BWB Family Law CrossRoads Edition 12

crossroads Issue Twelve

2 01 9

Published by Best Wilson Buckley Family Law

T H E CO N T E N T S A N E XC E P T I O N A L FA M I L Y L AW Y E R . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Kara Best, Legal Practice Director & Accredited Family Law Specialist l Best Wilson Buckley Family Law

S O R T I N G O U T T H E S C H OO L F E E S . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Alecia Connor, Senior Associate l Best Wilson Buckley Family Law

WHY I DO WHAT I DO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Neal Wood, Senior Associate l Best Wilson Buckley Family Law

T H E R E A L I T Y O F S P O U S A L M A I N T E N A N C E.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Amity Anderson, Legal Partner & Accredited Family Law Specialist l Best Wilson Buckley Family Law

W E ’ V E R E AC H E D AG R E E M E N T A B O U T T H E D I V I S I O N O F O U R P R O P E R T Y – W H Y DO W E N E E D A L AW Y E R ? .. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Carla Franchina, Associate l Best Wilson Buckley Family Law

T H E F O R E N S I C ACCO U N TA N T ’ S H AT S . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jenny Letts l Jenny Letts Valuations and Forensics

B U T T E R M I L K PA N C A K E S R E C I P E . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Jillys Cafe

A L I S S A T U L K | R E C E P T I O N I S T .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C A S S I E B O L A N D | S E N I O R S O L I C I TO R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 DO M E S T I C V I O L E N C E P R OT E C T I O N O R D E R S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Best Wilson Buckley Family Law

A N E W B E G I N N I N G O R C H A N G E F O R C H A N G E ’ S S A K E ?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Andrew McCormack, Senior Associate & Accredited Family Law Specialist l Best Wilson Buckley Family Law

T H E S U M O F A L L T H E PA R T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lynn Armstrong, Special Counsel & Accredited Family Law Specialist l Best Wilson Buckley Family Law

M E D I ATO R O R FA M I L Y L AW Y E R ? I T ’ S T I M E TO H E DG E YO U R B E T S .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Sonia Brown l CatholicCare – The Family Relationship Centre

S T E F C H E R R Y | F I N A N C E O F F I C E R .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 J E S S I C A C H A P M A N | A D M I N I S T R AT I O N A S S I S TA N T .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 SEEKING INITIAL ADVICE: WHAT? WHEN? WHY? HOW?.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 Max Sutton, Solicitor l Best Wilson Buckley Family Law

C R O S S W O R D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 FAST FACTS ABOUT … PRE-NUPS. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 John Patterson, Senior Solicitor l Best Wilson Buckley Family Law

S E V E R I N G T I E S – S E PA R AT I O N , R E A L P R O P E R T Y A N D E S TAT E P L A N N I N G .. . . . . . . . . . . . . . . . . . . . . . 2 6 Jo Maloney, Senior Solicitor l Best Wilson Buckley Family Law

P O M E G R A N AT E , G OAT ’ S C H E E S E & WA L N U T S A L A D R E C I P E .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 Max Sutton, Solicitor l Best Wilson Buckley Family Law

T H E S E L F - C R I T I C I S M T R A P . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 Magnolia House Psychology and Therapies Centre

CHRISTMAS – IS IT REALLY ONLY ONE DAY OF THE YEAR? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Cassie Boland, Senior Solicitor l Best Wilson Buckley Family Law

TIL DEBT DO US PART.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Neal Wood, Senior Associate l Best Wilson Buckley Family Law

AN ANNIVERSARY TO REMEMBER. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Kara Best, Legal Practice Director & Accredited Family Law Specialist l Best Wilson Buckley Family Law

ALL WALKS OF LIFE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Luke Steel, Legal Partner 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

A N E XC E P T I O N A L FA M I L Y L AW Y E R K ara Best , Le gal Pra c tice Direc tor & Accredi ted F amily Law Spec ialist

It goes without saying but it’s really important that if you’re going through a separation you get an exceptional family lawyer.

One of my greatest frustrations as a practitioner is that there are solicitors practising in family law that shouldn’t be; essentially because they don’t know enough, they’re not respected by their colleagues, or they lack insight in relation to the fact that the legality of separation is just one aspect of what is an emotional, financial and practical minefield. Many lawyers additionally lack a capacity to provide honest and direct advice to their clients, reality-checking and challenging a client’s initial instincts or behaviour where appropriate. There is also the rare practitioner that consciously, or unconsciously, can perpetuate the dispute with commercial drivers in mind, rather than being part of the solution for a couple and minimising legal cost.

The tough thing is that the clients who are with the less ideal lawyers referred to above rarely have anything to compare their experience to and, accordingly, don’t know that they’re not necessarily with the right lawyer until very late in the piece and when the damage is well done.

So what do I think it takes to be an exceptional family lawyer: 1. A specialist understanding about how this area of law works in operation. This includes how the court approaches these matters, what the experts say about the needs of children from a developmental perspective and in the context of negotiating two households, and how to realistically achieve the most efficient division of resources from a financial perspective. In my view, you have to be on top of these areas of knowledge in order to achieve the most optimal outcome for a client.

2. An understanding that aggression is not power, nor does it achieve the desired outcome in most circumstances. In many instances it is necessary to have a capacity to assertively and persuasively communicate your client’s position and desired outcome given the interests of the other party, but aggression more readily is an indication of weakness or self-doubt, manifest in bravado.

3. The respect of the court but also, importantly, the respect of your colleagues. If you have a reputation as knowing what you’re doing, and being honest about it, then the reality is you will carry greater weight in your dealings with other lawyers. This, in turn, means they’re more likely to encourage their clients to compromise where they might not otherwise on the basis of certain representations assumed by your lawyer. This is not about intimidation, nor popularity; this is about trust.

4. A capacity to speak into a client’s “listening”.

You understand what it takes to communicate, convey and shift your client having regard to their emotional state and their capacity to cognitively shift at a point in time. You have the capacity to move your client’s narrative from a place where they are viewing a particular situation in a particular light that is counterproductive to a place where they can have a different complexion on a situation and move forward more positively. being told by a court for the first time the reality of their situation or the minimal nature of their entitlement at law, in circumstances where they have spent a considerable amount of money fighting for more yet were never destined to achieve that; and understandably many are

Issue Twelve

1

C R O S S R OA D S

5. The courage to be honest with your client from the outset of the matter. That is, you have the courage to give them a sense of realistic expectation, to give them the bad news from the beginning and yet maintain trust and rapport in that context. Too many clients find themselves being told by a court for the first time the reality of their situation or the minimal nature of their entitlement at law, in circumstances where they have spent a considerable amount of money fighting for more yet were never destined to achieve that; and understandably many are frustrated, confused, angry, broke and very disillusioned with their lawyer as a result.

An exceptional family lawyer will ultimately be worth their cost. I fully appreciate that excellent lawyers are often expensive, but I can think of a myriad of examples where an experienced and effective lawyer can bring a matter to a conclusion at an earlier time, and for significantly less, irrespective of the fact that their hourly rate may have been larger than a competitor that initially appeared attractive.

It’s a genuine privilege to be permitted the opportunity to assume such an instrumental role for a client during such a vulnerable and difficult time. Given that privilege, it is essential that we hold ourselves and our colleagues to the highest of standards.

6. Agility and pragmatism. Exceptional lawyers a p p re c i a t e t h e l i m i t a t i o n s o f t h e s y s t e m , they appreciate the nature of your former partner’s personality and what can reasonably be negotiated, and they adopt and provide you with the most practical advice possible.

Their intention is to achieve the most optimal outcome in your personal circumstances having regard to a myriad of variables that they’ll take into account before offering you a view as to what you should do. They’ll go out on a limb and give you that opinion irrespective of the fact that there are no necessarily definitive rights or wrongs in the situation. They acknowledge where certainty cannot be given to you, but still give you the confidence of knowing that in a world of confusion and unknowns they have your best interests and those of your children firmly in mind.

BEST WILSON BUCKLEY

2

C R O S S R OA D S

SORTING OUT THE S C H OO L F E E S A l eci a Connor, Senior Assoc iate

It may not be the first thing you think about after separation, however, the issue of who pays the school fees can be very contentious, particularly if your children attend a private school.

Sometimes people manage to reach agreement as to how school fees are to be paid at the time they separate. This often reflects the circumstances prior to separation in regards to the ability of each party to contribute towards these. Naturally, this may have been something that was easily agreed on during the relationship, however, after separation this can prove more challenging.

