crossroads Issue Nine
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Published by Best Wilson Buckley Family Law
T H E CO N T E N T S P R AC T I C A L F I N A N C I A L M AT T E R S TO CO N S I D E R O N S E PA R AT I O N .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Carla Franchina, Senior Solicitor l Best Wilson Buckley Family Law
W H AT DO E S T H AT M E A N ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Max Sutton, Solicitor l Best Wilson Buckley Family Law
L I N DA C A N N I N G S | S E N I O R A S S OC I AT E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 T I N A R E Y N O L D S | A S S OC I AT E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SOUR CREAM PEAR SLICE............................................................................................................. 7 Sleepless City Roasters
D U T Y O F D I S C L O S U R E – T H E R U L E A P P L I E S TO E V E R YO N E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Andrew McCormack, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law
T H E R O L E O F G R A N D PA R E N T S I N FA M I L Y L AW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Samantha Iwers, Senior Solicitor l Best Wilson Buckley Family Law
14 WAY S TO R E B U I L D A B R O K E N R E L AT I O N S H I P W I T H YO U R C H I L D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Susan De Campo l Lifecare Consultancy
TO S E T T L E O R N OT TO S E T T L E ?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Zoe Adams, Associate & Hillary McVeigh, Paralegal l Best Wilson Buckley Family Law
FA S T FAC T S A B O U T … S U R R OG AC Y.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Alecia Connor, Associate l Best Wilson Buckley Family Law
D I V I D I N G U P YO U R S E L F M A N AG E D S U P E R F U N D .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Tim Bate l McConachie Stedman
W H Y I DO W H AT I DO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 Lynn Armstrong, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law
W H AT I S DO M E S T I C V I O L E N C E A N D A M I AT R I S K ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Paul Ferry l Safe Haven Community
T H E R O L E O F T H E I N D E P E N D E N T C H I L D R E N ’ S L AW Y E R.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Max Sutton, Solicitor l Best Wilson Buckley Family Law
S W I F T A N D A M I C A B L E P R O P E R T Y S E T T L E M E N T ? I T C A N B E DO N E !.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 John Patterson, Senior Solicitor l Best Wilson Buckley Family Law
JODIE HANDLEY | PARALEGAL .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 JO MALONEY | SENIOR SOLICITOR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 I W I L L ! W H Y R E V I E W I N G YO U R E S TAT E P L A N N I N G I S C R U C I A L U P O N S E PA R AT I O N . . . . . . 29 Jo Maloney, Senior Solicitor 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 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Rebecca Harding, Barrister at Law
B O Y S E N B E R R Y YOG H U R T I C E B L OC K S .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Adapted recipe from www.allrecipes.com.au
WAY S TO S AV E L E G A L CO S T S I N YO U R FA M I L Y L AW M AT T E R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5 Tina Reynolds, Associate l Best Wilson Buckley Family Law
PERFECTING PARENTING ARRANGEMENTS FOR THE SILLY SEASON.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Kiara Greenway, Graduate Solicitor/Paralegal l Best Wilson Buckley Family Law
STEADY AS SHE GOES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Jennifer Ryder, General Manager 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
C R O S S R OA D S
P R AC T I C A L F I N A N C I A L M AT T E R S TO CO N S I D E R O N S E PA R AT I O N Carl a Fran c hina, Senior Solic itor
It goes without saying that the breakdown of a relationship is a significant event. You may need to think about how you are going to move forward financially, or what arrangements you and your former partner are going to put in place for your children. Navigating a separation can be a difficult task, but there are a number of practical things to consider and steps you can take at the outset of separation to make navigating that initial period a little bit easier. Here are some practical financial questions you should consider immediately upon separation: 1. Should you obtain your own bank account? If previously your income was deposited into a joint account, you might need to consider redirecting your income, or a portion of your income, to your own account. On the other hand, if you rely upon your former partner’s income and are concerned that they will redirect this to a personal account, consider what steps you need to take to ensure your own financial support. 2. What is to happen to any joint bank accounts? You might need to consider contacting your bank to request that any joint account require both parties to authorise transactions. This might be helpful if you hold concerns about your former partner withdrawing any large sums of money from joint accounts, including any mortgage redraw facilities. This will, however, also prevent you from withdrawing on those accounts without the consent of your former partner. 3. Do you need to change your passwords on any of your personal accounts, such as internet banking, email, social media or your pin numbers? Your privacy, security and personal safety are imperative following separation so taking this easy action is a good idea.
4. Do you need to change the names of any account holders on any services, for example, internet and phone, insurances, or utilities? You may want these accounts in your name if you are continuing to use the service, or you may want your name removed from these accounts if your former partner is retaining them. 5. Do you need to take any steps to protect your legal interest in any real property? If you are not on the title as a registered owner of property of your relationship, and you are concerned that your spouse might unilaterally dispose of that property, there are steps you can take to protect your interests, such as lodging a caveat. 6. If you are leaving the home, what do you need to take with you? In addition to your personal everyday items, you may need to consider what you need by way of furniture, appliances and items for your children. You should also take with you any important personal documents, such as your passport, birth certificate and things like bank statements and financial records. 7. Do you need to notify Centrelink and/or the Child Support Agency about your change of circumstances? You may be entitled to an income support payment while you are a young child’s main carer or otherwise be entitled to the receipt of, or liable for the payment of, child support. 8. Do you need to update the beneficiary on any superannuation account or life insurance policy? You should also consider updating your Will in light of your change in circumstances. If you are married, separation has no effect on the operation of your Will in the event of your death before your divorce; but your divorce will have the effect of revoking any bequests to your husband/wife made under your Will. You may wish to ensure that your assets are left to your children, a family member or a friend in the event of your passing.
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9. Do you need to change any enduring power of attorney? If your former partner has an enduring power of attorney on your behalf, you may want to revoke this. As with your Will, these documents are not affected by separation, but upon divorce, a former spouse will lose the right to exercise any power under the power of attorney.
10. Should I seek legal advice? If you are struggling to deal with these preliminary issues, or would like to discuss what separation means for you and your family, there is assistance available. By obtaining an initial understanding of the law relating to family disputes, you will have a better understanding of your legal rights and responsibilities and how best to navigate the waters of separation for you and your family.
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W H AT DO E S T H AT M E A N ? M ax Sutton, Solic itor
It can be daunting when you have to see a lawyer or you are in court about a legal problem. What may already be a stressful situation can become more stressful, even confusing, as legal terms and jargon are thrown about when you are receiving legal advice, being asked to consider proposed terms of settlement, or asked what a court order means. Below is a list of words and phrases, along with their definitions, to help shed light on some of the legal jargon you may encounter. Advocate An advocate is a person who defends or presents an argument for or on behalf of another person. In family law, you will encounter solicitor advocates and barristers, both of whom advocate on behalf of a client in court. Affidavit An affidavit is a statement of fact that someone makes when either making an application or defending an application. The facts contained in an affidavit need to be relevant to what a court is being asked to do and tells a court a person’s version of events. Applicant An applicant is a person who commences court proceedings. Application in a case An application in a case is an application that either the applicant or defendant, or even a third party who isn’t yet involved in proceedings, may make in ongoing court proceedings. Such an application allows a person to ask a court to do something which they have not yet been asked to do.
Best interests of the child The best interests of the child is the primary consideration that a court must have when called upon to make a decision that will affect a child. When considering what is in the best interests of a child, a court must have regard to the child’s benefit in having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. Caveat A caveat is a type of injunction registrable over real property which serves as a form of public notice of a person’s interest in that property. You would lodge a caveat over disputed real property which you have an interest in so as to prevent the other person from doing anything with that property, like selling it, without you knowing. Defendant A defendant is a person who responds to court proceedings commenced by an applicant. Divorce The formal conclusion of a marriage. To obtain a divorce, one or both parties need to apply for divorce in the Federal Circuit Court of Australia. If the divorce is granted, a formal divorce order is issued by the court recognising the separation of the parties and the formal conclusion of their marriage. Duty of disclosure The duty, or requirement, of parties in court proceedings for property settlement to exchange documents relevant to their financial position.
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Equal shared parental responsibility
Initiating application
The presumption that both parents must make joint decisions in consultation with each other about the long-term care, welfare and development of their children.
