The comments made at the weekend by Pauline Hanson about requiring couples to submit mandatory pre-marital agreements will cause far more litigation than the Family Law Courts currently handle.

“The comments are misguided at best” says Toowoomba based Accredited Family Law Specialist Andrew McCormack of Best Wilson Buckley Family Law, a specialist family law firm with offices in Toowoomba, Brisbane, and Ipswich.

“Trying to have couples agree on what is to happen if they separate in the future is not going to assist the chronically underfunded legal and court system that administers family law in Australia” said McCormack.

Mr McCormack believes the Federal Government is not committing proper resources to family law and domestic and family violence matters. “We have a situation where our current Attorney-General is not properly funding court services, taking money away from community legal services and underfunding legal aid commissions in the States and Territories” he said.

Ms Hanson, in an interview published in The Sunday Mail, has called for all couples to be required to submit pre-marital agreements to a Court for approval about how financial and parenting matters will be handled if a couple later separate.

Mr McCormack said that as the law currently stands, these types of agreements can already be formulated but they are not submitted to the Courts for approval. “These types of agreements exist but they are very technical documents that require all parties to have independent legal advice to make them effective. When a person enters this type of agreement, they are basically signing their rights away to have a Court determine a future situation. Trying to bind someone to an agreement like what Ms Hanson is suggesting isn’t the answer to family law in this country” Mr McCormack said.

Ms Hanson believes that the family law system needs an overhaul. Mr McCormack does not believe that her “solution” is practical or appropriate. “Unless you have a crystal ball that can tell you the future, you are never going to know what might happen in a relationship. People start relationships and families with the best intentions. However, problems arise, circumstances change, and unfortunately, on the statistics that I seen, violence occurs. The agreements that she is suggesting won’t fix the situation” he said.

Having judges approve relationship agreements is likely to put more of a strain on judicial resources that are already spread very thinly. “Our current Circuit Court judge sits in Toowoomba for one to two days a month. He has a least 500 to 600 current matters to deal with in his docket that come from all over the State, not just Brisbane and Toowoomba. We could have a judge her permanently and we’d still be over listing matters”.

Mr McCormack has called for more funding to deal with matters currently before the Court and a move towards the use of alternative dispute resolution like arbitration in both financial and parenting matters.

ENDS

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Well, we are well into 2017.  I still can’t work out where January has gone.

Best Wilson Buckley closed over the Christmas period and we all had a much needed vacation.  2016 was a very busy year both personally and professionally.

The Christmas vacation allowed me to spend some much needed quality time with my wife and 3 daughters.  This included spending some time “back home” in Murwillumbah with my parents.

New Year – New Sign

I use my father’s office in Murwillumbah as a visited office so that I can provide assistance to clients living in Northern New South Wales.  His “shingle” is much fancier than mine.  There is a sense of pride that I can put my “shingle” up under his in my old home town and try and give back to the community by offering my services.

Back into the swing of things

2017 has already had some highlights.  One of these was being able to assist my Legal Practice Director, Kara Best, in our first ever application for parentage transfer orders under the Surrogacy Act.  We were successful in our application and I will be writing a more specific post about this matter at a later date.  I would have to say it was up there in my top 5 moments of my legal career.

Our family friendly office – babysitting and billable hours with my daughter Lucy

My colleague Katherine Marshall and I presented BWB’s Tips for Teachers and Schools presentation in late January to members of the Centenary State High School administration staff.

The presentation is designed to provide some assistance to teachers and allied staff in schools on navigating the complex world that is family law.  I’ll be writing a more detailed post about our presentation at a later date.  For the moment you can see Dan Buckley and John Patterson’s article Tips for Teachers on the BWB web site.

New (or for me old) Faces

I am thrilled to have been joined at BWB by Amity Anderson.  Amity and I were both a HopgoodGanim in Brisbane and worked together for many years.  Amity had the misfortune to have been my graduate for the first 6 months of her legal career!  Thankfully, due to timely swapping of the deck chairs on the Titanic (there are other nicknames for HG’s Family Law Section), Amity spent the balance of her career at HopgoodGanim working with Freda Wigan and having all of the bad habits I taught her well and truly straightened out by Freddy.

Amity will be the Practice Leader at our soon to be opened Ipswich Office and will be joined by Associate, Alecia Connor.

Amity, welcome to BWB. It’s so good to have your highly contagious smile around again!

Amity Anderson

I was slightly amused by the headline in an article in the Huffington Post I read today which made reference to Brad and Angelina’s “iron clad pre-nup”. 

The article made reference to what the gossip web site TMZ has published regarding what Angelina Jolie gets in terms of joint property from her relationship with Brad Pitt under a pre-nuptial agreement that they have apparently entered into. 

I’m going to go into what the article says about who gets what – you can read it for yourself here. 

What really caught my eye was the notion that this pre-nup is apparently “iron clad”. Now I won’t for one minute try and and say that I am an expert on American Divorce Law as I’m not. The United States of America does not have a federal family law system like Australia does. Each state dictates its own laws on marriage (opposite sex or same sex), parenting arrangements, and “filing” for divorce. Some states have “community property laws” which means that upon marriage, anything that one spouse owns may become joint property. If someone wants to keep what property they bring into a marriage separate, a pre-nuptial agreement can be used to “contract out” of the family law jurisdiction of the particular state.

