The association between `separation’, divorce’  and `property settlement’ is a close one, but often misunderstood. 
Separation is the act of communicating an intention to suspend or end a relationship. A couple needn’t agree to separate but there is a need for one party to communicate the intention to separate to the other. A couple can be separated under one roof. 
Divorce is a formal application to the Court that follows separation. The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage established by a period of separation for 12 months or more.  Unlike our American friends, a `quickie’ divorce is not possible.  Where there are children of the relationship, there is a need to satisfy the Court that there is proper provision for their wellbeing before the Divorce Order will be granted. Upon the Order taking effect, remarriage can take place.  
A divorce does not prompt property settlement, nor prevent any claim against property per se.  Many effect a property settlement but do not divorce. Some divorce, but choose not to effect a property settlement (generally on the basis that there is very little or nothing to divide). If the Court’s intervention is necessary to effect a property settlement then it must be sought within 12 months of a divorce Order taking effect, so I recommend that property settlement issues are sorted prior to making application for divorce.  Whilst some have property settlement terms agreed within weeks of separation, it generally takes time for one or both parties to adjust to separation, and more often than not property settlement is sorted out around the first anniversary of separation. There is no right, or wrong way.
If separating from a de facto partner it is necessary for property settlement proceedings to be initiated in Court within two years of separation. Fortunately, the majority of cases are resolved by agreement and formalised with the appropriate documentation without knocking on the Court’s door.
I’ve spoken before in this column about the value of a facilitated separation process, where a couple work with an appropriately qualified mediator or therapeutic professional to reach a consensus on the big ticket items like:

Is separation the answer? 
How do we safeguard our children if we are not to remain together ?
How will we remain on one page when it comes to parenting our kids ?
How do we maximise what we do have financially in order to protect the interests of the whole family unit ?
Do we wish to formally divorce ?
How do we transition our kids to the prospect of new relationships ? and
How do we prevent the conflict spiral ? can we agree about how we’re going to handle differences of opinion in the future?

It’s important to ask yourself these questions.  As always, nothing can replace advice from an experienced family lawyer when negotiating the separation path.

There are some common misconceptions in relation to property settlement which resonate around the community, often prompting fear or hesitation when there is no need.  To start the New Year, I thought there may be value in discussing the most prevalent of these myths:

Assets within companies or Trusts are protected from property settlement. This is a significant myth, and in all but the most unusual cases, there is no protection afforded by an entity controlled by one spouse.
If you leave the family home you abandon any rights in relation to the asset. This is not true, and your right to seek an entitlement remains intact.
Assets are valued, and balances taken at separation date. The assessment takes place at date of negotiation, mediation, or court determination and is constantly updated.
Putting an asset in the name of my new partner, friend, Mother or neighbour will ensure its protection. Unless the third party is genuinely entitled to the asset and has contributed, this will afford no protection at all.
That de facto property settlement rights arise from the moment you move in together. Other than where a child has been born, or there are exceptional circumstances, rights do not arise until parties have enjoyed a de facto relationship for a  two year period, and even then, in a short relationship, the actual financial contributions are likely to drive the assessment of percentage division (so an automatic 50% entitlement does not arise at the 2 year anniversary of cohabitation).
You will get back what you’ve put in, dollar for dollar. This is rarely the case, although financial contributions are weighed against other contributions.
There will be a financial penalty if you are responsible for the demise of the relationship. This is an inaccuracy, and it is a `no fault’ jurisdiction.
If you financially contributed you’ll receive more than your spouse whom remained at home caring for the family and domestic duties. In most instances these contributions are weighed equally.
That superannuation is not available for division between married or de facto spouses. It most certainly is.

I commonly encounter clients at an initial attendance who talk about the experience of a family member, friend, or the bloke at the pub who only got 30%, so they’re “prepared for the same outcome”. There is a significant discretion which accompanies the determination of property settlement entitlements, and a myriad of factors to take into account. For this reason no two cases are the same, and the advice of an experienced practitioner is required.  It is a mistake to assume a percentage entitlement because of the experience of another.
Kara Best

Director
Accredited Family Law Specialist

Best Wilson Buckley Family Law has been recognised as the leading family law firm in the Toowoomba and Darling Downs region, listed as the only First Tier Family Law Firm in the 2015 Independent Doyle’s Guide.
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. Founders Kara Best and Reagan Wilson had both practiced exclusively in family law for a number of years and recognised the need to provide clients with specialised advice at one of the most personal and emotive times of a person’s life, dealing with the breakdown of a relationship and the family changes that are part of that. The team at Best Wilson Buckley value the recognition, appreciation and support from clients and peers.

For rural families the farm is often the focal point of life. It is a place where families gather together and the lines between life and work not only blur but were arguably never there in the first place.

Whether it’s been in the family for generations, built up in one life time or acquired since the children were born, the future of a farming enterprise or partnership when a new relationship begins or a relationship comes to an end can present one of the biggest challenges. In particular whether the farm as a whole can be retained by one party or whether some of it may need to be sold or divided can have a profound impact both financially and emotionally.