If one party has a higher income and has therefore primarily been responsible for the school fees in the past, then it may be that the parents agree that they will continue this arrangement into the future. If both parties agree, they can simply keep this as an informal agreement or, alternatively, they can formalise it. In order to provide certainty to each parent into the future, it is recommended that this sort of agreement be formalised in a binding child support agreement.

This agreement can then be registered with the Child Support Agency and/or the court, and is enforceable should things go awry in the future.

If parents cannot agree as to who is to pay the fees, the first consideration needs to be whether the parents are actually in a position where one or both of them are able to continue to fund private school fees.

Of course, upon separation, the combined living costs of both parents will generally be higher than what they were when they were living together. All of a sudden there are double housing, double water, double internet costs and the like, and private school fees may be much harder to justify. Whilst it may not be the ideal outcome, in some situations it is important to consider whether it is financially viable for the children to continue in private education.

When there is a dispute, provided both parents have consented to the children attending a private school, then the parents are able to apply to the Child Support Agency for them to consider this as part of a special circumstances assessment. If successful with this application, the payment of school fees can be incorporated into a re-assessment to enable both parents to contribute towards these costs.

Each family is unique and has different issues that need to be considered, so it’s always worthwhile to get advice from an experienced family lawyer if you need some help in getting through the minefield of who pays the school fees.

Issue Twelve  

3

C R O S S R OA D S

WHY I DO WHAT I DO N eal Wood, Senior Assoc iate

I’ve been practising exclusively in family and relationship law for nearly 12 years now and, in that time, I have helped what must now be thousands of clients.

What stands out even now is just how difficult it can be for someone going through a separation, or about to separate, to take that first step and reach out to a professional that they have never met before and ask me to be involved in what is a deeply personal matter for them.

When a person reaches out for that help seeking guidance, support and advice, it’s a responsibility I don’t take lightly. Too many lawyers either do not care or do not care enough. The difference for me is that I do.

While the pathways to resolution and the law may be universal in their application, each and every re l a t i o n s h i p i s u n i q u e a n d s o i s e a c h p e r s o n ’s experience of their separation.

From that very initial contact until resolution and beyond, I get incredible satisfaction from knowing that I have done everything I can to impart a sense of hope, optimism and finality to what is, for the most part, an inherently difficult and uncertain time.

That’s why I do what I do.

Everyone is a bit different and some of my clients love that practical, down to earth advice and just want to talk about the business of getting their matter brought to an end as quickly and efficiently as possible. For them, it’s very much a commercial transaction and very outcomes focused. Others are deeply involved and need a lot of support in their personal journey from being in an intact relationship, through separation and then into the next phase of their lives, whether that is as a post-separation parent, securing their financial future from a property settlement or feeling safe in their own home without the fear of domestic violence and abuse. It’s about listening to them and finding out what they need and what’s important to them.

BEST WILSON BUCKLEY

4

C R O S S R OA D S

THE REALITY OF SPOUSAL MAINTENANCE A m i t y A n derson, Legal Partner & Accredi ted F amily Law Spec ialist

Estranged wife claims $20,000 a month and $6,500 for groceries!

New York art dealer ordered to pay spouse $100 million for 13 years!

LA Dodgers’ owner’s wife claims $1 million a month in alimony!

We’ve all seen or heard headlines like these. Whether it’s the result of American television and movies or an attention-grabbing headline, the term spousal maintenance or “alimony” can send shivers down the spine of the wealthier spouse at the end of a relationship. It is easy to understand why some separating spouses are of the belief that, on separation, they will be ordered to pay their former spouse half their wage so as to keep them in the lifestyle to which they have become accustomed.

However, like so many issues in family law, there is, regrettably, a great deal of misinformation and many misconceptions surrounding this issue. As family lawyers, we are often met with questions from a concerned client about what exactly is spousal maintenance, what’s my exposure, will I have to pay half my income and will it leave me destitute.

What exactly is spousal maintenance?

As is so often the case, the reality, particularly within the Australian family law jurisdiction, is very different from these headlines. It is important to note that spousal maintenance is not child support. Child support is paid for the benefit of children. Spousal maintenance is paid for the benefit of a party’s former spouse so that their former spouse can adequately maintain themselves, and it is generally limited to a specific time frame.

Establishing a claim for spousal maintenance Under the Family Law Act, a person with capacity to pay has a responsibility to financially assist their former spouse if that person cannot meet their own reasonable expenses from their personal income or assets.

For a party to be successful in an application for spousal maintenance, it must be established that the applicant/payee is unable to adequately support himself or herself and the respondent/payer has the financial capacity to pay spousal support. Successful applications usually involve a disparity of income and/or earning capacities between the parties.

Some common situations where spousal maintenance has been granted include: »» one party has the care of young children and is unable to engage in employment sufficient to meet their own reasonable day to day expenses; »» one party has been out of the workforce for a significant period of time and has become de-skilled or unemployable due to their age; »» one party is unable to work due to illness.

It is, however, not sufficient for the payee to elect to not work if they have an ability to earn an income.

Issue Twelve

5

C R O S S R OA D S

So … what is reasonable?

How long is maintenance paid for?

Unlike the Hollywood horror stories, in Australia, there is no obligation for the payer to keep the other spouse in the lifestyle to which they have become accustomed, nor do they have to share their income. This raises the question of what is reasonable. “Reasonable” is a relative term and one person’s idea of reasonableness may be very different to another’s.

In most cases, spousal maintenance would operate only for a short period of time following separation to enable the payee/applicant to re-establish themselves.

For example, it may be for a period that the court considers is sufficient for the applicant to retrain and/or re-enter the workforce. However, in some instances, it may be appropriate for the payments to be for an extended period of time.

One of Australia’s “big money” maintenance cases is that of Wilson and Wilson, decided in 1989. This couple had a multi-million dollar business enterprise, with net assets of $45 million. The wife claimed interim spousal maintenance of $2,750 per week, plus a lump sum of $200,000. The court had to consider whether to “fix” the amount of money payable to the wife, which would reduce the standard of living she had enjoyed pre and post-separation, pending the outcome of the case, while the husband continued to live lavishly.

The court awarded the wife $900 per week maintenance, with a lump sum payment of $100,000, until the finalisation of the case - less than half of what she applied for. The court also said that a reasonable standard of living for the party seeking maintenance on an interim basis is not necessarily the same as that of the person paying. The standard does not have to be the same as during the marriage.

A person’s right to maintenance or their maintenance payments would cease if they remarry and, if the payee enters a new de facto relationship, the court will take into account the financial relationship between the payee and their new de facto spouse.

Are there any time limits?

Applications for spousal maintenance for married couples must be made within 12 months of their divorce order issuing. For de facto couples, an application must be made within two years of the breakdown of the relationship.

It is possible for leave to be granted to a party to make an application for spousal maintenance outside of these time frames. Leave is not guaranteed however, and an applicant should ensure they comply with the above time frames.

BEST WILSON BUCKLEY

66

C R O S S R OA D S

W E ’ V E R E AC H E D AG R E E M E N T ABOUT THE DIVISION OF OUR P R O P E R T Y – W H Y DO W E N E E D A L AW Y E R ?

Carl a Fra nc hina , Assoc iate

This is the scenario: you and your former partner have spent months going backwards and forwards on email, on the phone, or over coffee negotiating and deciding how you will divide the property you have accumulated together throughout your relationship. You achieved this without a formal legal process, and you are confident that you can practically carry out the steps necessary to give effect to your agreement. So why should you consider engaging a lawyer?

If you do not properly document your agreement in a binding and enforceable way, you could be vulnerable to your former partner making a further claim against you in the future, notwithstanding the informal agreement that you have reached and which you may have carried out. There are also other financial benefits to formalising your property settlement in a legally enforceable way, including access to relevant tax exemptions.

There are two legally enforceable ways to finalise your agreement in relation to property settlement and/or maintenance matters following separation. These are: 1. by consent order; 2. by financial agreement.

Consent order A consent order is sought by completing the relevant application, preparing a minute of order and lodging this in the court for approval. The proposed order is subject to approval by a judicial officer of the court who must be satisfied that any property settlement is just and equitable before granting the order.

The judicial officer must also be satisfied that any maintenance order is adequate. There is no need for an appearance at court, and an order will be issued in due course if your application is successful.

It is important to note that a consent order is not immediately binding when signed. The orders must be filed in the court and it is not until the orders are granted that they will become binding.

Financial agreement A financial agreement is a contract that can be made before, during, or after matrimonial and de facto relationships.

A financial agreement is binding from the time that it is signed and certified and can be used to extinguish a party’s right to claim for maintenance. It therefore can be quicker to enter into a financial agreement rather than incur the delay associated with having consent orders considered and made by the court.

There is no external review of a financial agreement and the terms of the agreement do not have to be “just and equitable”.

