Cross Roads

crossroads Issue One | AUTUMN 2016

THE FOUR KEY INGREDIENTS To getting successfully to the other side

MAKE A WISH Do the children's wishes really count in family law?

LEGAL FEES VS ME How you can take control over legal fees

TOOWOOMBA 135 Margaret Street, Toowoomba Q 4350 PO Box 3701, Toowoomba QLD 4350 Phone: (07) 4639 0000 Fax: (07) 4639 0001 Email: info@bwbfl.com.au BRISBANE Level 5, 190 Edward Street, Brisbane PO Box 1735, BRISBANE QLD 4001 Phone: (07) 3210 0281 Fax: (07) 3210 0282 Email: info@bwbfl.com.au www.bwbfamilylaw.com.au

Contents Editorial

01

The Four Simple Ingredients in Family Law

02

Q&A with Reagan Wilson, Legal Partner

05

Is Your Lawyer Ready for Mediation? Are You Ready for Mediation?

06

Hutchies Tennis Challenge for Careflight

08

Q&A with Kara Best, Legal Practice Director

09

Do the Children's Wishes Count?

10

How to Prevent the Break-Up Appetite

12

What are Pre-Nuptial Agreements?

14

Independent Review Names Best Wilson Buckley as Leading Family Law Firm

15

Limit Your Legal Fees by Limiting Problems

16

Q&A with Dan Buckley, Legal Partner

19

Why it's Important to Make Sure Your Property Settlement is Properly Documented

20

Tips for Finding the Right Family Lawyer

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Editorial It is with considerable excitement we launch our family law publication Crossroads.

Our magazine will be available on a quarterly basis both in printed form and electronically, and is intended to provide our readers with topical articles of interest and information relevant to the specialised area of family law in which we practice.

In recent months our firm has joined the Shine Group, and the synergy between our organisation and theirs is such that we now have the opportunity to develop the first truly nationalised specialised family law practice.

We trust that you find something of interest in our inaugural edition and would welcome any feedback you have including articles of interest you would like to see in future publications.

by Reagan Wilson, Legal Partner Best Wilson Buckley E: reagan@bwbfl.com.au

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The legal process following a separation is like living in suspended animation.

"Ingredient Number One: Don’t sweat the small stuff”

THE FOUR SIMPLE INGREDIENTS IN FAMILY LAW

by Reagan Wilson, Best Wilson Buckley

I am regularly asked in both the professional setting and often also on a social basis, what are the tips, or what I refer to as ‘simple ingredients’, to moving through the legal process in a relationship breakdown that maintains respect and dignity.

Having practised in family law for over seventeen years, I have had the opportunity to help people through what is often for them the most emotional and traumatic experience they have lived. A relationship breakdown does bring with it an enormous sense of loss on many levels, but also the opportunity for a new beginning.

You do come out the other side, especially with the right support networks.

A Family Court Judge once famously described the period in which people are living through the legal process following a separation as like living in suspended animation.

There are what I consider to be four simple ingredients that give people the opportunity to maintain a sense of respect and dignity in the process that will also benefit them in their relationships moving forward, including with their former partner, particularly if they need to continue to communicate with one another for the benefit of their children.

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“Your Facebook post or voicemail may ultimately end up as evidence in your family law dispute"

The first ingredient is indeed a simple concept and that is “Don’t sweat the small stuff”. By focussing on small things or the minutiae in a financial settlement, my experience is that you lose sight of the big picture. It is evident that on many occasions, people do attach a sentimental value to particular items of their property but on other occasions, I see people want to pursue an item of property for the purpose of what I refer to as winning a “trophy”. Pick your battles, there is no benefit in getting into a costly legal argument over things such as a coffee table or the toaster and kettle. You will spend more money and energy on pursuing those issues than what you could often buy them for, and remember, they are just “things”.

You are better off putting your resources into issues that actually mean something. The key is often to compromise and not have a battle over the small things. “Don’t sweat the small stuff”.

With your children, the second ingredient is not to encourage them to think they determine or control the parenting arrangements. I read a great post on that social forum that is Facebook the other day which said there are two rules about children and they are that you do not ask them to deal with adult issues and that you do not burden them with situations they cannot control.

Generally speaking, my experience is that children tell parents what they want to hear and often what they say has the underlying intent of getting the approval of their parents. There is no magic age in terms of when a child’s wishes, in effect, determine the parenting arrangements that are to be put in place, but obviously as they get older or enter their teenage years they are often able to articulate their views more clearly.

