crossroadsT H E F O U R K E YI N G R E D I E N T S

Issue One | AUTUMN 2016

To getting successfully to theother side

M A K E A W I S HDo the children's wishes

really count in family law?

L E G A L F E E SV S M E

How you can take control overlegal fees

TOOWOOMBA

135 Margaret Street, Toowoomba Q 4350PO Box 3701, Toowoomba QLD 4350Phone: (07) 4639 0000Fax: (07) 4639 0001Email: info@bwbfl.com.au

BRISBANE

Level 5, 190 Edward Street, BrisbanePO Box 1735, BRISBANE QLD 4001Phone: (07) 3210 0281Fax: (07) 3210 0282Email: info@bwbfl.com.au

www.bwbfamilylaw.com.au

ContentsEditorial

The Four Simple Ingredients in Family Law

Q&A with Reagan Wilson, Legal Partner

Is Your Lawyer Ready for Mediation? Are You Ready for

Mediation?

Hutchies Tennis Challenge for Careflight

Q&A with Kara Best, Legal Practice Director

Do the Children's Wishes Count?

How to Prevent the Break-Up Appetite

What are Pre-Nuptial Agreements?

Independent Review Names Best Wilson Buckley as

Leading Family Law Firm

Limit Your Legal Fees by Limiting Problems

Q&A with Dan Buckley, Legal Partner

Why it's Important to Make Sure Your Property

Settlement is Properly Documented

Tips for Finding the Right Family Lawyer

01

02

05

06

08

09

10

12

14

15

16

19

20

22

Editorial

by Reagan Wilson, Legal PartnerBest Wilson BuckleyE: reagan@bwbfl.com.au

It is with considerable excitement welaunch our family law publicationCrossroads.

Our magazine will be available on aquarterly basis both in printed form andelectronically, and is intended to provideour readers with topical articles ofinterest and information relevant to thespecialised area of family law in which wepractice.

In recent months our firm has joined theShine Group, and the synergy betweenour organisation and theirs is such thatwe now have the opportunity todevelop the first truly nationalisedspecialised family law practice.

We trust that you find something ofinterest in our inaugural edition andwould welcome any feedback you haveincluding articles of interest you wouldlike to see in future publications.

1

THE FOUR SIMPLEINGREDIENTS INFAMILY LAW by Reagan Wilson,

Best Wilson BuckleyThe legal process

following a separation is

like living in suspended

animation. I am regularly asked in both theprofessional setting and often also on asocial basis, what are the tips, or what Irefer to as ‘simple ingredients’, to movingthrough the legal process in a relationshipbreakdown that maintains respect anddignity.

Having practised in family law for overseventeen years, I have had the opportunityto help people through what is often forthem the most emotional and traumaticexperience they have lived. A relationshipbreakdown does bring with it an enormoussense of loss on many levels, but also theopportunity for a new beginning.

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

A Family Court Judge once famouslydescribed the period in which people areliving through the legal process following aseparation as like living in suspendedanimation.

There are what I consider to be four simpleingredients that give people the opportunityto maintain a sense of respect and dignity inthe process that will also benefit them intheir relationships moving forward, includingwith their former partner, particularly if theyneed to continue to communicate with oneanother for the benefit of their children.

"IngredientNumberOne: Don’tsweat thesmall stuff”

2

You are better off putting your resources intoissues that actually mean something. The key isoften to compromise and not have a battle overthe small things. “Don’t sweat the small stuff”.

With your children, the second ingredient is notto encourage them to think they determine orcontrol the parenting arrangements. I read agreat post on that social forum that is Facebookthe other day which said there are two rulesabout children and they are that you do not askthem to deal with adult issues and that you donot burden them with situations they cannotcontrol.

Generally speaking, my experience is thatchildren tell parents what they want to hear andoften what they say has the underlying intent ofgetting the approval of their parents. There is nomagic age in terms of when a child’s wishes, ineffect, determine the parenting arrangementsthat are to be put in place, but obviously as theyget older or enter their teenage years they areoften able to articulate their views more clearly.

It is important to remember, however, thatthere aren’t too many fourteen year olds thatcan run their own life and self-determine,meaningfully, what is in their best interest.There needs to be a balancing of what a child’sviews are, and the context to those views beingexpressed, and the need for parents to parenttheir children and encourage the relationshipwith the other parent.