While there are previously decided cases which help inform the Court and lawyers about the precise legal principles to be applied, when it comes to a farm it normally comes down to the individual facts and circumstances of each case and what is fair having regard to the contributions and future needs of the adults and children involved.

In the first instance we, as family lawyers, need to know as much about “the farm” as possible. As a starting point we ask a lot of questions to understand the unique facts and circumstances of each matter.

What is it? Is it in one location on one block or is it spread across many properties in different local areas or in multiple locations in different states? Is the Plant and Equipment and machinery owned outright or is it leased? Is there a Water Allocation and what are its limits?
What does it do? Is it a grazing property with cattle? Are there small crops for the local market or thousands of hectares with cattle awaiting export? Is it a feed lot? Cattle Stud? A vineyard? Orchard? Aquaculture or something else entirely?
Who owns what? Is it held by one person, as a partnership, company or Trust? Is it owned and worked by the same couple that have separated? Is it owned by the previous generation and worked by one or more of their adult children with the expectation it will one day be theirs? Is it owned in one spouse’s name but the other person has spent their life time working it?
Where did it come from? Was it acquired and built up by the efforts of past generations and passed on via a will or testamentary trust? Is it part of a succession plan where it is being paid off to a parent or grandparent during their lifetime? Has it been acquired as part of a single generation’s efforts or a matter of years?
Who else is involved? Are cattle on agistment by others? Is there an LNG gas well with a right of access? Are there tenants renting one of the out buildings? What does the bank have security over? Is there an exclusive supply contract?
What is your optimal outcome? Depending upon your involvement, the stage of your life and the state of your relationship, the outcome that you are looking to achieve can be one of the most important considerations. For example, if you are in partnership with an adult child that is about to enter into a new and untested relationship, there are steps that can be taken to protect the partnership from being drawn into a property settlement if that relationship fails. If you are in an existing relationship that has ended, it may be that your highest priority is to ensure that there is proper recognition of the work of previous family members and the contributions they have made to the current wealth. If you have worked alongside a spouse on the farm for many years and raised a family together but your name has never been legally included on the paper work it may be that your highest priority is securing your own financial security.

Once we have an understanding of what the farm is and your optimal outcome we work with those involved, including accountants, valuers and other experts to consider the range of options which will best meet that outcome.

The short answer to the question of who gets the farm as part of a family law property settlement is that there truly is no short answer. What is clear however is that no matter what your involvement in the farm has been to date or its value, the farm is more than just another asset to be moved around on a balance sheet. It is important and we take the time to work through each of the issues carefully because we understand that it can and does make a big difference to your future financial security and indeed your whole way of life.

Read Part 2 Here

Call Me Dad is a story about men who have perpetrated, or are at risk of perpetrating, family violence. At stake is the safety of children and partners, the stability of families, and the power we as a society have to intervene. These men struggle to maintain intimate relationships without resorting to abuse, physical or otherwise. We follow these men over several months, as they attempt to change themselves, and heal fragile bonds with their loved ones.

Shine Lawyers invites you to an exclusive screening of “Call Me Dad” followed by a Q&A session with guest speakers, including Best Wilson Buckley Family Law, Legal Partner, Dan Buckley.

Thursday 3 December, 2015 at 6.00pm

Room 209 (entry via Ground level), 170 Horton Parade, Maroochydore.  Details below:

On reflection 2015 has witnessed a significant shift in our community’s awareness of the implications of family violence and our shared desire to prevent it occurring in the future. Tragically, it has only been through our exposure to the loss of a number of victims that a face has been afforded to this horrible phenomenon. The fact more than one woman a week is lost to an act of family violence is gut wrenching.

Obviously when faced with an actual incident of violence or abuse, my hope is that most are aware of the immediate support available, be it through the Queensland Police Service, or our local Domestic Violence Support Services. Where there is a suspicion that a friend or family member is being subjected to family violence, we need to support each other to exercise the courage to reach out and offer support and safe harbour. No one wants to regret having failed to offer that support. I believe the majority of people are inherent good natured and compassionate. It is often a fear of overstepping the mark that prevents us from acting instinctively to help someone. The reality though is that there is so much more to lose in failing to intervene then being told that your concern is misplaced.

There is also a need to appreciate that family violence is more than physical harm. It is all acts of harm – be it controlling behaviour, threats, acts of intimidation, verbal abuse or threats against those that we care for.

The question that often arises is what can we do more generally to take a stand against family violence in our local community. What can we each do to make a difference?

Without doubt, men are in a unique position to speak out and step in when male friends and relatives insult, abuse or attack women. Violence is perpetrated by a small minority of men in our community, and without doubt men can also be the victim of such violence. It will take a majority of men to create a culture in which violence of any nature is unacceptable and openly condemned. This starts with a dialogue with our sons and daughters, an overt education program in our schools, the emergence of celebrities and thought leaders in our community whom are vocal about their condemnation, and boys and men whom have the courage to call out their friends and family members about behaviours which is disrespectful and damaging to women.