An initiating application is the document an applicant files in court to commence court proceedings. This document is used to commence court proceedings relevant to parenting and/or property settlement.
Financial agreement
Matrimonial property
An agreement that can be made before getting married, before obtaining a divorce, or after a divorce.
Property that is owned by one or both parties to a marriage which is the subject of a property settlement and the formal conclusion of the parties’ financial relationship.
A financial agreement made before getting married is typically called a “pre-nuptial agreement”. The purpose of such an agreement is to provide for certain things to happen should parties separate, thereby formally ending their financial relationship. A financial agreement made upon separation or after getting a divorce is also done so for the purposes of formally ending the parties’ financial relationship. Such an agreement can cover a wide variety of financial matters, including superannuation, interests in property, trusts, businesses, cars and cash. Independent children’s lawyer (“ICL”) An ICL is a solicitor who is appointed by a court to represent the children who are the subject of court proceedings. The ICL is an independent party to the court proceedings and is tasked with presenting the views and interests expressed by the children to the court. The ICL undertakes evidence gathering for the purposes of ensuring the parties act in the best interests of the children and that any orders made by a court are in the children’s best interests.
Parenting plan A formal agreement containing the parties’ terms regarding the parenting arrangements for their children. Property settlement A property settlement is the formal process of dividing the matrimonial property and other assets, including superannuation, in accordance with an order of a court or the terms of a financial agreement. Settlement is the final step in effecting the formal conclusion of a financial relationship. Sole parental responsibility Parental responsibility for the long-term major decisions of the parties’ children that has been conferred on just one of the parties to the exclusion of the other. Subpoena A document issued by a court for the production of certain documents or for someone to present themselves at court.
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L I N DA C A N N I N G S S e n i o r A s soci ate North Lakes
Q. Why family law?
Q. Favourite place to eat in North Lakes?
A. I fell into family law by accident. My first job as a graduate lawyer required me to assist the very busy family law practitioner. I was thrown in the deep end and somehow managed to keep my head above water long enough to find my feet. I loved it immediately and have now been a family lawyer for 15 years. There is something very special and rewarding about helping others navigate a very difficult, and sometimes unexpected, period in their personal life.
A. The Brew Testament downstairs which has the best coffee in town.
Q. What do you most look forward to in spring? A. Spring for me is all about putting the cold months behind me (which I absolutely hate) and enjoying the warmth of the sun. Getting out for walks, going to parks with my family and watching the trees and flowers come back to life is the best part of spring. I am an outdoors person so spring brings me back to life after hibernating during the winter months.
Q. Favourite holiday destination? A. Anywhere on the Sunshine Coast which is an easy one hour drive north. Q. What do you do in your spare time? A. Go for a run or long walk with my husband and five year old daughter, go to the gym, paddle boarding, eat out somewhere nice, go to the movies, shopping, or watch something on TV/Netflix. Q. What did you have for Sunday dinner growing up? A. Pancakes with lemon juice and sugar, toasted sandwiches, fish and chips or the occasional roast chicken dinner. Q. What book is on the bedside table right now?
Q. Number one on your bucket list?
A. The Barefoot Investor.
A. To travel to New York.
Q. What song always makes you happy when you hear it?
Q. Best event you have been to? A. Keith Urban concert – I have been to at least six and they have all been amazing experiences. The Adele concert at the Gabba was a close second.
A. Every single song performed by Keith Urban!
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TINA REYNOLDS A s s o c i a te North Lakes
Q. Why family law?
Q. Favourite holiday destination?
A. I chose to pursue a career in family law to help people during a difficult time in their lives, one where many never anticipated they would ever be. I enjoy assisting clients move forward in their lives.
A. Anywhere near the beach.
Q. Number one on your bucket list?
Q. How do you unwind?
A. To grow old with my husband and watch our four children grow up.
A. I love running. I feel that this is the best way to unwind my mind after a busy day in the office.
Q. Best event you have been to?
Q. What did you think you were going to be when you grew up?
A. The Cronulla Sharks grand final, followed closely by my wedding ď Š! Q. Favourite place to eat in Brisbane? A. La Dolce Vita Restaurant, Milton.
Q. Who was your childhood hero growing up? A. Andrew Ettingshausen.
A. Always a lawyer. Q. What did you have for Sunday dinner growing up? A. Spaghetti - great Italian classic. Q. What song always makes you happy when you hear it? A. Meatloaf – Bat Out of Hell.
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SOUR CREAM PEAR SLICE Sl eepless C ity Roasters www.s l eeplessc ity roasters.com.au
Ingredients Base
Topping
125g melted butter
440g tin sliced pears, well drained
½ cup caster sugar
300g sour cream
1 ½ cups gluten free plain flour
¼ cup caster sugar
½ tspn baking powder
1 egg
1 cup desiccated coconut
cinnamon
Method 1. Sift flour and baking powder into a bowl, add coconut and sugar, then mix in melted butter until well combined. 2. Line a small slice pan with baking paper and press the base mix in evenly.
5. Arrange pear slices in rows on top of the cooled base. 6. Whisk together sour cream, sugar and egg and pour evenly over the pear slices.
3. Bake for 20 mins at 170°C until lightly brown.
7. Sprinkle lightly with cinnamon and bake at 170°C for 20 mins until just set, but not browned.
4. Allow to cool.
8. Refrigerate until set. Serves 8 - 10.
Sleepless City Roasters is a family owned micro-roastery and café located in Toowoomba, specialising in delivering coffee that is sustainable and true to its origins and offering freshly made, delicious snacks.
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DUTY OF DISCLOSURE – THE RULE A P P L I E S TO E V E R YO N E A n d rew M cCo rmac k, Senior Assoc iate & Accred i ted F a mily Law Spec ialist
“For duty, duty must be done. The rule applies to everyone. And painful though that duty be …” WS Gilbert and Arthur Sullivan Full and frank disclosure of your financial position during property settlement negotiations is an integral part of the process used to help finalise financial relationships between parties. The various courts within the family law jurisdiction h a v e s i m i l a r r u l e s re l a t i n g t o t h e p ro v i s i o n o f documents which are used to verify a party’s financial position. The principle of full and frank disclosure also applies to negotiations prior to court proceedings when parties are attempting to reach an agreement by consent. The question is often asked why, after separation, a client is required to provide a high level of disclosure about their financial affairs, including documents such as: »» bank statements »» pay slips »» business activity statements »» credit card statements. Clients sometimes say that they believe having to provide this level of documentation after separation is an invasion of privacy and there is often resistance to providing the documents. Whilst this may seem the case, the provision of disclosure documents to verify a party’s financial position is essential to enable us to provide appropriate advice about prospective future needs and entitlements such as child support in the future. As part of negotiations or proceedings, you are generally required to provide a statement of your financial circumstances which must be made on oath or affirmation.
In addition you must confirm that you have provided all relevant information about your financial circumstances, and your understanding that the duty of disclosure is an ongoing duty until your matter is finalised either by consent or by an order of a court. The financial statement is generally prepared by a solicitor or, in some cases (where there are complex structures and entities), it may be prepared by an accountant. To enable us to properly complete the financial statement and verify the information that we are including in the financial statement is correct, we require the source documents so that we, as officers of the court, are able to independently verify the information that you are providing. As a financial statement is a verified document, the other party is entitled to ask for the production of the original documents upon which the financial statement has been prepared. The financial statement requires you to disclose all sources of income, interest, property or financial resources. This includes any property that is owned with other unrelated parties or where you have an interest in a trust. The court requires information to be broken down into weekly income and expenses, and this can be an issue for people who are paid monthly or who pay their expenses such as registration and then have to calculate back to a weekly amount. You are also required to disclose information about t h e s a l e o r d i s p o s a l o f a n y p ro p e r t y, i n c l u d i n g where property has been sold on the open market, transferred, or gifted to third parties. Information is required about items that have been disposed of as one party may be attempting to deplete the property pool and stop a party from receiving their appropriate entitlements.