Encouraging or forcing a child to make thisdecision creates a no-win scenario in thatessentially one parent will be happy and theother parent will not be. In simple terms,parenting matters involve the parents takingresponsibility for whatever the dispute might beand not delegating the decision-making powerto the children. If you do, the reality is you willmost likely cause psychological damage to yourchildren and therapeutic support at somejuncture will need to be undertaken. Simply,don’t ask your children to deal with adult issuesand don’t burden them with situations theyultimately cannot control.

“YourFacebookpost orvoicemailmayultimatelyend up asevidence inyour familylaw dispute"

The first ingredient is indeed a simpleconcept and that is “Don’t sweat the smallstuff”. By focussing on small things or theminutiae in a financial settlement, myexperience is that you lose sight of the bigpicture. It is evident that on many occasions,people do attach a sentimental value toparticular items of their property but onother occasions, I see people want to pursuean item of property for the purpose of what Irefer to as winning a “trophy”. Pick yourbattles, there is no benefit in getting into acostly legal argument over things such as acoffee table or the toaster and kettle. Youwill spend more money and energy onpursuing those issues than what you couldoften buy them for, and remember, they arejust “things”.

3

The best thing to do, though often difficult, is toignore and not engage or respond tocorrespondence that was intended to invoke anemotional response. By engaging incommunication of this nature, you are maintaininga relationship that an experienced mediator toldme she refers to as “a negative intimacy”.Remember to think before you send, take a deepbreath, or even sleep on your reply overnight. It’samazing how many times the next morning yourdecision will be not to engage at all.

This leads into my fourth and final ingredient tomaintain respect and dignity in a relationshipbreakdown.

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

We consistently see documents that are filed inCourt proceedings that contain irrelevant,defamatory, slanderous and inflammatorycontent that is not only largely inadmissible butdoes nothing to promote that person’s case or theissues that need to be determined by the Court.To the contrary, by failing to acknowledge thecontribution made by your former spouse, theCourt can, in fact, form a negative view of you anddisregard other aspects of your evidence thatmight otherwise have been credible by focusingon these other issues.

“If yourememberthese foursimpleingredients,they willhelp you inthatjourney.”

The third ingredient I consider to be evenmore important in our digital age and day today sense of “immediacy” is to not engage inemotive, self-indulgent, inappropriate ordramatic correspondence. It is important toremember that every text message, email,Facebook post or voicemail may ultimatelyend up as evidence in your family lawdispute.

Early in my career, a senior practitioner, nowjudge, taught me a valuable lesson inreviewing correspondence that I had draftedin telling me that you have to remember thatevery piece of correspondence that you signoff on may one day be read by a judge. Hetold me to remember that before pressingsend or putting a letter in the post.

A family law expert can guide you throughthis process and provide you withinformation as to a network of othersupport services to help you move throughthis significant change in your life, whetherit be therapeutic support, financial planningadvice, accountancy advice, etc.

If you remember these four simpleingredients, they will help you in thatjourney.

4

Q: Best thing about Summer on the Darling Downs?

A: The weather, though I love our winters.

Q: Favourite place to eat in Toowoomba?

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

Q: Favourite drink?

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

Q: What smell reminds you of your childhood?

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

Q: Why family law?

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

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

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

Q: Who was your childhood hero growing up?

A: Allan Border.

Q: Best concert?

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

Q: How do you unwind?

A: With my wife and our five children.

Q&AREAGAN WILSONLEGAL PARTNER

5

IS YOUR LAWYER READYFOR MEDIATION? ARE YOU

READY FOR MEDIATION?BY DANIEL COATES, BWB MEDIATIONS

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

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

Mmm interesting – that is simply not the case I say. I sentletters to that effect, they had had discussions but thereis no agreement. My client cannot do what the wifewants him to do! This has been disclosed to the wife’ssolicitor. This cannot be a surprise! What now? I go withthe mediator to my client and explain the situation. Againhe says, “I have told her I can’t do what she wants. I’vetold her it’s simply not sustainable. I don’t have that sortof money”

What options do we have?

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

6

My client’s proposal is given to wife and hersolicitor. I wait with my client who is nowanxious and expectedly concerned. His hopefor the day was to resolve this long-standing dispute, for himself, his wife andmost importantly their 3 children.

