The world has turned on its axle, Brad and Angie have broken up. Amongst the daily plethora of stories about Brangelina has come the following in the Huffington Post – `Iron clad’ pre nup in place, leaving only the kids to fight about. You can read the article here 

So how Iron Clad can a Pre-nuptial Agreement be?

Well, the answer in this country is a difficult one. When carefully drafted in accordance with the legislation, Pre-nuptial Agreements or Binding Financial Agreements as they are known here are strong documents.

They can be compromised however, by a number of factors including the failure of a couple to be honest in relation to holdings when the agreement is drafted, or where a couple over time co-mingle their assets and the boundaries become unclear. Entering into an Agreement on the eve of the wedding has capacity to compromise an Agreement in the long run. The introduction of children further has capacity to complicate the enforceability of an Agreement, and particularly if provision hasn’t been made for what to do if a break up takes place after kids arrive.

Much can also turn on the quality of the drafting of the Agreement and the independent legal advice received by both parties before signing up. Ultimately, the rule for us is that a pre-nuptial style Agreement is not worth pursuing if you’re unprepared to commit to a comprehensive process of negotiation and discovery and a thorough and well drafted Agreement. They are great `spirit and intent’ documents though. They can be very effective in alleviating the concerns of adult children in relation to a second marriage, and whilst a difficult conversation, they can be introduced on the basis that they will provide clarity and allow both parties to focus on living their life together rather than being distracted by the idea that one party is rendered vulnerable by the marriage or cohabitation (if pursuing only a de facto relationship). We often meet with a client who simply wants to talk through whether an Agreement is a good idea and if so, how to introduce it to their new partner. Anyone who has been through a different property settlement negotiation or Court proceeding will tell you that they wish there had been an Agreement in place to alleviate any prospect of that fight. They can be very healthy documents in preventing conflict.

It’s easy to forget in the midst of the tabloids that the, albeit crazy, world of six kids has been shaken to its core in the last week. Whilst they may be mini celebrities in their own right, they are kids at the end of the day who more than likely love both their Mum and their Dad and are really confused and worried about why the two most important adults in their life are angry at each other. We routinely encounter matters where children years after separation still say that if they could have one wish it would be that Mum and Dad were together and happy. Often their alternative wish is that if they have to be apart, they’d like Mum and Dad to be nice to each other. It’s easy to forget that celebrities are as human as we are, albeit much better looking in the case of Brad and Ange! I suspect that the trappings of celebrity make divorce no easier, and in fact potentially far more debilitating given the public exposure. Let’s hope for all concerned, that Brad and Ange can learn to be nice to each other moving forward.

Contact the Toowoomba divorce lawyers for more information or to clear up any misunderstandings or questions you may have on your unique family law situation.

Imagine for a minute you’re a 13 year old boy.

You’ve begun to experience significant changes in your physical appearance.

You have hormones surging through your body – creating feelings and emotions you’ve not experienced before.

You begin to start viewing the world through your own eyes, as a separate being, rather than that as a child of your parents. You’re beginning to form your own sense of self. With this come the inevitable thoughts about what sort of person you are and will become.

You have an urge to start to test your independence from your parents, but equally you are looking to them and other significant persons in your life as role models and mentors.

Being “different” has no currency just yet – that doesn’t come until much later! Fitting in, and being just like every other 13 year old boy, takes priority.

Most of your friends and school mates are starting to feel sexual attraction to girls and woman – and normalise this by sharing these new feelings with each other. They are also beginning to explore the idea of relationships with girls. How do you interact with them? How does my older brother interact with his girlfriend? How does my Dad interact with my mother? How does my Uncle interact with his wife?

But what if you don’t have these same feelings as your 13 year old mates? What if the attraction you feel, is towards men and boys?

To help you explore the idea of relationships with boys and how to interact with them in relationships, who do you look to?

If you are lucky enough to have a family member or friend of the family who is gay then great, but it must still be confusing. That’s because at present, a gay couple can live together, have a child together, adopt a child together, hold property together, and, in circumstances where their relationship breaks down, have the exactly the same rights and obligations as couples in heterosexual marriages who have separated – BUT they cannot get legally married in Australia. How could someone explain “why” to that 13 year old you in such a way that that would make sense to you??

And, if every single member of the community not only gets to vote on whether you can get married but to voice their opinion on the topic – on talkback radio, TV and social media – would this help that confusion? To date, people opposing same sex marriage have produced such inane, objectionable, offensive and blatantly stupid comments like these:

“Legal recognition of same-sex “marriage” would necessarily obscure certain basic moral values, devalue traditional marriage, and weaken public morality”.

“It Offends God”. Whose god?

“Hurricane Sandy was “divine justice” triggered by the recognition of same-sex marriage in New York”.

“If gays are granted rights, next we’ll have to give rights to prostitutes and to people who sleep with St. Bernards and to nail biters”

Same-sex marriage will lead to “fathers marrying sons.”

“’Sexual orientation’ does not constitute a quality comparable to race, ethnic background, etc., in respect to non-discrimination. Therefore, it is not unjust, for example, to limit the bond of marriage to the union of a woman and a man.”

“It does not affect your daily life very much if your neighbour marries a box turtle. But that does not mean it is right… Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife”.

What effect do you think those voices of opinion would have on you, that 13 year old boy who is gay?

The decision to legalise same sex marriage in Australia is well past its expiration date. The fact that we are still yet to “unamend” Howard’s legislative change to the Marriage Act that made gay marriage “illegal” remains an international embarrassment. Let’s join the following countries, without a plebiscite and without further delay:

Argentina – on 22 July 2010.
Belgium – on 1 June 2003.
Brazil – in May 2011, Brazil’s Supreme Court rules that same-sex couples were legally entitled to legal recognition of cohabitation.
Canada – in 2001.
Colombia – on 28 April 2016,
Denmark – on 7 June 2012,
Finland –taking effect on 1 March 2017
France – on 12 February 2013.
Iceland – on 27 June 2010
Ireland – on 29 August 2015
Luxembourg – on 1 January 2015.
Mexico – in individual cases, same-sex marriage has been granted judicial approved in all states. However, same sex-marriage is officially legal in the following states of Mexico:

Campeche
Chihuahua
Colima
Jalisco
Michoacan
Morelos
Nayarit
Quintana Roo

Netherlands – on 1 April 2001
New Zealand –on 19 August 2013.
Norway –on 1 January 2009,
Portugal – in 2001
South Africa – on 30 November 2006.
Spain – on 3 July 2005
Sweden – on 1 May 2009
United Kingdom – on 17 July 2013 in England and Wales.
United States – a movement to legalise same-sex marriage in America first began in the 1970s, with opposition winning the fight for an extended period. In 1996, the Defense of Marriage Act was passed, attempting to define marriage solely as the union between a man and a woman and granting states the right to refuse the recognition of same-sex marriage. However, on 26 June 2015, a landmark decision of the US Supreme Court rules that states cannot ban same-sex marriage. Prior to this, 37 of the 50 US States legally performed same-sex marriage.
Uruguay – on 5 August 2013

Navigating through life after separating from your partner can be difficult enough without the added stress of your partner remarrying.