Whilst a financial agreement does not require the court’s approval, each party to the agreement is required to obtain independent legal advice before the agreement can be executed.

A combination of these can also be used, that is, use consent orders in relation to property settlement and a financial agreement in relation to maintenance.

Issue Twelve

7

C R O S S R OA D S

Your family lawyer can assist you to determine which method of settlement is best for you and provides you with the best protection.

However, parties can apply to the court for leave to institute proceedings out of time in limited circumstances.

What if I do not formalise my agreement? Does the risk exist forever?

It is therefore advisable to finalise financial issues in a legally enforceable way sooner rather than later.

Applications for property settlement and/or maintenance must be made within 12 months of a divorce order becoming effective or within two years of the date of separation if you were in a de facto relationship. If property matters are not finalised in a legally enforceable way within this period, then both parties will, prima facie, be statute barred from applying to the court for property settlement and/or maintenance.

B E S T W I L S O N B U C K L E Y 

8

C R O S S R OA D S

T H E F O R E N S I C ACCO U N TA N T ’ S H AT S Jen ny L et t s , Jen ny Letts Va lua tions and F ore nsic s www.je nnyletts.com.au The moment I introduce myself as a forensic accountant, more often than not, it is received with one of two responses. Either, “What is that?” or “Ahh, like CSI...”.

Sometimes I go with the flow and simply answer with “Yes, I count dead people”, then feel guilty and explain further … “We value all the things you can’t touch, such as goodwill, intellectual property, royalties, databases, etc”.

This usually just leads to more questions, which I find easiest to explain with real-life situations, for example, when people are going through a divorce and they have a business, they need to know what that business, or part they own, is worth so they can then go about working out their property settlement. We value their interest.

We do many other things as well, but essentially it depends on what problems you may have, and the questions that may be swimming in your head, such as: »» Where has all my money gone? »» How did the loans get so big? »» How much money is there? And where is it? »» What am I worth? »» How much money have I lost?

When the issue is that you are going through a divorce, I usually find people are on one side of the fence or the other; they either know and understand the financial information or they don’t.

Our role as forensic accountants is to read, interpret, analyse, value, flip upside, turn inside out, determine the answer and then explain it in the simplest way possible.

As part of our role in any form of litigation, we are called expert witnesses. To get to this stage, it generally means you know your area of expertise inside and out as well as being able to explain it very clearly.

In the family law world, we can wear one of three different hats as an expert witness; these being the single expert, the adversarial expert, or the very mysterious shadow expert. Each are quite different in terms of the court rules that need to be adhered to and the role that we can take.

As a single expert, we need to be quite staunch and hands-off in our approach to the clients themselves.

When we are wearing this particular hat, we are engaged to provide our expertise to the court, not to take sides or have the perception of being biased in any way. We are engaged with joint instructions that are agreed by both sides. The majority of communication is in written form and there needs to be a degree of trust that your single expert will act independently and provide a fair valuation.

When we take on the role of an adversarial expert, we are engaged by one side to perform specific tasks and to discuss those tasks with, inevitably, the other side’s own adversarial expert. This role still requires certain court rules and levels of independence to be complied with, however the expert is only receiving information from one side so has to use their expertise to apply that information. Adversarial experts are rarely used in family law matters as the single expert is preferred.

The last hat is that of the shadow expert. More often than not, in family law matters a forensic accountant is engaged as a shadow expert to assist in understanding financial documents, or to provide a quick valuation report to assist in understanding how much money is involved before negotiations commence. Essentially, this is the role where we can answer all those questions that people have.

Once you know what the issues are in your own family law matter, and the different options and solutions that are available to assist in relieving those issues, then the forensic accountant can jump into the matter and start helping sort the numbers stuff out.

Jenny Letts Valuations and Forensics are forensic accountants that provide methodical, timely and tailored services by combining an in-depth understanding of forensic and valuation methodologies with a personable approach to meet both client and legal needs.

Issue Twelve

9

C R O S S R OA D S

B U T T E R M I L K PA N C A K E S Jillys C a fé

Ingredients 2 cups self-raising flour, sifted 2½ cups buttermilk 2 eggs ½ teaspoon bicarbonate of soda ½ cup caster sugar Olive oil spray

Method 1. Combine sugar, bicarbonate of soda and flour in a bowl.

6. Turn and cook for a further 1 - 2 minutes.

2. Whisk buttermilk and egg together in a separate bowl.

8. Serve with:

7. Repeat with remaining mixture.

3. Stir into the flour mixture.

4. Heat frying pan over medium heat. Spray with olive oil spray.

5. Pour 2 tablespoons of batter into pan and cook for 2 minutes or until bubbles form on surface.

» » Dulce de leche and banana; » » Raspberry, white chocolate and coconut; » » Maple syrup, fresh berries and macadamia nuts; » » Nutella, strawberries and ice-cream.

Serves 4

Jillys Cafe is an inviting and friendly café serving delicious food and coffee with a warm smile. Open 7 days a week for breakfast, lunch and dinner (closed Sunday night), and located in the heart of Margaret Street, Toowoomba.

BEST WILSON BUCKLEY

10

ALISSA TULK R e ce p t i o n i st Toowoomba Q. Why family law?

A. I fell into family law by chance and have been grateful for that serendipitous opportunity ever since.

I have always had a passion for children’s matters, familial relationships and assisting people through vulnerable times in their lives. Working in family law is a rewarding and eye-opening avenue to explore this.

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

A. I love that spring is a time of regeneration and rebirth. Once again we can witness the beauty of renewed colour in the environment, the weather is temperate and, in turn, people enjoy a sunnier state of mind.

Q. Best event you have been to?

A. I thought the Billy Elliot production played at the Victoria Palace Theatre was spectacular.

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

A. I always wanted to be an artist and/or a singer. And I think in my adult years that now translates to being a writer.

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

A. We didn’t necessarily have a set Sunday meal every week; however, when my parents had the time (because this takes a lot of prep time) they would prepare a traditional Chinese feast complete with lemon chicken, spring rolls, barbequed pork, black bean stir fry, veggies, fried rice, etc. It was delish.

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

A. Live It Up by Mental as Anything.

Q. Favourite holiday destination?

A. I have too many favourite destinations to list! A snippet of my favourites would include Egypt - it was surreal, the Isle of Skye was magical, and the Florida Keys provided some of the most fun I’ve ever experienced.

Q. How do you unwind? What do you do in your spare time?

A. Yoga, walks outdoors, art projects, writing, reading and spending time with family and friends.

Issue Twelve

11

CASSIE BOLAND S e n i o r S o l i ci tor North Lakes

Q. Why family law?

Q. Who would be your ultimate five dinner guests?

A. I enjoy connecting with people from all walks of life and helping them achieve an outcome they deserve. I am passionate about it as it allows me to make a difference in people’s lives and support them through one of the hardest times in their lives.

A. Carl Barron, P!nk, Matty Johns, Johnathan Thurston and Sarah Rafferty (Donna from Suits) – I love to laugh!

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

A. It starts with a celebration of my husband’s birthday and, when it’s over, you know it’s the beginning of Christmas season!

Q. Number one on your bucket list?

Q. How do you unwind? What do you do in your spare time?

A. I enjoy watching sports, especially rugby league.

On the weekend, I love to go to the park or beach and play some football or cricket. During the week, I play indoor netball and watch junk TV shows that don’t require too much thinking.

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

A. To travel Australia in a campervan.

Q. Best event you have been to?

A. State of Origin decider in 2017 (QLD won, of course). The atmosphere was amazing!

Q. Favourite place to eat in North Lakes?

A. The food court at North Lakes shopping centre – lots of variety!

Q. Favourite holiday destination?

A. The first female Prime Minister of Australia … then I grew up (and Julia Gillard beat me to it!).

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

A. Roast meat and veggies.

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

A. At Last by Etta James – it was my wedding song!

A. Cairns. It is such a beautiful place!

Q. Who was your childhood hero growing up?

A. My mum.

B E S T W I L S O N B U C K L E Y

12

C R O S S R OA D S

DO M E S T I C V I O L E N C E P R OT E C T I O N O R D E R S Bes t Wi l son B uc kley F a mily Law

If you have found yourself in the position of needing protection from domestic violence or, alternatively, facing the prospect of being subject to a protection order, you may need to consider the various forms a protection order may take, the conditions that can be imposed and the implications of those conditions, to ensure you are appropriately protected by, or comply with, the protection order.

What is the difference between a temporary and a final protection order?

»» to be of good behaviour and not commit domestic violence;

Protection orders can be imposed upon a person (known as a “respondent”) temporarily, or for a longer period of time on a final basis.