Here it is, the wife’s response.

As the mediator relays the wife’s counteroffer to us I stop writing and interject, “isthere any point writing this down?” Thewife’s counter-offer was completelyunachievable and not one that my clientcould contemplate. The offer was made bythe wife based on her fixed views of herproperty settlement entitlement. It wouldbe a dream deal if the husband was the‘goose with the golden egg’.

Nothing else could be achieved. Themediation ended at a cost to the husbandand the wife. What could have beenachieved?

18

As lawyers we are tasked with a duty toadvise our clients. In my practice, it is myresponsibility to reality test my client and ifnecessary and based on the facts, shift theway they think. Do not hesitate to challengethe client and encourage them to considerother options for a resolution. Inform themof the potential legal fees involved if they donot agree. Ask the client, what is your pricefor certainty of an outcome? How do we getcertainty? What is your ‘big ticket item’ themost important issue for you?

My conclusion about this failed mediation,the wife had not been reality tested and wasnot encouraged to think about otheroptions.

My lesson for anyone who is interested inhelping the client achieve the best outco-me for themselves and their family, do notallow yourself as a practitioner to attendmediation without having prepared yourclient’s case and your client. Think aboutoptions and what your client needs to knowabout the mediation process. What if theyneed to change their position? Don’t letthem become fixed on an outcome...

“Mediation is the best way to negotiate yourconcerns to reach agreement and resolve adispute when a relation breaks down”

Contact: www.bwbmediations.com.au

7

HUTCHIES TENNISCHALLENGE FORCAREFLIGHT

8

On Friday, 16 October 2015, Best Wilson

Buckley took to the Court (in a different

sense to the norm) to raise money for

RACQ CareFlight Rescue at the Hutchies

Corporate Tennis Challenge in

Toowoomba. Reagan, Ben and Courtney

played as the BWB Baseliners.

Courtney and Ben fulfilled the roles of

Andre Agassi and Steffi Graf, overseen by

Reagan as their late 1980s/early 1990s

equivalent to Damir Dokic manager and

bad tennis dad with the assistance of

Reilly Wilson as their ball boy. The

Baseliners made an early exit from the

competition, but were the best

dressed and highest fundraisers.

CareFlight Rescue is a not-for-profit

helicopter rescue service that provides

rapid response emergency medical care

to residents and visitors of southern and

central Queensland and northern NSW.

It was established in 1981, their

helicopters and crew are on standby 24

hours a day, 365 days a year to offer

peace of mind to residents across 41

council regions in Queensland and

Northern New South Wales.

CareFlight has grown to meet the ever-

increasing demand for aero-medical

services and now comprises a fleet of six

community rescue helicopters based

on the Gold Coast, Brisbane,

Toowoomba, Sunshine Coast, Bundaberg

and Mount Isa. CareFlight offers one of

the only lifelines to families living in rural

and regional areas, often located many

hours away from the states’ major

hospitals.

CareFlight Rescue is an integral link in

the lifesaving chain of survival and the

dedicated medical teams are usually

tasked to four types of missions; primary

rescues at the scene of accidents, inter-

hospital transfers, neonatal retrievals

and search and rescue operations.

CareFlight relies on community

donations to keep their choppers flying.

Donate at www.careflight.org.au

Q&AKARA BESTLEGAL PRACTICE DIRECTOR

Q: Best thing about Summer in South East Queensland?

A: The Colour

Q: Darling Downs’ best kept secret?

A: Ravensbourne

Q: Favourite place to eat in town?

A: Sofra

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

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

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

A: Melbourne

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

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

Q: What is your favourite movie?

A: Anything with Doris Day or Julie Andrews.

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

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

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

A: I’m still working on that one.

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

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

9

b y K a r a B e s t , B e s t W i l s o n B u c k l e y

First and foremost the best interests

of the child is the paramount

consideration when determining all

future parenting arrangements. The

court’s final orders should always

reflect its findings on the evidence

about what is most likely to promote

this principle.

In determining this, the Family Law

Act 1975 sets out two primary

considerations when dealing with

parenting matters:

1. The benefit of a child having a

meaningful relationship with both

parents; and

2. The need to protect a child from

physical or psycho- logical harm.

Recent coverage surrounding family law cases has raised the question for someparents as to whether their child’s wishes are something that would be consideredin a family law proceeding.

