Best Wilson Buckley CrossRoads Magazine - Issue 6

crossroads Issue Six

2 01 7

Published by Best Wilson Buckley Family Law

T H E CO N T E N T S FA M I L Y L AW Y E R , W I L L T R AV E L .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

by Lynn Armstrong, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law

C H I L D S U P P O R T E N F O R C E M E N T - D E PA R T U R E P R O H I B I T I O N O R D E R S .. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

by Andrew McCormack, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law

T H E DOO R I S A L WAY S O P E N .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

by Neal Wood, Associate l Best Wilson Buckley

F I N A N C I A L P L A N N I N G A N D FA M I L Y L AW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

by Paul Best, Revolution Financial Advisers

A N N A B E L M YAT T I S O L I C I TO R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 K I A R A G R E E N WAY I PA R A L E G A L .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 W H Y I DO W H AT I DO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

by John Patterson, Solicitor l Best Wilson Buckley Family Law

W H O G E T S T H E FA R M ? YO U R O P T I M A L O U TCO M E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

by Neal Wood, Associate l Best Wilson Buckley Family Law

S P R I N G T I M E PAV L O VA .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

by Teigan Jones, Senior Solicitor 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 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Extract Vincent Papaleo, Developmental Considerations in Contact and Residence Disputes

T H I S DO E S N ’ T CO N C E R N YO U - P R I VAC Y I N FA M I L Y CO U R T P R OC E E D I N G S .. . . . . . . . . . . . . . . . . . . 2 1

by Neal Wood, Associate l Best Wilson Buckley Family Law

E S T H E R PAT T E R S O N I ACCO U N T S O F F I C E R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 C A S S A N D R A B AT E I R E C E P T I O N I S T.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 T H E W O R K A N D FA M I L Y TA N G O .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

by Teigan Jones, Senior Solicitor l Best Wilson Buckley Family Law

W E L CO M E M E N TA L A N D P H Y S I C A L P E AC E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

by Lesleigh Camm l Yoga with Lesleigh

M A N G O R I C E S A L A D .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 from delicious.com.au

T H E K N I G H T I N S H I N Y ( N E W ) A R M O U R - A R B I T R AT I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1

by Alecia Connor, Associate l Best Wilson Buckley Family Law

A N OT H E R G OO D L AW Y E R . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

by Kara Best, Legal Practice Director & Accredited Family Law Specialist l Best Wilson Buckley Family Law

FA M I L Y R E P O R T S – A WAY TO M O V E F O R WA R D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5

by Tom FitzGerald & Michelle Quigley, Family Consultants & Social Workers

HOW DO I APPLY FOR A DIVORCE?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

by Alecia Connor, Associate l Best Wilson Buckley Family Law

CO N N E C T W I T H U S info@bwbfl.com.au

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bwbfamilylaw.com.au

(07) 4639 0000 - Toowoomba

(07) 3210 0281 - Brisbane

(07) 3812 1392 - Ipswich

PO Box 3701, Toowoomba QLD 4350

PO Box 1735, Brisbane QLD 4001

PO Box 840, Ipswich QLD 4305

135 Margaret Street, Toowoomba QLD 4350

Level 5, 190 Edward Street, Brisbane QLD 4000

205 Brisbane Street, Ipswich QLD 4305

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FA M I L Y L AW Y E R , W I L L T R AV E L L y n n A rm s t r ong, Senior Assoc iate & Accred i ted F a mily Law Spec ialist

In the world of technology, there is untapped potential available to people living on the land or in remote areas in respect of their ability to have appropriately trained and competent solicitors to represent them, despite the issues related to distance.

In this regard, we are able to represent clients from all over Australia, whether they are in a remote town out west, Tasmania, or the far north Northern Territory. This can be undertaken with the same skill and compassion as the many other matters we undertake for clients located in Toowoomba, Ipswich or Brisbane where our offices are located.

The law in Australia in respect of family law is a federal law. This means that the system we work under, and the Courts we attend, are based on similar structures and functions throughout the country (other than Western Australia). So whether you are based in Bourke, Goondiwindi or Atherton we can provide the right advice in your matter.

The facilities available for such advice and preparation of materials and the like are varied and can be used to accommodate your situation as follows: 1. We can email. If you have email available to you it doesn’t matter if you are down the road, or thousands of kilometres away. The response time is still just as fast, and accurate.

While all solicitors manage their files in slightly different ways, Best Wilson Buckley Family Law works by the rule that each person should be responded to as soon as possible. This doesn’t always mean within 5 minutes, it depends whether your solicitor is in the office or in Court or dealing with another client’s matter, but we do attempt to contact each person back on the day that they contacted us, if we can do so.

2. We can use Skype style communications. When a matter is ongoing it is helpful to see who you are dealing with face-to-face and, in this regard, it can also enable a quicker working relationship when preparing Court documents, for example.

This can easily be arranged.

3. The good old telephone. While we don’t always telephone as much as we all would have in the past, there is no reason this can’t be used. Again, we always endeavour to call back each client who calls within the shortest possible time we can.

4. We are able to travel. As it is, at least one or two of the solicitors here are travelling each day and often more. We travel all directions by car, plane or whatever we need to, depending on the needs of the clients, the matter and the Court or mediation we are involved in at the time.

5. We don’t work ‘normal’ business hours. If you are working set hours, shift work, farming hours or the like, we will endeavour to work with you at the times you are available. Sometimes this might mean a night call (or communication) and that is usually not a problem. Family law is not a 9 – 5 job; it doesn’t fit the ‘normal’ office hours, and if work outside of hours is required we will undertake t h i s . We a l s o h a v e a n e m e rg e n c y t e l e p h o n e number, which is provided to clients who have a need, and this phone is always in the care of one of our solicitors, who can direct the enquiry, give initial advice, and provide the information to the solicitor with carriage of your matter.

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6. We are also open to other methods. If you have something you feel is secure, and you are comfortable using, we are happy to consider that as well.

So whether your issue is about parenting matters and/or property settlement, your matter will be as unique as your actual family, and our ability to communicate with you can be as unique as you require.

In today’s society, families are not all the same.

Most often we see one parent families with a variety of structures for the time arrangements with the other parents, but there are also families with multiple parents, multiple step-children and siblings, grandparents and extended relative involvement.

Some parents may all live in one area, others are widespread, and some plans involve pets or special items.

That is why a ‘one-size’ does not fit all for family law agreements, orders or plans and it is important that you involve a solicitor with the experience to give recommendations for dealing with your family’s actual situation. If you feel you need someone with extensive family law experience or expertise, you should consider taking advantage of our ability to communicate with you, even if you are a long way from one of our physical offices.

BEST WILSON BUCKLEY

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CHILD SUPPORT ENFORCEMENT D E PA R T U R E P R O H I B I T I O N O R D E R S A n d rew M cCor ma c k, Senior Assoc iate & Accred i ted F amily Law Spec ialist

Picture this, you’re in the departure lounge of your favourite international airline waiting to travel on an overseas holiday.

You hear the familiar sound of a boarding call over the loudspeaker, “All passengers travelling to Los Angeles on flight VA4350 please commence boarding except for Mr Smith, there are some nice gentlemen from the Australian Border Force who would like to make your acquaintance”.