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If your matter has progressed to court proceedings, the court is likely to order the production of certain documents, which include: 1. the parties’ three most recent taxation returns and assessments; 2. t h e p a r t i e s ’ t h re e m o s t re c e n t w a g e / s a l a r y certificates/pay slips; 3. a n y s u p e r a n n u a t i o n d o c u m e n t s f o r e a c h superannuation interest of the party including: »» the completed superannuation information form; »» for a self-managed superannuation fund, the trust deed and the last three financial statements; 4. for a corporation (business), trust or partnership where the party has an interest: »» financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the last three financial years; »» any business activity statement for the 12 months ending immediately before the first court date; 5. f o r a n y c o r p o r a t i o n , i t s m o s t re c e n t a n n u a l return, listing directors and shareholders, and the corporation’s memorandum and articles of association; 6. for any trust, the trust deed; 7. for any partnership, the partnership agreement; 8. all documents containing evidence about: »» the financial matters mentioned in a party’s financial statement; »» t h e f i n a n c i a l c o n t r i b u t i o n s m a d e a t t h e commencement of cohabitation; »» any inheritances, gifts or compensation payments received during cohabitation; »» any purchase or disposal of property in the 12 months prior to and since separation; »» any increase or reduction of liabilities since separation; »» the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value. In relation to the documents referred to above, these shall include but not be limited to:
»» written records of any investments including stocks and shares; »» social security pension information or payment details; »» details/records of long service leave accrued; »» details/records of overtime worked in the previous 12 months; »» records/details of any life assurance or disability insurance; »» details/records of any of the above in relation to children; »» medical or psychiatric reports that relate to the person’s medical history that may need to be considered by the court. In certain cases, other documents can be requested by writing to the other party and providing notice that you require certain documents or a class of documents. The rules relating to disclosure do not permit a party to interrogate the other party about transactions generally. However, if there is a concern that money is being hived off or that joint funds are being used for improper purpose, the court may move to the next process called “discovery”. Discovery is a more intensive form of financial disclosure and allows for specific questions to be asked and for further documents to be provided, including information about relevant transactions. Financial disclosure can often occur by one party issuing a subpoena for the provision of certain documents after the general class of disclosure documents has been provided. However, there is an obligation on all parties to provide documents that have been requested in writing or that are required under the rules to be exchanged. In the event that disclosure does not occur, there can be various cost implications, including: 1. the payment of costs relating to subpoenas that may be issued by a party; 2. t h e p a y m e n t o f l e g a l c o s t s re l a t i n g t o a n y application to the court for documents to be disclosed; 3. the court drawing adverse inferences against someone on the basis of non-disclosure.
»» in relation to accounts in any financial institutions (including but not limited to banks), details of account numbers, passbooks and bank statements for the previous 12 months; BEST WILSON BUCKLEY
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There are a number of decided cases which the courts use to determine whether someone has complied with their duty of full and frank disclosure and, in the event that they haven’t, whether adverse inferences about their willingness to provide full and frank disclosure should be made. Generally, a court can: 1. make findings of fact about the existence (or, in some cases, non-existence) of property; 2. look at transactions relating to property that have occurred and can reverse transactions to ensure that a party is able to obtain their appropriate entitlements under the Family Law Act; 3. notionally include property in the property pool that may have been dissipated prematurely; or 4. m a k e o rd e r s f o r t h e a d j u s t m e n t o f k n o w n property and financial resources in favour of a party. There are further penalties that apply for failing to disclose financial documents or for providing false financial statements. These include: 1. c os t s ord er s w h i c h c a n b e m a d e a g a i ns t t he defaulting party; 2. refusing to allow the use of certain information or documents as part of proceedings; 3. being found in contempt of court and being subject to sanctions such as fines, good behaviour bonds or, in most extreme cases, imprisonment. Whilst you may think it is a mind-bogglingly boring task to look through someone’s bank statements and other disclosure documents, the disclosure process is a useful tool for verifying a party’s financial circumstances and where money may be going if they are crying poor. Now that most financial institutions allow you to access transaction histories and bank statements online, there is generally not a good excuse for saying that you do not have certain documents in your possession, power or control. A number of the major banks provide facilities where you can obtain your last seven years’ worth of bank statements electronically.
This is particularly helpful in terms of disclosure (and also at tax time where you can’t find that one bank statement that your accountant needs to finalise your tax return). I n f o r m a t i o n a b o u t s h a re h o l d i n g s c a n e a s i l y b e obtained from share registries in electronic form and is generally emailed by the share registry to the appropriate party after the provision of a holder identification number (HIN). Most superannuation funds will allow online access to their systems, which means that you can print superannuation fund statements at any point in time and not have to rely upon the statements issued by the funds on 30 June and 31 December each year. Most employers now email pay slips rather than providing them in paper copies and some employers even have online systems that will allow you to access past pay slips. Oftentimes people are concerned about the cost of providing disclosure documents. Where possible, we prefer to provide disclosure documents to another party electronically through the use of an online portal such as Dropbox or by providing a physical USB device to the other party. Best Wilson Buckley Family Law is currently developing our own secure online portal to streamline the process of providing disclosure documents. The portal will allow documents to be uploaded in real time using a secure file transfer protocol. This will allow you to upload your personal documents and for us to be able to deliver disclosure documents to other parties or practitioners without the need to print and collate volumes of documents.
As painful as the duty of disclosure may be, you need to do your duty and not shirk that task.
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T H E R O L E O F G R A N D PA R E N T S I N FA M I L Y L AW Sam an t h a Iwers, Se nior Solic itor
What is family? With the norm being difficult to define, those involved in a child’s upbringing are often a far leap from the traditional nuclear definition. Family law in Australia, to some extent, recognises that children have a right to know other people significant to their care, welfare and development, such as grandparents. It may be that you are a grandparent who has concerns about the safety of your grandchildren. You may be raising your grandchildren in circumstances where their parents are unwilling or unable to do so. Or perhaps you are being prevented from spending time with your grandchildren when you previously shared a close relationship. Grandparents are permitted to apply to the court to obtain orders with respect to their grandchildren. This may include living arrangements, spending regular time together, communicating by telephone or email, or a combination of these. That being said, a grandparent does not have an automatic right to have contact with their grandchildren. There are a number of factors to be considered by the court in determining arrangements that are in the best interests of a child.
The two primary considerations include children having the benefit of a meaningful relationship with both parents, and the need to protect children from harm. Among various other factors, a child’s relationship with others, such as grandparents, will also be considered in determining arrangements that are in a child’s best interests. Each family is different, and arrangements that may be considered in the best interests of one child may be vastly different to those in the best interests of another child. For this reason, it is important that you obtain legal advice in relation to your specific circumstances to ensure that you are aware of the options available to you. Perhaps an agreement can be negotiated at a mediation and formalised in a parenting plan or consent order. It might be necessary for you to notify and seek the involvement of the Department of Child Safety, or it may be your best course of action to make an application to the court. It is certainly acknowledged in the area of family law that grandparents often play a very active and involved role in the life of their grandchildren. There are various avenues available to grandparents to ensure that the conflict arising from a separation does not prevent a child from maintaining this relationship.
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1 4 WAY S TO R E B U I L D A B R O K E N R E L AT I O N S H I P W I T H YO U R C H I L D Susan De Campo, Life ca re Consulta nc y www.l i feca reconsulta nc y.com
When a separated parent has not seen their child for some time despite frequent, consistent attempts to do so, they may seek formal avenues in order to spend time with the child. For the most part, where there are no safety concerns, or where there are unsubstantiated safety concerns, th e F am i l y Law Ac t p u rp o rts th e p ri n c i ple t ha t children have a right to have a meaningful relationship with both parents. There are various processes and mechanisms that can assist in upholding this principle. One such process is supervised contact. S u p e r v i s e d c o n t a c t s u p e r v i s o r s a re s k i l l e d a n d experienced in supporting children re-establish their relationship with a parent who they are resistant to or apprehensive about seeing and, importantly, know that both parents contribute to successful reunification/relationship re-building. If your child is resisting spending time with you, here is a list of suggestions and comments to keep in mind: 1. Maintain physical and emotional health. Seek professional assistance from a counsellor or therapist who is experienced in post-separation conflict. These situations can take a long time to resolve; you will need lots of energy to sustain patience and resilience throughout the reconnection process. 2. Seek legal advice, sooner rather than later. Ensure your solicitor has a strong understanding of the dynamics of prolonged (unjustified) estrangement.