Many struggle with the thought of their ex re-partnering.

Some worry about the implications of the new partner on the children.  How is the new dynamic going to work? What are the kids going to think? How will they cope seeing their Father or Mother with a new person?  Is this new person going to be an appropriate step parent for my children?

Others are just deeply hurt by their ex’s new partner selection.  It can reignite feelings of rejection that they may have felt at the separation stage and can at times reopen the heartache of the divorce.  In some circumstances, some may feel replaced by the new spouse and may feel like their ex was shopping for a younger, better version of them.

Some begin to question and criticise their own relationship status.  Should they be further along in their current relationship? Should they be finding a new partner to move on with?

For some, it explains their breakup, namely that their ex has been interested in or seeing another person.  Many in this circumstance feel sorry for the new spouse – it’s only a matter of time before they are cheated on.

Others simply do not care.

Whatever your thoughts, whatever your feelings, there is no right way to respond – so don’t be too hard on yourself.

If you have any queries about your individual set of circumstances, contact our team of expert Toowoomba family lawyers for a free, no-obligation discussion.

Changing your name after divorcing your partner is a very personal issue and you have to make the right decision for you.  However, just because you have separated from your spouse does not mean you have to change your last name.

Not changing your name can be positive in a variety of situations:

Some people keep the same last name of their spouse so they have the same last name of their children. This can avoid awkward questions in the school yard playground – “Why does your Mum have a different last name to you?”

Others keep the same name as it shows unity of the parents. It shows your children that you are both still on the same team and that you can both work together as parents despite separating.

Purely for professional reasons – your married name may be your professional name and as such, you may get more referrals with it.

Your married name may be easier to pronounce or spell than your maiden name.

Some consider their married name to be a family name and not the name of the husband. Some do not look at their last name and think of it as someone else’s – many women believe that their married name belongs to them as much it belongs to their ex-spouse, particularly in circumstances where you may have had this name for a number of years.

Some people just leave their name as is because it is so onerous to change.

Finally, others keep their married name because they have a very close relationship with their ex partner’s family. The name represents a family connection that is important to them.

Whatever your motivations, separation does not automatically mean you have to change your last name.

If you have any queries about your individual set of circumstances, contact our team of expert Toowoomba Divorce lawyers for a free, no-obligation discussion.

Another financial year has just been wrapped up.

This means it’s a time when accountants pop in to Rebel Sport, buy a new pair or runners and some gym gear and undertake their first (and last) bout of exercise for the year. (What? You think lawyers should be the only professionals that are the subject of lame jokes?!)

It’s also a good opportunity for BWB to conduct a brief review of, or reflect on, the previous financial year – an opportunity to stop and acknowledge our client’s successes and the firm’s part in that.

Snapshot

During the 2016 financial year, the firm helped 626 new clients.

We received 38 referrals from previous clients of the firm.

Inspiring client stories

Far from being a firm which is all about the numbers, there were some particular examples of client’s stories that inspired us.

Example 1

Over the December and January Christmas holidays the Father relocated three hours away from the Mother. There were long standing orders in place for week about time. Without warning, the Father retained the 14 year old daughter at the end of the Christmas holiday, refused to facilitate any time or communication with the Mother and alleged the daughter was at risk of harm.

The Mother’s previous solicitors were closed for the Christmas period, so BWB met with the Mother and commenced urgent proceedings within three days. We obtained an urgent interim hearing before a Judge in less than two weeks and at the interim hearing were successful in obtaining orders for the child to be returned to the Mother’s care pending a Family Report as well as a priority final hearing just eight weeks later.

The subsequent family report confirmed that the Father’s allegations against the Mother were baseless and the matter resolved on the morning of the Final Hearing with Orders for the child to permanently remain with the Mother and spend half of each school holiday period with the Father.

It was an extremely emotional matter for the child but particularly her Mum (our client) who was very grateful to have the support of Best Wilson Buckley Family Law Associate Neal Wood over this period.

Example 2

BWB had a client who had been the victim of severe domestic violence throughout a long marriage. Her 2 teenage children had also been exposed to the violence, and as a result both the kids and the client experienced significant ongoing health difficulties.

The police sought a Protection Order on the client’s behalf; however, she was initially hesitant to pursue what we considered her entitlements to be. She was also scared of negotiating with her Husband in relation to parenting matters. Her Husband was insistent on moving quickly towards a resolution which would have seen our client receive significantly less than her entitlements, and agree to parenting arrangements which she was uncomfortable with and potentially placing the kids at risk.

Our team worked closely with this client over a period of around 12 months and experienced real satisfaction in seeing the significant improvement in the client’s confidence and demeanour over this period. We were ultimately able to negotiate an outcome at mediation which resulted in her receiving a property settlement in line with her entitlements, and which acknowledged that the children would spend limited time with their father until their relationship with him improved. She was able to stay in her house, continue running her business, and her kids stayed in the schools that they were happy attending.

Example 3

Best Wilson Buckley Family Law took over a large rural property matter from previous lawyers. It had been in Court since 2014. The parties were elderly, and adult children were involved in both corporate structures, the farming enterprise and in the Court proceedings.

BWB acted for the Husband who was in his late 70s and desperate to retain the farm that he still worked every day. The Wife was also in her 70s and was now suffering from dementia and required the assistance of a case guardian. After extensive negotiations over the three days leading up to the Final Hearing we were able to negotiate an outcome where our client was able to retain the farm, as he had hoped.

In the process the Wife received the cash funds she needed and Best Wilson Buckley Family Law Associate Neal Wood was able to structure the settlement in a way that saved over $40,000 in tax for the client and which ultimately saved both parties well over $60,000 in selling costs, if the farm had needed to be sold.

To celebrate the end of the matter with the relief for the client of knowing he had preserved the farm for the next generation, Neal and his family joined the client for dinner at his property in western Queensland.

Example 4

The Father had been experiencing some difficulties with the parenting of his two and four year old daughters. This was as a result of not appreciating what arrangements for children of this age were appropriate and how incremental changes could be made to arrangements as the girls became older and more able to cope with change.

At the time that BWB became involved in his matter it had been in Court for about 12 months, and the Father had been spending limited time with his girls.

At the following return date and after having advised the client about age appropriate arrangements for young children, Best Wilson Buckley Family Law Senior Associate Andrew McCormack managed to negotiate a gradual increase in time with his daughters, increasing finally to equal time at the beginning of 2020.

Example 5

Best Wilson Buckley Family Law acted for a Mother of two very young children. The Father removed the children from the family home in the middle of the night whilst the Mother was asleep, leaving a note on the table saying that he had taken the children and was moving interstate with them.