Thankfully, your name is not Mr Smith. However, you observe Mr Smith looking rather sheepish as two gentlemen dressed in blue uniforms serve a document on Mr Smith and ask him to come with them.

You wonder what has happened. Is this is a warrant for Mr Smith’s arrest being executed? In all likelihood it is a departure prohibition order being served and executed on Mr Smith.

Both the Department of Human Services – Child Support (DHS) and the Australian Taxation Office have powers under their relevant legislation to prohibit a person travelling outside Australia if they have either a child support or a taxation liability owing.

The Child Support Registrar is able to make an administrative order prohibiting someone from leaving Australia if they have an outstanding child support debt. Part 5A of the Child Support (Registration and Collection) Act 1988 (the Act) allows the Registrar to issue this order without needing to commence any Court proceedings.

The Act was changed in 2001 to enable the Child Support Registrar to have the same powers as a Deputy Commissioner of Taxation to prevent someone leaving Australia where they owe money to the Commonwealth.

Child support liabilities are considered to be debts due and owing to the Commonwealth and not to the relevant payee. Once the child support is collected by the DHS, it is passed on to the payee.

There has been increasing usage of departure prohibition orders in the last 5 years as they are seen to be an effective tool for enforcing child support liabilities.

The Child Support Registrar can make a departure prohibition order against a person who has arrears of child support if: 1. the person has not made satisfactory arrangements with the Registrar to pay the liability; 2. the Registrar believes it is desirable to make an order to prevent the person leaving Australia without making satisfactory arrangements to pay their child support; and 3. t h e p e r s o n h a s p e r s i s t e n t l y a n d w i t h o u t reasonable grounds failed to pay child support debts on previous occasions.

The Registrar is required to consider whether a person has reasonable grounds for not making child support payments before taking any recovery action against them. This includes considering the person’s capacity to pay the debts, when those debts arose and what (if any) arrangements they have made in the past to satisfy and pay the debts. Like the Australian Taxation Office, the DHS has the power to levy interest on unpaid child support debts and can enter into payment arrangements to enable a person to pay down their overdue child support liabilities.

The DHS would prefer to have information about a child support debtor’s circumstances and put in place payment arrangements rather than using other collection strategies such as garnishing wages, garnishing bank accounts or taking enforcement action in the Federal Circuit Court to publically examine a child support debtor.

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There have been a number of occasions where I have negotiated with the DHS for clients who have found themselves in the unfortunate position of having child support liabilities. Whilst generally the DHS is happy to entertain payment plans, a person usually gets one chance with the DHS and if there is any default, there will be an automatic escalation to the next level of enforcement.

If a departure prohibition order has been made, the subject of the order requires a departure authorisation certificate before they are able to leave the Commonwealth of Australia. This can be obtained by paying the outstanding child support at the point of departure or by providing security for a person’s return to Australia in a form acceptable to the Child Support Registrar.

In a number of cases, I have been successful in having the DHS not enforce the payment of interest on child support liabilities where my client has made a clear commitment to paying their outstanding child support and has not defaulted.

Once this has occurred, a departure authorisation certificate will be issued and a person can then travel outside Australia. Departure prohibition orders can be appealed to a Federal Court and the Act does provide for some grounds such as compassionate or humanitarian reasons for not enforcing a departure prohibition order.

The DHS take the view that if you have elected not to pay child support but you have decided to take an overseas trip, there may be an issue about how you have prioritised your finances and your obligations to those dependent upon you.

The provisions of the Act relating to departure prohibition orders are far reaching. The Act allows officers of the Australian Border Force to take necessary steps to prevent a person with outstanding child support from leaving Australia. These steps can include: 1. preventing a person from boarding a vessel or an aircraft; 2. entering an aircraft or vessel and removing that person prior to departure; and 3. requiring a person to produce documents or answer questions.

It is a criminal offence for a person to refuse to answer an Australian Border Force officer when being questioned or to give a false or misleading answer. There are also offence provisions relating to refusing to produce documents. These offences carry penalties including fines of $6,300 per offence or 6 months’ imprisonment per offence.

Although departure prohibition orders may seem to be a heavy handed way of enforcing child support liabilities, the reality is that public policy considerations, including having child support debtors meet their obligations, provides relief to tax payers and the social welfare system that we all can rely upon when needed.

In short, if a person has difficulty meeting their child support obligations, they cannot simply ignore the issue and refuse to pay. The DHS has a number of different avenues for objecting to or appealing against the assessment of child support and child support liabilities. There are also ways of making arrangements with the DHS to pay down liabilities over time.

The next time you are in a departure lounge and see someone pulled aside by the Australian Border Force you may need to think twice about whether they might be an international drug courier, or whether they are simply someone who hasn’t made proper arrangements to pay their child support.

BEST WILSON BUCKLEY

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T H E DOO R I S A L WAY S O P E N

by N eal Wood, Assoc ia te

When people talk to me about family law I often describe how we actually deal with a whole host of other areas of law that come within the family law context.

There are always the common areas of property, parenting and divorce. Depending on the circumstances there are also the more specific areas of domestic and family violence, child support, adoption, surrogacy, child protection and planning types of financial agreements.

I recently had occasion to look at some files from my colleagues in our Brisbane, Toowoomba and Ipswich offices. What struck me at first was just how much the firm has grown since I joined in January 2015.

Best Wilson Buckley Family Law now has 15 lawyers and another 3 legally qualified support staff. Amongst those, we have Accredited Family Law Specialists and solicitors with well over 15 years of experience in family law. Even our most junior solicitor still has 2 ½ years’ experience. Without engaging in the trite exercise of adding up the collective number of years of experience, suffice to say it is a lot.

By looking at these files what also became apparent was the scale of clients that we assist from time to time. At various times we are acting in matters that are conducted in most of the Family Court and Federal Circuit Court Registries in Queensland and New South Wales with a few matters in Victoria and the Family Court of Western Australia as well. Our clients come from all over Australia and are based both here and overseas.

Why does all that matter? Well in short it means that across our offices we are collectively building and refining our approach to almost every aspect of family law all the time.

We catch up with one another, talk and share our experiences before or after a particular Court event and the nuances that went into getting that great outcome. If someone wants to run a particular strategy or tactic, type of order or approach by someone else it’s as simple as a quick email to all lawyers and within about 10 minutes there will be at least 2 or 3 helpful responses. In our Toowoomba office, not only is the door always open for lawyers to speak to one another but most of our space is open plan and there is quite literally no door at all!

No matter which individual lawyer you are dealing with at our firm, you are actually getting the benefit of our collective experience. While you may never see other lawyers’ names on a letter or your Court documents, you can be very confident that behind the scenes we are regularly seeking out one another and ensuring that our collective knowledge of family law is being directed to getting the best outcome for you and your matter.

What’s even better is that if something is outside our expertise as family lawyers we have a wealth of contacts, referrers and other sources that we can tap into or refer you to to get any specific advice you need. Whether that is a new Will, tax and accounting advice, a psychologist, counsellor, valuer or any other kind of expert, chances are one of us will have come across the issue before and will know just who is going to be the best person to assist. Just because we currently only have offices in Queensland doesn’t mean that we can’t help you if you are in another state.

