposes was reasonable”. The Full Court determined the son’s purpose as proper and reasonable in understanding his parents’ separation and why he did not live with his mother and siblings. In this instance, the Court allowed the son access to his parents’ Court file – turning on its head the Court’s usual practice in respect of protection for children’s involvement in litigation throughout their childhood.

Parents to current and future family law proceedings now face the possibility of their children one day gaining access to their Court file, and it is hoped that this prospect may assist parents looking forward and shape their actions in the present.  Issue Eight

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HILLARY MCVEIGH P a ra le g a l Brisbane

Q. Why family law?

Q. Favourite place to eat in Brisbane?

A. I feel like it is my meaningful way to help those who are experiencing some of the most traumatic and emotional times in their life. I am extremely passionate about the possibility of resolving clients’ family law issues through mediation, collaborative law and other dispute resolution avenues.

A. Beccofino in Teneriffe - can’t go past their Duck Ragu.

Q. What do you most look forward to in winter? A. My birthday in June! I am the worst winter baby though - I am not good in colder climates. Q. Number one on your bucket list? A. Climb Kilimanjaro in Tanzania or swim in the Blue Lagoon in Iceland. Q. Best event you have been to? A. Roskilde Festival in Denmark. So much fun! I had been living in Copenhagen for 6 months prior and spent 8 days camping at the music festival with my Danish friends. Even got to see Paul McCartney perform live.

Q. Favourite holiday destination? A. South America, especially Peru. I loved Cusco and walking the Lares trail ending at Machu Picchu. But a piece of my heart will always be in Copenhagen, Denmark. Q. How do you unwind? A. Love to escape to the coast any chance I can get. My perfect day would be a surf in the morning and a long lunch beachside with friends in the afternoon. Q. What did you have for Sunday dinner growing up? A. Roast lamb, cheesy cauliflower and lots and lots of gravy. Q. What song always makes you happy when you hear it? A. Anything by the Beach Boys.

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J E N N I F E R JA S K I E W I C Z Ad mi n i s t rat i on Of fi cer Brisbane Q. Why family law?

Q. Who was your childhood hero growing up?

A. I never specifically chose family law, though for many reasons am grateful that I happened upon it. Family law is an extremely unique sector of the law due to its sensitive and personal nature, not only making it interesting and extensive, giving me the opportunity to learn something new every day, but also attracting the most amazing people to work with as my colleagues and leaders. The practitioners, along with all staff in this field, are a very special kind of person, who create and maintain an incredible workplace, atmosphere and extremely high standard of business that I love getting to be a part of for a living.

A. Dorothy from The Wizard of Oz - I wore around a pair of red sparkly shoes until they didn’t fit me anymore.

Q. What do you most look forward to in winter? A. I love being able to layer up, take advantage of my winter wardrobe, and drink tea and hot chocolate all day. It also makes walking around the city a lot easier than our scalding summer months! Q. Number one on your bucket list? A. I would absolutely love to visit some of the many historical monuments in Greece, with of course some island hopping while there. Q. Best event you have been to? A. Soundwave – nothing better than some good live music, fellow enthusiasts and festival food! Q. Favourite place to eat in Brisbane? A. A regular stop for lunch in the city is Hanaichi Japanese, can’t beat their chicken curry. Q. Favourite holiday destination? A. As I am yet to make it overseas, I love to travel inland to where it’s quiet and green. My favourite camping spot is Levuka, Urbenville NSW.

Q. Who would be your ultimate five dinner guests? A. William Shakespeare, Sylvia Plath, Johnny Depp, Harrison Ford and Kanye West. Maybe not all at the same time. Q. How do you unwind? A. I love to read or binge watch entire series of shows in record time. Alternatively, a road trip and some camping has always been a favourite of mine. Q. What did you think you were going to be when you grew up? A. I was certain I would wake up one day with the talent to become an actress or a singer – always expected I would be famous and in the spotlight. There’s still time. Q. What did you have for Sunday dinner growing up? A. Sunday roast! Often on a Sunday … definitely not all of them. Q. What book is on the bedside table right now? A. The Curious Incident of the Dog in the Night-Time by Mark Haddon. Q. What song always makes you happy when you hear it? A. Bohemian Rhapsody - Queen. The happiness is likely directly correlated with my pride in my ability to (poorly) sing the entire song (including backup) on my own.