3. Be honest with yourself and with professionals. It is almost always the case that both parties have contributed – in some way – to the current situation. Accept responsibility for any past unhelpful behaviour. Children are more likely to be drawn to someone who displays contrition and humility rather than someone who is denying unhelpful choices, is arrogant or is defensive. 4. Be humble - even if you totally believe you have no fault in the current situation. 5. Do not direct your anger and/or frustration at your children. It is not their fault the current situation has arisen (and they didn’t ask to be born!). Be aware that any hurtful or negative comments they make about you are not necessarily an accurate reflection of their truly held feelings and thoughts. 6. Be thankful and appreciative. If your child is warm or positive in any way whatsoever, be thankful and appreciative. Do not assume this is a sign that everything will be positive moving forward. Be grateful for “crumbs”. 7. Always speak respectfully and graciously about the child’s other parent. Do not make snide indirect comments such as, “Well, of course we could go and see your grandparents but your mum/dad makes us spend time together here at this place”.
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8. Do not discuss your legal proceedings in front of your children. Do not show them court documents. 9. Present as a person your child would want to connect with. Resentful, bitter, overly-emotional, sad, frustrated people are not pleasant to be around. 10. Reassure your child that you love him/her. Resist the urge to be smothering, overly affectionate (especially when it is not invited), buy excessive gifts, make promises about future fun events, living arrangements and so on. 11. Honour all your legal and personal responsibilities. Ensure child support payments are met. Undertake all courses or programs recommended by court appointed experts or professionals.
12. Keep a diary. Keep a diary of events, attempts to have contact, notations about times you have contacted their school (if you are permitted to do so), interest in medical issues and so on. 13. Be aware that your behaviour including your words (spoken and written – emails, texts, Facebook and so on), can, and will, be used to either build or thwart your relationship with your child. 14. A l w a y s a d h e re t o o rd e r s . I f t h e y a re o p e n to interpretation, seek clarification from a professional.
Susan De Campo is the Director and founder of LifeCare Consultancy. With 20 years’ experience in private practice as a Registered Counsellor and over 30 years’ experience as a Registered Nurse, Susan has a strong appreciation of the complexities associated with negotiating a relationship breakdown and, as an accredited Regulation 7 report writer, provides expert evidence to the Federal Circuit, Family and Children’s Courts of Australia. Susan is also a Fellow of the Queensland Counsellors Association.
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TO S E T T L E O R N OT TO S E T T L E ? Z oe Ada ms, Assoc ia te & H i l l ar y McVeigh, Pa ra legal
When we meet with new clients, often their first question is whether they should be bothering to seek family law advice as a result of a common misconception that property settlements are unnecessary or inappropriate to a client’s personal circumstances. S u c h c l i e n t s a re e i t h e r u n a w a re o f t h e i r l e g a l entitlements and/or they do not believe there is anything of value to be divided up. However, when a marriage or de facto relationship comes to an end, it is imperative that property settlement is finalised or, at the very least, that each person is aware of their entitlements and obligations. Is a property settlement really necessary? Short answer, yes. A property settlement ensures that all financial ties with your ex-partner are finalised and there is no ability for one party to later claim against the other down the track. The reason this is a risk is because the court will consider the property and financial interests available for distribution between the parties, including property acquired after separation, as at the time the court is asked to make a decision and not at the date of separation. Examples include properties, businesses, trusts or assets acquired after separation (even with another person), increases in superannuation entitlements and savings, and increases in the value or equity of the former family home or investment properties. In some cases, one party may inherit a large sum of money or win the lottery post separation and this will be considered by the court if the court is requested to make property settlement decisions. Equally important, there are also practical issues regarding each party’s obligations and responsibilities after separation, such as who will be responsible for the mortgage, loan and credit card repayments.
Difficulties can arise if your ex-partner does not pay the mortgage or other payments as promised, which may then impact your credit rating and your ownership of property. But there is no “property” to settle... Couples with modest property, or who are income rich and asset poor, often think that there is nothing to settle. Separate to the risk associated with property acquired after separation still being subject to a claim from your ex-partner, there are often other financial interests that should be considered. For example, superannuation accounts can be divided between couples . You might a ls o be ent it led t o s pousal maintenance, which is your ex-partner providing you with financial support. In some cases, couples have not shared all of their financial information with each other as one may take care of the family’s finances for both parties, or sometimes because one has kept their information private from the other. Following the breakdown of a de facto relationship or marriage, parties have an obligation to make full and frank disclosure about their financial circumstances. It is important to seek legal advice about these matters as your lawyer will be able to assist you in not only finding out whether there is property to settle, or spousal maintenance to be paid, but also your entitlements to property settlement generally.
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Formalising property settlements
Time constraints
The Family Law Act sets out the process and law regulating a property settlement, however each matter is determined on a “case-by-case” basis as every relationship and situation is different; and the court has a wide discretion accordingly. Upon meeting with a client for the first time, we work through the court’s four-step process in determining a fair and equitable property settlement and advise you of your possible entitlements.
An important issue to consider in deciding whether or when to seek advice is the time limitation periods set out in the Family Law Act. Separating parties to a marriage must apply to the court for a property settlement within 12 months of a divorce order coming into effect, while a de facto couple must apply within two years of their separation. Failure to commence property settlement proceedings within these time limitations may result in a loss of ability to apply to the court. Although it is possible to seek the court’s leave (permission) to apply for property settlement “out of time”, this is not guaranteed and can be costly.
Often through negotiation and/or mediation, agreement can be reached and finalised through either: »» consent orders, which is a written agreement that is approved by the court. If the court is satisfied that the proposed settlement is just and equitable, the orders will be made by a registrar without the need of a court appearance; »» binding financial agreement, which is a binding legal agreement about the financial arrangements which does not require the court’s approval but does require independent legal advice prior to execution. If agreement cannot be reached between the parties themselves, or via their lawyers, there are processes that you can jointly choose to participate in to help you reach that agreement such as mediation or arbitration. Your lawyer will discuss with you the pros and cons of these processes and whether they are suited to your case. It is possible to apply to the court to make a decision as to the division of the property, however this is considered the last resort.
Next step There are very few situations where it is in one party’s interest not to have a property settlement, and even then you may face the risk of your ex-partner seeking a claim against you in the future. It is important to obtain legal advice to ensure that you are making an informed decision. An experienced family lawyer will help you work through the process of determining your entitlements and formulate a suggested course of action to settle the matter in an expeditious manner, and then act on your behalf to secure the best possible result for you so that you and your family can begin the process of moving forward.
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FAST FACTS ABOUT … SURROGACY A l eci a Connor, Assoc ia te
Surrogacy is one of the most heart-warming parts of practising in family law, however it is also an area that can be fairly unfamiliar and a little bit daunting to people. Here are some fast facts to start you off on your surrogacy journey. 1. What is the terminology? The people seeking to become parents are referred to as the “intended parents”. The surrogate or person who gives birth to the child is referred to as the “birth mother”. If the birth mother is married or has a de facto partner then her partner is the “birth mother’s spouse” and collectively they are referred to as the “birth parents”. 2. Commercial surrogacy is illegal in Queensland and indeed all Australian states. You can be charged with a criminal offence if you enter into a commercial surrogacy arrangement. This includes if there is any payment, reward or material benefit received by anyone as a result of entering into this agreement. 3. A written surrogacy agreement must be entered into before the child is conceived. 4. Even though there may be a surrogacy agreement in place, the child will be presumed to be the child of the birth parents until such time as a parentage order is made. The intended parents can apply for a parentage order when the child is between 28 days and six months old and the child is in their care.
5. In order to enter into a surrogacy agreement in Queensland, all parties need to be over 25, including the intended parents, the birth mother and the birth mother’s spouse if the birth mother is in a relationship. 6. All parties (that is, birth parents and intended parents) must attend compulsory counselling prior to entering into the agreement and after the child is born. 7. The parties may agree to any type of conception i n c l u d i n g I V F, a r t i f i c i a l i n s e m i n a t i o n , s e l f insemination or natural conception. 8. It is illegal to advertise surrogacy in Queensland. This includes advertising to find a surrogate or to be a surrogate. 9. The intended parents can reimburse the birth mother’s reasonable surrogacy costs - this includes medical expenses, counselling costs, legal costs and a number of other expenses that are directly related to the pregnancy. These are normally outlined in the surrogacy agreement. 10. In Queensland there needs to be a social or medical reason for the surrogacy. A medical reason includes that the intended parent has a medical disorder that makes it impossible or unacceptably dangerous to carry a baby. A social reason could include two males who are in a same sex relationship.