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BEST WILSON BUCKLEY

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FINANCIAL PLANNING A N D FA M I L Y L AW

by P aul Best , R evolution F ina nc ia l Advisers www. r evolutionfa.com.a u Separation is undoubtedly a difficult period in people’s lives and can become all-consuming as you ponder the way forward and a new reality in the face of so many unknown factors.

The unknown financial impact is one of the most distressing factors in a separation and at times it may all seem just too hard. Sadly, the bank manager is unlikely to pat your hand and say “there, there” and it is critical not to neglect the financial consequences of a separation lest you be caught unawares down the track.

There are four main financial areas to consider at this time: 1. Consider what assets you will have after the separation Most assets will form part of the property pool and will be divided between the separated parties. So you need to consider which assets you might be left with or will be receiving post separation. It’s important to think about the following: » » the family home - can you afford the mortgage repayments and associated costs such as rates, insurances and general maintenance or does it make sense to sell the house and rent for a period of time; » » a lump sum of money – how to invest the money, which investments to choose and how long the investment should be made for; » » a superannuation split – whilst you may not be able to access your superannuation for a number of years, having a nest egg of money growing for your retirement may suit your new circumstances.

2. Budget and cash flow Relying on one wage is usually quite an adjustment to make, especially after a long period of pooled financial resources. The first step to making the necessary changes is to fully review your budget and anticipated cash flow. While most people would probably rather watch paint dry, this activity will allow you to identify any cash flow deficits and adjust your expenditure accordingly at those times, or you may be able to identify additional sources of income in order to turn that deficit into a cash surplus.

3. Personal insurances Insurance policies always have a beneficiary and this is going to change during a separation and any subsequent family law matter. You need to fully review all of your personal insurances so that they reflect your new circumstances.

It is also timely to review the policies themselves and ensure that you are neither underinsured nor over insured.

If you’re now reliant on one wage, it is vital to either obtain or review your income protection insurance in order to protect this wage in the event you are unable to work for a period of time due to injury or illness.

4. Superannuation Superannuation also forms part of the family law property pool, and will also likely need to be updated to reflect a change in beneficiary. While you’re at it why not review your superannuation set-up at the same time.

A review will allow you to see what type of investments your fund is exposed to, which you can usually change if they do not suit your circumstances.

If your budget allows you may also wish to begin to make personal deductible contributions to your super fund which builds up your retirement balance at the same time as reducing your overall personal tax position.

Many people neglect their superannuation monies because they see retirement as being many years away. However, outside of the family home, your superannuation can be your largest asset and as such it is important to regularly review it.

Given you have plenty on your plate during a separation I won’t go on but these simple steps will go a long way in securing your financial future, and that of your children, at a time of great upheaval and many unknowns.

B E S T W IIssue L S O NSix BUCKLEY

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You know what they say, save it for a rainy day.

BEST WILSON BUCKLEY

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A N N A B E L M YAT T S o li c i to r Toowoomba

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

Q. What is your favourite movie?

A. Toowoomba Food and Wine Festival.

A. Anchorman.

Q. Best sporting match you have been to?

Q. Who is your favourite music artist?

A. State of Origin 2017 Game 3 (the decider match).

A. Angus and Julia Stone.

Q. Favourite place to eat in Toowoomba?

Q. Why family law?

A. Raw Sugar CafĂŠ.

A. I enjoy the personal side of family law, the client interactions and the ability to assist in what is often the most difficult times of their lives.

Q. Favourite holiday destination?

A. Egypt. I travelled to Egypt in November 2016 and visited Cairo, Luxor, Aswan and Dahub. I enjoyed the coastal vibe of Dahub in the southeast Sinai region, particularly diving in the Blue Hole which is a 100m sink hole on the coast of the Red Sea. I also enjoyed seeing the pyramids and discovering the culture in the Egyptian Museum.

Q. Who was your childhood hero growing up?

A. My dad.

Q. How do you unwind?

A. Playing my acoustic guitar.

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

A. Pork roast with potatoes, gravy and crackling.

Q. What song always makes you happy when you hear it?

A. Alt J – Breezeblocks.

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K I A R A G R E E N WAY P a ra le g a l Brisbane Q. What do you most look forward to in Spring?

A. The absolute perfect balance in the temperature (well, for most of the season anyway) – it’s not too cold, but not reaching the crazy 40 degree days of summer. The sun is shining and the water temperature of the ocean starts to reach an acceptable level for a swim.

Q. Number one on your bucket list?

A. Travel around Europe using the iconic foods that every country offers as my guide - I’ll go to France for a croissant, Italy for pizza, Belgium for chocolate… The list goes on but I think you get the idea.

Q. Favourite holiday destination?

A. My beautiful hometown of Sawtell is my favourite holiday destination now that I’ve moved to the big smoke – the old cliché “home is where the heart is” really rings true for me.

Q. Who was your childhood hero growing up?

A. Coming from a swimming background, I idolised Leisel Jones.

Q. What is your favourite movie?

be there for them every step of the way. I enjoy the face to face interactions involved in family law and am passionate about seeing clients come out the other side with an outcome that works for them. I aim to minimise the amount of stress in their lives as much as possible. Family law, for me, is about being someone that somebody can always rely on in one of the most tumultuous periods of their life.

Q. How do you unwind?

A. The headphones go in (playing some classic top 40 tunes) and I either head to the gym or go out on a long run. I also spend a bit of time helping out with the Brisbane Netball Association, and like to spend some time in the kitchen baking.

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

A. I wanted to be a chef for a really long time. I investigated starting my career on Masterchef, and seriously thought about the prospect of opening a Chinese restaurant or a bakery. But I soon realised that you need to know how to make more than 3 dishes to make it as the next Nigella Lawson.

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

A. Mum made this chicken that my 3 brothers and I called “black chicken” – no idea what it’s actually called or what’s in it, but it’s been a family favourite ever since I can remember.

Q. What song always makes you happy when you hear it?

A. Mamma Mia. Q. Why family law?

A. I always wanted to enter an area of law where I contribute in a tangible way. I want to help people through what is an extremely difficult process and

A. Love Story – Taylor Swift.

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W H Y I DO W H AT I DO

by Joh n Patterson, Solic itor

Lawyers can be a miserable bunch.

We make an art form out of being stubbornly “right”, even when we’re blatantly wrong.

Combine that with the insufferable ego that seems to infect most of us at some point, and that famous Shakespearian quote “the first thing we do, let’s kill all the lawyers” (while a quote generally misapplied) can become quite enticing.

I was fortunate enough to begin my career in the fascinating world of top-tier corporate law. While I am immensely grateful for the opportunities and training I received, and the friends I made while working in that environment, I realised relatively quickly that I was something of a square peg in a slightly triangular hole. I was eventually offered the chance to apply that same training in family law and, with a little trepidation, closed my eyes and took the plunge. Imagine my horror then, when upon landing in this new world of family law, I realised I was still surrounded by lawyers. Worse still, I was one of them (and every bit as insufferable).

As it turns out, I love being a family lawyer. We still put on our suits and bark at each other in courtrooms (or arbitrations, mediations, and over Christmas lunch), spend hours reviewing complicated financial arrangements, and have bizarre arguments about the implications of a judgement which happened before we were born. But then we come back to the office, take off the jacket, have a sip of water (or something stronger, if it’s a Friday) and sit in a room with real people.