It is important to remember, however, that there aren’t too many fourteen year olds that can run their own life and self-determine, meaningfully, what is in their best interest.

There needs to be a balancing of what a child’s views are, and the context to those views being expressed, and the need for parents to parent their children and encourage the relationship with the other parent.

Encouraging or forcing a child to make this decision creates a no-win scenario in that essentially one parent will be happy and the other parent will not be. In simple terms, parenting matters involve the parents taking responsibility for whatever the dispute might be and not delegating the decision-making power to the children. If you do, the reality is you will most likely cause psychological damage to your children and therapeutic support at some juncture will need to be undertaken. Simply, don’t ask your children to deal with adult issues and don’t burden them with situations they ultimately cannot control.

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The third ingredient I consider to be even more important in our digital age and day to day sense of “immediacy” is to not engage in emotive, self-indulgent, inappropriate or dramatic correspondence. It is important to remember that every text message, email, Facebook post or voicemail may ultimately end up as evidence in your family law dispute.

Early in my career, a senior practitioner, now judge, taught me a valuable lesson in reviewing correspondence that I had drafted in telling me that you have to remember that every piece of correspondence that you sign off on may one day be read by a judge. He told me to remember that before pressing send or putting a letter in the post.

The best thing to do, though often difficult, is to ignore and not engage or respond to correspondence that was intended to invoke an emotional response. By engaging in communication of this nature, you are maintaining a relationship that an experienced mediator told me she refers to as “a negative intimacy”.

Remember to think before you send, take a deep breath, or even sleep on your reply overnight. It’s amazing how many times the next morning your decision will be not to engage at all.

This leads into my fourth and final ingredient to maintain respect and dignity in a relationship breakdown.

Don’t defame or slander your former partner or minimise their contribution to their relationship or as a parent. It takes two people to function in a relationship and it takes two people to separate.

We consistently see documents that are filed in Court proceedings that contain irrelevant, defamatory, slanderous and inflammatory content that is not only largely inadmissible but does nothing to promote that person’s case or the issues that need to be determined by the Court.

To the contrary, by failing to acknowledge the contribution made by your former spouse, the Court can, in fact, form a negative view of you and disregard other aspects of your evidence that might otherwise have been credible by focusing on these other issues.

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A family law expert can guide you through this process and provide you with information as to a network of other support services to help you move through this significant change in your life, whether it be therapeutic support, financial planning advice, accountancy advice, etc.

If you remember these four simple ingredients, they will help you in that journey.

“If you remember these four simple ingredients, they will help you in that journey.”

Q&A REAGAN WILSON LEGAL PARTNER Q: Best thing about Summer on the Darling Downs?

A: The weather, though I love our winters.

Q: Favourite place to eat in Toowoomba?

A: Fitzy’s on Church, with Marc Kennedy.

Q: Favourite drink?

A: A long macchiato to start the day, a Felton Road Pinot noir with a meal, and a smoky single malt to end a night.

Q: What smell reminds you of your childhood?

A: Childhood? The smell after an afternoon summer storm in North Queensland.

Q: Why family law?

A: The opportunity to assist, and build relationships with people, often in difficult circumstances.

Q: What meal would you request for your last supper?

A: Being a carnivore, an aged grass fed rib eye on the bone, with a side of hot english mustard.

Q: Who was your childhood hero growing up?

A: Allan Border.

Q: Best concert?

A: The Boss, Bruce Springsteen. Closely followed by Eddie Vedder and his ukelele.

Q: How do you unwind?

A: With my wife and our five children.

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IS

YOUR

FOR

LAWYER

MEDIATION?

READY

FOR

READY

ARE

YOU

MEDIATION?

BY DANIEL COATES, BWB MEDIATIONS

The mediation day is here and we arrive on time. Sitting with the client I tell him, “we should start soon” not knowing what is about to occur. I am removed from the room by the mediator who needs to “discuss an issue” with me. My first thought and comment is, “am I in trouble?” (as those words are said, I think what a ridiculous question, we aren’t at school and she’s not the Principal). Never the less, the mediator feels the need to respond, “No No” however we have an ‘issue’.