Within a week of consulting BWB, we had the matter set down urgently with the Court and an Order made requiring the Father to immediately return the children to the Mother that same day.

“Inside” BWB

We were again recognised in the Doyle’s Independent Guide as a leading family law firm in both Toowoomba and Brisbane in 2016.

We swelled the ranks of our specialist workforce by welcoming family lawyers Katherine Marshall and Carla Franchina. We also welcomed exceptional administrative professionals Esther Patterson, Tracey Hannant, Kiara Greenway, and Josh Schonfeld.

We became a part of the Shine Group, having been acquired by Shine Corporate in October 2015. This provides the opportunity to develop the first truly national family law firm.

We supported events that are close to our values: the Kokoda Challenge raising funds for youth to travel to and trek Kokoda; Tough Mudder; and Griffo’s Challenge, raising funds and awareness for the ICON and Cure Brain Cancer Foundation.

We launched our family law publication, Crossroads, to provide a topical insight into family law in practice for our clients and our colleagues.

Some feedback

Finally, we do it because we love it, but it’s still nice to get some feedback.

“I am always recommending Kara and the firm as I cannot thank her enough for initially listening to me and then providing her support and wisdom at the start of the process. I am not the same person I was three years ago and I may not have had this opportunity to change had it not been for Kara allowing me to make the choices initially.”

“Dear Dan, Please accept (to you & Reagan) my profound gratitude for your excellent assistance & professionalism in the conduct of this matter.”

“I really can’t believe it’s all over … I have very much appreciated everything Sam and Reagan have done and I will contact them to thank them personally. In the meantime I trust that this is now the end and I can now start my new fresh life!”

“Dear Dan,
Thank you so much for your huge efforts and support for me yesterday. Whilst I tried to digest the facts last night ,the details are still hazy ,so I look forward to reading the outcome on the papers I need to sign… I had the best sleep in 18 months and actually dreamt of happier times, a big change from waking in a turmoil about what had happened and what could happen. Thank you for your help in making my future look much better. I will toast you tonight with friends and hope you both relax too.”

“Andrew, thank you for your calm, reassuring and confident manner. Your patience with my reluctance to “fight” is also appreciated. I am coming out of a looooong period of intimidation and am still finding my feet. The attacks on my character and other ploys I know are intended to keep me down and quiet and meek. I will not give up. I will keep my quiet forward movement.”

How was your 2016 financial year?

Tips and tricks for ensuring your children return home safely.
The recent abduction of children to Lebanon featured in Channel Nine’s 60 Minutes’ program has raised some valid concerns amongst parents regarding whether you should allow your children to travel overseas with your ex-partner.

When faced with such proposal from your ex, you may be thinking – what if he/she keeps the children and does not return to Australia? How will I ever get my children back?

Overseas travel can be an amazing opportunity for your children, however, can be quite terrifying for the parent remaining at home. If you are considering allowing your children to travel overseas with your ex, here are 4 tips to help ensure their safe return:

Have Family Law Orders in place
Parents who have Orders of the Court in place in respect of overseas travel can apply to the Court to have these Orders enforced should the travelling parent not return as agreed.
Only allow your children to travel to Hague Convention Countries
The Hague Convention is an international treaty signed by numerous countries worldwide that provides avenues for a parent to recover a child if the travelling parent takes the child without consent or does not return to Australia as agreed. If you allow your child to travel to a non Hague Convention country, you do not have access to those avenues provided by the treaty. Please see the Attorney-General’s Department for a full list of Hague Convention countries.
Have your ex-partner sign an undertaking and/or provide a bond
An undertaking of this nature is a written promise to return the children to Australia by a certain date. You can also request the travelling parent to provide you with a bond (i.e. a large sum of money) that is returnable when the children arrive safely home in Australia.
Consider the risks associated with the travel
Is your ex a citizen of another country? Do they have family in that country? Have they ever expressed a desire to live in another country? Is it a country covered by the Hague Convention? The answers to these questions may determine whether you proceed with the other options listed here to provide peace of mind.

It’s not all bad news. Some parents simply trust the other and know that they will return with the children. Your approach will really depend on your particular circumstances.

Seeing a family lawyer to advise you in relation to your specific circumstances may be the
best approach. It may give you peace of mind when allowing your children to travel overseas with your ex-partner.

Distance is par for the course in living in rural Australia. Whether it is sending your children to school, groceries, that spare part for the tractor, distance is something that country people take in their stride.
Parenting is hard enough at times without having to factor in issues of distance. It can be hard on both parents and children when you are trying to co-parent from a distance. This can be made much harder if one parent decides that they want to return home to where they grew up and where their support networks of family and friends are. Everyone has the right to freedom of movement, although the Family Law Courts recognise that children have the right to a meaningful relationship with both of their parents and that both parents should, wherever possible, be part of their children’s daily routines. The result is that a parent may find themselves in a place or subject to a routine that is not optimal for them or the children.
The tyranny of distance can mean that it simply isn’t possible to put in place equal care arrangements. The Courts recognise that in some instances the logistics of travel, when factoring in school and extra-curricular activities, mean that the more ‘garden variety’ parenting arrangements will not be either appropriate or in the best interests of the children. This could mean that the primary carer of the children will have to be creative in terms of fostering a relationship between the other parent and the children. For example, sacrificing the bulk of the holidays so that they children can spend quality time with the other parent or further travel during school terms to facilitate time or be part of sporting or other activities.
Technology is an option for bridging the gap made by distance, albeit not always an option for many rural and remote areas of Australia. If you do have access to suitable technology options can include communication by Skype or FaceTime which provides a ‘real’ experience, and I’ve even heard of instances of parents that live away reading bedtime stories or doing homework via Skype. This type of communication can allow children to include a distant parent in their day-to-day lives.

There are also websites and apps that can help parents to communicate and co-parent, such as www.ourchildren.com.au and the SharedCare app. These provide everything from secure communications, to a shared calendar and photograph sharing.

While distance can be a barrier it can be overcome and proper parenting arrangements put in place that ensure the best interests of the child are met and they maintain a meaningful relationship with both parents, regardless of where they are.

It was recently announced by the Queensland State Government that same sex-couples in Queensland will soon be granted the opportunity to legally adopt children. Government intends to remove the remaining legal barriers currently contained in the Adoption Act 2009 to enable same-sex couples to adopt.
Queensland is one of the last Australian jurisdictions to move forward with these reforms. New South Wales, Victoria, the ACT and Western Australia have already made changes. It is expected that the government will put forward the amended legislation later this month for a parliamentary committee review before it is debated once parliament resumes in mid–August 2016.
The planned changes result from a review ordered by the State Government almost a year ago, including six months of community consultation. The review found overwhelming support within the Queensland community for same-sex adoption. Communities Minister Shannon Fentiman said that the review had given an “opportunity to ensure that our laws reflect community standards and expectations as well as meet the needs of children who still require adoption here in Queensland now and into the future”.
The proposed amendment to the Adoption Act 2009 will allow groups of people who are currently banned from adopting to be able to be considered eligible. These groups include same-sex couples, single people and couples who are undergoing fertility treatment such as IVF. The changes will also allow for information to be given to adoptees and the removal of the offence and penalty for a breach of a no-contact provision for adoptions before 1991.
In a family law context these changes are most welcomed. Every day we see different types of families come through our doors needing our assistance. There is certainly no “one size fits all” when it comes to a family dynamic. In a state where same-sex de facto couples are able to enter into a surrogacy arrangement, it makes sense to extend this right to being able to legally adopt a child. These proposed changes provide equality within our society and will result in many children who are in need of a loving family, gaining one.