People who are intriguing, hilarious, infuriating, heart-wrenching, and often inspirational. People who (usually) aren’t lawyers, and whose problems cut a little closer to the bone.

One of my most treasured and vividly painful memories is sitting in hospital with my closest friend during the worst week of his life. While it involved a hideous series of events, even as a then teenager the gravity of being permitted into his innermost circle at his lowest point was not lost on me. Now, in my professional capacity, I am afforded a privilege which is very different, and yet shares a few similarities. I consider it an immense honour to be trusted as an advisor by people in the midst of what can be the worst period of their lives to date.

On some days, my role is to be calculated, strategic, and analytical. On others, the most helpful thing I can do for a client is to provide something of a blunt reality check to cut through the fog (and save him or her a few dollars on legal bills). Sometimes I’m a guiding hand through a complicated system of logic and principles, and on other occasions I’m required to stick my chest out and fight for someone who’s never been fought for before.

In my previous role, I saw plenty of highly intelligent men and women succeed in just about everything they touched, only to be crippled by a bitter family dispute. And when that happened, their previous success didn’t seem to mean much.

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I do what I do because I can’t think of anything that matters more, and because, embarrassing as it may be to admit, being a lawyer isn’t so bad.

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W H O G E T S T H E FA R M ? YO U R O P T I M A L O U TCO M E

by N eal Wood, Assoc ia te

Depending upon your involvement in the farm, the stage of your life and the state of your relationship, the outcome that you are looking to achieve can be one of the most important considerations in answering this question.

In previous editions, we have considered the origins

If you have been in a relationship that has ended, it

of the farm; scenarios for retaining the farm; what

may be that your highest priority is to ensure that

it is and who owns it now; and what it’s all worth.

there is proper recognition of the work of previous

This is the last in this series of articles about family

family members and the contributions they have

law property settlement where farming and rural

made to the current wealth. Generally speaking, if a

businesses are involved.

party wishes to retain a significant asset or business

The essential goal of any family law property settlement is to create legal certainty following the end of a relationship. After completing a property settlement each spouse ultimately obtains control of their own separate assets and liabilities with any previous joint property transferred one to the other or otherwise sold and divided.

In family farming situations the extent of the physical, financial and emotional connections created over a long period of time can be particularly difficult to unravel. When it comes to a farm the individual facts and circumstances of each case and what is fair having regard to the contributions and future needs of the adults and children involved need to be considered.

For example, if you are in partnership with an adult child that is about to enter into a new and untested relationship, there are steps that can be taken to protect the partnership from being drawn into a property settlement if that relationship fails. If an agreement can be reached up front and recorded in a Binding Financial Agreement with the assistance of independent legal advice, it is possible to limit the Court’s power to deal with the farm as part of a future property settlement if the relationship comes

like a farm in exchange for paying out the other party then a Court may readily be persuaded to provide an opportunity for that to occur. How long that process should be allowed to take and on what terms it should be permitted can vary significantly. There are also issues to consider about what should happen in the meantime such as making sure the property is insured and that the overdraft and the mortgage continues to get paid while that is happening.

Depending on the circumstances, it may be that any cash payment will be broken up over time.

If you have worked alongside a spouse on the farm for many years and raised a family together but your name has never been legally included on the paperwork it may be that your highest priority is securing your own financial security. Again, depending on the circumstances, there is scope for that to occur. It may be that a separate parcel of land or a particular asset can be transferred or sold to meet the other party’s entitlement without having to sell off the entire farm. If there are other investments

like

a

share

portfolio,

investment

property or superannuation these could possibly be used to meet the entitlements of the party that is going to be moving off the farm after separation.

to an end.

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If third parties are involved they may also come into

While all of these options and considerations may

play in completing the settlement. It is possible to

seem daunting, the reality is that no matter how

transfer parts of a real property to an adult child or

complex matters seem at first, by working through

related company or trust. In exchange, that party

it bit by bit and narrowing the issues in dispute there

may contribute to borrowing the money needed to

is a clear path to resolution and an end.

pay out another party.  

Be confident that the work we do all the way along the process is directed towards achieving your optimal outcome, whatever that may be.

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S P R I N G T I M E PAV L OVA

by Tei gan Jone s, Se nior Solic itor

Ingredients

1 teaspoon white vinegar

4 free range egg whites

Lots of whipped cream

1 cup caster sugar

Seasonal fresh fruit (think strawberries, blueberries, star fruit and passionfruit)

3 teaspoons cornflour

Method 1. Preheat oven to 150°C. 2. Beat egg whites in a clean dry bowl with an electric mix master until egg whites can be held over your head without falling.

3. Add caster sugar one tablespoon at a time, and continue to beat with an electric mix master until mixture is shining.

4. Fold sifted cornflour and vinegar through shiny meringue mixture.

5. Heap meringue mixture on a baking tray lined with baking paper.

6. Place in the oven, and immediately reduce the heat to 120°C. 7. Cook for 1 hour, and thereafter open oven door and allow to cool.

8. Decorate once cool with whipped cream and seasonal fruit.

Notes Serves 6 to 8 (dependent on portion size).

Makes a fabulous dessert and a balanced breakfast option!

What’s not to like about eggs, dairy and fruit in the morning!

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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 ract from paper by Vince nt 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 our last edition, we brought you an extract from Vincent’s paper relevant to children from infancy to 2 ½ years of age. We now turn to look at the 3 to 5 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.

3 to 5 years The process of becoming increasingly separate continues into the preschool years.

Children by this stage have a better developed ability to understand language, relationships and feelings, and overall their cognitive development has advanced.

By becoming increasingly able to maintain a mental image of the comforting parent when separated for long periods of time and because they have been able to establish a stable, internal representation of their attachment figures, they are now able to launch into the world without the care taker’s constant presence.

The developmental thrust during this stage is towards the establishment of greater separation.

Children during this stage of development show a greater negativism as part of their emerging individuality. Testing of limits and containment by parents become an essential part of establishing a sense of the child’s own security, amidst a need for external control to assist with the beginning of the establishment of impulse control. The development of language becomes particularly important insofar as issues of residence and contact are concerned, and the child now starts to understand concepts such as time relationships, the repetition of which helps a child sustain themselves through the contact period. They begin to understand the concept of being away for a number of sleeps, and language provides them a medium through which the other parent becomes aware of what did and did not occur during the contact and the child’s feelings about this. Towards the end of this stage, there is also the emergence of magical thinking, which reflects the child’s belief that what they say and they think can have an impact on what happens in the environment around them. There is also a growing interest in peers, school and activities outside of the family, and the beginnings of a greater identification with the same sexed parent.

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.

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Impact of divorce It is not uncommon for children in this stage to regress in response to their parents’ separation.

They can now feel and articulate their despair, and because of the development of magical thinking, they may feel responsible for what has happened, leading to feelings of over-empowerment and therefore increased anxiety. It is essential that during this phase of development, and especially so in the face of such disruption as a separation, that both parents maintain as firm, clear and unambiguous limits as possible.

Children in the preschool phase of development are still primarily dependent upon a single carer, albeit they can start to tolerate longer overnight stays with the non-resident parent. It is still more advisable for stays of shorter duration and greater frequency, as lengthy periods away from the primary care taker can still cause distress to the child. What is often observed is that the stressed child will regress and behave in a manner more characteristic of an earlier stage of development, so typical symptoms observed include problems with toilet training, sleep and feeding difficulties, greater irritability, clinginess and battles of control.