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S E PA R AT I O N A N D S T R E S S F a m i ly Court of Aust ral i a / F edera l C irc uit Court of Australia w w w. fam i l ycourt . gov.a u / www.fe deralc irc uitcourt.gov.a u

Separation is a difficult time and it is normal to feel stressed or upset. Finding ways to manage these feelings is an important part of moving on and feeling better about yourself. Sometimes it can be difficult to know if what you’re feeling is normal or something that you should get help with. Are you:

What can you do?

Learn about your stressors and put changes in place to avoid them

Overuse of alcohol or medications usually make the

»» Having trouble sleeping?

situation worse

Operate in a positive way. Give yourself a pat on the

»» Feeling overwhelmed? »» Irritable or anxious all the time?

back for doing something well

Keep focussing on the good, even in difficult situations

»» Having trouble concentrating? »» Feeling moody and easily frustrated? If you’re experiencing any of these symptoms then you might need to get help or make changes to your day-to-day life. It is important to remember that stress is normal, but if you feel stressed all the time and have been living with these symptoms for a while, it can lead to depression and other mental health issues in the future.

Accept the things that can’t be changed Find time to relax Talk to a friend or family member Eat healthy meals Realise that things will eventually get better You can make a list of everything you enjoy doing Ordinary is ok. Lower the bar! Understand your body and recognise when you need extra help

Realise that there are only so many hours in a day Seek the assistance of a doctor or counsellor E nergise with gentle exercise like a walk or bike ride

a

L ook for ways to alter the situation and adapt to the stressor

Find a way to break your goals into small steps Remember, you can’t give your best for your kids if you don’t look after yourself too. This article has been reproduced with permission of the Family Law Courts.

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Who can help? If nothing helps, then maybe you need to talk to someone about how you are feeling. If you’re not comfortable talking to a friend or family member, then making an appointment to see a counsellor or doctor might be a good option. There are also a number of organisations that offer support and advice. LIFELINE www.lifeline.org.au

13 11 14

Family Relationship Advice Line 1800 050 321 www.familyrelationships.gov.au

Beyondblue www.beyondblue.org.au

1300 224 636

Kids Helpline www.kidshelp.com.au

Mensline Australia www.mensline.org.au

1300 789 978

Headspace www.headspace.org.au

Department of Veterans Affairs 1800 555 254 www.dva.gov.au

Reach Out au.reachout.com

1800 551 800

Other organisations that may provide services in your area include Anglicare, Centacare, Interrelate, Relationships Australia, Unitingcare Australia and Unifam.

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NAME GAME H OW DO I C H A N G E M Y S U R N A M E A F T E R M A R R I AG E ? Ki ara Greenway , Gra dua te Solic itor / Para legal a nd A n d rew M cCo rma c k, Senior Assoc iate & Accred i ted F amily Law Spec ialist

In the lead up to marriage, there is often a lot to think about. How many guests will attend the wedding? What colour will the bridesmaids’ dresses be? Is the venue booking confirmed? And, most importantly, what flavour(s) will the five tier wedding cake be (chocolate is always a winner!)? It’s no surprise that formalities, such as changing your surname, fall by the way-side until much later after the wedding. However, changing your surname isn’t as complex as it may seem from the outset. In fact, if you were married in Australia, there is no formal application form that needs to be completed. You’re unlikely to find any set rules or regulations about changing your name after marriage. That’s because there is a common law right for a wife to assume her husband’s name after they are married. Your marriage certificate alone is sufficient to enable you to change your name. It goes back to the antiquated notion that after marriage, a wife became the property of her husband! The first step is to formally notify the government agency that issues driver licences in your state. Once your driver licence has been changed, you can then use this as proof of your new identity.

Agencies like banks, utility companies (eg, electricity and water suppliers) and any other organisations/ companies you hold accounts with or deal with will then accept the new driver licence and your marriage certificate as sufficient proof to change the name on your accounts. This can be done by writing a letter or email, completing a name change request provided by the company, or simply attending the office itself. Different bodies will then have varying requirements as to what evidence they need to verify the change. For example, you may need to: » » provide your original marriage certificate; »» p r o v i d e a c e r t i f i e d c o p y o f y o u r m a r r i a g e certificate; » » send evidence of an updated photo ID, such as a driver licence; or » » send a combination of identity documents, such as your Medicare card or Health Care card. If you have a passport that has issued in your previous family name, the Australian Passports Office will issue a new passport in your married name free of charge. Should an organisation refuse to accept the above documents as proof of name change, a Change of Name Over 18 Years application form is available from the Queensland Government Registry of Births, Deaths and Marriages. Registry of Births, Deaths and Marriages.