The web of surrogacy can be complex, however it is worth navigating as a means of starting the rewarding journey of parenthood. Issue Nine
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D I V I D I N G U P YO U R S E L F M A N AG E D S U P E R F U N D Ti m Bate, McConac hie Stedman www. m ccona c hie stedman.com.a u
Self managed super funds are an increasingly popular financial tool and it follows that they are featuring more in family law property settlements. Most recent figures available indicate that there are about 586,000 self managed superannuation funds (or SMSFs) in Australia, with about 1.1 million members. The majority of those SMSFs consist of two members.
And although superannuation legislation now requires SMSF assets to be valued at market value, in practical terms, property valuations may be up to three years old, and may need to be updated.
People set up SMSFs for a variety of reasons. Some like to control their own investment to a degree not possible in the retail space, investing in particular shares or property, or unusual assets, such as artwork. Others may wish to take advantage of particular strategies including, for example, the ability to transfer their business property to their fund and lease it back to the business.
The most significant issue for separating couples with an SMSF can be liquidity. Many SMSFs invest in real estate, and it is not unusual for an SMSF to have 90% or more of its assets invested in a single property. Although not an issue in itself, when it comes to splitting up an SMSF, it may not be easy or practicable to sell the property to provide the liquidity needed, especially at a reasonable price.
When couples separate and they have their own SMSF, they have a number of options. They could split one or both parties’ benefits - family law legislation that provides for a mechanism to split superannuation benefits from one party to another applies similarly to SMSFs as it does to retail funds. Splitting orders can be made which, for example, provide one party with more superannuation benefits, or to equalise the parties’ balances. Alternatively, each party could retain their own superannuation balances, with no splitting order made. In these circumstances, often one party will retain the SMSF, whilst the other may choose to rollover their benefits into a retail fund, or set up a new SMSF for themselves. More unusually, despite the separation, some parties may continue to keep the SMSF going as is. Dealing with superannuation benefits that are held in an SMSF can pose some challenges when compared with other types of funds, such as retail funds. For example, unlike retail funds, a member’s balance may not be readily ascertainable. The fund’s administrator or accountant may need to process transactions up to date to ensure all income and expenses are taken into account.
For example, let us assume a husband and wife have an SMSF with a property worth $850,000 and cash of $150,000. The property is used in the family business, which the husband wants to retain. The wife’s member balance is $400,000 and the husband’s is $600,000. The wife wants to rollover her benefit to a retail fund. In this case, the SMSF does not have enough cash to enable the wife’s benefit to be rolled over. The husband could make a substantial contribution to the fund of at least $250,000 in order to provide the necessary liquidity. This may or may not be possible, or desirable. Alternatively, the husband might need to purchase all or part of the property from the SMSF in order to provide funds to pay out the wife. Where an SMSF’s assets comprise more liquid assets, such as listed shares, the situation is much simpler. Shares can be easily sold, although capital gains tax implications should be taken into account. Also, if the party wishing to leave the SMSF is happy to set up a new SMSF of his or her own, then shares can be transferred from one fund to another without being sold, and capital gains tax relief can apply. Dividing up the assets in an SMSF can be a complex and time consuming process, especially when compared to splitting superannuation benefits in a retail fund.
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Early engagement with your accountant or superannuation fund administrator, in conjunction with your solicitor, will help minimise any issues or delay.
Tim Bate is a Senior SMSF Specialist at McConachie Stedman with more than 20 years’ experience in the superannuation industry. Tim is accredited as an SMSF Specialist Advisor with the Self Managed Superannuation Funds Association.
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W H Y I DO W H AT I DO L y n n A rm s t r ong, Se nior Assoc iate & Accred i ted F amily Law Spec ialist
I commenced my working life, as a young 17 year old, working as a nurse’s aide. This was many, many years ago. During this time I first learnt about both the frailty of the human condition, but also the stories that people have to tell. Back then I was working in a tiny hospital in a very tiny town in New Zealand, which had 10 acute beds and a 25 bed nursing home. This is where it all began. I went to university later that year and studied law, realising fairly quickly that I needed life experience in order to do this career justice. I saw nursing as something to do, until I was mentally old enough to undertake the legal profession, so trained as a nurse. I loved nursing and would never have left the field, where I worked in emergency, in the ambulance service and high dependency areas mainly. I loved the adrenaline that this role brought to me, and the very large impact that high level care can have to patients and families in their hours of need. Again, similar to the impact that high level legal advice and care can have to clients and families. While I was nursing in Australia, I also started my law degree (with a strong view of never wanting to work in family law), as it was the niggling thing in the back of my mind that I just had to do. I loved it!
Not the assignments and hard work (of course I did undertake two Bachelor degrees and then a Masters of Law and Family Law Specialist Accreditation - so although I say I didn’t like it, I guess I must have or I wouldn’t have kept going), but the involvement with people who need help, and the feeling that I helped them to get the results that they have walked away with. When I first moved to Toowoomba in about 2001, I was offered a job at Legal Aid as a secretary in the family law section, and that is how I got into this area. I am forever grateful that happened! I often tell clients, you come in, usually not thrilled to be seeing a lawyer and a little worse for wear. I am not misguided in knowing that most people don’t wake up and high five the world at the thrill of seeing a lawyer that day (especially for their first appointment). They are often teary, stressed and sometimes barely holding themselves together. My moment of enjoyment is usually some months later, when they walk in, head high, ready to take on the world! They have regained some of what they may have lost during the early stages of separation, and hopefully are even happier or more contented than they were previously. These are the days I feel my job is important. I really enjoy the story of the particular matter, and then the strategic planning of how to move forward in the best way possible.
We all have those tough days, and these can be on occasion when I am calling home and my family is all there waiting for a family dinner while I am hours away and just finishing court – but I wouldn’t change my career at all. Issue Nine
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W H AT I S DO M E S T I C V I O L E N C E A N D A M I AT R I S K ? P aul Ferr y, Safe Haven Community www.s afeh avencommunity.com.au
You would struggle to pick up a newspaper in Australia today that will not have at least one article about domestic and family violence. It is a sorry state of affairs indeed, and all too real. While the statistics and the realities are staggering, what may be most unfortunate is that many people in a domestic and family violence situation do not know that the abuse they’re encountering is, in fact, domestic and family violence and may lead to something more threatening. Domestic and family abuse takes on so many more forms than only physical, and quite often physical violence comes after prolonged periods of abuse. The Domestic and Family Violence Protection Act 2012 defines domestic violence as behaviour within a relevant relationship that is emotionally or psychologically abusive, economically or financially abusive, threatening, coercive, physically or sexually abusive, or that in any way controls or dominates the other person and causes fear for their safety and wellbeing.
These types of abuse take on so many forms and vary from relationship to relationship, but can include things like controlling spending and all financial decisions, making decisions about clothing, public put downs and humiliation, reading emails and text messages or other monitoring, decisions around birth control, constant criticism around intelligence and appearance, through to yelling and threats to use a weapon against the other person. None of these examples should be taken lightly or readily accepted, especially when they are so often indicators of future physical violence. There is an old adage that prevention is better than cure and this couldn’t be more apt when it comes to considering domestic and family abuse and your options to protect yourself and your children from any future escalation to physical or sexual violence. It is wrong to believe that your circumstances are not the same as someone who is experiencing violence over and above these types of abuse, or that you will not be listened to if you bring these examples to the attention of a lawyer, case worker or other professional that may be in a position to assist. It may just be that recognising the warning signs and behaviours and seeking the help needed is the most important step you will ever take, and one that can only help to stem the tide of alarming statistics we’re seeing daily right across Australia. In fact, your security and your children’s future may depend on it.
Paul Ferry is the Executive Director of Safe Haven Community, a not-for-profit organisation that connects people that have a spare room with people that need a spare room through a fully supported, communitybased temporary accommodation network for people at risk of domestic abuse.