White Ribbon Australia have some powerful resources available to the general community via their website.  http://www.whiteribbon.org.au

I was really fortunate a few weeks ago to see an Advanced Screening of a documentary titled “Call me Dad”. It will debut nationally on the ABC from 8.35pm on 26 November 2015 and the Director is an exceptionally talented professional by the name of Sophie Wiesner.

“Call me Dad” focuses upon a group of men undertaking an aggression management style program over a period of time. All concede having acted abusively towards their partners. The program is powerful in two respects particularly. First, it has the capacity to generate enormous compassion for these men, perpetrators of something which is so widely and rightly despised. It provides a clear context in which abusive behaviours can gestate and emerge. This is without painting a picture of excuse or tolerance for violence. Rather, the focus is very much on allowing these men to understand the nature of their own behaviour, and why they have perpetrated violence and aggression in the past.

The second powerful aspect of the documentary is the transformation that is evident in at least two of the men the subject of the program. The epiphany to the damage they have perpetrated is moving, and you’re left with an overwhelming sense that their behaviour cannot surely be repeated in the future where they have that insight into their own behaviour and the damage it does to those they love. And these men have loved intensely.

I suspect that often we fail to appreciate the complexity of violence. It should not be tolerated in any respect, but it is only with an appreciation of the context of aggressive behaviour that change can be effected.  The sense of loss that the men have suffered as a result of behaviours is confronting for the viewer, but you’re left with a sense that good things can happen where there is such a willingness to take responsibility and importantly, a willingness to identify the triggers for behaviour and set about reforming one’s own core instincts.

False allegations of violence do occur. The manipulation of the domestic violence legal system for tactical advantage where there is no abuse is an offensive thing and as an experienced family lawyer, I despise the attitude shown by some professionals in recommending a Protection Order application as a matter of course and in the absence of actual family violence.

But, there is the other side of the coin. As lawyers we are notoriously defensive when it comes to allegations of violence made against our clients. Often our clients will automatically deny behaviours, largely out of a fear that any concession will cost them dearly when it comes to contact with their children or financial outcomes. As lawyers, I think we do a major disservice to our clients in rushing beyond an opportunity our client may have to both acknowledging past abusive behaviours and genuinely commit to addressing that behaviour and avoiding any repeat of same in the future. I think we also often fail to challenge our client about behaviours which are abusive by their nature, but dismissed as something other than abusive given that they don‘t fit the traditional model of physical violence.   For example, controlling behaviours, isolating behaviours, the manipulation of children to be aligned with a parent and reject another parent… it is all family violence at the end of the day. The tragedy is that many perpetrators have lived childhoods where the above was abundant in their home, and normalised in the sense that it’s not seen as being `as wrong’ as physically hurting someone.

As a lawyer, it is personally challenging to confront a client about their abusive behaviour and many lawyers don’t believe it’s our job to discuss with a client the need to seek help and address behaviours. It can be a highly emotional discussion and obviously as professionals we do need to be conscious of our own exposure to risk. That said, I believe it is absolutely our job to confront family violence and prompt change. Surely we should be encouraging a legal and therapeutic culture where genuine acknowledgment and commitment to change is valued by our system and supported. Only then, do I think we can break the cycle of violence for many families.

“Call me Dad” should be compulsory viewing for anyone facing or working with the spectre of family violence, and particularly the professionals who have the opportunity to effect real change for these men, women and children.

I think it’s time to exhibit some courage – in open and blunt condemnation of those that perpetrate violence, coupled with an open and courageous commitment to supporting a perpetrator to take responsibility and to effect real change in their life.

“Call me Dad” can be viewed on the ABC Thursday 26 November at 8.35pm.

www.callmedadfilm.com

22 November is the second anniversary of the Old Boy’s death. No matter how much time goes by, this day brings forth many memories.

With that in mind, I thought I would share a few of these with you – in the form of some of the rules he used to live by.

Things I think he got right

1. You definitely get more out of your leather shoes and boots if you put wooden shoe trees in them after each use, particularly with RM’s.

2. Being able to switch off from work takes practice but is an important skill and significantly contributes to your ability to manage your energy levels.

3. Things always have a way of working themselves out.

4. Good friends are like family.

Things he may have got wrong

1. Physical exercise is probably not just best left to a one week holiday at Easter and a two week holiday at Christmas.

2. Leaving home before 5am for every holiday does not necessarily guarantee you will have a better holiday.

3. Getting to every destination an hour early does not necessarily improve your chances of enjoying the event (particularly when you just give that well-earned seat away to the nearest child, women or man with a slight limp).

4. Just because someone’s shoes are not spotlessly clean polished or he or she does not have a clearly lined crease in his or her trousers may not necessarily mean that they are completely incompetent at their job.