In order to help overcome potential difficulties, a continued focus on predictability, routine and structure across the two households is essential.

Discipline should be consistent in each parent’s home, and parents who share information about the child’s normal habits, rituals and routines assists the transition enormously. Such cooperation and cohesion will encourage a greater sense of comfort to the child, emanating from the feeling of security in their world.

Because of the child’s developing cognitive abilities, it becomes important for them to perceive a positive situation between each parent, and about the child’s relationship with each parent. Not only does this maximise the attachment to the other parent, but puts firm in place the foundation for a relationship with the other parent over a life time.

Children in this age range are able to tolerate overnight contact, and the problems associated with relocation are less onerous. Because the child is able to maintain a cognitive representation of both parents in the absence of a parent, they are able to understand that a non-resident parent still exists, and are able to not only sustain that image over time, but are able to converse and communicate with a non-resident parent when relocation is imposed.

Relocation considerations As is the case with younger children, in matters where relocation is a necessity, insofar as contact, it is better for one parent to take responsibility for the travel to the area of the other parent, and typically, contact should be in 2 to 3 day blocks for younger children, and up to 6 day blocks for the older end of this range.

Consolidated blocks of contact and especially so for the upper end of this age range, enable the establishment of settled routines at each home, and a greater sense of longevity to the contact.

Despite the emerging sense of independence and greater psychological resilience, this age range continues to be vulnerable to regression and especially so when the child is exposed to conflict, feels stressed or experiences routines at the home of each parent which is significantly different and disruptive. Children who struggle with the mastery of the age developmental tasks of the 2 ½ to 5 year old range do not show the growth towards greater individuality, are more likely to go through periods of low self esteem, conflict with parents, power struggles and generally show low frustration tolerance, characteristic of children at a younger stage. In contrast, the child who has made the developmental move towards greater individuality feels more secure, is able to move across the two homes, has psychological energy to direct towards peers, friendships, and the beginnings of life outside of the family.

Our next edition of Crossroads will look at the 6 to 12 years age group.

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“Good judgment comes from experience. Experience comes from bad judgment.”

Jim Horning

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“Your living is determined not so much by what life brings to you as by the attitude you bring to life; not so much by what happens to you as by the way your mind looks at what happens�.

Khalil Gibran

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T H I S DO E S N ’ T CO N C E R N YO U P R I VAC Y I N FA M I L Y CO U R T P R OC E E D I N G S

by N eal Wood, Assoc ia te Depending on your circumstances, going through a separation or divorce can be a very confronting and isolating time.

Naturally, in those dark and difficult times, we turn to our good friends, family and other supports to help get us through and share the load. Even if those other people haven’t been through the same experience, their warmth and empathy can make those long days in the first few weeks after separation seem that bit more manageable.

In the midst of that safe, comfortable environment, the distinction between what it is probably okay to share with your inner circle and what may best be left to the privacy of your family law solicitor’s office is probably the last thing on your mind. Thankfully, for the most part, the distinction between what is and isn’t appropriate to share with others may never actually be born out. All things going well, given a bit of time and the right assistance, it may be entirely possible for you and your former partner to be able to amicably reach an agreement on what happens at the end of the relationship, whether that is property, parenting, child support or divorce.

When it comes to resolving matters outside the context of Court proceedings we often talk about things happening in the shadow of the law. In essence, that means that even though the technical Court rules and processes do not strictly apply there is a general agreement to adopt the same process such as swapping relevant documents and statements of fact, engaging joint experts to narrow the issues in dispute and then attending a conference to resolve the dispute. While everyone is prepared to voluntarily follow that process things go well but sometimes responses or documents are not forthcoming and the voluntary process breaks down.

While the majority of matters will resolve without ever seeing the inside of a Court room, there are of course those situations where a Court resolution may be the only realistic alternative to move the matter forward and secure that important end.

Once Court proceedings have been started, the informal process converts to something with a lot more substance and, importantly, more strict consequences if a party elects not to play by the rules.

While the terms of the Family Law Act and Family Law Rules can be very complex, they create an environment where the formal process to resolve or at least reduce the issues in dispute is known even if the ultimate outcome is still uncertain and within the discretion of a judge. Suddenly, the option not to play by the rules goes away and if a party elects not to respond, provide documents or participate in the dispute resolution process then there are steps that can be taken. Why is all that important? Well, in essence, once you have the formality of a Court process and the formal rules apply, it is no longer voluntary. Parties need to have confidence in the Court and the process which they are now required to participate in, including that the very personal and sensitive information that they are now required by law to provide to the other party and the Court will be treated as such.

Unlike almost all other Court proceedings, family law proceedings are essentially private disputes.

Even the cases that are decided by judges are only published on the legal reporting website after a special order is made to change the names of the parties and children involved and remove all the personal information of those involved such as dates of birth, addresses, businesses or companies and the like. The Court and lawyers take that privacy very seriously. Not only because it promotes the resolution of disputes but because there are strict consequences that can flow if someone decides to use private Court documents for a different purpose. In short, the Family Law Act (section 121) is absolutely clear that such publication is an indictable offence unless expressly authorised by a Court order or falling within a very, very limited range of exceptions.

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Unless you have received express advice from your lawyer otherwise, treat every Court document or piece of information or document you receive in the context of your family law matter as private and confidential. While it may be tempting, almost natural, to want to share your experience and side of the story with others, it should never happen by showing or giving copies of Court or financial documents to others.

Within the Family Court environment, complying with the absolute letter of the law is just so important even if the other side doesn’t. Sadly, one of the most common examples we come across is where a former partner decides to involve other people in a Family Court matter. It varies but that involvement can be anything from posting things relating to Court events on Facebook, showing or

giving copies of Court documents to friends, family members, teachers or counsellors. At an extreme, it can involve a party providing the other person’s Court or financial documents to their employer, creditors or the Tax Office to embarrass or attempt to gain some leverage over their former spouse. In short, it cannot and should not happen. If it does, it is not an invitation to return serve or set the record straight. By all means capture the evidence of what has occurred but leave it at that and seek advice from your family lawyer right away.

There are right ways to deal with breaches of the law about the privacy of family law disputes and they are generally best left with your lawyer to help guide you on.

So while it is okay to share your experience with those around you, leave the Court and other documents between you and your lawyer.

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E S T H E R PAT T E R S O N Acco u n t s Of fi cer Toowoomba Q. What do you look forward to in Spring?

Q. What is your favourite movie?

A. The warmer weather.

A. The Notebook.

Q. Number one on your bucket list?

Q. How do you unwind?

A. I would love to work up the courage to go bungee jumping in New Zealand.

A. I love listening to music and getting out into the garden or vegie patch with my kids.

Q. Best sporting event you have been to?

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

A. 2006 Melbourne Commonwealth Games.

A. DJ.

Q. Favourite place to eat in Toowoomba?

A. Kajoku - Korean & Japanese Cuisine. Their fried chicken is delish.

Q. Favourite holiday destination?

A. Sydney. I’ve had some amazing holidays down there.

Q. Who was your childhood hero growing up?

A. Jane Goodall.

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

A. A roast or a BBQ depending on the weather.

Q. What song always makes you happy when you hear it?

A. Can’t Stop The Feeling by Justin Timberlake.

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C A S S A N D R A B AT E R e ce p t i o n i st Toowoomba Q. What do you most look forward to in Spring?