At Best Wilson Buckley Family Law one of our core values is ‘Building a specialist workforce of exceptional professionals’. Not to brag, but we live this value each and every day and are exceptionally proud of our entire team.

Recently we have had a chance to celebrate a few of our team members even more than usual through a series of internal promotions culminating at the end of July.

We’re pleased to share this great news with you and invite you to celebrate with us.

Max Sutton, promoted to Office Manager

Over the coming weeks we will also start publishing a little insight from all of our team members about why they do what they do: why family law?

We invite you to get to know us all a little better. Keep an eye out!

Neal Wood

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

In family farming situations the extent of the physical, financial and emotional connections created over a long period of time can be particularly difficult to unravel. While at the outset it may seem an insurmountable task, the reality is that it can be done.  An end, not only to the emotional reliance on another person, but the financial reliance on another person is often the most powerful and long lasting outcome of a property settlement.

In this article I wanted to look a bit more practically at how we begin the process of working out who gets the farm and the process for working out the answers to a few relatively simple questions:

What is it and who owns it now?
What is it worth?
Who wants to keep it and is that realistic?
What is the best way to achieve that result?
What are the best legal mechanisms and timing to achieve that result?

What is it and who owns it now?

As lawyers, we start by asking questions of the individuals involved to get a sense of whether the farm is owned by them personally or whether it is owned with other people or in legal entities. While the combinations of legal ownership of farms and rural businesses can be incredibly diverse they normally fall into four broad categories:

Personal ownership and sole traders

The land, the stock and the plant and equipment are owned by the person that purchased or inherited them and they have direct control over it.  Sometimes that person may have a trading or business name but in legal terms it is just the same person.

Partnerships

The land, the stock and the plant and equipment may be owned in the names of two or more people as Partners.  There may be a formal Partnership Agreement or it may be regulated under the Queensland Partnership Act. The partners are usually known to one another and may be any combination of Husband, Wife, Grandparents, adult children and others.  The physical work may be carried out by one or more of the Partners during the year but come tax time, the income from the farm is divided “on paper”  between the partners in a certain way when in reality the income may have been used throughout the year differently.

Private companies

The land, the stock and the plant and equipment may be owned in the name of one or more people as directors of a trading company.  The company has a Constitution that sets out what the company can and cannot do and how it goes about it.  The physical assets are legally owned by the company and appear in the Financial Statements and Balance Sheets of the Company.  The individuals involved are often named as either directors or shareholders (or both).  Normally the directors have day-to-day control of the company and the shareholders share in the profits.  The income from the farm is then reflected in the Financial Statements and Tax Returns as “drawings” by the Directors or as dividends paid to the shareholders.

Discretionary Trusts

The land, the stock and the plant and equipment may be owned in the name of one or more people as trustees of a discretionary trust.  The Trust is regulated by a Trust Deed that sets out details of who controls the trust, who can benefit from the Trust and what the Trust can and cannot do. The person(s) with overall control are the “Principals” or the “Appointors”.  The day to day control is with the Trustee(s).  The other individuals involved are the beneficiaries who may either be paid money from the trust by way of “distributions” or they owe money to the Trust because the income from the business has been paid out to them as a “loan” which must be repaid at some point in the future.

What is it worth?

Once we know what types of structures we are looking for, the next step is to carry out a range of searches to confirm the ‘bare bones’.  Land Title searches show us the names of the legal owners and can show any mortgages secured over the land by the bank.  ASIC searches provide the details of any companies involved including the Directors and Shareholders.  PPSR Searches show whether banks or suppliers are owed money which is secured over stock or plant and equipment.

With the bare bones established we can then look to the documents that will begin to put some meat on the bones.  A review of the Tax Returns, Financial Statements and bank statements can show us all manner of details and give a reasonably good idea of what assets there are, who is in control of them, what debts are owed, and to who, and the sort of income that has been generated over the years.

Depending on how much involvement each party has had we may then need to fill in any gaps by asking others that have access to the missing information we need.  We may need to speak or write to your former spouse or their lawyer and ask them to provide tax returns, financial statements, bank statements, mills tag numbers or receipts going back over a period of years.  We may need to meet with you and your accountant or book keeper and ask them to provide a clearer overview of what has been happening “on the books” over the years compared to what everyone thought has been happening.

Once we have a good idea of how things are owned at the present time we can begin the path towards dividing the assets in a way that achieves the desired outcome.  What that outcome may be really comes down to the individuals and each case is different.

Having worked out what the farm actually is and how it is owned the next step is to begin working out what it is worth.  I will explore the issues about property and business valuations in family law matters next month.

Read Part 4 Here

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

Whilst fundamental, I’ve identified what I think you should be demanding of your family law solicitor:

Expertise. The complexity of the law demands specialisation and experience.
An exceptional capacity to communicate – making the complex more understandable.
Honesty. You need to know the bad news up front.
Expectation. It is reasonable to want to know what to expect and to hold your solicitor to that advice.
It’s important that your solicitor has the respect of the Court and of his or her colleagues. It makes a material difference.
A capacity to build a genuine rapport.
Availability. Your family life doesn’t stop after business hours, so a good solicitor appreciates that there will be after hours contact, and a need to respond urgently if required.
Value. This is hard to measure, but given the often significant cost of legal advice and representation, it’s important that you feel in control of your legal fees and that you are achieving a positive outcome.
Pragmatism. It is futile to win the battle, but lose the war. Incurring disproportionate legal fees to what you stand to achieve is a poor outcome.
Tough Love. Beware the solicitor that actively intensifies your feelings of anger.  A good lawyer will challenge you to reduce conflict with your former partner if possible and will make you acutely aware of the long term implications of maintaining any negative emotion for all of you.

For a lot of families in Australia, there are a number of significant events in the yearly calendar of family celebrations and get together. Often these are celebrated within a religious context, but as often they are associated with some other tradition, practice or time of year; such as school holidays (Easter), the exchanging of gifts (Christmas) and yearly sporting events (Boxing Day Test).

Often it may be the only time family members see each other all year and family members may travel great distances to spend this time together. It can also become linked with some favourite family holiday destination.

There is little wonder then that, when families separate, the time that the children spend with each of Mum and Dad on these occasions form a big part of negotiating parenting arrangements.