Views expressed by a child will not

solely form the basis for the Court’s

decision. There are a number of

different factors set out under the

legislation which need to be

considered after a focus upon the

`primary’ considerations as set out

above. The views of a child are only

one of those factors. It is important

to note that even though a child’s

wishes are relevant, that relevance is

also dependent on their level of their

understanding and maturity.

Whilst the Family Law Act remains

silent with respect to what age a

child must be before their wishes are

considered definitive by the Court,

generally speaking a Court will place

significant weight on the wishes of a

child over the age of thirteen years,

and earlier if a child is particularly

mature and insightful.

How are the views heard?

Given the Court does not generally

favour direct involvement of children

in litigation due to the nature of the

process and the potential

disadvantages for the child,

alternative methods which are

considered to be a suitable vehicle

for capturing the child’s views are:

1. A Family Report, where the writer

(generally a skilled psychologist or

social worker) has met with the

parties and child;

DO THE CHILDREN'SWISHES COUNT?

10

First andforemost thebest interestsof the child isthe paramountconsiderationwhendeterminingall futureparentingarrangements

2. A Family Consultant from the Court’sCounselling Service whom can meetwith the parties and report orally or inwriting to the Court; and/or

3. The appointment of an IndependentChildren’s Lawyer. The latter will meetwith children when they are sufficientlymature to understand the nature of theICL’s appointment and their role.

The ICL is not a child’s advocate anddoes not act on a child’s instructions,but rather is empowered to make allsuch enquiries as are pertinent todetermining what is in a child’s bestinterests and thereafter to makesubmissions to the Court relevant towhat would be best for a child.

Arguably a parent is in an ideal place torepresent the interests of a child, butthe adversarial nature of litigation issuch that the Court will generallysearch for an

objective measure of a child’s wishesbeyond that which their parents arerepresenting. This is partly recognitionof the fact that children are veryvulnerable to an instinctive need toplease a loved parent and tell them whatthey think the parent requires.

In many cases, both parents will reportthat their son or daughter has expresseda desire to live with them solely. This isanother good reason to avoiddiscussions of such a nature with kidsunless they are old enough to handle theundercurrent of conflict and alignment(which for some kids may mean thediscussion never takes place).

As with all considerations in relation tothe best interests of a child, it isimportant to be guided by anexperienced legal practitioner. Shouldyou have any concerns in relation tofuture parenting arrangements for yourchild, please contact us today andarrange an appointment.

11

HOW TOPREVENTTHE BREAKUPAPPETITE

TAKING CARE OF YOUR BODY DURING TOUGH TIMES

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

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

12

These symptoms can result in :

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

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

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

Keep blood‑sugar levels balanced. If they fluctuate during the day, sowill your mood and this can be a contributing factor in people withdepression. A diet high in sugary, white, processed carbohydrate foodswill cause sudden peaks and troughs in the amount of glucose in yourblood, which can result in irritability, fluctuating mood and anxiety. Eatmore: Whole Grains, fresh fruits, vegetables and legumes. Try yoghurt,nuts, seeds, eggs, fish, chicken and legumes and cut down on caffeineand alcohol.

1. Avoid High/Low Blood Sugar Levels:

2. Avoid Snacking Mistakes

During stress , our hormones might trigger us to keep onsnacking on unhealthy food to find pleasure in some way. To avoidbecoming a snack‑food victim, always keep nutritious snacks withyou, such as nut bars, cheese and cracker packs and fruit. They helpcontrol insulin and blood‑glucose levels, crucial for body‑weightregulation.

3. Don’t Skip Meals

Going too long between meals can make you feel irritable andtired, so aim to eat something at least every three to four hours.

4. Boost B Vitamins

Deficiencies in B vitamins such as folic acid andB12 can trigger depression. To get more, take aB‑complex vitamin supplement or eat more citrusfruit, leafy greens, beans, chicken, and eggs.

5. Include Omega 3 Fatty Acids

Omega‑3 fatty acids also appear to be potentdepression‑fighters. Clinical studies have shownthat omega‑3 fatty acids, found in fish includingtuna, salmon and sardines, or in fish oilsupplements, can significantlyreduce depressive symptoms.

6. Eat Mindfully

Try to eat slowly and mindfully to enjoy each biteand avoid overeating. It takes several minutes forthe body to signal fullness; stop eatingbefore you feel full.