Q. Why family law?

A. Flowers –they just make you feel good. Although my gardening abilities at home extend only to a little pot of colour out the front, we are spoilt here in Toowoomba with the Carnival of Flowers and the fabulous displays council and residents put on for us to enjoy.

A. My husband used to be a family lawyer. I came into the office one day to help out with some filing and am still here almost 10 years later! Being able to offer a friendly, reassuring voice on the other end of the phone when clients first make contact with a family law firm is rewarding.

Q. Best concert you have been to?

Q. How do you unwind?

A. Elton John was my first concert so that’s memorable and Harry Connick Jr was awesome both great showmen, singers and amazing on the piano.

A. Just something simple like going out with my husband and daughter for coffee and a milkshake.

Q. Favourite place to eat in Toowoomba?

A. I love Junk – the food’s so flavoursome but I haven’t tried too much of the menu because I can never go past the beef massaman or the crispy pork belly – yum. Pump is my go to for coffee, which is arguably more important!

Q. Favourite holiday destination?

A. Make that destinations - Yorkshire in England and Inverness in Scotland.

Q. What is your favourite movie?

A. No question – Dirty Dancing!

Q. If you weren’t working in law where would you be?

A. It’s very different to what I do now, but before moving back home to Toowoomba, I used to work as a policy officer in state and federal government departments in the widely varying areas of superannuation, energy and small business. So I’d probably still be doing that.

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

A. It’s been a common answer throughout all editions of Crossroads, but roast and baked veggies – Mum’s roast lamb and baked potatoes in particular I just can’t go past!

Q. What book is on the bedside table right now?

A. After You by Jojo Moyes. It’s the sequel to Me Before You, which although a tearjerker, I just couldn’t put down – I also loved the movie.

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THE WORK AND FA M I L Y TA N G O

by Tei gan Jones, Se nior Solic itor

I live with my FIFO husband, two children under two, and our golden retriever.

During school holiday periods, and for some special long weekends during the school term, we are joined by my husband’s 7 year old son, who ordinarily resides in Melbourne.

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Life is busy for me, as I manage my household and family, as well as the households and families of others in my role as a family lawyer.

As a younger and childless lawyer, I recall being slightly irked when people assumed that one could not be a good family lawyer without having the benefit of raising children. Although this assumption continues to be somewhat misguided, having children (including a child to a different mum) has certainly assisted in my role as a family lawyer, and has greatly shaped (somewhat ironically) my work life balance.

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I am more time efficient because I need to be, there is nothing that keeps you more focused and on task than the knowledge that my children need to be picked up before a certain time. When I am at work, I am at work and there to get a job done – distractions are easier to block out and clients’ needs are prioritised. In the event that work is required to be done at home, the cloud system is accessed, and urgent work can be completed remotely.

The work and family dance also requires precise organisation. Before children, I thought I was already well prepared, but my organisation took on a whole new level once I became a mum. I am a firm believer in giving a task you want done to a busy person, because they will get it done – the more things you do, the more you can do. Plus, chances are there is already some miscellaneous time diarised for such tasks.

I also have a new found appreciation for some practical realities around parenting (and coparenting) matters, and am more experienced in

navigating around children’s milestones, social needs and development, as well as the competing needs of separate families. Having children has also made me more empathetic and compassionate, as I explicitly understand the bond between a parent and their child. As a family lawyer we deal with the most precious assets of a person – their children and their property and, having both, allows relatability and understanding, and provides motivation for completing work at home. I would expect that my lawyer afford my matter the time and energy that it deserves, and I demand such application of myself for others.

I consider that I am a better mum when I am given the chance to apply myself to something that makes me happy and fulfilled (separate to my family), and I find that satisfaction in my role as a family lawyer.

The work and family life dance is possible when you love what you do, and when you are committed to achieving positive outcomes. I also find that coffee, and a supportive inner circle, is most helpful.

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W E L CO M E M E N TA L A N D P H Y S I C A L P E AC E

by L esl ei gh Camm, Yoga with Le sle igh www. l es l ei ghsyoga c la sses.com.au

There’s no doubt relationship breakdowns can take a toll on your mental and emotional wellbeing and that good legal, financial and psychological advice and support from experienced practitioners in these areas can offer comfort and confidence to help you move on to the next chapter of your life.

Embracing innovative and effective yoga techniques will also help reduce stress and allow you to rediscover your inner and outer health and harmony.

Yoga is a holistic approach, seeking to bring balance to the body, mind and spirit, perfecting the mental and emotional aspects of health, bringing selfdevelopment and self-awareness. The word “yoga” literally means union or joining – the joining of the self with pure consciousness, however one may perceive it. Yoga is a state of mind and the practice of yoga will help bring balance and calmness to the body, mind and emotions.

Benefits of yoga include a greater zest for life; increased strength and flexibility; better digestion and circulation; improved concentration and increased awareness; increased ability to manage stress through relaxation; improved breathing and good health.

Stretching and yoga poses (asanas) help to burn off excess adrenalin which may cause anxiety. Yoga helps release tension in the muscles and allows the blood to flow freely through the body. Breathing practices help to overcome anxiety and panic attacks. Increased oxygen from the breath helps the brain to function well. Meditation and mindfulness practices help the mind overcome destructive thought patterns.

Children can also derive enormous benefits from yoga; ideally in a class designed specifically for children. Physically, it enhances their flexibility, strength, coordination, and body awareness. In addition, their concentration and sense of calmness and relaxation improves. Yoga can help counter the effects of the “busyness” in children’s lives, as well as school, sport and family pressures. When children learn techniques for self-health, relaxation and inner fulfilment, they can navigate life’s challenges with a little more ease.

“The success of Yoga does not lie in the ability to perform postures but in how it positively changes the way we live our life and our relationships.”

T. K. V. Desikachar

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WHAT IS YOGA? The word “yoga” essentially means “that which brings you to reality.”

So, no, it’s not the handstand, or being able to wrap your foot around your neck.

Yoga postures are not the aspiration.

Becoming flexible is not the objective.

Standing on your head is not the purpose.

Postures, (whilst they play a part in the overall practice), are perhaps a superficial aspect of this profound discipline of unfolding the infinite potentials of the human mind and spirit.

Yoga creates space, so that you may become ‘unstuck ’from old tensions, beliefs, habits and structures.

Yoga unwraps the coatings of protection that you build around your heart, layer by layer by layer.

Yoga encourages you to value your body and to become aware of the games your mind plays, the stories it tells and the din it creates.

Yoga leads you to a deep, peaceful, insightful knowledge of how beautiful you are and how you are simply ‘enough’.

Yoga leads you to your ‘truth’.

Om Shanti (peace)

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MANGO RICE SALAD On e of our parale gals ha s assure d us that this sal ad i s am azing a nd quic kly be come s a fa mily favourite!