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THE ROLE OF THE INDEPENDENT C H I L D R E N ’ S L AW Y E R M ax Sutton, Solic itor
Sometimes during court proceedings regarding the parenting arrangements for a child, the court will appoint an independent children’s lawyer (ICL) to represent that child and present to the court an unbiased account of that child’s views and interests. The key focus of an ICL is to represent a child’s best interests and to ensure that they are the focus of any decisions a court is asked to make or any agreement that parties to proceedings reach that will affect the child. An ICL is a solicitor and can be best described as the child’s court appointed solicitor who is independent to the court and to the other parties to the proceedings. The ICL is tasked with representing the child’s views a n d i n t e re s t s w h e re a v a i l a b l e a n d a p p ro p r i a t e . Because children do not attend court, the ICL attends on their behalf. An ICL is usually appointed by an order of the court. However, an ICL may also be appointed upon application made by a child to be represented in proceedings or upon application of an organisation concerned with the welfare of a child. A court will usually appoint an ICL in circumstances where one or more of the following issues exists: »» there are allegations of abuse or neglect in relation to the children; »» there is a high level of conflict and dispute between the parents; »» there are allegations made as to the views of the children and the children are of a mature age to express their views; »» there are allegations of family violence;
In circumstances where an ICL has been appointed, the ICL is tasked with the role of gathering evidence by way of issuing subpoenas or commissioning family reports and putting it before the court. Importantly, an ICL’s role also includes: »» facilitating the child’s participation in court proceedings where appropriate; »» acting as an intermediary and facilitating settlement negotiations between the parties whilst putting to the parties the child’s views and interests. To be able to fulfil their obligations as an ICL, the ICL will usually read all court material filed and inspect any documents produced under subpoena. Depending on the child’s age and the circumstances of the case, the ICL will meet with and talk with the child. To gain a better understanding of the child’s circumstances, in particular their welfare and development in the wake their parent’s dispute, the ICL may speak with relevant people in the child’s life, including family consultants, doctors, counsellors, teachers and psychologists. Whilst the overarching role of an ICL is to present to the court an independent and unbiased account of a child’s views and opinions, the ICL is also tasked with considering the evidence available and the views expressed by all parties, and to offer recommendations as to what orders the court should make.
»» serious mental health issues exist in relation to one or both of the parents or children; »» there are difficult and complex issues involved in the matter.
Such recommendations may be relied upon to assist and guide the court in determining the orders it should make in the best interests of the child. Issue Nine
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SWIFT AND AMICABLE PROPERTY SETTLEMENT? I T C A N B E DO N E ! Joh n P at te rson, Se nior Solic itor
Most of us have had the ever-enjoyable experience of being at a barbeque and listening to our neighbour’s step-father’s monologue about his dealings with his horrific ex-wife during their divorce. Or dodging the coleslaw flying from the teeth of a distant cousin’s sister-in-law as she thoroughly details the character flaws of her ex-husband and his grub lawyer. During such conversations I tend to take the opportunity to go for a seventh sausage, chat to the dog, or stare blankly at the clouds. High conflict matters occur in family law from time to time, and are occasionally unavoidable. Those circumstances do require a tough approach, however are never glamorous or enjoyable for the families caught in the middle. Their glorification is rarely a good ice-breaker, particularly considering the likelihood that others at the barbeque may be dealing with similar issues privately. The Family Court and its lawyers have recently received some controversial, though recently overshadowed, attention from our federal politicians. With no small degree of irony it’s been suggested, among other things, that we’ve allowed conflict to spiral out of control and get in the way of the task at hand. While I don’t intend to vent my personal views on such matters, I certainly accept and agree that swiftly and amicably resolved disputes ought to be the primary objective of lawyers in all family law matters. I am also confident however, that most well-informed and reputable family lawyers do exactly that. I recently had the privilege of becoming involved in a matter for a client who had previously been stuck in litigation for just over two years. It involved some complex issues concerning a business valuation, and had resulted in each of the parties becoming deeply entrenched in their respective positions.
The lawyers for the other party were well-respected and reputable practitioners, and over a relatively short period of time we had discussed the issues to be addressed and ultimately resolved the matter on a final basis amicably without the need for further litigation. With the benefit of practical legal advice and an approach which focussed on the benefits of commercial decision-making, both parties were able to set aside their significant personal differences and reach an agreement. That agreement likely saved each party tens of thousands of dollars in legal and expert fees, months of litigation, and immeasurable stress and emotional turmoil. The matter also involved children, which exponentially increased the value of an amicable outcome. Everyone certainly needs an opportunity to tell their story, and in some circumstances the only appropriate response to a particular story is to get a little stirred up and call out appalling behaviour. On a lot of occasions however, hurt or upset as they might be, many people consulting a family lawyer simply want a sensible result as quickly as possible. They certainly want to be heard and understood, but not simply for the purpose of lining the pockets of the lawyers or generating a good “war story”. The secret to an amicable and swift resolution to your family law dispute is that there is no secret. It is important to surround yourself with sensible and credible advisors, however ultimately the majority of even the most complex matters can absolutely be resolved in an amicable manner. Despite the trepidation that is sometimes associated with commencing or becoming involved in family law issues, it is absolutely possible to move through those issues in one piece (emotionally and financially).
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JODIE HANDLEY P a ra le g a l Toowoomba
Q. Why family law?
Q. Who was your childhood hero growing up?
A. Working in family law gives me the opportunity to help people through a tough time in their lives. I especially find working in domestic violence matters fulfilling, because even though it can be quite upsetting and confronting, you are really helping people move forward from sometimes incredibly dangerous and oppressive situations.
A. Alice Cooper. Still is!
Q. What do you most look forward to in spring?
A. Playing video games, taking naps and making cosplay!
A. The weather warming up. I am not made to survive Toowoomba winters. Q. Favourite place to eat in Toowoomba? A. Ice & Spice do the best Indian in Toowoomba! I think my partner and I eat there about twice a week at the moment. Q. Favourite holiday destination? A. I feel like everywhere I go is my new favourite place, but I think Japan probably wins out in the end. I would move there in a heartbeat if I could speak Japanese and easily bring my cats with me.
Q. Who would be your ultimate five dinner guests? A. Alice Cooper, Stephen Fry, David Bowie, Bill Bailey and Freddie Mercury. Q. How do you unwind? What do you do in your spare time?
Q. What did you think you were going to be when you grew up? A. A fashion designer. Ha! Q. What did you have for Sunday dinner growing up? A. I feel like I am the only person in the world whose family didn’t have a Sunday dinner tradition. We just ate food. Q. What song always makes you happy when you hear it? A. The Good News by Philadelphia Grand Jury.
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JO MALONEY S e n i o r S o l i ci tor Toowoomba
Q. Why estate planning?
Q. Favourite holiday destination?
A. Early in my career, I had the experience of working on various estate and superannuation death benefit claims relating to the estates of people who had died very unexpectedly with either no estate plan, or an outdated one. Disputes about estates are very difficult matters for families to deal with upon losing a loved one, and if the estate plan hasn’t been done or hasn’t been kept up to date, the consequences can at times be hard to swallow. Since having a family of my own, I have gravitated back to estate planning. I enjoy helping and educating people to realise that something that (let’s be honest) may seem very bland is actually incredibly important to get done properly, and review regularly!
A. Every holiday is a good holiday! I’m heading to Hawaii soon. I’ve never been to that part of the world, so I’m really looking forward to it.
Q. What do you most look forward to in spring?
Q. Who would be your ultimate five dinner guests? A . A re a l m i x e d b a g . S t e p h Wo o l l a rd ( a s o c i a l entrepreneur I met years ago in Nepal, who has worked tirelessly since then to change the lives of disabled Nepali women through her not-for-profit organisation Seven Women), Ray Higdon, Scott Pape the Barefoot Investor, Lisa Wilkinson, and Harvey Specter (not the actor - actually Harvey Specter - for the legal tips of course!). Q. What did you think you were going to be when you grew up?
A. Sitting on the swinging chair with my husband at home on a Saturday afternoon, with a glass of wine, enjoying the look and smell of fresh cut grass and watching the kids play in the yard.
A. For many years I thought I’d be an activist of some kind. There always seemed to be a cause to be outrageously passionate about.