Mmm interesting – that is simply not the case I say. I sent letters to that effect, they had had discussions but there is no agreement. My client cannot do what the wife wants him to do! This has been disclosed to the wife’s solicitor. This cannot be a surprise! What now? I go with the mediator to my client and explain the situation. Again he says, “I have told her I can’t do what she wants. I’ve told her it’s simply not sustainable. I don’t have that sort of money”

It seems the wife has arrived at the mediation under a misguided understanding that her attendance at the mediation was based on the fact that certain matters were resolved. My Position Statement has caused the wife some distress. She can’t think. She’s hysterical.

What options do we have?

It is agreed that we formulate a package deal for the wife, so she can see it in black and white, to show her that her husband is not trying to destroy her.

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My client’s proposal is given to wife and her solicitor. I wait with my client who is now anxious and expectedly concerned. His hope for the day was to resolve this longstanding dispute, for himself, his wife and most importantly their 3 children.

Here it is, the wife’s response.

As the mediator relays the wife’s counter offer to us I stop writing and interject, “is there any point writing this down?” The wife’s counter-offer was completely unachievable and not one that my client could contemplate. The offer was made by the wife based on her fixed views of her property settlement entitlement. It would be a dream deal if the husband was the ‘goose with the golden egg’.

Nothing else could be achieved. The mediation ended at a cost to the husband and the wife. What could have been achieved?

As lawyers we are tasked with a duty to advise our clients. In my practice, it is my responsibility to reality test my client and if necessary and based on the facts, shift the way they think. Do not hesitate to challenge the client and encourage them to consider other options for a resolution. Inform them of the potential legal fees involved if they do not agree. Ask the client, what is your price for certainty of an outcome? How do we get certainty? What is your ‘big ticket item’ the most important issue for you?

My conclusion about this failed mediation, the wife had not been reality tested and was not encouraged to think about other options.

My lesson for anyone who is interested in helping the client achieve the best outcome for themselves and their family, do not allow yourself as a practitioner to attend mediation without having prepared your client’s case and your client. Think about options and what your client needs to know about the mediation process. What if they need to change their position? Don’t let them become fixed on an outcome...

“Mediation is the best way to negotiate your concerns to reach agreement and resolve a dispute when a relation breaks down”

Contact: www.bwbmediations.com.au

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HUTCHIES TENNIS CHALLENGE FOR CAREFLIGHT On Friday, 16 October 2015, Best Wilson Buckley took to the Court (in a different sense to the norm) to raise money for RACQ CareFlight Rescue at the Hutchies Corporate Tennis Challenge in Toowoomba. Reagan, Ben and Courtney played as the BWB Baseliners.

Courtney and Ben fulfilled the roles of Andre Agassi and Steffi Graf, overseen by Reagan as their late 1980s/early 1990s equivalent to Damir Dokic manager and bad tennis dad with the assistance of Reilly Wilson as their ball boy. The Baseliners made an early exit from the competition, but were the best dressed and highest fundraisers.

CareFlight Rescue is a not-for-profit helicopter rescue service that provides rapid response emergency medical care to residents and visitors of southern and central Queensland and northern NSW. It was established in 1981, their helicopters and crew are on standby 24 hours a day, 365 days a year to offer peace of mind to residents across 41 council regions in Queensland and Northern New South Wales.

CareFlight has grown to meet the everincreasing demand for aero-medical services and now comprises a fleet of six community rescue helicopters based

on the Gold Coast, Brisbane, Toowoomba, Sunshine Coast, Bundaberg and Mount Isa. CareFlight offers one of the only lifelines to families living in rural and regional areas, often located many hours away from the states’ major hospitals.

CareFlight Rescue is an integral link in the lifesaving chain of survival and the dedicated medical teams are usually tasked to four types of missions; primary rescues at the scene of accidents, interhospital transfers, neonatal retrievals and search and rescue operations.

CareFlight relies on community donations to keep their choppers flying.

Donate at www.careflight.org.au

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Q&A

KARA BEST

LEGAL PRACTICE DIRECTOR Q: Best thing about Summer in South East Queensland?

A: The Colour Q: Darling Downs’ best kept secret?

A: Ravensbourne Q: Favourite place to eat in town?

A: Sofra Q: What do you enjoy doing most in your spare time?

A: Pottering around town with my Husband Paul and our little one.

Q: What is one of your favourite spots to travel to?

A: Melbourne Q: What has been the happiest day of your life?