5. Steak with a sprig of parsley and a glass of wine probably doesn’t represent a complete meal.

6. Competing at everything like your life depends on it isn’t always necessary nor even appropriate; for example, when playing “connect 4” with grandkids, or tennis with your wife or when four wheel driving up Indian Head with three very young kids who are sitting in the back of a “Troopie” on top of wooden tool boxes with no seat belts.

7. It may still be possible to enjoy watching a game even if your team did not win.

Jury is still out…

1. Every now and then having too many beers is good for the soul.

2. Go to work every day no matter what you did the night before or how you are feeling.

3. No NSW Waratah should ever be named in a Wallabies run on side.

4. Never ever give up: sounds good but I have often found this to be impractical, i.e: “I will only stop hitting golf balls when I have hit five straight drives in a row” often means the result is a pretty grumpy golf pro standing behind you swearing under his breath and twirling his keys in his hand 20 minutes after the lights have been turned off and everyone else has gone home. At this point, I think there might need to be a balance between life, never giving up and flogging a dead horse.

From the perspective of the time and energy he dedicated to the Family Court and to the practice of family law, I think he would be very pleased to see the quality of the current bench.

For him, having worked in an era when lawyers picked up the phone and spoke to each other in an attempt to resolve matters, I think he would be appalled by the lack of effort made by the modern practitioner to resolve a matter before commencing court proceedings. Having co-written the Family Law Rules 2004, I think he would be disappointed at the mere lip service that is given to the pre-action procedures (which require parties to make a genuine attempt at resolving matters by negotiation before commencing proceedings). Further, I think he would consider the majority of modern family lawyers to be ill prepared and lacking knowledge about basic rules of evidence and the court process.

Whilst the problem of domestic violence is still endemic, as a strong advocate for the protection of women and children against acts of domestic violence, I think he would be pleased that the level of awareness of the problem is slowly increasing, and the community is now looking for ways to educate and take responsibility for the problem, rather than leaving it for the court or governments to tackle.

Finally, I know the Old Boy would have been delighted to be acknowledged by the Family Law Practitioners Association (FLPA) for his “contributions to the development of Family Law” through FLPA’s inaugural, “Buckley Memorial Essay prize”. I am certain he would have dearly appreciated the efforts of Dr Mark Sayers, James Steel and the FLPA Committee in putting this together.

 

The term, “in the best interests of the child” is used widely in family law. But what does it mean in the context of shared parenting?

In considering such matters, the touchstone phrase, “in the best interests of the child” is the most important consideration of both the relevant legislation and the court. In determining what this means in a practical sense, the court takes into account both the “primary considerations” and the “additional considerations”.
Primary Considerations:
• The benefit to the child of having a meaningful relationship with both parents; and

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (the court must give this factor the most weight out of the two)

Additional considerations:

• Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to how much weight the court should give to the child’s views;
• The nature of the relationship between the child and each parent as well as with other people (e.g. grandparents or other relatives);
• Whether the child’s parents have taken, or failed to take, the opportunity to spend time with and communicate with the child and take part in major long term decisions about the child;
• The extent that each parent has fulfilled their obligations to financially maintain the child;
• The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or other person who the child has been living with;
• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• The capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs;
• The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• Any family violence involving the child or a member of the child’s family, including any family violence court orders in existence; and
• any other fact or circumstance that the court thinks is relevant.

In addition, if the child is an Aboriginal child or a Torres Strait Islander child:

• The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
• The likely impact any proposed parenting order under this Part will have on that right.

In taking these considerations into account, the court acknowledges that each family is different and that what is in one child’s best interests might not be the same for another child – even from the same family.

As family law practitioners, we place a heavy onus on our clients maintaining a high level of respect towards their former partners. A respectful and cooperative relationship between ex-partners is encouraged but not always capable of being achieved.

One couple in Calgary, Canada has taken a happy relationship after separation to new heights. Enter Shannon and Chris Neuman, parents of two children who ended eleven years of marriage and a prolonged period of litigation with a picture of them each, smiles aplenty, outside the Calgary Court Centre.

The “divorce selfie” has gone viral and at last count, Facebook attributed over 27,000 shares to the couple’s efforts.

According to the caption attributable to the divorce selfie, the pair were pleased to be able to do something “extraordinary” and ended their marriage, “respectfully, thoughtfully and honourably” in a way that will allow them to “go forward as parenting partners for their children”.

Perhaps a more practically apt comment was also included, when they said “[the children] will never have to wonder which side of the auditorium to run after their Christmas concert or spring play because they’ll be sitting together”. The couple generally spoke of their struggles but also of their success in coming up with a parenting plan after divorce that was “keeping the wellbeing of [their] kids at the forefront of every decision”.

Ms Neuman says that the reaction to the photo has been “mixed”, with a number of individuals showing support for their efforts but it was also conceded the photo had attracted criticism on the basis that divorce is never something that should be celebrated.