7. Correct Portion Sizes

Regulate your portion size – both overeating andundereating can stress your body physically andemotionally.

8. Drinking Plenty of Water

To keep the body properly hydrated and to aid ineverything from digestion to maintaining healthy bodytemperature drink plenty of water. Limit caffeinatedbeverages like coffee or soda, which can have astimulating effect at first, only to be followed by a dropin energy level and mood later.

9. Plan Meals in Advance

One easy way to keep the days simple when goingthrough up’s and down’s in life is to do menu planning.Planning your meals in advance will reduce thestruggle of cooking meals during mealtimes. Just lookat the menu plan and cook.

10. Stop Weight Obsession

It is often recommended that one should weighthemselves once a week or once a fortnight. Too muchweighing and looking at scale daily can add the pressureand may demotivate you. Rather than weighing yourselves daily, measure yourself of how do you feel inyour clothes. Wear comfortable clothes suited to yourbody shape.

13More Information: www.nutrivore.com.au

WHAT ARE PRE-NUPTIALAGREEMENTS?WHAT ARE THEY? ARE THEY LEGAL IN AUSTRALIA?

WHEN DO THEY WORK?

by Samantha Iwers, Best Wilson Buckley

14

The term pre-nuptial agreement (or pre

nup) is an everyday term describing an

agreement entered into between two

parties in contemplation of marriage. It

will generally make provision for what is

to occur in the event of separation. Often

assets are ‘quarantined’ from a future

claim in such an Agreement.

It seems these days that news of any

celebrity separation is followed by a

headline which begins with “his/her pre-

nuptial agreement states” or “no

prenuptial agreement was ever signed”.

Often the latter headline is accompanied

by commentary as to why a pre-nuptial

agreement should have been signed and

who will be the big winner out of the

separation as a consequence of there

being no pre-nuptial agreement in place.

Pre-nuptial agreements were originally

seen as something that only established

and wealthy individuals would need. This

perception is changing as more couples

appreciate the clarity and security that

such an Agreement can offer to both a

couple, and often their families.

In Australia a pre-nuptial agreement is

more commonly referred to as a “90B

Agreement”, the name being derived

from the relevant section of the Family

Law Act under which the Agreement is

made.

A 90B Agreement is entered into by two

people prior to them being married. The

terms of the Agreement sets out how, in

the event of separation, the finances of

both parties will be dealt with and how

the parties’ interests in property will be

distributed.

There is another variety of legal

agreement that allows de facto couple,

whom are not planning to marry, to make

provision for what will occur should they

separate.

90B Agreements are only binding if they

meet strict legislative guidelines. For this

reason, great care is required in drafting

and executing these Agreements.

Even if the Agreement is binding, some

grounds on which a 90B Agreement can be

set aside are:

Both parties must obtain independent

legal advice with regard to the

Agreement before it is binding and it is

highly recommended in the current legal

climate that each party engages with a

highly experienced family law

practitioner.

An experienced legal practitioner at Best

Wilson Buckley will explain to you the

following prior to you signing a 90B

Agreement:

1. The effect of the Agreement on your

rights; and

2. The advantages and disadvantages of

you entering into the Agreement.

1. the agreement was obtained by fraud

(including non-disclosure of a material

matter); or

2. where a material change in

circumstances has occurred that

relates to the care of a child, and the

child, or party to the agreement with

the care of the child would suffer

hardship if the agreement were not

set aside; or

3. when unconscionable conduct is has

occurred; or

4. when circumstances arise which

means that it is impractical for the

terms of the Agreement to be

carried out.

Best Wilson Buckley Family Law is the leading family law firm in the Toowoomba and Darling Downs region – voted by Independent Review,

Doyle’s Guide. BWB is listed as the only First Tier Family Law Firm in the region’s 2015 rankings.

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

recommended Brisbane Family Lawyer.

Doyle’s Guide is a completely independent review process conducted annually through extensive telephone and face to face interviews with

clients, peers and relevant industry bodies.

Best Wilson Buckley opened as a boutique family law firm in Toowoomba in 2009, and this is the fourth successive year that the firm has been

honoured. The team at Best Wilson Buckley value the recognition, appreciation and support from clients and peers.