A: A pretty close race between the day we married and the day our daughters arrived.

Q: What is your favourite movie?

A: Anything with Doris Day or Julie Andrews.

Q: Who would your 5 guests be to your last supper?

A: My Sister, Brother, Mum, Dad and my Husband – they are all brilliant company.

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

A: I’m still working on that one.

Q: If you didn’t study law, where would you be?

A: Far more well-rested, but significantly less fulfilled.

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DO THE CHILDREN'S WISHES COUNT? Recent coverage surrounding family law cases has raised the question for some parents as to whether their child’s wishes are something that would be considered in a family law proceeding.

by Kara Best,Best Wilson Buckley

First and foremost the best interests of the child is the paramount consideration when determining all future parenting arrangements. The court’s final orders should always reflect its findings on the evidence about what is most likely to promote this principle.

In determining this, the Family Law Act 1975 sets out two primary considerations when dealing with parenting matters: 1. The benefit of a child having a meaningful relationship with both parents; and 2. The need to protect a child from physical or psycho- logical harm.

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Views expressed by a child will not solely form the basis for the Court’s decision. There are a number of different factors set out under the legislation which need to be considered after a focus upon the `primary’ considerations as set out above. The views of a child are only one of those factors. It is important to note that even though a child’s wishes are relevant, that relevance is also dependent on their level of their understanding and maturity.

Whilst the Family Law Act remains silent with respect to what age a child must be before their wishes are considered definitive by the Court, generally speaking a Court will place significant weight on the wishes of a

child over the age of thirteen years, and earlier if a child is particularly mature and insightful.

How are the views heard?

Given the Court does not generally favour direct involvement of children in litigation due to the nature of the process and the potential disadvantages for the child, alternative methods which are considered to be a suitable vehicle for capturing the child’s views are: 1. A Family Report, where the writer (generally a skilled psychologist or social worker) has met with the parties and child;

First and foremost the best interests of the child is the paramount consideration when determining all future parenting arrangements

2. A Family Consultant from the Court’s Counselling Service whom can meet with the parties and report orally or in writing to the Court; and/or 3. The appointment of an Independent Children’s Lawyer. The latter will meet with children when they are sufficiently mature to understand the nature of the ICL’s appointment and their role.

The ICL is not a child’s advocate and does not act on a child’s instructions, but rather is empowered to make all such enquiries as are pertinent to determining what is in a child’s best interests and thereafter to make submissions to the Court relevant to what would be best for a child.

Arguably a parent is in an ideal place to represent the interests of a child, but the adversarial nature of litigation is such that the Court will generally search for an

objective measure of a child’s wishes beyond that which their parents are representing. This is partly recognition of the fact that children are very vulnerable to an instinctive need to please a loved parent and tell them what they think the parent requires.

In many cases, both parents will report that their son or daughter has expressed a desire to live with them solely. This is another good reason to avoid discussions of such a nature with kids unless they are old enough to handle the undercurrent of conflict and alignment (which for some kids may mean the discussion never takes place).

As with all considerations in relation to the best interests of a child, it is important to be guided by an experienced legal practitioner. Should you have any concerns in relation to future parenting arrangements for your child, please contact us today and arrange an appointment.

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TAKING CARE OF YOUR BODY DURING TOUGH TIMES

HOW TO PREVENT THE BREAKUP APPETITE

By Neha Bhatia, Email: neha@nutrivore.com.au

THERE IS NO DOUBT THAT HEARTBREAKS AND RELATIONSHIP PROBLEMS OFTEN SHAKE OUR BODIES TO THE CORE. EMOTIONAL PAIN ACTIVATES THE PATHWAYS IN OUR BRAIN WHICH ARE RELATED TO PHYSICAL PAIN CAUSING LOSS OF APPETITE, ABDOMINAL DISCOMFORT, INDIGESTION AND CRAVINGS FOR UNHEALTHY FOOD.

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4. Boost B​ Vitamins Deficiencies in B vitamins such as folic acid and B12 can trigger depression. To get more, take a B‑complex vitamin supplement or eat more citrus fruit, leafy greens, beans, chicken, and eggs.

5. Include Omega ​ 3 Fatty Acids Omega‑3 fatty acids also appear to be potent depression‑fighters. Clinical studies have shown that omega‑3 fatty acids, found in fish including tuna, salmon and sardines, or in fish oil supplements, can significantly reduce depressive symptoms.