The big occasions for most Christians and people with a western cultural background are obviously Christmas and Easter. But the children’s birthdays, Father’s Day and Mother’s Day have also become significant traditions integral to the yearly calendar of celebrations for a lot of families.

Best Wilson Buckley Family Law have had many clients from quite a wide range of diverse religious and cultural backgrounds. We are constantly trying to improve the firm’s awareness of cultural diversity, to try to better understand, communicate with, and represent all of our clients, no matter what their background.

Given that followers of Islam are about to celebrate Eid al Fitr (the end of Ramadan) and National Reconciliation Week is about to commence on 3 July 2016, Kiara Greenway and I thought it timely to look at other big occasions and celebrations, including those that are significant to non-Christian religions and/or non-western cultures. We are, after all, a country made up of people from many backgrounds, many cultures and many religions. In the 2011 Census, almost 40% of the Australian population did not identify as being Christian. Given the religious and cultural landscape of Australia is constantly changing and diversifying, the next census to be held this year will no doubt see an increase in the number of Australians who follow religions other than Christianity based ones.

Zoastrianism

It makes for fascinating reading – the many different religions being practiced by Australians. Wikipedia lists 2,700 Australians as practising the ancient religion of Zoroastrianism (said to be the world’s oldest monotheistic religion, dating back to 1500–1200 BCE) is traditionally practiced by Parsi’s, people who settled in Bombay in 600AD, after being driven out of Persia by Genghis Khan.

Zoroastrians celebrate six seasonal festivals, each one being associated with the aspects of creation – the sky, the waters, the earth, plant life, animal life and humankind. Each of these festivals is usually celebrated over five days.

There are also six other holy days that are observed – two of these being the birth and death of Zarathustra, as well as fifteen name-day feasts.

Orthodox Easter/Pascha (different day to Christianity)

Pascha is the Orthodox celebration of Easter. It occurs about four to five weeks after the Western celebration, with the actual dates varying each year according the lunar calendar. The holiday extends for 50 days, which includes a period of lent which lasts 44 days. Pascha celebrates the resurrection of Jesus Christ. The most significant day is the feast, which occurs on the final day of Pascha on Easter Sunday.

Islam

Given the Islamic lunar year is 11 to 12 days shorter than the Gregorian year, the Islamic New Year does not fall on the same day of the Gregorian calendar. Al Hijra (usually celebrated in October) marks the beginning of the Islamic calendar year and is observed on the first day of Muharram.

The most widely celebrated holidays of the Islamic religion are Eid al Fitr and Eid al-Adha. Eid al Fitr, (“festival of breaking of the fast”) commemorates the completion of the month of Ramadan. Ramadan is a 29 to30 day period during June when muslims fast from dawn to sunset. Eid al Fitr is celebrated with family and friends, large feasts, gift giving and the wearing new clothes.

The second holy day celebrated by muslims is Eid al-Adha (“Sacrifice Feast”), which usually occurs in September. It is the holiest of the two days and honours the willingness of Ibahim to sacrifice his son at the command of God. Celebrations of the festival include gatherings of family and friends to share meals and observe eid prayers, gift giving as a token of love and assisting the less fortunate by making donations.

Hinduism

Krishna Janmashtami is celebrated on the eighth day of the dark fortnight (Krishna Paksha). It generally falls between the months of August and September. This annual celebration involves observing puja, prayer and fasting. It acknowledges the birth of Lord Krishna, a Hindu deity, which occurred more than 5000 years ago.

Hindu, Sikh and Jain faiths also celebrate Deepavali (Diwali). Known as the Festival of Lights, Diwali occurs during the spring each year. Often deemed the most important festival in Hinduism, the festival celebrates the spiritual victory of light over darkness (good over evil). It also represents the triumph of knowledge over ignorance and hope over despair. Festivities include an abundance of lights shining on buildings, elaborate decorations, fireworks displays, performances and feasts.

Judaism

Jews celebrate a number of different significant holidays each year. The first is Rosh Hashanah, the Jewish New Year festival. This commemorates the creation of the world and celebrated between September and October and includes the blowing of the Shofar – a ram’s horn trumpet.

The holiest day of the Jewish year is Yom Kipper, or Day of Atonement. Jewish people generally commemorate the day by fasting for approximately 25 hours and engaging in intensive prayer. Followers are required to refrain from work and any indulgent activities.

Shemini Atzeret is the biblical Jewish holiday, celebrated in October. It is a holy day devoted to the spiritualty of the festival of Sukkot. Jews engage in intensive prayer for rain, with the most distinctive feature being the celebration of Simchar Torah, which marks the conclusion of the annual cycle and the beginning of a new cycle.

Chanuka (Hanukkah), also known as the Festival of Lights, is an eight day celebration, occuring annually between November and late December. It marks the successful rebellion of the Maccabees against Antiochus IV Epiphanes. The holiday is celebrated by the lighting of candles every night, the recital of Hallel prayer, eating special food and the playing of traditional games.

Buddhism

Vesakha, (or Buddha Day), is a holiday celebrated annually by Buddhists. The day signifies the birth, enlightenment and death of Gautama Buddha – it is usually celebrated in late April/early May. Buddhists celebrate the event by meditating, eating vegetarian food and bathing the Buddha.

The death of the Buddha is also observed. Known as Nirvana Day it is observed on either the 8th or 15th February on what is.

Mormonism

Mormons follow the Church of Jesus Christ of Latter-day Saints. Founded in 19th Century America it comprises over 12 million members globally. Although based on Christ, the Church differs significantly in its belief in comparison to the Catholic, Protestant and Orthodox Christian Churches.

Mormons recognise Easter and Christmas at the same time as western religions. However, an additional festival, Pioneer Day, is held each year on 24 July to signify the arrival of the pioneers of the religion in Salt Lake Valley in 1847. Pioneer Day occurs mainly in Utah (where it is recognised as both a state and church holiday) where it is celebrated with parades, fireworks and rodeos.

Sikhism

The Parkash Utsav Dasveh Patshah festival is the most celebrated Sikh festival. It occurs in early January each year and marks the birth of Guru Gobind Singh. The festival lasts for three days and is marked by early morning hymns, the reading of religious texts, the singing of devotional songs and decorations including posters, banners, flags and flowers.

Sikhs also celebrate Vausakhi in April every year. The festival signifies the day the 10th Guru of Sikhs laid down the Order of the Pure Ones – recognising the acceptance of the five articles of the Sikh faith. The event is celebrated with parades, Baptism ceremonies, prayers and processions.

The Australian Sikh Games are held annually to provide an opportunity for Australia’s Sikh communities to unite through sporting and social activities. The games were held in Coffs Harbour in 2016.

Chinese New Year

Chinese New Year, or “Spring Festival”, signifies the turn of the traditional lunisolar Chinese calendar. The first day of the New Year falls on the new moon, between 21st January and 20th February. Chinese New Year is celebrated with a vast array of customs and traditions including lion and dragon dances, fireworks and family gatherings. 