INDEPENDENT REVIEW NAMESBEST WILSON BUCKLEY ASLEADING FAMILY LAW FIRM

15

Limit YourLegal Feesby LimitingProblemsEssential Tips for Taking Control overUnexpected Legal Fees

T E C H N O L O G Y

by Dan Buckley ,Best Wilson Buckley

16

We’ve all heard the stories aboutexorbitant amounts of money beingspent by spouses on legal fees arisingfrom a family law dispute.Unfortunately these stories are notjust limited to US celebrities.

Most of these stories either expresslyblame the role the parties’ lawyershave played in the process orotherwise suggest that the sole ormajor motivation of the parties’ familylawyers is directed towards their ownpersonal financial gain, rather than thatof their clients.

I admit that, in some cases, suchcriticism is warranted. These lawyersare the scourge of our profession andseem not to consider or care aboutfirstly, the impact this has on theirclient (both at the time and into thefuture) and secondly, the wider impacton the reputations of all family lawyers.

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

A good start. (Unless you are anenvironmentalist; then you wouldconsider this indiscriminate dumping ofhazardous waste.) or “Santa Claus, thetooth fairy, an honest lawyer and an olddrunk are walking down the streettogether when they simultaneouslyspot a hundred dollar bill. Who gets it?

The old drunk, of course; the otherthree are mythical creatures.”However, I like to think that, in the vastmajority of cases, the primary goal thatmotivates most lawyers is getting agood outcome for their clients.

Sometimes, when your former spouseor partner is acting irrationally, isrefusing to communicate or takes anen- trenched position in relation to animportant or significant issue, youroptions for how to resolve your mattermay be limited. In reality, I think thesecircumstances are extremely limited. Inmost cases, you will always have anumber of options and more controlover the choices you make and thedirection your matter takes than youthink.

I like to thinkthat, in the

vast majorityof cases, theprimary goal

that motivatesmost lawyersis getting a

good outcomefor theirclients.

And, as the client, the most importantperson in the matter, you shouldalways ensure that you are in control ofthe direction your matter is taking andthat you manage your legal fees.

17

Here are my top five tips for doing so:

Carry out a cost benefit analysis, or askyour lawyer to set one out for you, ateach stage of your matter. There is nopoint, in a financial matter, in spendingthe same amount (or more) on legalfees to progress your matter than is indispute between you and your formerspouse.

Before instructing your family lawyerto commence litigation on your behalf,make sure you: (a) Have fully exploredall of the other avenues andalternatives to litigation. Theseinclude:

Putting across your “best” offer at thesame time as providing your spousewith all of the information anddocuments they need to consider thatoffer;

Arrange a round table conference withyour former spouse and their legalrepresentatives. Consider inviting thefamily or business accountant;

Consider appointing an independentexpert to provide advice to bothparties on a particular matter indispute eg the current or futureoperation of the business;

Consider the different forms ofalternate dispute resolution includingcollaboration, mediation andarbitration; and

• are fully aware of the costs involvedin litigation, from start to finish,including filing fees, the number ofCourt attendances that may benecessary, the costs of anyadjournments or delays;

• are aware of, and have consideredthe possible consequences of, the factthat once you are in the court systemyou no longer have control over thetiming of your matter or the processthat is undertaken. All this is subject tothe Court’s finite resources andavailability. In the 2012/2013 financialyear:

– in the Family Court of Australia, therewere 2,807 Applications for FinalOrders and 3,380 Applications forInterim Orders; and

– in the Federal Circuit Court, therewere 17,364 Applications for FinalOrders and 20,242Applications for Interim Orders.

One of the effects is that, a five minutemention of your matter may not beheard until very late in the day. In mostcases, neither you nor your lawyer haveany choice but to wait outside theCourt room. Further, although theCourt goes to great lengths to ensurethat it is avoided, on occasion two trialsmay be set down for the same day,before the same Judge and your mattermay not be the one being heard on thatday. This is despite the fact that youhave paid your Court fee, filed yourCourt material on time and paid yourbarrister to appear on your behalf.

When making any proposals orconsidering any proposals, for propertysettlement make sure you:

Carry out a costbenefit analysis,

or ask yourlawyer to set one

out for you, ateach stage ofyour matter.