6. Eat Mindfully

These symptoms can result in :

Try to eat slowly and mindfully to enjoy each bite and avoid overeating. It takes several minutes for the body to signal fullness; stop eating before you feel full.

● Weight Loss or Weight Gain ● Trigger Food Addictions ● Cravings for Sugar and Fat ● And ,Digestive Problems.

7. Correct Portion Sizes

So how can we move forward and engage in healthier behaviours towards food when we're reeling from a breakup?

​egulate your portion size – both overeating and R undereating can stress your body physically and emotionally.

Here’s my 10 Top Tips of what you need to remember!!!

8. Drinking Plenty of Water 1. Avoid High/Low Blood Sugar Levels: Keep blood‑sugar levels balanced. If they fluctuate during the day, so will your mood and this can be a contributing factor in people with depression. A diet high in sugary, white, processed carbohydrate foods will cause sudden peaks and troughs in the amount of glucose in your blood, which can result in irritability, fluctuating mood and anxiety. Eat more: Whole Grains, fresh fruits, vegetables and legumes. Try yoghurt, nuts, seeds, eggs, fish, chicken and legumes and cut down on caffeine and alcohol.

2. Avoid Snacking Mistakes During stress , our hormones might trigger us to keep on snacking on unhealthy food to find pleasure in some way. To avoid becoming a snack‑food victim, always keep nutritious snacks with you, such as nut bars, cheese and cracker packs and fruit. They help control insulin and blood‑glucose levels, crucial for body‑weight regulation.

To keep the body properly hydrated and to aid in everything from digestion to maintaining healthy body temperature drink plenty of water. Limit caffeinated beverages like coffee or soda, which can have a stimulating effect at first, only to be followed by a drop in energy level and mood later.

9. Plan Meals in Advance One easy way to keep the days simple when going through up’s and down’s in life is to do menu planning.

Planning your meals in advance will reduce the struggle of cooking meals during mealtimes. Just look at the menu plan and cook.

10. Stop Weight Obsession 3. Don’t Skip Meals Going too long between meals can make you feel irritable and tired, so aim to eat something at least every three to four hours.

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I​ t is often recommended that one should weigh themselves once a week or once a fortnight. Too much weighing and looking at scale daily can add the pressure and may demotivate you. Rather than weighing yourselves daily, measure yourself of how do you feel in your clothes. Wear comfortable clothes suited to your body shape.

More Information: www.nutrivore.com.au

WHAT ARE PRE-NUPTIAL AGREEMENTS?

by Samantha Iwers, Best Wilson Buckley

WHAT ARE THEY?

ARE THEY LEGAL IN AUSTRALIA?

The term pre-nuptial agreement (or pre nup) is an everyday term describing an agreement entered into between two parties in contemplation of marriage. It will generally make provision for what is to occur in the event of separation. Often assets are ‘quarantined’ from a future claim in such an Agreement.

In Australia a pre-nuptial agreement is more commonly referred to as a “90B Agreement”, the name being derived from the relevant section of the Family Law Act under which the Agreement is made.

It seems these days that news of any celebrity separation is followed by a headline which begins with “his/her prenuptial agreement states” or “no prenuptial agreement was ever signed”.

Often the latter headline is accompanied by commentary as to why a pre-nuptial agreement should have been signed and who will be the big winner out of the separation as a consequence of there being no pre-nuptial agreement in place.

Pre-nuptial agreements were originally seen as something that only established and wealthy individuals would need. This perception is changing as more couples appreciate the clarity and security that such an Agreement can offer to both a couple, and often their families.

A 90B Agreement is entered into by two people prior to them being married. The terms of the Agreement sets out how, in the event of separation, the finances of both parties will be dealt with and how the parties’ interests in property will be distributed.

There is another variety of legal agreement that allows de facto couple, whom are not planning to marry, to make provision for what will occur should they separate.

WHEN DO THEY WORK? 90B Agreements are only binding if they meet strict legislative guidelines. For this reason, great care is required in drafting and executing these Agreements.

Even if the Agreement is binding, some grounds on which a 90B Agreement can be set aside are:

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1. the agreement was obtained by fraud (including non-disclosure of a material matter); or 2. where a material change in circumstances has occurred that relates to the care of a child, and the child, or party to the agreement with the care of the child would suffer hardship if the agreement were not set aside; or 3. when unconscionable conduct is has occurred; or 4. when circumstances arise which means that it is impractical for the terms of the Agreement to be carried out.