All Australians

Finally, we are about to enter into National Reconciliation Week (from 3 to 10 July), an an annual celebration important for all Australians – a time for all Australians to reflect on our shared histories, and on the contributions and achievements of Aboriginal and Torres Strait Islander Peoples.

The other day that is becoming increasingly important to all Australians each year is Harmony Day, held every year on 21 March to coincide with the United Nations International Day for the Elimination of Racial Discrimination. The message of Harmony Day is everyone belongs. It’s a day to celebrate Australia’s diversity – a day of cultural respect for everyone who calls Australia home.

What celebrations or special occasions are important in your family’s yearly calendar?

This year Best Wilson Buckley Family Law is proud to announce the sponsorship of Raider’s Netball Club.Raiders Netball Club was founded in 1994 and plays in the Western Districts Netball Association, out of Faulkner Park, Acacia Avenue and Graceville. The club was formed to provide a friendly atmosphere in which to play Netball. Priding themselves on sportsmanship and fostering and developing a love of the sport in all their players, Raiders Netball is a great locally run club.

Family Lawyers Toowoomba at Best Wilson Buckley Family Law we love giving back to the community and what better way than to encourage a healthy lifestyle, both mentally and physically, for our children.

Go Raiders!

Recently, I participated in a Rural Succession and Continuity Roadshow that toured through Central Queensland. Together with colleagues from Anderssen Lawyers, Resource Consulting Services and The Entello Financial Group, we presented a series of seminars in Emerald, Biloela, and Rockhampton.

Succession Planning and working out how assets will pass from generation to another can be a topic that some people don’t want to think about.  It can be quite emotional when you are dealing with family farms or enterprises that have been in the family sometimes for generations.  One of the major issues that we dealt with during the presentations was the fact that it can be awkward about having these types of discussions with family members.  Sometimes it requires the assistance of a rural consultant or facilitator to get discussions started and to provide some options moving forward.

As part of the Roadshow, we covered a number of topics including planning for the next generation, farm management and education programs to assist families in running and expanding enterprises, business structuring and estate planning and off-farm investment strategies to provide options for investment and expansion.

One of the aims of the Roadshow was to showcase the different issues that can arise when intergenerational succession planning isn’t put in place or is done so in a less than optimal manner.  This can cause issues when one generation passes control to the next.  Capital gains tax and stamp duty issues or poorly implemented family company/trust structures can cause nightmares when moving from generation to generation.

Another issue that is frequently experienced and was the subject of my presentations is the fear of control passing from one generation to the other and the possibility of family farming properties becoming the subject of property settlement claims on the breakdown of a family relationship.  There are several estate planning strategies that can be used to avoid this happening.  The most common is for Financial Agreements to be entered into between spouses which provides for what might happen on the breakdown of a relationship.  These types of agreements can quarantine property or make provision for property settlement and maintenance entitlements on the breakdown of a relationship.  I like to think of these types of agreements as an insurance policy.  For the family that has contributed property, it can provide certainty about how family property will be treated on the breakdown of a relationship.  For a spouse, it can provide certainty about what resources they will have available to them to rebuild and move on with life if a relationship breaks down.

Intergenerational succession planning has a number of facets that need to be properly addressed if they are to work properly. Working together with your accountant and other experts like specialist lawyers, consultants, and financial planners will help you achieve a workable succession plan and hopefully save you from having some sleepless nights.

First published in Border Living Magazine.

In recent weeks, Australia has been captivated by the tragic story of Sally Faulkner and her Beirut based children, aged 5 and 3.  Irrespective of your feelings in relation to the steps taken by Faulkner and Sixty Minutes, it remains that a Mother was led to adopt desperate measures out of a desire to be reunited with her children.  The further tragedy is that the children in question are likely to be denied a childhood in which they enjoy the presence of both their Father and Mother.  The situation in Beirut has been particularly difficult for Ms Faulkner and the Australian Government to negotiate because Lebanon is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction.  This in short means that Lebanon is not bound to act consistently with an Australian custody order which would require the children to be returned to Australia.

The incidence of children being born to relationships between parents of different ethnic backgrounds is increasingly common, and so too are the tug of wars that ensue following separation and in circumstances where both parents legitimately wish to remain living in, or return to their place of origin following separation.  The complexity of these situations needs to be actively considered by couples of such diversity embarking on parenthood.
The questions which are so rarely asked in happier times include:

Am I comfortable giving birth to our children in a country in which they may later found to be domiciled and accordingly permanently based ? In other words, am I prepared to accept that I will be bound to remain in a foreign country for the duration of their childhood if my partner doesn’t agree to their departure?
If we separate:
is it agreed that I can travel to or return with our children to another country, and is that agreement in writing ? or
will I be agreeable to my former partner travelling with the children to their homeland, and particularly if that country is not a signatory to the Hague Convention on Child Abduction? 

Some might argue that Sally Faulkner’s greatest mistake was her agreement to allow the children to travel to Lebanon in circumstances where there was no realistic means of requiring their return if their Father unilaterally retained them there.  To be fair, the children’s Father has publically voiced his frustration at the children being removed to Australia in the first place.  It remains that the inability of their parents to agree to live in one location will deny two children what is a right enshrined in Australian law, the right to a meaningful relationship with both parents.

On 25 February 2016, we posted the first in a series of blogs aimed to highlight the challenges and opportunities offered to Australian family lawyers by the ever-increasing cultural diversity within Australian communities. While there can be no doubt that as a society and a nation we have a long way to go before we can boastfully sing about the “boundless plains to share” to “those who’ve come across the seas, without raising the collective eyebrow of the international community”, family lawyers are nonetheless in the fortunate position to encounter a variety of cultural backgrounds on a daily basis.

Of particular interest is the challenge which arises when addressing disputes between clients who subscribe to laws and systems of belief which, in their view, sit equal to the secular system. One such example arises when regulating disputes in Australia when one or both separated spouses adheres to the principles of Sharia law.

The 2015 Family Court decision of Bant & Clayton[1] considered the living arrangements for the daughter of an Australian mother and Emirati father in circumstances where the father’s wish was for the child to live with him in Dubai. In large part, the public focus on the outcome of that case was due to the perceived risk that the child, upon returning to Dubai, would be prevented from further contact with her mother due to:

the ability of the father to restrict the daughter’s travel pursuant to the local laws of Dubai (based on Sharia Law); and
the potential dangers to the mother travelling to or spending time in Dubai, a foreigner who had renounced the Islamic faith and who was in the midst of a domestic dispute with a local male.