»» to stay away from the aggrieved, including to not approach or come within a certain distance of the aggrieved; and/or

In Queensland, the Domestic and Family Violence Protection Act gives magistrates the power to decide whether to make a protection order temporarily to protect a person (the “aggrieved”) from domestic violence, and for that order to commence immediately upon the first hearing of the aggrieved’s application at court.

»» to not contact the aggrieved, including by email, telephone or via social media, or that contact is limited.

A final protection order is one for a set amount of time, usually five years in Queensland, and means the matter is resolved and does not return to court again.

Both temporary and final protections orders: 1. can include other named persons, such as the spouse or parent of the aggrieved, as well as any child, should the magistrate be satisfied that other persons, including children, are at, or have been at, risk of being subject to domestic violence, including threatening behaviour; 2. can be enforced by the police if contravened, which is a criminal offence.

What types of conditions might be put in place?

Protection orders on either a temporary or final basis will specify conditions that the respondent must abide by, such as any or all of the following examples:

In matters where the aggrieved and respondent have children, orders can be crafted by the court to allow for contact with children by the respondent, including where it may mean seeing or contacting the aggrieved, as an exception.

H o w d o e s t h e c o u r t p ro v e d o m e s t i c v i o l e n c e occurred?

With a temporary protection order, the magistrate has to be satisfied that domestic violence has been committed, without cross-examination of the parties or any in-depth consideration of the specific facts of the case. That is, a temporary protection order will be made if the magistrate hearing the application is satisfied that domestic violence in any form has been committed by the respondent toward the aggrieved or any named person. If satisfied, the magistrate has the ability to immediately impose conditions upon the respondent to prohibit domestic violence from occurring by way of a formal protection order for a short period of time, being until the next court date.

Issue Twelve

13

C R O S S R OA D S

After the first court date, and if the aggrieved or police seek to continue prosecuting the application against the respondent for a final protection order, the court will: 1. set the matter down for a trial, if the respondent denies the allegations; or 2. make a final order by consent of both the aggrieved and the respondent.

At a trial, the magistrate who hears the case will make “findings of fact”, which means they will determine w h e t h e r o r n o t t h e re s p o n d e n t c o m m i t t e d t h e domestic violence that has been alleged after hearing the parties give oral evidence.

If an aggrieved and respondent consent to the order, it can be without admission by the respondent, meaning that no findings are made by the court about whether domestic violence has occurred.

How does a protection order affect me?

The type of protection order, the conditions imposed upon a respondent, as well as whether there were any findings of fact in the making of the order, can impact on various areas of a person’s life such as: »» their ability to work in certain roles, including in some government roles, security work or roles requiring clearances; »» their ability to hold a Blue Card; »» their ability to hold or access weapons.

It is important to note that immediately upon a temporary protection order being made, a respondent will no longer be able to hold a weapons licence under the Weapons Act 1990 (Qld). Any guns owned by a licence holder subject to a protection order will need to be surrendered to the police or disposed of via a licensed weapons dealer.

Anyone in need of protection from domestic violence, or requiring assistance in responding to an application for a protection order, should make contact with an experienced family lawyer. the nature of the relationship of the child with each of

the child’s parents and other persons;

B E S T W I L S O N B U C K L E Y

14

C R O S S R OA D S

A NEW BEGINNING OR CHANGE FOR CHANGE’S SAKE? A n d rew M cCo rma c k, Senior Assoc iate & Accredi ted F amily Law Spec ialist

The joint parliamentary inquiry into family law and child support was announced by Prime Minister Scott Morrison on 17 September 2019.

The Prime Minister announced that the inquiry would be a “wide-ranging” inquiry into the Australian family law system.

In his media release, the Prime Minister stated that the purpose of this joint parliamentary inquiry was to determine whether the Australian family law system is “fit for purpose”.

The announcement of this inquiry was not something that had been contemplated by the profession.

This was mainly because the Australian Law Reform Commission (ALRC) handed down its wide-ranging review of the family law system in April 2019. The ALRC’s review came about as a result of the former Attorney-General, the Honourable George Brandis, giving the ALRC “wide-ranging” terms of reference to enable the government to consider making amendments to the Family Law Act or reforming the area of family law in general.

At the time the Prime Minister announced the joint parliamentary inquiry, the government was yet to respond in full to the ALRC’s review and the 60 recommendations that the ALRC made in relation to both the Family Law Act and the family law system in general.

The joint parliamentary inquiry has, as stated above, wide-ranging terms of reference. The stated aims of the inquiry include: 1. ensuring that families can resolve their issues quickly and fairly; 2. allowing families to tell their stories to members of parliament about how the family law system has impacted upon them; 3. a l l o w i n g t h e p a r l i a m e n t t o c o n s i d e r a n y recommendations about how the system can be improved.

The Attorney-General, the Honourable Christian Porter MP, has already proposed significant reforms, including the merger of the Family Court and Federal Circuit Court. This merger is opposed by not only the courts but also the legal profession as the stated aim of making the court more streamlined by amalgamating the court will not assist given the lack of funding that previous and current governments have allocated to it.

The inquiry is also to consider under its terms of reference: 1. the improvement of the family law system and the way it interacts with child support assessment and collection; 2. how the family law system, state and territory child protection systems, and state and territory domestic and family violence systems operate together and how their interaction with the family law system can be improved; 3. how the operation of, and enforcement of, court orders can be improved; 4. the costs of legal proceedings and how this can be improved where there is concern that legal fees are disproportionate to the property pool; 5. how non-parent carers, such as grandparents, can be better accommodated in the family law system.

The Chair of the Family Law Section of the Law Council of Australia, Paul Doolan, has described the joint parliamentary inquiry as an event of national importance. Mr Doolan has put forward the Family Law Section’s view that as the peak professional body for family law practitioners in Australia, it has consistently called for a complete review of the Family Law Act and for proper resourcing of the family law sector. This sector does not only include the courts, but also includes the non-government providers of services such as contact centres, community-based counselling and support services, community legal centres, and state legal aid commissions.

Issue Twelve

15

C R O S S R OA D S

The Family Law Section will, on behalf of practitioners, seek to be engaging with the joint parliamentary inquiry and putting forward the views and experience of the family law profession, our clients who have used or are currently in the family law system, and the best interests of children, given that a considerable number of disputes involve independent representation of children by specialist practitioners.

The under-resourcing of the courts and the number of people forced to represent themselves is an issue that must also be addressed. This may, in some small way, address the apparent concerns of the government relating to the costs of proceedings.

There is no doubt, from our point of view, that the Family Law Act does require a review and various amendments. The nature of the legislation alone and the 300 sections that now comprise over 500 pages is difficult enough for the most experienced practitioner to navigate. Members of the public who are forced to represent themselves (usually due to their ineligibility to obtain legal aid funding) are likely to have considerable trouble navigating, let alone understanding, the Act.

Change needs to happen, but it must happen in a structured and focused way so that it is useful to the users of the family law system. It should not be change for change’s sake.

BEST WILSON BUCKLEY

16

C R O S S R OA D S

T H E S U M O F A L L T H E PA R T S L y n n A rm s trong, Spec ial Counse l & Accredi ted F amily Law Spec ialist

Most people think of the law as being black and white, right or wrong.

This may be of true of some practice areas, but it couldn’t be further from the truth in our area of family law. Much like life, family law is anything but black and white and, as family lawyers, we spend a lot of our time in the grey area. That necessitates a complement of skills and experience that goes far beyond only that of the law.

As the largest team of speciality family lawyers in Queensland, we’re fortunate to have a depth and breadth of experience and knowledge that extends well beyond family law to support our clients as they navigate the often messy world of relationship breakdowns. A great number of our team bring knowledge from other areas, including business administration, management, communications and journalism, that complement their legal prowess.

Personally, I started my working life as a registered nurse and have an in-depth knowledge of nursing and mental health care, in addition to my personal experience as a mother. This complementary knowledge has been invaluable to so many of my clients over the years where complex mental and physical health problems presented in the context of a family law matter. For example, I have supported a client that had experienced a psychotic breakdown and subsequently consented to orders that meant he had very little time with his child in circumstances where his current mental wellbeing did not affect his capacity as a father. With my involvement and understanding of his circumstances, we were able to achieve an outcome where he now gets to spend quality time, including school holidays, with his child and play a part in the child’s life that may never have been possible without the unique combination of mental health and family law skills that I could bring to that scenario.