Q. Number one on your bucket list?
A. From memory it was often a fairly casual meal for us unless we had visitors - soft boiled eggs with “dippy boys” or toasted sandwiches. My dad makes a pretty mean pork roast too. One of my sister’s friends still talks about Dad’s crackling!
A. An extended trip to Italy. The jury is out on whether the kids are invited. Either way, it won’t be for many, many years. Something to work towards. Q. Best event you have been to? A. Recently, my Downlands’ school reunion. Best night I’ve had in ages! Q. Favourite place to eat in Toowoomba? A. Honestly? With four kids under 7, we don’t get out much (can you tell by my previous answer?)! When we do I’m grateful to be anywhere where I’m not in charge of the food. I’ve yet to have a bad experience eating out in Toowoomba. The very BEST place though, is my Mum and Dad’s. They always manage to make one of my many childhood favourites.
Q. What did you have for Sunday dinner growing up?
Q. What book is on the bedside table right now? A. The Go-Giver by Bob Burg and John David Mann. Q. What song always makes you happy when you hear it? A. Currently, Uptown Funk. There’s just no way you can listen to that song without smiling and bopping! If you don’t believe me, google and watch “Norfolk Police, Firefighters Lip Sync Challenge” and you’ll see just what I mean. Seriously - do it!
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I WILL! W H Y R E V I E W I N G YO U R E S TAT E PLANNING IS CRUCIAL UPON S E PA R AT I O N Jo M ol oney, Senior Solic itor
Your Will might be the very last thing you want to think about when separating from your spouse. However, not taking the time to review your estate planning can have serious unintended consequences in the event that you die or become incapacitated during the resolution of your family law matter. Why separation is a trigger to review your estate planning? There are certain life events that automatically impact upon the validity of your Will and other estate planning documents. Marriage and divorce, for example, revoke otherwise valid provisions of a Will and make updating your estate plan essential when either of those events occur. Separation does not have this same effect for married couples. If you have a Will and have separated from your husband or wife, the fact of your separation has no effect on your Will or Enduring Power of Attorney. For most couples, this will mean that if you die or become incapacitated prior to the finalisation of your divorce, your former spouse will be given both a legal role in the administration of your affairs, and receive whatever gifts they are entitled to as set out in your current Will (often your whole estate). This will be the case even if you have completed a property settlement with your former spouse but are not yet divorced. Often this will not be your intention, particularly if you have children and/or there are new partners and other children involved.
There are also undesirable consequences if you die without a Will prior to finalisation of your divorce. Your former spouse may still be considered your legal spouse for the purposes of the intestacy rules, which may see them inherit all or part of your estate depending upon your circumstances, potentially to the exclusion of a new partner. Different rules apply for separating de facto couples, which can also be a minefield and is equally crucial to consider upon separation from your partner. What needs to be reviewed? Estate planning is not “one size fits all�. It is also not a simple matter of writing a Will, which only has legal operation on your death, and securing it in safe custody until that day eventually comes. There are many other factors which make up a thorough estate plan, all of which require careful consideration to ensure your wishes are carried out correctly, and require regular review. These can include: 1. powers of attorney and enduring powers of attorney; 2. advance health directives; 3. the ownership of life insurance policies; 4. superannuation death benefits; 5. jointly owned properties; and 6. the structure of any corporate or trust entities in which you have an interest.
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When to update estate planning? In addition to separation from a marriage or de facto partner, the following events are good indicators that it is time to review and update your estate planning: »» a change in your family circumstances, including: -- marriage or the beginning of a de facto re l a t i o n s h i p ( i n p a r t i c u l a r i f y o u a n d / o r your spouse have children from a previous relationship);
»» the death of an executor or beneficiary already named in your Will; »» a significant change in financial circumstances. When preparing or updating your estate plan, it is important to seek advice from a qualified legal practitioner, together with your accountant and financial planner.
-- the birth of children or grandchildren;
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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
In the previous edition of Crossroads, Rebecca outlined the role of the solicitor and barrister in family law matters and the difference between the two. Now, she takes a look at role of these advocates before, during and after court. What happens in the lead up to court with my solicitor and barrister? Your barrister will receive a “brief” of documents prepared by your solicitor which usually includes: 1. all the court material filed by the parties; 2. written instructions from your solicitor; and 3. any important correspondence, including offers that may have been exchanged or particular financial documentation. They will then read everything cover to cover, perhaps before even meeting with you for the first time, or speaking to you or your solicitor in any great detail about your case. Undertaking that process enables your barrister to identify the strengths and weaknesses in both sides of the case from the outside looking in. Solicitors will often have been assisting a client for a lengthy period at that point (often for months or, sometimes, years), and it can be more difficult for a solicitor to attempt to put themselves in the position of a judge reviewing only the court material for the first time. Given a barrister’s work sees them in court more frequently, they tend to have knowledge of and will speak with you and your solicitor in a conference about: 1. the preferences and idiosyncrasies of the judicial officer who may be hearing your case; and 2. the court processes, likely timeframes, and rules of court more generally.
Your barrister and solicitor will talk to you about the range of potential court outcomes, which outcomes they consider are more likely than others, and whether they consider offers of settlement should be made with a view to achieving a negotiated outcome. What happens on the day at court with my solicitor and barrister? Family law barristers spend a lot of their time inside court buildings, but not necessarily inside the court room itself. A lot of work is done in conference rooms and corridors, going back and forth in negotiations, either prior to seeing the judge or after having a brief discussion in open court with the judge about the elements of the dispute. If it is not possible to resolve your dispute through a negotiation process, then your barrister will appear before the judge and advance an argument by talking to the judge on your behalf (and a written summary of their argument can also be provided). It is normally the case that the judge has other matters to deal with on the same day as hearing your case, particularly when the scheduled court event is for an interim hearing. Your barrister is required to accurately summarise all of the relevant evidence, highlight the important issues in dispute and talk to the judge about how the law applies to your case. Often, given the competing demands on the court, your barrister needs to run the argument and answer any questions from the judge very quickly.
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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What happens after court? Sometimes the judge will tell you the outcome right then and there, on the day of your court appearance. Other times, the judge will “reserve” their judgment to a later date so that they have the opportunity to consider the dispute further before they decide what to do.
You continue to deal with your solicitor after court, and unless the barrister is required for further appearances, you may not see or speak with them again about your case. Reasons why you might have another conference with your barrister after a final hearing or trial would be to discuss the prospects of an appeal or a costs application. Sometimes your solicitor and barrister can also have a conference with you simply to “debrief” with you about the outcome.
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B O Y S E N B E R R Y YOG H U R T I C E B L OC K S www.allrec ipes.com.au
What says welcome to the warm weather better than fresh berries and ice blocks!
Ingredients 2 5 0 g f re s h b o y s e n b e r r i e s ( o r o t h e r b e r r i e s o f choice) 2 cups vanilla frozen yoghurt, softened 2 tablespoons white sugar
Method 1. Place the boysenberries into a blender or food processor. Cover and puree until the mixture is smooth. 2. Pour the boysenberry puree through a fine sieve placed over a large bowl to strain out the seeds.
3. Add the softened frozen yoghurt and sugar to the strained blackberry puree and mix well. 4. P o u r i n t o i c e b l o c k m o u l d s a n d f re e z e f o r approximately 2 hours.
Serves 6
We adapted this recipe from one on www.allrecipes.com.au which used blackberries.
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WAY S TO S AV E L E G A L CO S T S I N YO U R FA M I L Y L AW M AT T E R Ti n a Rey nolds, Assoc ia te
Lawyers can tend to get a bad reputation for their legal fees. In many cases though, expensive legal fees can be avoided. When eng ag i ng a l a w y e r to re p re s e n t y o u it is important to do your research, as you would normally do with any other service you engage in your everyday life. Many people don’t do their due diligence when engaging a lawyer and that can sometimes result in disappointment and in higher legal fees than is either necessary or anticipated. Engaging a good lawyer is an investment in your future, especially when it comes to family law issues. That being said, here are some tips on ways to save legal costs in your family law matter. 1. Research your preferred firm(s) Not all firms are created equal and certainly not all charge in the same way. While most firms will not advertise their hourly rates, many will include information on how they charge, whether they have free or fixed fee initial appointments and payment options. 2. Make the most of your initial appointment On making an initial appointment, you will generally be provided with an information sheet or electronic questionnaire to fill in and return before your initial appointment. This form is important and will allow your lawyer to prepare for your appointment in advance.