Consider the “cost” to you inspending time involved in amatrimonial dispute rather thanspending that time in your work orbusiness;Acknowledge the emotional cost ofcontinuing the dispute. You madethe difficult decision to separate,allow yourself to be able to move onwith your life. Adopt a realistic and reasonableposition, in the context of thelimitations of what your lawyer, orthe Court, can “fix” – Neither canchange the behaviour of yourspouse; neither can make yourspouse acknowledge his or her rolein the breakdown of yourrelationship; neither can declareyou as the “winner” over yourspouse; neither can make him or hera better parent. Consider carefully the advice beingprovided by your lawyer. If unsure,ask questions about the legal andcost ramifications of taking oneoption over another. In light of thelimitations of the Court (as set outabove), consider the road of leastresistance. Sometimes not doingsomething (ie not taking a particularstep) is an option worth considering.

18

1.

2.

3.

4.

5.

Carry out or consider your lawyerscost benefit analysis (as set outabove). How much are we apart indollar terms? How much will it costme in legal fees to proceed in mymatter (eg what will be my legalcosts to prepare for and attend say aprivate mediation?).

Q&ADAN BUCKLEYLEGAL PARTNER

Q: Brisbane’s best kept secret?

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

Q: Favourite place to eat in town?

A: Sake – great food and great service.

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

A: Hanging out with my girls and dogs.

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

A: Hinchinbrook Island with mates.

Q: Favourite album/concert attended?

A: Grace – Jeff Buckley

Q: If they made your life a movie, who would play you and why?

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

Q: Favourite book?

A: Amitav Ghosh – The Glass Palace.

Q: How do you unwind?

A: Yoga

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

A: A vet.

Q: Why family law?

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

19

by Andrew McCormack , Best Wilson Buckley

There are times, believe it or not,

when some people can work out

their property settlement issues

amicably and reach an agreement

without the need to go to court. It is

important to ensure that any

property settlement that you and

your spouse agree to is properly

documented to ensure that your

financial relationship is finalized and

all of the loose ends are tidied up. If

this does not happen, there could be

some serious consequences in the

future. I often recount to clients the

circumstances of a previous client

who, in attempting to resolve his

property settlement

WHY IT’S IMPORTANT TOMAKE SURE YOURPROPERTY SETTLEMENT ISPROPERLY DOCUMENTED

matters with his former partner,

decided to do an informal property

settlement to save the costs of

getting solicitors involved. In

hindsight, this became a very costly

mistake – a million dollar mistake.

On separating from his wife, the

former matrimonial home was sold

and the proceeds of sale went to the

wife. My client retained his business,

which at the time of separation was

valued at around the same amount as

the proceeds of sale of the house. My

client thought that this was a fair

division of the parties property. He

kept his

business and went about building

it up.

However, the division of property

between the husband and the wife

was never formally documented.

My client went on to form a new

relationship some years later and

decided to get married. However,

the parties had never divorced.

The Family Law Act provides that

property settlement proceedings

can be brought any time after

parties separate and for a period

of one year after a divorce order is

made. To enable my client to get

married again, he made an

application for divorce.

20

Soon after being served with the

application for divorce, the wife

obtained legal advice about her

position. As no formal property

settlement had occurred, she made

an application for a property

settlement some 15 years after the

parties had gone their separate

ways.

To cut a long story short, my client’s

business had grown from a small

business in Queensland to a multi-

national business with diverse

interests. The mistake of not

properly documenting the property

settlement meant that my client’s

soon to be former wife had the

ability to have a “second bite” at

what was now a very juicy cherry. It

is important to ensure that your

property settlement is properly

documented by way of a Consent

Order or a Financial Agreement. This

has the effect of severing the

financial relationship between you

and for former partner so that you

can go about rebuilding or

consolidating your financial position

after a relationship breakdown.

21

TIPS FOR FINDING THERIGHT FAMILY LAWYERby Dan Buckley, Best Wilson Buckley

Too many people go with the

cheaper hourly rate not

thinking that what a specialist

family lawyer can do in 3 or 4

hours may take the “cheaper

by the hour” non specialist 8 or

10 hours to do.

In addition to meeting with manyclients, at first instance,unfortunately we see a lot of clientswho have been referred to us havingbeen previously represented byother lawyers.