Our Kara Best is also an accredited mediator and recently became a parenting coordination practitioner. These are skills that traverse boundaries and influence how she approaches family law. In much the same way, we’re also fortunate to have a number of our team qualified as collaborative law practitioners who can work with clients in a formal collaborative process to achieve resolution where the threat of evolving into a litigious matter is greatly reduced. While formal collaborative law is still taking shape in Australia, these skills are used in each and every matter towards achieving an outcome through collaborative negotiation rather than an aggressively charged approach where no one wins.

The diverse legal backgrounds held by our team, in areas such as administrative law, rural law, commercial law, criminal law, succession law and estate planning law, adds a further depth of legal skills and knowledge to the family law area in which they all now practise.

Then there are the life experiences that only serve to help understand the many and varied people that we come across in our work, be it as a parent, carer, labourer, landscaper, English teacher in Japan, bartender/waiter, librarian, childcare worker, customer service representative, nurse, or violinist. To cap it all off, we are fortunate enough to boast four accredited family law specialists within our team and one lawyer who can speak German!

It is this unique combination of knowledge, experience and skills that sets our team apart, adding value and providing understanding for our family law clients who are their own unique people with their own experience, knowledge and skills. In a world of grey, don’t settle for black and white.

Another of our lawyers has a background in childcare and also studies psychology. This places her in a strong position to be able to assess and advise on ageappropriate care arrangements for children following separation and divorce. Many clients have benefited from this awareness in ensuring that their children are able to spend the time needed with all family members post relationship breakdown to support them to become well-rounded individuals.

Issue Twelve

17

C R O S S R OA D S

M E D I ATO R O R FA M I L Y L AW Y E R ? I T ’ S T I M E TO H E DG E YO U R B E T S S o n i a Brow n , Cat h ol i cCare – The F a mily Relationship Centre, Toowoomba www.catholiccare.services

In the previous issue of Crossroads, we shared some reflections with regard to family law mediation and the benefits of exploring and exhausting all possibilities of amicably resolving family law disputes before resorting to court proceedings. This article examines the role that lawyers and mediators each play in assisting separated parents to negotiate workable parenting agreements without court involvement. It also challenges the idea that parents should have to choose between lawyers and mediators when seeking resolution of their family law disputes.

The notion that court involvement can make matters worse for separated families is not a new one in Australia. As we stare down the barrel of the next wave of family law reforms, it’s worth reviewing what happened during the last major review of Australia’s family law system. The 2005 reforms were described by our government at the time as being the biggest investment in the family law system ever and the most significant changes to family law in 30 years.

A centrepiece of the reforms was the establishment of 65 Family Relationship Centres (FRCs) across Australia that were tasked with (among other things) helping families reach agreement on shared parenting arrangements and thereby avoid the need for court intervention.

There is no doubt that the FRCs have successfully assisted hundreds of thousands of separated families to resolve conflict, reach agreement and avoid court.

It seems, however, that the goal of avoiding court may have contributed to a perceived dichotomy by many separated parents who incorrectly assume they must choose to engage a lawyer or attend the FRC. Many FRC clients cringe at the idea of getting legal advice and insist “there is no need to involve lawyers because we don’t want to go to court”.

The irony is that, in our experience, the more we can involve collaborative lawyers in mediation – particularly in complex matters – the more likely we are to reach workable, sustainable outcomes for separated families and the less likely they are to end up in court. Accordingly, it is with much gratitude to our local family lawyers that our FRC is now able to boast a growing collaboration of family lawyers in our mediation services. These partnerships have already achieved significant, tangible benefits for our clients and their children who may otherwise have had to endure the lengthy, expensive and emotionally destructive path of family law litigation.

If the involvement of lawyers makes such a difference in mediations, then one might ask why it would take 11 years of practice before FRCs and lawyers found a way to collaborate. This is a valid question and the answer may surprise you because it was not the clichéd reputation of our learned colleagues that scared us off! It was more about government policy at the time FRCs were established and a cautious protocol that prohibited private lawyers from representing their client in future litigation if they had assisted that client in an FRC mediation. Thankfully, the rules were amended in 2017 to remove this prohibition and the collaboration between the Toowoomba FRC and our local family lawyers has grown rapidly since then.

This is an exciting area of growth for our local family law community and one that has already delivered better outcomes for many separated families in our community.

In the next issue of Crossroads, we will explain how our local family lawyers are assisting FRC clients to make informed decisions, reduce parental conflict and negotiate workable, child-focused parenting arrangements without the need for court involvement.

CatholicCare provides a range of services to promote individual, family and community wellbeing. The Toowoomba Family Relationship Centre (FRC) assists separated parents and families to negotiate and agree on workable parenting arrangements outside the court system, and supports families by connecting them to information and referrals, conflict and communication programs as well as facilitating family dispute resolution (FDR).

BEST WILSON BUCKLEY

168

STEF CHERRY Fi n a n ce O f fi cer Toowoomba

Q. Why family law?

Q. Who would be your ultimate five dinner guests?

A. No day is ever the same but every day is interesting.

A. Hugh Jackman, Michelle Obama, Amal Clooney, Rebecca Sparrow, P!nk.

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

A. I can’t wait for Carnival of Flowers – Toowoomba is so pretty at this time of year.

Q. Number one on your bucket list?

A. New York! I’m going for my 40th birthday!

Q. How do you unwind? What do you do in your spare time?

A. Play with my kids, read, walk, or spend time with my friends.

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

Q. Best event you have been to?

A. Cocktails for a Cure – an event in its fourth year that I’m really proud to be a part of. Cocktails for a Cure raises much needed funds for ovarian cancer and we have raised over $165,000 so far.

A. A teacher – the holidays would have been fantastic!

Q. Favourite place to eat in Toowoomba?

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

A. Gip’s Restaurant – it is in such a beautiful location and the food and service is amazing!

A. A huge pile that I’ll never get through but I just finished Educated by Tara Westover – great reading!

Q. Favourite holiday destination?

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

A. Anywhere there is a beach – I love being near the water!

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

A. Roast – always meat and three vege growing up!

A. Andy Grammar’s, Honey, I’m Good.

Q. Who was your childhood hero growing up?

A. My mum and dad – they are the two best people I know!

Issue Twelve

19

JESSICA CHAPMAN Ad mi n i s t rat i on A ss i st an t Toowoomba Q. What do you most look forward to in spring?

A. Warmer weather and all of the flowers – I am a huge fan of fresh flowers in my home.

Q. Number one on your bucket list?

A. It was to build a home – I accomplished this – now it would be to travel.

Q. Best event you have been to?

A. Toowoomba Food and Wine Festival because it has amazing food and wine – need I say more?

Q. Favourite place to eat in Toowoomba?

A. Sushi Machi because my husband and I love sushi and this is our go to easy date night – followed by Gelatissimo … white chocolate sorbet and melted nutella … thank me later.

Q. Favourite holiday destination?

A. Anywhere with a beach.

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

A. I thought I was going to be a graphic designer. I honestly never thought I would be working in a family law firm – funny how things just happen.

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

A. We never had a set dinner but I was the kid that would beg my mum to make tacos or nachos.

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

A. The Ice Man – Confessions of a Mafia Contract Killer (dark and grim – but extremely captivating!).

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

A. Speechless by Dan & Shay. It was my husband and my “first dance” song.

Q. Who was your childhood hero growing up?

A. My mum.

Q. How do you unwind? What do you do in your spare time?

A. Going to the gym after a busy day always helps me to unwind – then going home to my family and cooking for them is my favourite. My other favourite pastime is snuggling on the couch with my husband and my dog, Houston.

B E S T W I L S O N B U C K L E Y

20

C R O S S R OA D S

S E E K I N G I N I T I A L A DV I C E : W H AT ?

W H E N ? W H Y ? H OW ?

M ax Sutton, Solic itor

Engaging a lawyer is not always everyone’s preferred course of action immediately following a relationship breakdown.

In the previous issue of Crossroads, we briefly explored the ins and outs of what you can do after separating to open discussions with your spouse and try and reach a resolution without involving solicitors, let alone going to court.

However, seeking at least some initial advice will serve you well in the long run and, in this instalment in the series of articles sharing ideas and pointers to help you help yourself, we look at how this might work for you.

What is initial advice?

The advice lawyers give is an analysis of your unique situation coupled with the application of the law. The idea is to gain an understanding as to your rights, obligations, and options. When seeking advice on your family law matter for the first time, your lawyer will discuss with you: »» background information in relation to your relationship and the circumstances surrounding your separation; »» if relevant, a general discussion in relation to your children and the arrangements presently in place for their care; »» any pressing concerns you may have in relation to urgent financial or parenting issues; »» any pressing concerns you may have for your personal safety or the safety of your children; »» a n y c o n c e r n s y o u m a y h a v e i n re l a t i o n t o obstacles to the amicable or easy resolution of future financial and parenting arrangements.