Such preparation will allow both you and your lawyer to have a more meaningful discussion about how to progress your matter from the outset. Many clients do not take the opportunity to fill out the information sheet or electronic questionnaire accurately and in its entirety. This can result in the lawyer asking questions and correlating information in your initial appointment that could already have been provided at the outset. 3. Read the client agreement and costs disclosure notice These will be provided at the commencement of your matter and outline what you are being charged and how those charges are incurred for the service that is being provided to you. Specifically, look at the hourly rates charged by your lawyer and other legal support team members. Also be aware that some firms charge for other administrative items like photocopying or typing. It is a legal requirement that you are provided with these at the outset of your matter so if you do not receive them ask your lawyer. 4. Ask questions If you don’t understand the client agreement or it seems ambiguous or in legal speak then chances are it is. Ask your lawyer or one of their team to clarify how things work, especially if you feel that the costs vary from what you have been told to expect. Any discussion about your legal fees will be at no charge as required by law.
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5. Know about the various payment options available
7. Consider alternative means of communication
Most firms will operate on the basis that they require you to deposit monies into trust for anticipated costs and outlays as discussed at your initial appointment. Others will operate on a monthly invoice, payment plans or even one final invoice at the conclusion of your matter. It may be that smaller regular deposits to your lawyers’ trust account work for you. The options can be endless and you won’t know if you don’t ask. Ask about the options available with your lawyer and consider what is right for you as you would with any financial product.
Communication via email can reduce the expense of communications, especially as it is then readily available to refer back to if you need. Legal costs are reduced significantly if there are not repeated discussions with your solicitor in relation to the same advice or issues. Email also helps you to provide information to your solicitor when requested as quickly as possible.
6. Take the time to consider the advice and ensure that you understand the information that is being provided to you If you would like for your solicitor to reduce their advice into writing to allow you to have more time to consider the advice it is important to let your solicitor know.
8. Engage with your lawyers’ skilled support team In the event that you have a query that is not necessarily a legal question then contact the skilled administration staff who will be able to assist you. In the event that they are unable to help they will be able to contact the solicitor with your query.
Chances are you never expected to need to engage a family lawyer and certainly didn’t anticipate an outlay for family law costs in your budget calculations, so finding yourself with a legal bill can be difficult. These tips can assist to reduce your legal fees although, above all else, that really relies on choosing the right lawyer for you and your situation. You need to feel comfortable with the advice you are receiving and the person giving that advice in order to hand over your hard-earned money. BEST WILSON BUCKLEY
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P E R F E C T I N G PA R E N T I N G ARRANGEMENTS FOR THE SILLY SEASON K i ara Greenway, Gradua te Solic itor/ Paralegal
As usual, the year has flashed past us in the blink of an eye. It feels like just yesterday we welcomed in the new year and had the crazy rush of the Christmas period. But here we are again, just a few months away from that same period of madness. One of the last things we want to be worrying about over that time is the plans and arrangements for the children, and specifically with whom, when and where they will be spending time over the holidays and festive period. It can be incredibly helpful to have a set schedule in place for the children to ensure that everything runs like clockwork, and it can be achieved. My partner and I are in agreement about the parenting arrangements. What are our options? When formalising parenting arrangements by consent, there are two options available: 1. parenting plan; or 2. consent orders. What is a parenting plan? A parenting plan is effectively an agreement reached between a child’s parents. It deals with a number of aspects of a child’s care arrangements such as who the child lives with and the time a child will spend with the other parent (including on special occasions), as well as other matters such as the communication a child will have with a parent or other person. In order for a parenting plan to be valid and effective it must be in writing, made between the parents, signed by both parents and dated. A parenting plan is a good option in circumstances where the parents are in agreement with respect to a child’s parenting arrangements. A parenting plan also provides flexibility in terms of altering the arrangements at a later time, so may be preferred where there are younger children involved. It is important to note that whilst a parenting plan can be effective (provided the requirements outlined above are met), it is not binding or enforceable in a court, unlike consent orders.
What are Consent Orders? Similar to parenting plans, consent orders provide f o r a v a s t n u m b e r o f a s p e c t s o f a c h i l d ’s c a re arrangements. The difference is that consent orders are orders that are made by the court, and are binding and enforceable. This means that in the event either parent breaches a consent order in any way, the court can hold you in contempt of the orders, which can result in a fine or imprisonment. Consent orders are suitable in circumstances where the parenting arrangements will continue right up until the child is 18 years of age. If the orders need to be changed, the parents need to apply to the court to vary the orders to do so. It is not always guaranteed that an application will be approved, unless both parents consent to the change or there has been a significant change in circumstances. If you are considering varying a court order, you should seek legal advice. My partner and I just cannot agree on the care arrangements for the children. What can I do? If you cannot agree on the parenting arrangements, you may need to consider applying to the court to find a solution. However, before an application can be made (unless there are exceptional circumstances), the parents need to attempt mediation. If a resolution is still not reached at mediation, an application to the court will more than likely be necessary in order to have formal arrangements put in place for the children. Whilst not desirable given the costs, delay and emotional strain associated with the court process, this is sometimes the only option in order to achieve an outcome that provides security and stability for the children. In the lead up to the silly season, we urge parents to consider implementing formal care arrangements for the children in order to reduce any added anxiety and stress to an already high pressure period.
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“Be a hard master to yourself - and be generous to everybody else.” Anonymous
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STEADY AS SHE GOES Jen n i fer Ryder, Gene ra l Mana ger
In much the same way that we bring you this publication themed around the wonderful seasons of our region, as a business we’re now embracing the concept of quarterly themes to build on what we have achieved and with a view to attaining even higher levels of client servicing, team engagement and involvement with our communities. These themes will be based around our core values of nurture, contribution, vision, connection and stability. Those of you who have known us for a while will have noticed that we’ve always tackled things at full speed! In our almost 10 year journey as a firm we have grown from our Toowoomba office to now also include a presence in Brisbane, Ipswich and North Lakes, and from a team of seven in the early days to 40 today. The breadth and depth of our team as it stands today means we’re better placed than ever to provide stability for our clients and their futures. That is why we’ve chosen to kick off our first theme with the notion of stability through until the end of 2018, which by the way seems to be coming at an unrelenting pace. Stability has been chosen with a particular focus on how we live out the ethos behind this value as we see it: consistency, structure and responsiveness for our clients, team and communities. Stability for our clients is fundamental to what we do and who we are, and quite often we’re the only stable force in the lives of our clients at what can be a tumultuous time. We live this through our client commitments by ensuring that we’re respectful, available, flexible, focussed, and transparent around fees and progress; and our goal for this quarter is simple – to keep doing just the same. The people on our team are not here by accident, some might even say it is a carefully curated collection of expert family lawyers, management and support players worthy of the finest museums (that’s me, I say that).
Stability within our team means all hands being on deck to make sure that our clients are looked after and have a family lawyer and support person supporting them at all times, sharing the good news stories and the learnings, and being present with each other. This is woven into our everyday and punctuated with special ‘together’ time, a focus for our quarter of stability including our team retreat to be held in October which will have a keen focus on consistency across what we do. We’ve always been incredibly proud of our rural roots, believed that “local is lovely” and recognised the support that our communities provide us with. Stability for our communities means that we’re going to continue to support local events that mean so much to each unique location in which we work. It also coincides with our team’s selection of our first ever official Best Wilson Buckley Family Law charity, Safe Haven Community. Safe Haven provides stability to those at risk of domestic abuse in the form of temporary accommodation. Our team is uniting to support Safe Haven through donations and other activities to help them do the wonderful work that they do, stability to continue their important work. None of this is surprising or necessarily new, in fact quite the opposite. We would not have made it to where we are today without holding this value close and living it in everything we do. It is however a renewed focus and one that tells those we hold dearest - our clients, team and communities - that we value them and want to make sure that we’re living up to what we say we stand for.
Without that foundation of stability what have we got?
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CO N N E C T W I T H U S info@bwbfl.com.au
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