Ingredients

2/3 cup (50g) shredded coconut

1 ½ cups (300g) jasmine rice

6 spring onions, thinly sliced on an angle

1 bunch Thai basil

1 long red chilli, seeds removed, sliced

Grated zest and juice of 1 lemon, plus lemon halves to serve

2 mangoes, flesh chopped

¼ cup (60ml) lemon-infused olive oil

½ cup (75g) roasted peanuts, chopped

1 bunch mint, leaves picked

1 cup fried Asian shallots

1 bunch coriander, leaves picked

Method 1. Place the rice in a saucepan with 2 basil sprigs and 1 teaspoon salt. Cover with cold water, then cook according to packet instructions. Drain and refresh in cold water, discarding the basil sprigs.

2. Meanwhile, whisk the lemon juice and oil in a bowl with salt and pepper.

3. Chop most of the mint, coriander and remaining T h a i b a s i l , re s e r v i n g a f e w w h o l e l e a v e s t o garnish.

4. Stir the shredded coconut in a dry frypan over medium-low heat for 1-2 minutes until lightly toasted.

5. Place the rice in a bowl with the chopped herbs, toasted coconut, spring onion, chilli, lemon zest, mango, peanuts and dressing and toss to combine. Transfer to a serving bowl, scatter with the fried shallots and whole herb leaves, then serve with lemon to squeeze.

Recipe & image courtesy of delicious.com.au

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THE KNIGHT IN SHINY (NEW) A R M O U R – A R B I T R AT I O N

by A l ecia Connor, Assoc ia te Throughout the year we attend many seminars, conferences and other professional development events which are informative and often eye-opening.

However, I have attended a recent training session which has left me buzzing with inspiration and excitement for what lies ahead. It is becoming an often repeated rhetoric that the Family Court system is failing families. Generally this failure is attributed to the unbearable delays which result in families being left in crisis mode for many years whilst either awaiting a trial or awaiting the delivery of a judgement after the trial itself. But, my recent training in arbitration with the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) has delivered me a glimmer of hope and an alternative to the traditional Court path.

Arbitration is a process through which parties present their argument and evidence to an arbitrator, who then makes a decision as to the outcome. This decision is delivered by way of an “award” which is recognised and enforceable as if it were an order of the Court. Arbitration has been around for many years, however seems to have been treated as the neglected middle child in the family law system. We have the oldest child being the Court system, which has been around since the creation of the Family Courts in 1975. The Court is often presumed to be the golden child, placed on a pedestal, holding all of the answers to every family law problem. But, over 40 years on, the Court system is now becoming increasingly overloaded and somewhat clogged – which is having a significant delay on the expediency of matters, and ultimately slowing down the way in which matters are resolved.

Arbitration has been sitting on the sideline since the 80’s. It’s got fresh legs, and is raring to be utilised.

However, the arrival the attention-seeking youngest child, “mediation” overshadowed arbitration’s entry into the family law world. Mediation is, and always will be, a highly effective way of achieving outcomes for people in family law, as the outcomes are entirely controlled by the parties themselves and allow the parties to move on with their lives in a more harmonious fashion.

The Court system and mediation have developed into creatures heavily relied upon by the users of the family law system. Arbitration is emerging as the Cristiano Ronaldo of the family law sphere, utilising its holistic and dynamic approach to fill the position as centre forward. There are nearly 85,000 new matters filed in the Federal Circuit Court of Australia each year. Each judge has over 400 matters in their docket at any given time. This is just too much for this system to handle. As a result, our valued judicial officers who have an obligation to give each individual matter the consideration it requires, are often simply unable to produce outcomes within timeframes that the families before them require.

Unfortunately, if a matter cannot be resolved by mediation or negotiation, then you could be looking at a wait of two to three years for a trial. This is not the fault of the judges, who are dealing with up to 40 matters on any given day; this is simply a system that is sadly under resourced and unable to keep up with demand. This system is screaming out for an alternative, and that is why the time for arbitration is now.

In simplistic terms, arbitration is similar to a “pick your own adventure” novel. Basically the parties elect to participate in arbitration, select the arbitrator (decision-maker) and determine the method which is to be applied. No system defines how your matter will be handled, and with the assistance of some experienced and creative legal practitioners, a model can be established which ensures that both parties are heard and an outcome delivered, often within a matter of weeks. The arbitrators in Queensland include retired judges, barristers and even local solicitors – depending on your “adventure” you select the level of experience required.

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Although you are required to pay the arbitrator, which you naturally do not do when you are in the Court system, the cost of arbitration is often significantly less than what you would spend if you remained in the Court system for another two to three years awaiting a trial. Naturally the cost of your stress, uncertainty and the time in which your life is put on hold is immeasurable.

I cannot understand how a process with so many benefits has been overshadowed by its more shiny siblings for so many years. I believe the two biggest benefits of arbitration are: 1. Timeliness – you can have your matter heard and an award made (similar to an order) within a matter of weeks to a couple of months. This is compared to a Court system whereby you would not be assigned your first Court date until approximately two to three months after filing.

To think that your whole matter could be resolved within this time is truly astounding; 2. Flexibility – the process is tailored around your dispute, not the Court system. This means that if your matter is fairly straight-forward then your matter may be considered by the arbitrator on the papers. This means that neither of you would be required to attend a hearing or be crossexamined, which has clear benefits! Conversely, however, the arbitration can be conducted in a

manner which is so similar to a Court hearing, the only thing missing might be the lack of a wig.

The arbitration can be tailored to your particular circumstances – not what suits the greater population and is most easily administered. It truly can be “pick your own adventure”!

It is important to be aware that presently arbitration is only able to be conducted in relation to property matters. It is not suitable for matters involving parenting arrangements…yet. Whist I am certainly not on the Law Reform Committee, nor profess to have a great deal of knowledge of the agenda of Parliament, I am confident that in the future this will be reconsidered and we will see arbitration being used as a tool to resolve all family law matters.

My parting words are - embrace it. It is a new frontier into which we foray, however, one which is certain to bring about closure sooner and results which are more satisfying and allow you to move on with your life and plan your future; rather than wondering what the future will deliver to you and when this might come.

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A N OT H E R G OO D L AW Y E R

by K ara Best , Le gal Pra c tice Direc tor & Accredi ted F a mily Law Spec ialist

We’re challenged to distinguish ourselves professionally, and I do watch on with admiration for those defining themselves in our current market in a particularly unique way.

As a lawyer though, I am a realist at heart and struggle with the concept of promoting myself on anything other than an understanding that I endeavour to achieve the best outcome for every client. Even if it is seen as cliché.

As eager as everyone seems to be to distinguish themselves as unique individuals, I think there is power in acknowledging that I have many colleagues that I respect and admire for both their legal capacity and also for their attitude to the important work that we do, and their sheer resilience to this sometimes draining area of the law. I personally would be proud to be considered by our marketplace as sharing those characteristics, and being a member of that bunch.

So what do the best family lawyers do?

Well, I believe they effectively communicate and instill perspective in their clients – whether it be legal perspective, in terms of the great emotional transition of separation, or simply in the context of ensuring a client understands what can be reasonably achieved and what can’t. The best family lawyers also offer protection – be it from the aggression and the scare tactics often employed by former partners and their lawyers, or perhaps even protection for a client from their own emotional response by being someone who pushes back and asks the question of whether that’s really what they want to do or achieve given the long term implications. And finally, I think the best family lawyers offer a path forward – one that is realistic, timely and practical. A path that is well formulated having regard to the numerous failings of our law and system, but also one that is optimistic and well-intentioned. It’s also often a path which is more creatively formulated; thinking outside the square will routinely allow for win:win outcomes for all concerned.