After discussing with you the manner in which the law will apply to your unique situation, your lawyer may be in a position to talk to you about the range of possible outcomes and importantly, offer a recommendation with regard to the best way of resolving any issues quickly and without undue conflict or anxiety.

Whilst the above process is important and you should be open and honest about all matters, it is equally as important to identify your goals and what “the end” looks like for you. This will help your lawyer understand those important elements of your matter and be able to work with you to craft a path forward that will achieve your goals.

When should I get initial advice?

This is really up to you. Some people choose to see a lawyer prior to separating and others do so immediately following separation, or even some months (or years!) after separation, when direct negotiations have broken down or come to a stalemate.

Why should I seek advice?

Sometimes, you may see a lawyer just to get an understanding of the options available to you and what should happen in the context of your dispute; providing you with a basis on which you can continue to directly discuss matters with your spouse. Getting advice may arm you with the confidence to embark on negotiations with your spouse secure in the knowledge that you have expert advice behind you about where things might stand and therefore be less likely to be talked into agreeing upon arrangements that are not just and equitable or in your best interests.

Many people who seek advice from a family lawyer do not go on to become ongoing clients. At the very least, you should get advice regarding such things as: »» formalising an agreement that you and your spouse have reached; »» whether you can, in fact, reach an agreement to resolve a matter; »» what your rights are under the law and based on the facts of your relationship;

Issue Twelve

21

C R O S S R OA D S

»» if the agreement is fair; »» limitation dates; »» costs.

However, having sought and received the initial advice from your lawyer, you may then choose for them to handle all aspects of your matter and provide you with ongoing advice as your matter progresses. Other options can include: »» receiving strategic “behind the scenes” advice; »» receiving coaching in how to prepare for that initial (and possibly most difficult) discussion with your partner about separating; »» preparing you for an upcoming private mediation or family report; »» h e l p i n g y o u t o p re p a re d o c u m e n t a t i o n t o formalise an agreement or file with the court;

Your lawyer should be able to tailor a service and advice to your needs. An approach like this means that you can self-represent if you choose, or your lawyer can attend particular events with you. An experienced family lawyer will talk with you about what you need to achieve, and your capacity in terms of time, money and emotional readiness, and help you determine how they might best work with you.

How do I obtain initial advice?

As with separation itself, the first step is often the hardest. Once you have made the phone call, sent the email or website enquiry, or stepped into the lawyer’s office to make the appointment, your lawyer will be there to help as much or as little as you wish. While all firms are different, options for your initial appointment might include face-to-face in the office, by telephone, Skype or FaceTime; whatever works best for you.

»» advising you as to what your court date is likely to entail and how you need to prepare and act on the day.

Ultimately, you will determine the level of your lawyer’s involvement in your family law matter and, having provided you with initial advice, they will remain available to you should you need further assistance.

B E S T W I L S O N B U C K L E Y

22

C R O S S R OA D S

CROSSWORD

ACROSS

DOWN

5. Doing word

2. Snake, puff ...

7. Feral

3. Like

8. Envy

4. Scant

9. Public disturbance

5. Pansies

12. Movie inspectors

6. Purchasers

15. Inflated ball

10. Duck or chicken

19. Tenderly

11. Too

21. Rigidity

12. Cheat

22. Plaintive howl

13. Memorandum

23. Fades

14. Leave out

24. Obliterates

15. Polished

1. Comes undone

1. Remove cover from

16. Peru beasts 17. Displease 18. Recurrent periods 19. Fights for air 20. Fresher

Issue Twelve

23

BEST WILSON BUCKLEY

26 24

CROSSWORD SOLUTIONS

15. Buffed

24. Destroys

14. Omit

23. Dims

13. Note

22. Wail

12. Con

21. Firmness

11. Also

19. Gently

10. Fowl

15. Balloon

6. Buyers

12. Censors

5. Violas

9. Affray

4. Sparse

8. Jealousy

3. Enjoy

7. Wild

2. Adder

5. Verb

1. Unwrap

1. Unravels

DOWN

ACROSS

16. Llamas 17. Offend 18. Cycles 19. Gasps 20. Newer

Together Everyone Achieves More.

Trust each other Respect each other Understand each other Enjoy each other TRUE commitment to a WINNING TEAM ....

C R O S S R OA D S

C R O S S R OA D S

FA S T FAC T S A B O U T … P R E - N U P S Joh n P at terson, Se nior Solic itor

One of the more controversial areas of family law is the issue of pre-nups.

A pre-nup is a financial agreement (also known as a binding financial agreement or BFA) made before marriage or before entering into a de facto relationship. A pre-nup can be an excellent tool for planning and/or dispute resolution provided it is prepared and executed correctly. Done poorly, it can result in tremendous expense, delay, and pain.

Here are some of the most common questions we receive regarding pre-nups.

Do pre-nups work in Australia?

In short, yes. Financial agreements are specifically addressed by the relevant legislation in Australia, and can be an excellent way of addressing risk o r res ol v i ng a d i sp u te . T h e y j u st d o n ’t a lwa ys carry quite the same glitz as multi-million dollar Hollywood divorces.

Is a pre-nup a good idea?

The answer to this question depends entirely on the reason for asking it in the first place. As family lawyers, we occasionally need to have a box of tissues and a comfy shoulder at the ready in case of a few tears. We are not, however, counsellors or psychologists. If your question is really about whether true love is real, lawyers are perhaps not the best people to speak to. However, if you need advice about longer-term planning and/or asset management, the combination of a good legal team and some reliable financial advice can be an excellent way to get the protection you need.

Will my pre-nup protect my kids’ inheritance?

A financial agreement will continue to operate following the death of a party to the agreement; however, that does not mean that the agreement can be used as a substitute for a will and other appropriate estate planning advice. People entering relationships with children from a previous relationship can certainly take steps to protect their children via the use of a financial agreement but it is important to ensure that the protection offered is complete. For that reason, it is critical that you also obtain quality estate planning advice.

My partner just told me to sign a pre-nup and our wedding is next week. What should I do?

This is another tricky question for a lawyer. The strict legal answer is that “wedding eve” financial a g r e e m e n t s a r e n o t o r i o u s l y r i s k y, a n d m o s t family lawyers will advise that signing a financial agreement a week before the wedding is usually a bad idea. That said, it is always best to get legal advice specific to your circumstances. It may be that there is an alternative option that satisfies both parties. A question like this is also another example of a matter that may require the services o f a c o u n s e l l o r, p s y c h o l o g i s t , m o t h e r, o r b e s t friend.

How much say will my partner have in my prenup?

Both parties will have significant input into the terms of a successful financial agreement. Recent developments in the law have been very clear in identifying that obvious power imbalances between parties to a financial agreement, if n o t a p p ro p r i a t e l y a d d re s s e d , c a n e x p o s e t h e agreement to a risk of failure.

Issue Twelve

25

C R O S S R OA D S

S E V E R I N G T I E S - S E PA R AT I O N , R E A L P R O P E R T Y A N D E S TAT E P L A N N I N G Jo M al oney, Senior Solic itor

When a couple separates, there are many aspects of their legal relationship which need to be considered in the early stages of separation to ensure that each of their interests are protected until their property matters are resolved.

One important consideration is how the various assets of the relationship are owned, and how they might be dealt with in the event of the unexpected death of one of the parties prior to a property settlement being achieved. A key asset to review early on in the separation process is the matrimonial home (and any other real property owned by the parties).

The majority of married couples (and many couples i n d e f a c t o re l a t i o n s h i p s ) w h o j o i n t l y o w n re a l property hold their interest as “joint tenants”. Where an interest in property is held by a couple as joint tenants, it means that if one of them dies, the other will automatically become the owner of the property as the surviving joint tenant.

T hi s i s t he c a se re g a rd l e s s o f a n y te rm s in t he deceased’s will to the contrary and, in practice, is rarely what a party would want to occur in light of their separation. Accordingly, it is often desirable upon separation to “sever” the joint tenancy of any jointly owned properties so that each party owns a half interest in the property as a “tenant in common”.

A tenant in common can dispose of his or her interest in property however they like, under the terms of a validly executed will. This gives the party the ability to choose who will inherit their interest in the property and also, importantly, who will step in as their legal personal representative/executor in arranging the sale (or otherwise) of the property in conjunction with the surviving co-owner.

Severing a joint tenancy is a straightforward process for which the consent of the other party is not required. There are no stamp duty consequences.

As with all matters in the legal realms of family law and estate planning, the question of whether a joint tenancy ought to be severed will depend on the individual circumstances, and should be done (or not done) with the benefit of legal advice.