Usually these clients have spent asignificant amount of money, andhave yet to really either progressthe matter or they’re at a loss as towhat is going on. As a result they areoften disenchanted, a little wary andsometimes exhausted. Like allprofessions, there are good familylawyers and there are bad familylawyers. Here are my top 10 tips tohelp you avoid the good from thebad:

Avoid lawyers who claim to be bothfierce litigators and collaborativenegotiators. You cannot be both.Some firms do however offersubspecialists such as negotiators,parenting litigators, experts inbusiness/commercial family law etcwhich allows you to choose thelawyer to match your needs andyour style.

Choose a lawyer or law firm thatspecialises in family law. Practisingin this jurisdiction requires anabsolute commitment to family law. As a hot political topic, there iscontinued pressure on governmentand legislators

from various lobby groups to makechanges to the legislation andregulations relating to child support,children’s issues, prenuptial andcohabitation agreements,superannuation, tax, theinvolvement of third parties andthere are frequent changes in theCourts approach from new case law.Also, in my view, part of theexpertise you are “buying” mustnecessarily include knowledge ofCourt process, the most effectivemediators, the best counsellors, thepremier family law barristers, andbest business valuers. That expertisemust further include an intimateunderstanding of the judges of

22

1.

2.

the Court, their preferences, andthe means by which the bestoutcomes are achieved before them.

Check the admission date of yourlawyer and ask the question as tohow long have they specialised infamily law. Often those lawyersclaiming to have experience in facthave very little.

Beware of the lawyer that talksabout “winning”. I believe that youwin when you achieve the mostoptimal outcome in thecircumstances. Often when oneparty feels that they have “lost” as aresult of a legal process, it will leadto immeasurable conflict forchildren being co-parented for yearsto come. In my mind, that conflictand the associated risk is not a“win”.

Talk to your lawyer on the phonebefore making an appointment tosee them.

Make sure you are comfortable withtheir style. Are they easily able to beunderstood?

Don’t be afraid to look for anotherlawyer or ask for another lawyer atthe same firm. (if possible) afteryour initial meeting. A goodrelationship with your family lawyeris vital.

Expect your lawyer to see red flagsaround corporate and trust practice,taxation issues and less thanadvantageous financial outcomes.Whilst arguably the domain of askilled accountant and financialadvisor, you should at the very leastexpect your lawyer to be able toread and understand a set offinancial statements and know whenfurther advice of that nature isneeded.

Look for firms that provide a fewpoints of contact at the firm whohave a good working knowledge ofyou and your matter. There isnothing more frustrating than nothaving important questionsanswered when you need to them orhaving your matter left stagnatingwhile “your lawyer” is on leave.

You wouldn’t see a doctor without areferral and a strong recommendation –adopt the same approach with yourfamily lawyer. Ask for a recommendationfrom those people and professionals inwhose judgment you trust. The bestmarketers may not be the best familylawyers.

Whilst it should never be used as the solebasis for a decision as to which familylawyer you use, compare your lawyerscharge out rates with other specialistfamily lawyers.

You need to try to seek a balance. Toomany people go with the cheaper hourlyrate not thinking that what a specialistfamily lawyer can do in 3 or 4 hours maytake the “cheaper by the hour” nonspecialist 8 or 10 hours to do. We seethis often. On the other hand, very highcharge out rates (over $500 per hour)and you may not be able to progress yourcase very far before you run out ofmoney. Often firms with family lawsections are competing alongside thefirm’s other areas of law such asinsurance, property, construction andother corporate and commercial areas.This places significant pressure on familylawyers to have the same charge outrates as their colleagues in the same firm..

23

3.

4.

5.

6.

7.

8.

9.

10.

CAFE GOODNESSGreat Food,Great Coffee, Great Service

In what was once a ball bearingfactory, Ortem is the nextinstallation of cafe goodness at 15Railway Street, Toowoomba.

Continuing its long history ofhospitality, Ortem's concept issimple: great food, great coffee, greatservice.

In addition to being one of aToowoomba's top spots, licensed andopen 7 days of the week, Ortem alsofeatures an amazing function venueupstairs.

Catering to all sorts of parties andprivate events, the Ortem familycan just about do anything.Whether you are hoping to partyhard on your next birthday, sit backwith a latte by our beautiful herbgarden or help yourself to the Ortemstore and take some homemadegoodies away with you, our door isalways open!

15 Railway Street, Toowoombawww.ortem.com.au