No doubt, the divorce selfie and the merits or appropriateness of same will be the topic of many household debates until the next unique internet photo goes viral, but it appears at the very least there is food for thought about how far society has come in accepting divorce as being a part of life and whether it is appropriate to celebrate the end of a marriage, regardless of how highly esteemed the parties are in relation to each other after the event.

Ms Neuman, for her part, denies that she was celebrating when she took the photo, rather commemorating the completion of the goal that they worked really hard to achieve after some four years of being unable to reach agreement.  She states that the end of the marriage was sad but the positive outcome afterwards was to be celebrated.

From my perspective, the above is great publicity for the benefit of a positive post-separation parenting relationship, and the adoption of a dedicated child-focus in decision making.   I am yet to read one study which suggests parental conflict in the post separation period is positive for children and whilst a breakdown of a marriage is something that may be difficult to justify in terms of celebrating, the desire and willingness to reach a resolution where children aren’t subjected to conflict or the undercurrents of conflict, is something to be applauded.

Whether or not there are any more divorce selfies, let us hope there are plenty more situations where parties put their own emotions and feelings aside in order to reach amicable child-focussed arrangements for the long term.

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.

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.

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.

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.

In 1983, the Australian Government introduced the compulsory superannuation scheme. Since then, employers have been obligated to pay on behalf of the employees, a percentage of their total income into a nominated superannuation fund of the employee.

Note: The minimum amount of superannuation required to be paid by employers is due to increase from 9% to 13%.

Whilst divorce or separation spells the ending of a relationship, it begins the arduous task of sharing your finances with your partner. Superannuation is considered to be an asset, and it may be included in a property settlement.

When a marriage or a de facto relationship breaks down, superannuation can be split through reaching a superannuation agreement. If an agreement cannot be made, you can have the court determine the settlement.

In deciding whether to make a super splitting order, the court takes the following factors into consideration, the:

value of Superannuation interest;
age and state of health of parties;
capacity of the parties for gainful employment;
care and control of children;
income, earning capacity, assets, liabilities and financial resources of the parties; and
nature and accessibility of superannuation entitlements.

The principle of fairness is key to superannuation settlements hence why the courts take into consideration numerous factors that will give them a better picture of each parties’ financial situation. When coming to agreements, some potential approaches can include:

one partner may get part of their settlement in the form of their ex-partner’s super;
one partner may receive more super now and less of the other assets;
where one partner has a super and the other has little or none, the super is likely to be split 50/50 along with the other assets.

You can request information regarding your partner’s super from their fund and if the super is split, then you will have the following choices:

add the money to your super account;
transfer the super to another fund; or
take the super as cash if you are eligible for a cash payment.

Process of Splitting a Super

Request information about the super accounts.

Before deciding how to split the super, you need to find out how much super you both have.

Decide how you will split the super.

The most efficient way to do this, is to prepare a formal written agreement with the aid of a lawyer. This is likely to cover super as well as other family assets. The agreement must be accompanied by a signed certificate stating that both parties’ have taken independent legal advice.

You could seek a consent order if both you and your partner have already agreed to split the super. You can file an application for consent orders through the family courts, together with a consent order recording the agreement.

If you cannot reach an agreement with your former partner, you will need to file an application for a court order. Even when an application has been made, you and your former partner may reach an agreement at any time without the need for a court hearing.

Child Protection Week runs from Sunday 6 September 2015 to Saturday 12 September 2015. Fundamentally it is about raising awareness for the fact that all children have the right to feel safe and protected. It also promotes the hard work and dedication of all those involved in the child protection sector.

In Queensland, families and children are very fortunate to have access to a range of support to help ensure that children are safe. That support comes in many forms ranging from volunteers in community organisations, Government Departments, Queensland Police and medical practitioners.

This week is a good opportunity to reflect on the practical ways that the family law system prioritises the fundamental need for every child to be protected when a family relationship breaks down.

The Family Law Act makes clear that in parenting proceedings, protecting a child from harm is the primary consideration. Since June 2012, it has been compulsory to file a Notice of Risk of Harm and Family Violence in proceedings for parenting orders so that the Court and each other party involved is aware of the risks to the child and to ensure that any resolution, whether by agreement or Court order deals with those risk appropriately. Importantly, the notice does not just focus on circumstances where a child has themselves been the victim of the abuse or harm. It is far broader and includes circumstances where a child is at risk of harm or where the child has been exposed indirectly to the behaviour, such as seeing the abuse of another person, such as a parent or sibling.

Once issues of risk have been raised, the Court has a wide range of options and powers to help explore the issues and work out the best way to protect a child from harm. While every situation is different depending on the circumstances some of the ways the Court acts to ensure children are protected include:

1. Arranging for the children to be independently represented in Court by their own lawyer is appointed and paid for by Legal Aid Queensland. The Independent Children’s Lawyer (ICL) helps guide the Judge about what arrangements are in the children’s best interests and how best to protect the children from the identified risks;

2. Arranging for a Family Consultant to meet with the children and the parents and to report back to the Court as soon as possible. The Family Consultant’s report helps to ensure the Judge has the best information to be able to make a decision to protect the children from harm, especially in the short-term;

3. In more severe cases, the Court can and does ask the Department of Communities, Child Safety and Disability Services (DOCS) to intervene to ensure that children are placed in the care of a parent, grandparent or another person who is best placed to ensure the children are safe and well cared for.