Some scenarios in which it might be advisable to sever a joint tenancy in the context of a relationship breakdown include the following: » » the relationship is not amicable and/or property settlement is likely to be complicated and drawn out; » » there is significant equity in the property and a strong desire by a party for his or her interest in that property to pass to their chosen beneficiary (e.g. their children), not to their former spouse – this position may be further exacerbated if the former spouse has re-partnered since separation; » » the real property involved is farming property, where there is a strong desire to keep the property within the family, or at least afford the family some options in that regard.

Some scenarios in which it might not be necessary or practical to sever a joint tenancy include the following: » » property settlement has been agreed by the parties and is likely to settle reasonably quickly; » » there is no or limited equity in the property which requires protection.

The above scenarios are not exhaustive, and advice should always be sought as to the appropriateness of severing a joint tenancy in any given situation.

However, as a general rule, sever early and sever often!

BEST WILSON BUCKLEY

26

C R O S S R OA D S

P O M E G R A N AT E , G OAT ’ S C H E E S E & WA L N U T S A L A D M ax Sutton, Solic itor

This salad is not only easy and healthy but looks and tastes great too!

Ingredients Fresh spinach and/or rocket (one large packet will do) Handful of bean sprouts 1 large red onion 1 large pomegranate 100g goat’s cheese (plain, ash or truffle – whatever takes your fancy) Handful of walnuts (or pecans)

Method 1. Wash the rocket, spinach and bean sprouts.

5. Slice or slightly crush the walnuts or pecans.

2. Thinly slice the onion.

6. Combine the above ingredients in a large salad bowl and dress with your choice of seasoning (such as balsamic vinegar).

3. Separate the pomegranate seeds from the husk and membrane.

4. Crumble the goat’s cheese.

7. Enjoy.

Issue Twelve

27

C R O S S R OA D S

BEST WILSON BUCKLEY

28

C R O S S R OA D S

THE SELF-CRITICISM TRAP M agn ol i a H ouse P syc hology and Thera pie s Centre www.m agn o liahousepsyc h.com.a u

We live in a busy world; one with high expectations and short time frames.

We strive to BE better, and to DO better.

To achieve this, we have emotional systems in our brain which dictate how we react to situations which are perceived as threatening to our self-worth.

One of these uses self-criticism, otherwise known as the inner Baseball Bat. It tries to motivate and push us by making us ashamed of our mistakes. Another system reacts by self-soothing and encouraging. It makes us feel safe, comforted and calm. This system could be referred to as the inner Cheerleader.

Some believe that the Baseball Bat has more power – and therefore motivates us more. Researchers studying the neurobiological effects of the Baseball Bat versus the Cheerleader tell us this is just not so.

The Baseball Bat identifies possible threats to our selfworth and reacts to protect us. This system triggers our stress hormones, which keep us on high alert.

Long-term, this leaves us distressed with reduced capacity for productive problem solving. The higher the self-criticism, the lower the ability to access selfsoothing thoughts, which keeps us stuck in negative reactive patterns. When this happens, both the outer and inner worlds become hostile - leaving no safe place to retreat.

If you are surviving on a steady diet of these stress hormones, you may actually find that your mind is struggling more and more to find solutions to problems, and to look at challenging situations from other perspectives.

The Cheerleader, however, uses self-compassion, reassurance and encouragement.

There is a growing body of evidence that says this system helps buffer stress, and makes us feel more soothed, calm and capable of flexible thinking. The same process is triggered when people are kind to us, and when we are kind to others.

But this is easier said than done.

Many people stuck in a pattern of self-criticism find it hard to know where to start in order to be more selfcompassionate.

Neff (2003) developed a framework of developing patterns of self-compassion which covers three areas; kindness, common humanity and mindfulness.

These three concepts together form the philosophy that life presents challenges to everyone, and as human beings we all have our wins and losses; our good days and bad days; our strengths and weaknesses.

It welcomes mistakes as inevitable and accepts them all as the universal human experience, offering kindness and acceptance in the face of mistakes and failures; rather than scathing self-criticism.

As we practise this, it becomes more automatic; calming our inner alarm system, and making us more capable of problem solving and improving our choices and decisions with each mistake we make.

Not to mention the destructive effect it has on your immune system.

Magnolia House Psychology and Therapies Centre is a team of experienced practitioners offering a comprehensive range of counselling and assessment services for individuals, couples, families and organisations.

This article is reproduced with the kind permission of Magnolia House.

Issue Twelve 

29

C R O S S R OA D S

CHRISTMAS – IS IT REALLY ONLY O N E DAY O F T H E Y E A R ?

Cas si e Boland, Se nior Solic itor

Christmas is a time for giving, but ask many separated parents and the worst thing you can do is ask them to share their time with the kids, especially on Christmas Day.

Many families have their own traditions on Christmas Day; perhaps it’s opening presents first thing in the morning, feasting on the Christmas ham, turkey or seafood for lunch, and then enjoying a game of backyard cricket in the afternoon. But whilst this may be sentimental to the parents, do the kids really mind whether these traditions are followed each year?

Separation is a hard time for anyone but throw in Christmas and it becomes even harder! Parents usually want to maintain their traditions with the kids after separation. The only problem is, most of the time parents have created these together and therefore this usually means those traditions can’t continue for both parents after separation.

One of the hardest things to deal with as a family lawyer is Christmas Day because usually both parents want to spend time with the kids on Christmas Day. But what does this mean for the kids? Usually a lot of time spent travelling on Christmas Day. The kids might wake up with dad, travel to see dad’s family, travel again to changeover to see mum and then more than likely travel again to see mum’s family. The end result is usually the children travelling double the amount of time on Christmas Day than either mum or dad. This can make it a very exhausting day for the kids and not as fun and enjoyable as it could have been.

Whilst Christmas Day is the 25th of December, it can really be celebrated on any date. The bottom line is, kids aren’t usually tied up on tradition or the date; they will just want to spend more time with dad, mum and their respective families and less time travelling.

Tr a d i t i o n s h a v e t o s t a r t s o m e w h e r e a n d p o s t separation may be the perfect time to start a new tradition of celebrating Christmas on Boxing Day! What kid won’t love having two Christmas Days in a row!

It’s always best to start planning and negotiating Christmas arrangements for the kids sooner rather than later and, if you are a separated parent, just remember, Christmas is what you make it and your kids will appreciate being able to enjoy the day, regardless of the date!

BEST WILSON BUCKLEY

30

C R O S S R OA D S

T I L D E B T DO U S PA R T N eal Wood, Senior Assoc iate

Rarely in family law do lawyers like to offer or give relationship advice. For the most part, it is generally unhelpful. Plus, the statistics already say that at least one in two marriages are likely to fail, and countless numbers of de facto relationships will break down. It is a no fault system and the reality is that relationships come to an end all the time for a myriad of different reasons.

A recent online article looked at the increasing numbers of people who are ending, or are in the process of trying to end, a relationship but who feel they are unable to do so because of the financial circumstances that they face. One of the key examples listed was where assets had been purchased in the name of one party but, for various reasons, the debt associated with that purchase had been placed in the name of the other. When it came time to separate, that impact upon a poor credit rating or ability to pay back money that had been borrowed by the other party was used as a way of controlling the person such that they remained in the relationship to ensure that the bills kept on getting paid. This is a form of economic abuse.

Sadly, it would appear that at least anecdotally it is an increasing phenomenon. In relationships between people in their early 20s and 30s, it seems more and more common to see finance associated with a large number of acquisitions beyond the family home, including cars, caravans, boats, furniture, electronic equipment, overseas holidays, and the like. It seems extraordinary sometimes reviewing a balance sheet to see people who have been in the workforce for in excess of some 10 to 15 years who have exceedingly large amounts of debt with no assets to show for it.

How the debts came to be placed in one person’s name when the vehicles were registered in the other, or the decision-making which went on in incurring the expenses in the first place, is difficult to say with any certainty. Anyone entering into a new de facto relationship would be wise to consider at what stage it might be appropriate to incur debts in their name which are primarily for the benefit of their spouse.

The reality is that in family law matters it can be exceedingly difficult to ever appropriately move debt from one person’s name to another as part of a family law property settlement. While the court has that discretion and there are some limited steps that can be taken, the reality is that in the overwhelming majority of circumstances the legal costs involved in trying to take those steps are likely to far outweigh the amount of the debts in any case. There are a few exceptions to that, particularly when it comes to the Australian Taxation Office, but, for the most part, the debts generally tend to have to stay where they are, either by one party retaining the asset to which the debt relates or, alternatively, the asset being sold and the debt repaid. Certainly, when it comes to things like depreciating assets such as cars, boats and caravans, rarely is there enough equity in the item to yield a sufficient amount to pay back the debt in the event it is sold.