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“I am more powerful over my own life than anyone else can ever be”.

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C AU L I F L OW E R A N D BLUE CHEESE SOUP O u r K a ra Best add ed ½ cup of c re am a nd won the ina ugura l To owoom ba of fi ce “ soup of f” with this re c ipe la st winter!

Ingredients 1 teaspoon olive oil

100g blue vein cheese, crumbled

1 onion, finely chopped

ground black pepper, to taste

1 clove garlic, finely chopped

8 slices multigrain bread, toasted

1 potato, peeled, diced

8 slices lean bacon

1 head cauliflower, chopped (including the stalk)

4 tablespoons onion jam, to serve

3 cups reduced-salt chicken stock

Instructions and steps 1. H e a t o i l i n a l a rg e s a u c e p a n o v e r m e d i u m heat. Cook onion and garlic until softened. Add potato and cook for 3–4 minutes. Add cauliflower and stock and bring to the boil. Reduce heat and simmer for 30 minutes, until tender. 2. Meanwhile, fry or grill bacon until crisp.

3. Purée soup in blender (or use a stick blender). When thick and creamy, gently reheat. Add blue cheese and stir through until cheese has melted. Season with pepper, to taste. Garnish with blue cheese, if desired. 4. S p re a d t o a s t w i t h o n i o n j a m a n d t o p w i t h bacon. Cut into triangles and serve with soup.

Recipe courtesy of www.healthyfoodguide.com.au Issue Eight

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B OO K R E V I E W “ W H E N B R E AT H B E CO M E S A I R ” B Y PAU L K A L A N I T H I Jo sh Sc honfe ld, P aral ega l (a nd avid reader! )

If you asked me for a recommendation for an uplifting, life-affirming read, and I recommended a book written by a young neurosurgeon, struck by terminal cancer just as he completes his professional training and starts a family, you may well think I misheard you. But When Breath Becomes Air is exactly that – a surely heartbreaking but, more importantly, heart-affirming story of grief and the loss of the things held most important to all of us. Written by Paul Kalanithi, a gifted surgeon, scientist and writer, in the last months of his life, the book follows his diagnosis with lung and later brain cancer at the same time as he is finishing the final stages of his training in neurosurgery. The book begins with Kalanithi sharing the battle to salvage his marriage as his hundred-plus hour weeks in the hospital continue to take a toll on his marriage. In the midst of what is already a heavy load, he is then forced to confront his terminal diagnosis, and the inevitable transformation from doctor to patient. Kalanithi also shares with the reader an intimate account of the birth of his first daughter, and eventual last days, exploring the extremes of the beginning and ending of life. Sure, not really screaming life-affirming tale at this point …. I get it, but the beauty of Kalanithi’s prose shines with his ability to cut through any understandable tendency towards over-sentimentality.

This is further strengthened by his commitment to steer away from self-pity to offer a raw account of how to confront and embrace the most important aspects of being a loved and loving father, husband, son and friend, while confronting problems he never envisaged in his younger years working and planning for the rest of his life. Kalanithi shares his grief directed at all the elements that make up his world. The grief of time lost with his wife, parents, brothers and new daughter; the grief of lost time from what was sure to be a bright career; grief at his loss of health, and loss of independence. If anyone read this book and told me there was nothing in it for them, I would be both shocked and suggest that they give it another go. Instead of simply sharing advice such as “live every day to the fullest” (great advice, but not exactly a practical guidebook), Kalanithi shares what it looks like to fully embrace a limited but truly important set of days. The best summary would be to say it is a map for how to live in a life that epitomises John Lennon’s words, “life is what happens when you’re busy making plans”. I don’t share or recommend this book lightly, as it holds a special place in my life. I spoke with my gran in her final days about a couple of the messages in it. Kalanithi gave us a platform to discuss how the shortness of life, and the unexpectedness of loss, in no way detracts from or diminishes the past, present, or future joys that our loved ones provide us.

This book should come with a warning - it won’t leave you when you finish and close the last page. Issue Eight

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