Both parties must obtain independent legal advice with regard to the Agreement before it is binding and it is highly recommended in the current legal climate that each party engages with a highly experienced family law practitioner.

An experienced legal practitioner at Best Wilson Buckley will explain to you the following prior to you signing a 90B Agreement: 1. The effect of the Agreement on your rights; and 2. The advantages and disadvantages of you entering into the Agreement.

INDEPENDENT REVIEW NAMES BEST WILSON BUCKLEY AS LEADING FAMILY LAW FIRM Best Wilson Buckley Family Law is the leading family law firm in the Toowoomba and Darling Downs region – voted by Independent Review, Doyle’s Guide. BWB is listed as the only First Tier Family Law Firm in the region’s 2015 rankings.

Legal Partners Kara Best and Reagan Wilson are recognised as the Downs’ only Preeminent Family Lawyers, and Legal Partner Dan Buckley, a recommended Brisbane Family Lawyer.

Doyle’s Guide is a completely independent review process conducted annually through extensive telephone and face to face interviews with clients, peers and relevant industry bodies.

Best Wilson Buckley opened as a boutique family law firm in Toowoomba in 2009, and this is the fourth successive year that the firm has been honoured. The team at Best Wilson Buckley value the recognition, appreciation and support from clients and peers.

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TECHNOLOGY

Limit Your Legal Fees

by Limiting Problems Essential Tips for Taking Control over Unexpected Legal Fees

by Dan Buckley ,Best Wilson Buckley

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We’ve all heard the stories about exorbitant amounts of money being spent by spouses on legal fees arising from a family law dispute.

Unfortunately these stories are not just limited to US celebrities.

Most of these stories either expressly blame the role the parties’ lawyers have played in the process or otherwise suggest that the sole or major motivation of the parties’ family lawyers is directed towards their own personal financial gain, rather than that of their clients.

I admit that, in some cases, such criticism is warranted. These lawyers are the scourge of our profession and seem not to consider or care about firstly, the impact this has on their client (both at the time and into the future) and secondly, the wider impact on the reputations of all family lawyers.

There is little wonder the internet is full of jokes about lawyers, such as: “What do you call 10,000 lawyers at the bottom of the ocean?

A good start. (Unless you are an environmentalist; then you would consider this indiscriminate dumping of hazardous waste.) or “Santa Claus, the tooth fairy, an honest lawyer and an old drunk are walking down the street together when they simultaneously spot a hundred dollar bill. Who gets it?

The old drunk, of course; the other three are mythical creatures.”

However, I like to think that, in the vast majority of cases, the primary goal that motivates most lawyers is getting a good outcome for their clients.

Sometimes, when your former spouse or partner is acting irrationally, is refusing to communicate or takes an en- trenched position in relation to an important or significant issue, your options for how to resolve your matter may be limited. In reality, I think these circumstances are extremely limited. In most cases, you will always have a number of options and more control over the choices you make and the direction your matter takes than you think.

And, as the client, the most important person in the matter, you should always ensure that you are in control of the direction your matter is taking and that you manage your legal fees.

I like to think that, in the vast majority of cases, the primary goal that motivates most lawyers is getting a good outcome for their clients.

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Here are my top five tips for doing so:

1. Carry out a cost benefit analysis, or ask your lawyer to set one out for you, at each stage of your matter. There is no point, in a financial matter, in spending the same amount (or more) on legal fees to progress your matter than is in dispute between you and your former spouse.

2.

Before instructing your family lawyer to commence litigation on your behalf, make sure you: (a) Have fully explored all of the other avenues and alternatives to litigation. These include: Putting across your “best” offer at the same time as providing your spouse with all of the information and documents they need to consider that offer;

3.

Arrange a round table conference with your former spouse and their legal representatives. Consider inviting the family or business accountant; Consider appointing an independent

4. expert to provide advice to both parties on a particular matter in dispute eg the current or future operation of the business;

5.