In the current financial climate, banks are increasingly reluctant to release parties from their debts when the asset for which the debt is secured is likely to be worth less than the debt. The bank, which will often hold a mortgage or other security interest over the asset, simply refuses to allow title to transfer on the sale of those assets. It means that parties that are looking to no longer have a relationship with one another have simply no alternative but to remain jointly liable for any joint debts, or otherwise face bankruptcy.

Issue Twelve 

31

C R O S S R OA D S

When it comes to family law, often we are left to deal with the circumstances as we find them at the time. If the money has been spent, the loan drawn down, and the debt incurred in joint names, it may often be the case that we are left dealing with how is the most optimal way for those debts to be rearranged on the balance sheet. Often, it is a case of choosing between outcomes which are not ideal.

If the relationship is relatively new and untested and you are yet to have children together, there may be real benefit in keeping assets and liabilities separate so that if you do ultimately end the relationship at an early stage, then it may offer you at least some more certainty moving forward.

The takeaway really is one of considering at what stage in your relationship it is appropriate to take on debt with your other person.

Once you have taken on the debt of your spouse, it may be that which lingers after the relationship.

BEST WILSON BUCKLEY

32

C R O S S R OA D S

AN ANNIVERSARY TO R E M E M B E R Kara Bes t , Legal Pra c tice Direc tor & Accred i ted F a mily Law Spec ialist

This year we are rounding out our first decade and celebrating the tenth anniversary of opening our doors as the first niche family law firm in Toowoomba back in November 2009.

Our original vision was to create a safe haven for families as they navigated the often turbulent path of separation and to play a key role in prioritising children and achieving the most optimal outcomes for our clients. It was exceptionally important to offer a dedicated and specialist service that was directed to giving the highest quality and most pragmatic advice and support. Almost 3,650 days later and that vision is now a reality; and it remains as the purpose behind what we do each and every day having supported more than 3,000 people in the last ten years.

Milestones have the effect of making us feel that it is time to take stock, to reflect and ponder. We started this journey as a team of around nine in the spacious surrounds of our original Clifford Street home – guaranteed to be hot in summer and bitterly cold in winter! Over the last decade, we have played host to the most incredible team of people, all sharing a genuine desire to do the right thing for each and every client. As in any business, we have welcomed and farewelled team members over the past ten years.

What has always been present is a culture of nurturing and connecting with our clients and each other in such a way that we create a renewed sense of possibility and a more meaningful outcome for the future, in a manner that is consistent, structured and responsive and offers stability in really uncertain times.

All of our team, and all of our clients, become part of the Best Wilson Buckley family. Over the years we’ve had to add extra chairs at the table as we welcomed more people and teams in new locations in Brisbane, Ipswich and North Lakes. Now we are the largest specialty family law team in Queensland. To us that is more than a phrase; it has become a responsibility.

One that requires us to provide a meaningful service and support system to people experiencing a family law need. To do so, we offer a breadth and depth of experience for our clients and each other that only a larger team of experts in the field can.

It is this approach, and our unfailing commitment to the best outcomes, that has seen us recognised as a leading family law firm time after time, as selected by independent review Doyle’s Guide. We have also been named as a finalist in the Toowoomba Business Excellence Awards, and members of our team have been recognised for their exceptional legal prowess and client care in many other forums over the years as well.

As a business we have grown from strength to strength and, in 2015, we made a decision to join the Shine Group as their first family law practice, with a vision to take what we built here in Toowoomba and extend beyond our corner in the south east of Queensland to people from all over Australia requiring quality family law advice and representation.

S h i n e w a s a l s o b o r n f ro m To o w o o m b a s o i l a n d continues to work towards exceptional outcomes for people experiencing what could be viewed as a personal setback, whether it be a personal injury or a relationship breakdown. Or, as we like to see it, people that have found themselves at a crossroads and are now embarking on a future which may be different to that originally intended but, with our help, still a bright future.

Much like the people we work with, Best Wilson Buckley is also embarking on a new pathway as we enter the next decade.

Issue Twelve

33

C R O S S R OA D S

The foundations of that pathway are built firmly on the trials, tribulations and experiences of the past ten years. There are markers along the pathway that recognise all of our past, present and future team members, our colleagues in law and business, the wonderful communities that have welcomed us with open arms and, of course, all of those families that we have had the absolute privilege to work with over the years.

To celebrate this milestone we have decided to thank all of the people and communities that have played a role in where we are today. As a small token of our gratitude we have decided to celebrate this milestone by giving back to the communities that have supported us so much.

I n To o w o o m b a w e h a v e d o n a t e d h a m p e r s f o r drought-affected communities in the Granite Belt and Darling Downs regions.

In Brisbane we are supporting the fantastic work of the Women’s Legal Service. In Ipswich we are donating to the Domestic Violence Action Centre to continue their great work. In North Lakes we are supporting the wonderful Pine Rivers Community Legal Centre.

Our family will continue to come together to recognise the good times and the bad, to be honest with each other, and to always push each other to make tomorrow better than yesterday or today.

There’s always room at the table.

Welcome to the family.

BEST WILSON BUCKLEY

34

C R O S S R OA D S

A L L WA L K S O F L I F E L uke S te el, Le gal Partner

One of the things that draws so many of us to family law is that we get to work with, support and guide real people going through something very real.

Relationship breakdown happens to people from all walks of life and isn’t something that only affects people at a certain stage of life. In fact, we’re increasingly unable to say at what point relationship breakdown, separation or divorce is most likely in life. Only that it happens in about 40 percent of relationships at one point or another and there is no one tell-tale sign that begets all others to indicate if you will be part of that 40 percent.

In my 16 years as a family lawyer, I have worked with people from far and wide as they go through their family law matter. These have included a pool b u i l d e r, h o t e l m a n a g e r, h o r s e b re e d e r, m i n e r s , landscapers, stonemasons, carpet layers, lawyers, doctors, greenkeepers, pilots, a brewery owner and a soap star from all over including Italy, South Africa, New Zealand, the Maldives and right across remote, regional and urban Australia – men and women alike of all ages.

What has always been of most interest to me has been getting to know each and every one of these clients for the people that they are. Things like what makes them tick, their hobbies, background and life experiences, interesting titbits and tall stories, and their hopes and dreams for the future. Especially what all of those things mean in the context of crafting their new future following the breakdown of a relationship.

Rarely when a new client comes to see me for family law advice have they really thought about what it is that they want and need to get out of that process aside from their immediate concerns about personal safety, the wellbeing of their children, short-term living arrangements and, of course, financial security.

All of those concerns are natural and stem from our basic needs as humans, so it is only reasonable that they are the first things we think about, and it is equally as important to resolve those concerns quickly and without too much fuss where we can.

It is important not to lose sight of the bigger picture at this time though as it could mean that short-term fixes are put in place that complicate you being able to reach your ultimate goals down the track. So I always urge the people I work with to think about what their new future vision looks like in the absence of the relationship that has recently broken down, and where does the silver lining lie within this difficult period?

Once you have determined your vision it is a lot easier to then put into motion all of the bits and pieces that you need to be able to get there. Things like financial resourcing, emotional support, physical and mental wellbeing, right through to things such as spiritual needs. Some of these are things that we, as your family lawyer, can help with and depending on your circumstances will be easier to resolve for some. If we cannot assist you, our network, which is as varied as our client base, sure can and we will see to it that you have the right team along for the ride.

It is this, the journey that we take with people, that is the most rewarding part of our work as family lawyers, and especially so in getting to know and connect with people from all walks of life and across the globe as they craft their new future after a relationship breakdown.

Issue Twelve

35

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

|

bwbfamilylaw.com.au

(07) 4639 0000 - Toowoomba 135 Margaret Street, Toowoomba QLD 4350 PO Box 3701, Toowoomba QLD 4350 (07) 3210 0281 - Brisbane Level 5, 190 Edward Street, Brisbane QLD 4000 PO Box 1735, Brisbane QLD 4001 (07) 3812 1392 - Ipswich 205 Brisbane Street, Ipswich QLD 4305 PO Box 840, Ipswich QLD 4305 (07) 3490 1390 - North Lakes 107/1642 Anzac Avenue, North Lakes QLD 4509 PO Box 1207, North Lakes QLD 4509

Designed and Published by Fast Firms Contact us at support@fastfirms.com Liability limited by a scheme approved under Professional Standards Legislation.

Printed by Cracker Print & Paper Edited by Cassandra Bate & Jennifer Ryder