Increasingly, I’m fortunate to see that the real power is in the work that can be undertaken by two family lawyers of the kind described above.

There can be a powerful tension and potential for creativity borne from having two lawyers that are passionate about achieving a good outcome for their own client whilst equally mindful that the most sustainable and optimal outcomes arise from options that are good for both parties in most instances.

Working collaboratively is not for the soft or the weak minded in this regard, but rather those lawyers whom are brave enough to invest in their relationship with another good lawyer, and prepared to face the rawness of dealing with the real issues rather than sending aggressively toned correspondence which is lacking in insight and any prospect of prompting an agreement.

What goes with this though is a need to have the courage to call out other lawyers when they’re consciously or even unconsciously doing more harm than good. I don’t see any problem with asking another lawyer to effectively withdraw a piece of correspondence obviously lacking in understanding of the issues in dispute and the sensitivities of the parties to that dispute that will have the effect of damaging any prospect of resolution without further pain, cost or delay for all. It’s a matter for that lawyer at the end of the day as to what they do, but the question should be asked when appropriate.

At a time when the Court is not a viable alternative given resourcing delays and the lack of predictability in the exercise of judicial discretion, the relationship that your lawyer has with other good lawyers may actually be the most important question a client can ask at the outset of an engagement.

So it may not be shiny and it certainly doesn’t qualify as disruptive to the marketplace, but here’s to celebrating those family lawyers in our community that are dedicated to playing a straight bat, to affording their clients perspective and protection, and to working hard on defining the future of a client collaboratively, as opposed perhaps to defining themselves.

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FA M I L Y R E P O R T S - A WAY TO M OV E F O R WA R D

by Tom Fi t z G era ld & Mic he lle Q uigley Fam i l y Con sul t an ts/ Soc ia l Worke rs - Spring Hill

For some parents, the prospect of coming to a family report assessment is wrought with questions.

What will happen? What will the report writer think about me and my parenting? Will I be believed? And, most importantly, will this help my children?

They are interested in how your children are going after the separation and in creating a safe space for your children to share their feelings.

Resolving disputes can be exhausting and overwhelming. By the time a family report assessment comes around, valiant efforts have usually been made to resolve family disputes. It is not surprising that report writers will see tired and concerned parents.

Some parents approach an assessment with a sense of relief, because it might help to bring an end to the dispute, or at least narrow the issues that need to be determined. For many families, a family report offers an enduring pathway for peace and stability for the children and the co-parenting relationship.

It’s also important to allow a family report writer to appreciate the dynamic of your children’s home life in its entirety. This means involving you, your former partner, your children, and all of those that live with the children, including new partners and their children, at the interview stage.

Family report writers are social workers and psychologists who share a wealth of knowledge to help children in separated families. They know the wide array of issues that can arise for children.

Sometimes they can predict the potential for conflict and difficulty between parents where it might not be obvious to others. Report writers offer various strategies and practical advice to help judges and parents to make decisions, which in turn help children.

All families are different, which is why a family report assessment takes place. It allows a report writer to discover the specific issues and arrangements in a family, what each parent sees as the strengths and concerns for their children, and how children make sense of what is going on in their family.

Report writers are experienced and careful inquisitors, interested in finding out as much as possible about a family. They ask broad and direct questions and observe the interactions between the children and their families. The task is approached with an open mind. Report writers are interested in you as a parent.

At the interview you will be asked questions about the past and present, and your thoughts about the future. You can prepare by thinking about how best to express any concerns and by being as clear as you can in what you are seeking for your children.

If you have some concerns, it is good to think of some examples to display what you mean. If some concerns have been raised about you and if you think it is appropriate, it is okay to be reflective and to acknowledge if you think you could have handled a situation differently.

You may also be asked your thoughts about the alternative proposals. It is helpful to have considered the practical and emotional consequences for your children and your family if the Court were to implement any counter proposal.

It is important you have an opportunity to express any concerns you have about the children, but do think about what the important issues are. Remember that everything you say to a report writer is reportable to a Court. If you would not say this to your ex-partner, or have never said this, think about the impact this will have on your co-parenting arrangement with them if they first read about this in a family report.

If you have attended a parenting course or a coparenting after separation program, it can be helpful to talk about the skills you have learnt and how the information has been applied in your family.

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It may be difficult to digest, however the writer will also usually offer a pathway and some advice for the parent to address the concern, to reassure the Court and the other parent, and most importantly, to reduce any risk to a child.

Report writers are independent, and are first and foremost there to advise a judge and to help enable a judge to make a decision about the best arrangements for a child. Sometimes a report writer will express a concern about a parent’s capacity or behaviour.

 

The advice of a report writer is offered with the intention of making a situation better for a child, with the common knowledge that children do best if they have arrangements that suit them, and they are protected from ongoing problems between their parents.

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H O W DO I A P P L Y FOR A DIVORCE?

by A l ecia Connor, Assoc ia te

When applying for a divorce you are simply applying for your marriage to legally end. The divorce application process itself does not deal with making arrangements for the care of children or financial issues to be separated. This should be dealt with separately.

A divorce order is granted if there is an irretrievable breakdown of the marriage. Under the Family Law Act 1975, the Court determines that there is an irretrievable breakdown of the marriage if: » » the husband and wife have lived separately for 12 months or more (and this may include separately under the one roof); and » » there is no reasonable likelihood of resuming married life.

It is possible for you to be classed as separated even though you still live under the one roof, however there must be a significant change to the living arrangements in order to show this.

To apply for a divorce in Australia, you or your spouse need to: » » regard Australia as your home and intend to live in Australia indefinitely; or » » be an Australian citizen by birth, descent or by grant of Australian citizenship; or » » ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Even if you were married overseas you can apply for a divorce in Australia provided you meet one of the criteria listed above.

You may need to provide other documentation together with your application for divorce depending on your situation.

In many circumstances you are not required to attend the divorce hearing and the order is made in your absence, however if there are children under the age of 18 or there has been a response to the divorce application filed you will need to attend.

You and your spouse do not need to agree to apply for a divorce. You can do this independently. In Australia there is a “no fault” divorce system and provided that you can establish that there has been an irretrievable breakdown of the marriage, it is generally fairly straightforward. You are not required to provide evidence of the circumstances or reasons for the separation.

It is important to be aware that the act of applying for a divorce does not address outstanding parenting, property or maintenance issues. They need to be dealt with separately by either negotiating or applying to the Court for orders. It is important to be aware that you have 12 months from the date of a divorce order being issued to apply to the Court for property orders if these have not been formalised by this time.

To apply for a divorce, you need to file an application for divorce (together with a copy of your marriage certificate) in the Federal Circuit Court of Australia.

You will then be assigned a divorce hearing date between 2-3 months after the date you filed.

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Remember you are good enough Everyone is different Stop comparing yourself Individuality rocks Learn something new daily Involve yourself in what you love doing Enjoy things that make you happy Not everyone can be 1st, 2nd or 3rd Care about yourself and others Expect that some days won’t be great.

www.easypeasykids.com.au

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CO N N E C T W I T H U S info@bwbfl.com.au

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