In circumstances where there are ongoing concerns about personal safety and domestic violence, children can also be expressly named as persons protected by an order under the Queensland Domestic and Family Violence Protection Act.

As family lawyers, we take allegations of risk of harm to children seriously and can help guide you through the options to ensure an optimal outcome for your children.

In its third year now, through sponsorships and donations Griffo’s Challenge raised over $225,000 this year for ICON and Cure Brain cancer foundation.

Kicked off again by founder ex-wallaby Mark Connors – Buzzard reminded everyone (as it started to rain) that the idea of the run was to feel some of Damian Griffin’s pain and discomfort. “Griffo” was diagnosed with brain cancer in 2000.

Mark’s idea behind the “challenge” was to raise money to support Damian and his family following Damian’s diagnosis of brain cancer. Typical of Damian, he said that the people who needed the money were the people who had devoted themselves to finding a cure. As a result the support for “HOCARC” (now called ICON) began in 2012. In 2015, given the funds generated by Griffo’s Challenge in 2012 and 2013, the Challenge also chose to support the Cure Brain Cancer Foundation.

After the race, Professor Charlie Teo AM, brain surgeon guru and great Australian, spoke on behalf of Cure Brain Cancer Foundation. In chilling statistics, he told the runners that brain cancer is the number one killer of children, not only of any cancer but of any disease. Despite this, brain cancer research receives the least amount of government funding. It relies on funding from community activities such as Griffo’s Challenge.

Thank you to all those family and friends of Best Wilson Buckley Family Law who donated and sponsored the Best Wilson Buckley Family Law team. Congratulations to Annabel Myatt and Dan Stewart for completing the full 21km. Well done also to Amy Hollis for completing the 14km, after aiming to complete the 7km and well done also to Emily Myatt, Courtney Stewart and Kristelle Eager for knocking out the 7km loop.

Personally, I was gutted (and surprised!?) that my time of 2 hours 20 minutes didn’t get me onto the podium. The winning time was 1 hour 27 minutes so there must have been very little in it. Many thanks to my good friends, Nomiki Glynatsis and Peter Christopherson for trudging along at my pace for the whole 21km.

Thanks to Emily Abbot and Jennifer Ryder not only for arranging the firm’s sponsorship of the event but in volunteering on the day (“watch the tiles, they’re slippery!”).

Many thanks to Buzzard for organising such an inspiring event.

Love you Griff. See you all next year.

Change is inevitable, so they say. However, when this relates to children and particularly decisions that may affect children in the long term, parents may have differing views about what may be in the best interests of their children.

Family law in Australia has developed considerably since 1975 when the Family Law Act came into existence. Over time, there have been a number of significant changes relating to parenting. However, the main concept that decisions should be made in the best interest of children has remained constant.

There is a common misconception (generally as a result of too many American television shows) that parents have rights in relation to their children. I commonly hear parents say to me that they have a right to see their children or a right to communicate with them. This, however, is not the case. In 2006, the then Federal Government introduced shared parenting legislation. The aim of shared parenting legislation was to promote the idea of shared care of children so that the burden did not fall on one parent.

The legislation set out a number of objects which were included in the Act to support the long standing principle of the message of ensuring that the best interests of children are the priority of not only parents but also of a Court.

The objects included in the Act provide that children have rights and parents have responsibilities. Children have the right to know both of their parents, have their parents play a meaningful role in their lives and to ensure that children have an opportunity to spend time with extended family and participate in any culture that may be important to the children or their family.

There is a presumption under the Act that parents will have joint parental responsibility for the major long term issues for children. This presumption can be rebutted if there has been or may be a risk of family or domestic violence.

Major long-term issues for a child include:

with whom the child lives with and where they live;
where a child goes to school and the type of education that a child has;
the child’s religious or cultural upbringing;
matters relating to the health of a child or healthcare decisions that need to be made;
the name of a child; and
any changes to a child’s living arrangements that may make it significantly more difficult for the child to spend time with a parent.

Parents are required to try and make decisions relating to these issues jointly. There are times where parents cannot agree about these types of decisions and may require assistance from family dispute resolution providers to come to an appropriate agreement.

Major long-term issues are different to day-to-day. Generally, the parent caring for a child has responsibility for day-to-day issues affecting the children. Sometimes this can be a divisive issue where there are different routines between households. Courts rarely interfere in the running of households unless the routine or other matters in one household have an impact upon children.

In the next issue, I will explore some of the issues that parents face when making decisions about major long-term issues for children and the challenges that this can place on rural families.