Consider the different forms of alternate dispute resolution including collaboration, mediation and arbitration; and • are fully aware of the costs involved in litigation, from start to finish, including filing fees, the number of Court attendances that may be necessary, the costs of any adjournments or delays;

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• are aware of, and have considered the possible consequences of, the fact that once you are in the court system you no longer have control over the timing of your matter or the process that is undertaken. All this is subject to the Court’s finite resources and availability. In the 2012/2013 financial year: – in the Family Court of Australia, there were 2,807 Applications for Final Orders and 3,380 Applications for Interim Orders; and – in the Federal Circuit Court, there were 17,364 Applications for Final Orders and 20,242 Applications for Interim Orders.

One of the effects is that, a five minute mention of your matter may not be heard until very late in the day. In most cases, neither you nor your lawyer have any choice but to wait outside the Court room. Further, although the Court goes to great lengths to ensure that it is avoided, on occasion two trials may be set down for the same day, before the same Judge and your matter may not be the one being heard on that day. This is despite the fact that you have paid your Court fee, filed your Court material on time and paid your barrister to appear on your behalf.

When making any proposals or considering any proposals, for property settlement make sure you:

Carry out or consider your lawyers cost benefit analysis (as set out above). How much are we apart in dollar terms? How much will it cost me in legal fees to proceed in my matter (eg what will be my legal costs to prepare for and attend say a private mediation?).

Consider the “cost” to you in spending time involved in a matrimonial dispute rather than spending that time in your work or business; Acknowledge the emotional cost of continuing the dispute. You made the difficult decision to separate, allow yourself to be able to move on with your life.

Adopt a realistic and reasonable position, in the context of the limitations of what your lawyer, or the Court, can “fix” – Neither can change the behaviour of your spouse; neither can make your spouse acknowledge his or her role in the breakdown of your relationship; neither can declare you as the “winner” over your spouse; neither can make him or her a better parent.

Consider carefully the advice being provided by your lawyer. If unsure, ask questions about the legal and cost ramifications of taking one option over another. In light of the limitations of the Court (as set out above), consider the road of least resistance. Sometimes not doing something (ie not taking a particular step) is an option worth considering.

Carry out a cost benefit analysis, or ask your lawyer to set one out for you, at each stage of your matter.

Q&A

DAN BUCKLEY LEGAL PARTNER

Q: Brisbane’s best kept secret?

A: Not really a secret but it’s proximity to some beautiful islands Straddie/Moreton etc.

Q: Favourite place to eat in town?

A: Sake – great food and great service.

Q: What do you enjoy doing most in your spare time?

A: Hanging out with my girls and dogs.

Q: What is one of your favourite spots to travel to?

A: Hinchinbrook Island with mates.

Q: Favourite album/concert attended?

A: Grace – Jeff Buckley Q: If they made your life a movie, who would play you and why?

A: Really, it would make a pretty boring movie. Tom Hardy I guess – if he can play Micky Peterson (“Bronson”) he can play anyone.

Q: Favourite book?

A: Amitav Ghosh – The Glass Palace.

Q: How do you unwind?

A: Yoga Q: What did you think you were going to be when you grew up?

A: A vet.

Q: Why family law?

A: Because it’s meaningful, has lots of contact with clients, is personal and you can make a genuine difference to people’s lives.

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WHY IT’S IMPORTANT TO MAKE SURE YOUR PROPERTY SETTLEMENT IS PROPERLY DOCUMENTED

by Andrew McCormack , Best Wilson Buckley

There are times, believe it or not, when some people can work out their property settlement issues amicably and reach an agreement without the need to go to court. It is important to ensure that any property settlement that you and your spouse agree to is properly documented to ensure that your financial relationship is finalized and all of the loose ends are tidied up. If this does not happen, there could be some serious consequences in the future. I often recount to clients the circumstances of a previous client who, in attempting to resolve his property settlement

matters with his former partner, decided to do an informal property settlement to save the costs of getting solicitors involved. In hindsight, this became a very costly mistake – a million dollar mistake.

On separating from his wife, the former matrimonial home was sold and the proceeds of sale went to the wife. My client retained his business, which at the time of separation was valued at around the same amount as the proceeds of sale of the house. My client thought that this was a fair division of the parties property. He kept his

business and went about building it up.

However, the division of property between the husband and the wife was never formally documented.

My client went on to form a new relationship some years later and decided to get married. However, the parties had never divorced.

The Family Law Act provides that property settlement proceedings can be brought any time after parties separate and for a period of one year after a divorce order is made. To enable my client to get married again, he made an application for divorce.