In 2001 the Family Law Council published a report entitled “Cultural-community Divorce and the Family Law Act 1975: A proposal to clarify the law”. Of particular concern to the Council was the lack of recognition of cultural and religious practices under the current family law system. For many clients who submit to Sharia law, a divorce under the Family Law Act can be largely immaterial to marriages that were made in accordance with the principles of Sharia Law. The Council identified that in order to effect a marriage which is recognised by both the Australian civil system and adherents to Sharia law, a Muslim couple must engage in both a civil marriage ceremony and a religious ceremony (or nik’ah). Similarly, Islamic divorce is treated as a separate act to a divorce under the Family Law Act. Most interpretations of Islamic principles provide that a husband may unilaterally initiate a divorce extra-judicially by pronouncing the formula of repudiation (or talaq); however a wife’s access to divorce (according to most traditions) is usually limited to very specific circumstances. Some interpretations of Sharia law permit a wife to approach a religious court to request that it grant her a divorce, whilst others extend the power to Muslim clerics to grant a wife a divorce. Often, however, such a divorce can be granted by a cleric only in circumstances where the wife “buys her freedom” by returning to the husband something of value. This may require that the wife repay the money she received from her husband at the time of their marriage (mahr).

Failure by family lawyers to recognise such elements can be devastating for separating couples. This is especially so where the separated couple must continue to co-parent children, or where subsequent partnerships produce further children, who, for example, can be subject to significant social isolation if the correct traditions are not observed by clients and their lawyers in formalising all aspects of the divorce.

An example of managing parenting disputes both under the Family Law Act and in accordance with Sharia Law, is in Justice Kent’s judgment in Clayton & Bant (No. 2)[2], where he identified that, “the right of women to custody of a female child ends upon that child reaching 13 years of age, unless the court deems that extending this age up to her marriage is in her best interest. Where the mother is a non-Muslim, custody ends at the age of five years”. And further, that “[t]here are [particular] conditions that the mother, as custodian, must satisfy…”. Some of these conditions include:

sanity;
honesty;
that the potential custodian not have been previously convicted of a crime against honour; and
if the potential custodian is a woman, that she:

be no longer married to a foreign husband, following a consummated marriage, unless the court decides otherwise in the interest of the child; and
be of the same religion as the child, with due compliance to…the Law.

Practitioners have, in the past, attempted various methods of addressing these obvious systematic differences, such as including specific cultural or religious obligations in post-separation agreements. However the element of compulsion in such arrangements often negates their effect. At Best Wilson Buckley Family Law we take the view that a thorough understanding of our client’s specific circumstances, including the particular religious laws or traditions to which he or she subscribes, is a vital starting point. It may be that a better informed strategy of interest based negotiation, mediation, or counselling is a better method of addressing such matters, rather than imposing on clients just the principles and obligations the Australian legal system without any reference given to the consequences or obligations of any religious or other laws they adhere to.

In the case of adherents to Sharia law, it involves exploring the implications of the client’s particular religious commitments and obligations, and outlining the various options available to clients in these circumstances. Some of these options may involve steps not traditionally taken in matrimonial matters in Australia, such as:

considering the Islamic concept of marital property rights (whereby entitlements are largely determined by direct contribution) in negotiations surrounding civil property settlements;
contemplation of religious divorce (including its execution and implications, such as the right to re-partner and have children to a new partner) in considering the terms of a property or parenting arrangement; and
in the case of couples entering into a new relationship, including provisions recognising Islamic concepts of marital property rights in agreements such as pre-marriage Binding Financial Agreements.

The conduct of matrimonial matters where the family lawyer involved are unaware of or unwilling to acknowledge religious laws and cultural traditions, has the potential to create considerable power imbalances or cause tremendous pain or frustration for our clients. Such imbalances, if left unaddressed, undeniably influence the conduct of negotiations and outcomes in relation to both property and parenting matters.

[1] [2015] FamCAFC 222

[2] [2013] FamCA 898

[vc_row type="in_container" full_screen_row_position="middle" scene_position="center" text_color="dark" text_align="left" overlay_strength="0.3" shape_divider_position="bottom"][vc_column column_padding="no-extra-padding" column_padding_position="all" background_color_opacity="1" background_hover_color_opacity="1" column_shadow="none" column_border_radius="none" width="1/1" tablet_text_alignment="default" phone_text_alignment="default" column_border_width="none" column_border_style="solid"][vc_column_text]Our Kara Best has been named as a Finalist in the Family Law section of the Lawyers Weekly Partner of the Year Awards for 2016, and we couldn’t be more proud.

Kara is a founding partner of Best Wilson Buckley Family Law along with Reagan Wilson, and in 2009 they delivered on a vision to establish the first specialist family law practice in Toowoomba. Kara and Reagan were then joined by Dan Buckley in 2013 with an expansion into Brisbane.

While the vision has grown and developed over the years, dedication and follow through towards achieving it have not. These Awards recognise legal partners that excel in their chosen field of practice, have successfully contributed to the growth and financial performance, and culture and strategy of their firm and area of law.

“The whole team at Best Wilson Buckley Family Law is extremely proud of Kara, and as always are in awe of her ability and amazing capacity to provide superior family law advice as well as playing a pivotal role in managing the firm’s business operations,”

Since her admission to practice law in 2001 Kara has practised exclusively in family, and remains an advocate and mentor for younger lawyers in the niche field of family law. Kara is an Accredited Family Law Solicitor and involved in the development of this program with the Queensland Law Society; as well as being a contributing member to the University of Southern Queensland’s Faculty of Law Advisory Committee.

Kara’s intention is to achieve the most optimal outcome for every client, be it from a legal, financial or emotional perspective. She is passionate about the resolution of conflict at the earliest opportunity on the most mutually beneficial terms, and embraces Collaborative Practice. From Kara’s perspective this optimises the outcome for both parties and their children should same be involved, an outcome which should, in her view, be the goal of all practitioners in this area.

“While this year has raced by already, it has been marked by great achievements for BWB. Firstly, we were named as the Leading Family Law firm on the Darling Downs, with Kara and Reagan recognised as the only Preeminent Family Lawyers in the region, and Dan Buckley listed as a Recommended Family Lawyer in Brisbane.” said Practice Manager Jennifer Ryder.

The Lawyers Weekly Partner of the Year Awards will be presented at a ceremony in Sydney on April 28.[/vc_column_text][/vc_column][/vc_row]

Kokoda Challenge 2016

Best Wilson Buckley Family Law has been involved in the Toowoomba Kokoda Challenge since it commenced in 2014. On Sunday 20 March 2016 the team from Best Wilson Buckley Family Law again took part again in the 30 Kilometre corporate event.

After a few stretches and some motivational words our Best Wilson Buckley Family Law Wanderers made up of Max Sutton, Annabel Myatt, Emily Myatt and Neal Wood set off.

As they crossed the line over 8 hours after they started and with the crowd of over 1,200 reduced to a handful of event organisers they were stunned to be awarded medals and announced as the winners of the Hutchinson Builders 30Km Corporate Challenge. By staying on their feet while other teams had either withdrawn or finished with less members than they started our Best Wilson Buckley Family Law Wanderers had managed their very own “Steven Bradbury” win.