Have you ever sat at the end of the street, a crossroad and wondered, “what if I went left today?” “Where would it take me?” “Would it be ok?”

Imagine if that was your relationship and each day for the past 2 weeks, 2 months or even 2 years, you drove the same street and asked yourself those same 3 questions. But every day until today, you always turned right. Why?

Maybe it made you happy? Or it was right direction? Or you just didn’t know any different!

I hope that your turn to the right was because it made you happy and it was the right direction for you. But as a family lawyer, I am well aware that for many the turn right was because they just didn’t know anything different. It was lined with ‘what if’s’. It is those people who in their own time, after 2 weeks or 2 months or 2 years that take that left turn. For them, the turn to the left may be the path to separation, an end to a relationship that once upon a time a turn to the right made them happy.

When that someone stops at the crossroad, sighs, ponders and turns left their direction, the road is often blurred – let’s call it their blurred lines. Lines that just need a little direction. A few answers to ‘what happens now I’ve turned left’, or information that will clear the fuzzy haze that creates their blurred lines.

The best advice I can give “arm yourself with information to know how to straighten the blurred lines”. Our family law offices in Toowoomba and Brisbane are on the first street to the left. Our initial consultations will arm you with family and divorce law advice you need so that next time you’re at a crossroad the only reason you will stop is because of the sign.

 

Best Wilson Buckley Family Law are delighted to be sponsoring, and participating, in Griffo’s Challenge for 2015.

Griffo’s Challenge is a 21km half marathon (or 7km casual run/walk) around the Brisbane River to raise funds for brain cancer, that is taking place on 21 August. Griffo’s story is quite amazing and we are happy to be a part of such a great event this year.
As well as sponsoring the event, we also have a team participating in the run and volunteering on the day. If you would like to sponsor our team of solicitors and paralegals please do so via the link below – it really is going to a great cause.

Find out more here

What is the difference between a decree of Nullity and a Divorce?
A decree of Nullity is an order made by the Family Court of Australia, which in effect states that even though a marriage ceremony has taken place, it was not a valid marriage and therefore has no legal effect. A Divorce however ends a legally valid marriage.

What grounds constitute a decree of Nullity?

A party is lawfully married to another person;
The parties are within a prohibited relationship (e.g. first cousins, siblings);
Consent to the marriage was obtained through fraud, duress or mistake;
One party did not have the mental capacity to understand the effect of the marriage ceremony;
One or both parties were not old enough to discharge their obligations to marry; and
The parties did not comply with the formal requirements for a valid marriage in Australia.

It is important to note that the Court will not declare a marriage invalid based solely on the following reasons:

Non-consummation of the marriage;
Never having lived together;
Family violence; or
Other situations where the parties feel they are incompatible.

Where an application for a decree of Nullity and an application for a Divorce are both before the Court, the Court is prohibited from making a Divorce Order unless it has dismissed the application for a decree of Nullity first.

If your situation does not satisfy one of the grounds mentioned herein then you will need to obtain a standard Divorce to end your marriage.

What are the grounds for filing for a Divorce?

The sole ground for filing for a Divorce is “irretrievable breakdown” of a marriage. This is proved by the husband and wife having been separated for a twelve (12) month period with no likelihood of getting back together.

If you would like advice in relation to making an application for a decree of Nullity or a Divorce, please contact Best Wilson Buckley Family Law Toowoomba (07) 4639 0000 or Brisbane (07) 3210 0281

Amendments to the Child Support (Registration and Collection) Act in 2008, changed the landscape on lump sum payments. Originally under the Child Support (Assessment) Act 1989 (Cth), eligible parties could make an application for a lump sum order in substitution of periodic payments. Now, a lump sum order can be made that does not alter the original assessed amount by crediting the payment against the assessed liability.

How does this work?

The liable parent is still responsible for the ongoing child support payments when they fall due, but the lump sum payment made under the Order will be credited against the assessed liability at the end of the financial year. It is therefore necessary for the Order to specify what percentage of the liability is to be met by the lump sum, otherwise the lump sum payment will be credited against the annual child support liability by 100%.

The Registrar must at the end of the financial year reduce the remaining lump sum payment by the monetary amount that has been credited against the assessed liability for that year. If the assessment began later than the start of the financial year, the assessed period will only be from the start date of the child support case.

On 1 July each year, the remaining lump sum payment is indexed in accordance with the Consumer Price Index (CPI).

Can I make an Application?

Lump sum applications are usually considered in circumstances where the liable parent is either income poor and asset rich, or where there has been a history of non-compliance and a strong view that compliance will be an issue with any future periodic assessment.

In order for an application to be made, an administrative assessment of child support must be in place through the Child Support Agency and a departure application must have previously been determined.

Prior to making an Order, the Court must have regard to section 124 of the Child Support (Assessment) Act, which requires consideration to be given to not only the administrative assessment and departure order, but also the carer’s current financial position and the effect the proposed order would have on them.