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Soon after being served with the application for divorce, the wife obtained legal advice about her position. As no formal property settlement had occurred, she made an application for a property settlement some 15 years after the parties had gone their separate ways.

To cut a long story short, my client’s business had grown from a small business in Queensland to a multinational business with diverse interests. The mistake of not properly documenting the property settlement meant that my client’s soon to be former wife had the ability to have a “second bite” at what was now a very juicy cherry. It is important to ensure that your property settlement is properly documented by way of a Consent Order or a Financial Agreement. This has the effect of severing the financial relationship between you and for former partner so that you can go about rebuilding or consolidating your financial position after a relationship breakdown.

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Too many people go with the cheaper hourly rate not thinking that what a specialist family lawyer can do in 3 or 4 hours may take the “cheaper by the hour” non specialist 8 or 10 hours to do.

TIPS FOR FINDING THE RIGHT FAMILY LAWYER

by Dan Buckley, Best Wilson Buckley

In addition to meeting with many clients, at first instance, unfortunately we see a lot of clients who have been referred to us having been previously represented by other lawyers.

Usually these clients have spent a significant amount of money, and have yet to really either progress the matter or they’re at a loss as to what is going on. As a result they are often disenchanted, a little wary and sometimes exhausted. Like all professions, there are good family lawyers and there are bad family lawyers. Here are my top 10 tips to help you avoid the good from the bad:

1. Avoid lawyers who claim to be both

fierce litigators and collaborative negotiators. You cannot be both.

Some firms do however offer subspecialists such as negotiators, parenting litigators, experts in business/commercial family law etc which allows you to choose the lawyer to match your needs and your style.

2. Choose a lawyer or law firm that

specialises in family law. Practising in this jurisdiction requires an absolute commitment to family law.

As a hot political topic, there is continued pressure on government and legislators

from various lobby groups to make changes to the legislation and regulations relating to child support, children’s issues, prenuptial and cohabitation agreements, superannuation, tax, the involvement of third parties and there are frequent changes in the Courts approach from new case law.

Also, in my view, part of the expertise you are “buying” must necessarily include knowledge of Court process, the most effective mediators, the best counsellors, the premier family law barristers, and best business valuers. That expertise must further include an intimate understanding of the judges of

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the Court, their preferences, and the means by which the best outcomes are achieved before them.

3. Check the admission date of your

lawyer and ask the question as to how long have they specialised in family law. Often those lawyers claiming to have experience in fact have very little.

Beware of the lawyer that talks

4. about “winning”. I believe that you win when you achieve the most optimal outcome in the circumstances. Often when one party feels that they have “lost” as a result of a legal process, it will lead to immeasurable conflict for children being co-parented for years to come. In my mind, that conflict and the associated risk is not a “win”.

Talk to your lawyer on the phone

5. before making an appointment to see them.

Make sure you are comfortable with their style. Are they easily able to be understood?

6. Don’t be afraid to look for another

lawyer or ask for another lawyer at the same firm. (if possible) after your initial meeting. A good relationship with your family lawyer is vital.

9. You wouldn’t see a doctor without a

referral and a strong recommendation – adopt the same approach with your family lawyer. Ask for a recommendation from those people and professionals in whose judgment you trust. The best marketers may not be the best family lawyers.

7. Expect your lawyer to see red flags

around corporate and trust practice, taxation issues and less than advantageous financial outcomes.

Whilst arguably the domain of a skilled accountant and financial advisor, you should at the very least expect your lawyer to be able to read and understand a set of financial statements and know when further advice of that nature is needed.

Look for firms that provide a few

8. points of contact at the firm who

have a good working knowledge of you and your matter. There is nothing more frustrating than not having important questions answered when you need to them or having your matter left stagnating while “your lawyer” is on leave.

10.

Whilst it should never be used as the sole basis for a decision as to which family lawyer you use, compare your lawyers charge out rates with other specialist family lawyers.

You need to try to seek a balance. Too many people go with the cheaper hourly rate not thinking that what a specialist family lawyer can do in 3 or 4 hours may take the “cheaper by the hour” non specialist 8 or 10 hours to do. We see this often. On the other hand, very high charge out rates (over $500 per hour) and you may not be able to progress your case very far before you run out of money. Often firms with family law sections are competing alongside the firm’s other areas of law such as insurance, property, construction and other corporate and commercial areas.

This places significant pressure on family lawyers to have the same charge out rates as their colleagues in the same firm. .

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