In an event like the Kokoda challenge where the real winners are the young people that benefit from the great work of the Kokoda Youth Foundation, winning and medals are not really what it’s about. After 30 kilometres in the heat with more hydration, sports nutrition, compression tights and GPS watches than you could ever need one can only begin to glimpse what it would have been like to trek in the PNG jungle over 50 years ago. We would like to think however that by finishing (albeit with a lot of groaning and sore muscles) our Best Wilson Buckley Family Law Wanderers have a better insight into why the events mantra is to Run in the spirit of Kokoda – Courage. Endurance. Mateship. Sacrifice.

For our efforts we have also raised over $1,000 for the Toowoomba Branch of the Kokoda Youth Foundation which will remain in the community to support the great program which sees young people experience a leadership program which culminates in a trip to PNG to trek the real Kokoda Track.

Best Wilson Buckley Family Law Law has been involved in the Toowoomba Kokoda Challenge since it commenced in 2014. On Sunday 20 March 2016 the team from Best Wilson Buckley Family Law took part again in the 30 Kilometre corporate event.After a few stretches and some motivational words our Best Wilson Buckley Family Law Wanderers made up of Max Sutton, Annabel Myatt, Emily Myatt and Neal Wood set off. Our first circuit of Toowoomba’s Redwood and Jubilee Parks saw us jogging downhill and scurrying up the inclines in good spirits. After a quick break at the half way mark we set off on our second 15Km loop confident for a finish around 1pm with a relaxed lunch to follow. Our second loop of Redwood Park was tougher than the first but with the GPS chiming in to remind us we were keeping a good pace it seemed the end (and lunch) were in site.
However as we were reminded on the day “it’s called Kokoda Challenge for a reason”. In 2015 it was the rain and mud but in 2016 it was the heat that would make for the real challenge! Whether it was the extra hills added to this year’s course, that one of our team members had heat stroke the previous day or that the mixed lollies had run out the last 10 Kilometres were unlike anything experienced in previous years.
With the midday sun on our backs and the clay and gravel reflecting the heat back in our faces we realised some of our teammates were in serious trouble. What started as twinges rapidly became muscle cramps and the aggravation of old injuries. Combined with the growing fatigue, pulling out not only became an option but probably one which we should sensibly have taken.
The idea of lunch and a respectable time vanished and just finishing what we started became our focus. In what can only be described as dogged grit and determination by the unstoppable Emily Myatt it would take us another 4 hours to make our way to the bottom of the Toowoomba Range and back up to the finish line. From carrying each other’s packs, sharing around energy snacks, constant encouragement and patience we slowly made our way to the finish, together.
As we crossed the line over 8 hours after we started and with the crowd of over 1,200 now reduced to a handful of event organisers we were stunned to be awarded our medals and announced as the winners of the Hutchinson Builders 30Km Corporate Challenge. By staying on our feet while other teams had either withdrawn or finished with less members than they started we managed our own “Steven Bradbury” win.
With an event time we would rather forget and in an event like the Kokoda challenge where the real winners are the young people that benefit from the great work of the Kokoda Youth Foundation, winning and medals are not really what it’s about. After 30 kilometres in the heat with more hydration, sports nutrition, compression tights and GPS watches than you could ever need we can only begin to glimpse what it would have been like to trek in the PNG jungle over 50 years ago. We would like to think however that by finishing (albeit with a lot of groaning and sore muscles) we have a better insight into why the events mantra is to Run in the spirit of Kokoda- Courage. Endurance. Mateship. Sacrifice.
For our efforts we have also raised over $1,000 for the Toowoomba Branch of the Kokoda Youth Foundation which will remain in the community to support the great program which sees young people experience a leadership program which culminates in a trip to PNG to trek the real Kokoda Track.

Thanks to all that have donated and we look forward to doing it all again in 2017!
Best Wilson Buckley Family Law Wanderers
 

Neal Wood

In a previous post, I wrote about the general approach that we work through when assisting clients to determine who may retain the family farm when a relationship breaks down.

In this post and those to follow I will go through a number of different scenarios about how a Court may be asked to decide issues about the division of a family farming property.

In this scenario, consider the situation of the next generation son or daughter that is now an adult and has been working the property owned by their parents for many years for limited financial return.  There has always been the promise that by working the property rather than pursuing a life and employment elsewhere, one day the family property will be passed to them. Before the time comes when the farm is to be transferred to the next generation, the parent’s separate and need to resolve their own property settlement in a way that properly reflects the contributions that the parent’s themselves have made over many years. The son or daughter is left in the precarious position where their work may go unrecognised if the promise of the ownership of the farm left unfulfilled. The arrangement which seemed to work so well when the family was intact now presents a difficult balancing between the property rights of the parents on the one hand and the legitimate promises made to the adult child on the other.

In a property settlement law, identifying the legal owner of the property is the starting point and a quick search of the land title records will confirm the current legal owners. In many situations, that is where the ownership issue ends.

There are, of course, exceptions and in the case of rural farming properties, the exceptions occur more frequently than you might expect and the impending transfer of a farming property from one generation to the next is common.

There is a separate body of law outside of the Family Law process which recognises that in some situations the “legal” owner of a property may have done things or encouraged other people to believe that the legal ownership would not be relied on and that really the property belonged to them. If the legal owner is able to rely on their ownership of the property to sell up everything as part of their property settlement and give nothing back to the son or daughter that improved the farm by their own labour could result in an incredibly unfair outcome.

The body of law that has been developed over many years to overcome that unfairness is referred to as the law of Equity. It is not like the Family Law Act that has been written by parliament. It has been built up over many years by Judges deciding cases where legal principles have been established to arrive at fair outcomes and which prevent legal owners from going back on their promises in a way which would be unconscionable.

The reality is that in farming cases, we often see a situation where the legal interest in the farm is sought to be challenged by an adult child to reflect what has already been substantial contributions over many years based on the promise of future ownership.

In the Family Court and the Federal Circuit Court, the Court can, in appropriate circumstances, hear from and permit an adult child who has made contributions to the farming property, to be joined in their own right as a party to the proceedings between their parents.

In practice this means that rather than having to go to two separate Courts where on the one hand a child and their parents are required to deal with the law of Equity and the parents must then go to a different Court to determine their property settlement under the Family Law Act, the one Court can deal with both matters at the same time.

Such an approach makes a lot of sense where the intertwining of the family relationship, property and the matters that need to be considered are all part of the same dispute. The same judge can hear the full story from everybody and then work out what should happen by applying the different law which applies to the property settlement between parents and the law of equity which relates to the interests of those third parties.

Again, what is most important is the facts and circumstances of each individual matter and how those facts are likely to be taken into account. Where there are third party rights involved, obtaining quality independent legal advice at an early stage can make a very big difference to the end outcome.

What is clear is that if there are competing rights of parents and adult children when parents separate they can be resolved through one process at considerably less expense and delay.

Read Part 3 Here