If you would like to discuss your child support options with one of our experienced child support solicitors, please contact Best Wilson Buckley Family Law Toowoomba (07) 4639 0000 or Best Wilson Buckley Family Law Brisbane (07) 3210 0281.

Like a “Mad Monday” for footballers to celebrate the end of their season, the end of the financial year is an opportunity for accountants to celebrate all their hard work getting to the end of the financial year. (I only wish that they would stop sharing photos of themselves celebrating – decked out in fancy dress or worse, wearing casual clothes – neither are a good look for a profession that traditionally does not get out much nor see much sunlight).

For the rest of us, it’s a good opportunity for a brief review or reflection.

For Best Wilson Buckley Family Law, it’s a nice opportunity to stop and acknowledge our client’s successes and the firm’s part in that……….)

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 from this year………… 

We filed an urgent parenting application in January last year on behalf of our client, the child’s mother. The father decided he would unilaterally relocate to Perth taking the child (aged 10) without consent of the Mother. We obtained an urgent listing before Judge. Once father engaged solicitor – managed to negotiate via consent and Orders were signed within a month from client engaging us urgency. Client was very happy as child remained with her in Brisbane.

We helped our client resolve her financial matter within four months of taking the file over from her previous lawyers. The client had been separated for 7 years and the matter had been in the court system for about 20 months.

We helped another client resolve her parenting and property matter within three months of taking the file over from her previous lawyers. The matter had been to mediation and has also been in Court (for about 12 months). The husband/father was unrepresented. We helped resolved the matter by having a series of informal meetings directly with the husband.

BWB Mediations

We launched BWB Mediations – A fast tracked ‘out of court’ process run by our in-house experts leading to a more efficient resolution of the concerns you and your former partner have following separation). See www.bwbmediations.com.au

 “Inside” BWB

We were also really proud to launch a series of internal projects, including our Client Service Guarantee and our three Cultural Values.

 Some feedback

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

“What a journey we have done, & I thank you for your wonderful representation of knowledge, energy, humility, care & steadfastness, your personal approach & inclusion, particularly when I had lost hope & despaired. You kept me strong when I thought there was no future, no purpose, no hope for me, when even the law made my journey so much harder………….. I love you for your kindness & solidarity when I was beating you up!”

“Thank you for being centred & available when I crumbled.”
“I am so glad of the association, though not the reason for it!”
“Friends I have made, & I realise the process can be done with humility & love, even though the court system is not in our league of compassionate consideration & making others accountable, getting a deserved prompt result!”

“You are a credit to the profession you represent, & the wonderful environment in the office that you have fostered.”

“I am so glad to know you, to be counted as a friend, to have grown to the person I am through the adversity.”

“How can I thank you? – I can’t adequately, but know you are appreciated & loved for the person you stand to be (& are), the ethics you stand & fight for.”

“I recommend you to anyone looking for legal representation (Family Law), or thinking of it. It is the least I can do in return, but you absolutely deserve my unreserved loyalty.”

“Many thanks to your firm for handling my matter, Rebecca has been outstanding and I can’t thank her enough for her amazing work in achieving a positive outcome for us.”

“I just wanted to say thanks for last week. I greatly appreciated your support on both a professional and personal level, and it made the day as calm, reassuring and positive as it could be for me…now I can focus on enjoying my time with #### and making the most of what we have.”

“Thanks guys for all your help with the DVO, it’s a great outcome and now I can move forward feeling a little more safe.”

“I’d just like to thank your office again for their assistance in finalising a family matter with my ex-husband. I hope to not need your services again but if I do I would have no hesitation in contacting you, or of recommending you to any friends who may need similar services.”

“Dan, I won’t call you a genius (I know you don’t l like that!). Let me just say you’re a very very clever lawyer and I’m lucky to have you on my side. ”

“Andrew, you’re my hero.  I think you’re great.  And you put up with me.”

“we got treated like real people”.

“I can’t tell how much it means to me to have had such a patient, supportive and understanding lawyer.”

“Thank you to all the staff at Best Wilson Buckley for all that you have done for me over the past couple of years, this has been a drawn out process to which you have all been very patient and shown me great compassion and professionalism throughout.”

“I will not hesitate to recommend you to any future potential clients.”

“I owe you all so much and am so happy with the outcome we achieved together. In the future, I hope to look back and remember the impact that you all played in creating our family’s history. I will be forever thankful for all your hard work.”

“Reagan and Sam, I have to say thank you both so much for your help and support with my matters over the past year or so and I’m so glad you were recommended to me right from the start.”

“Kara, please do not underestimate your influence for me and my situation.  I guarantee you that if we did not fight and challenge each and every aspect that we did – as traumatic as it was for me –  he would have achieved his goal – to excommunicate me absolutely and wholly from my children’s lives.  I have a relationship and life with my daughter, only because of your leadership of my fight. I am eternally grateful.”

How was your 2015 financial year?