This is much the same in Australia. Financial Agreements (we we call them under the Family Law Act) can be made by both married or de-facto couples prior to commencing a relationship, during a relationship, or after a relationship has ended. Since 2001, when these types of agreements became legal, there has been considerable growth in terms of these agreements. They can be useful in many circumstances including:

1. trying to quarantine pre-existing assets from forming part of any later property settlement; 
2. working out what who will get what if a relationship breaks down. This can include the division of property or the payment of spousal maintenance; or 
3. as an asset protection tool in circumstances where there there are third party interests. My favourite example of this is in rural families where a number of members of the family work together in partnership on the family property. 

I’d be extremely skeptical of any practitioner who gives an “iron clad” guarantee about this type of agreement. I’ve worked for a number of practitioners who have specialized in these types of agreements and one even wrote the Australian chapter in the book of international pre-nuptial agreements. I can recall his advice to clients that we can be in “uncharted waters” at times as these types of documents: 

1. can be extremely technical in terms of their drafting; 
2. require parties to make full and frank financial disclosure (or as one of my father’s barrister friends puts it “lifting your kilt” about what you have in terms of property, superannuation, etc…); 
3. require parties to have good advice about what the agreement provides for, the advantages and disadvantages of the agreement, and how you are basically signing away your rights to have a court determine your property settlement or spousal maintenance in the future; and above all 
4. require the parties to live by their agreement and make sure that they put what it says into action. 

For financial agreements to be binding under Australian law, they need adhere strictly to the legislative requirements and both parties need to have independent legal advice to make them binding. A Court can still set these types of agreements aside. So they are by no means “iron clad” as the legislation provides that they can be a set aside if there has been insufficient financial disclosure, if one party has used undue influence on the other to get the agreement signed (like threatening that there will be no wedding if it isn’t signed), or there has been some other miscarriage of justice. 

Over the past 5 years, the courts have been full of cases where parties have tried to set these types of agreements aside. This has resulted in legislative amendments about how these types of agreements are drafted and the type and quality of advice that parties require to make them effective. There are more amendments to come later this year. Which will apparently simplify these types of agreements. Unfortunately, in my experience some of the issues relating to financial agreements result in inexperienced practitioners trying to do these types of agreements “on the cheap” and cutting corners.

Many practitioners will no longer prepare “pre-nuptial”-style agreements given the issues (mainly insurance related) that can occur with them if they fall apart. These issues might not come about until a relationship ends, and this can be many years after the original agreement was prepared and signed.

If you think that a financial agreement (pre-nuptial or otherwise) is something that you might want to consider, make sure you get specialist legal advice from a practitioner who understands and has experience with these types of agreements. 

Living in rural areas sometimes means that sometimes you have to cope with distance. Whether it is to send your children to school or simply to get the necessities of life like groceries or that particularly expensive but extremely important spare machinery part, distance is something that country people take in their stride. I remember talking to friends at university who were city born and bred. They thought that I had a deprived life because the closest cinema to the town I grew up in was 90 minute round trip.

Parenting is hard enough at times without having to factor in issues of distance.  It can be hard on both parents and children when you are trying to co-parent from a distance. It can be much harder when one parent wants to return home to where they grew up and where they may have their families, friends and support networks. Whilst everyone has a right of freedom of movement, the Family Law Courts recognise that distance can have an impact upon parents having meaningful involvement with their children. The Courts recognise that children have the right to have meaningful relationships with both of their parents and that both parents should, where possible have the ability to share and experience their children’s daily routines. This sometimes may mean that a parent finds themselves in a place or subject to a routine that is not optimal for them or the children.

Sometimes this isn’t possible to put in place equal are arrangements given the tyranny of distance. The Courts recognise that there will be some instances where, due to the logistics of travel, schooling, and extra-curricular activities, the garden variety arrangements for children in separated or blended families won’t be appropriate or in their best interests. This may sometimes mean that the primary carer of the children will have to be creative in terms of fostering a relationship between the other parent and the children.  This sometimes means sacrificing the bulk of the holidays so that they children can spend quality time with the other parent.  It can also mean arrangements such as sometimes during school terms where they will need to travel to either facilitate time with the other parent or the other parent travelling to the children to see them at sporting commitments.

Technology can also be of great assistance. Now I appreciate that as I live in Toowoomba and have the NBN at my fingertips, I am spoilt. Although internet connectivity in rural areas is less than ideal at times (and incredibly expensive if you are reliant on satellite services such as Activ8 or SkyMesh), communication by Skype or FaceTime can assist in keeping parents and children in contact with each other. I have clients who read bedtime stories or do homework with their children by Skype. This type of communication can allow children to include a distant parent in their day-to-day lives.

Websites like www.ourchildren.com.au and smart phone apps like SharedCare can also help parents communicate and co-parent.  These sites and apps can assist with everything from secure communications between parents for the sharing of information and photographs to shared calendars and expenses.

This article originally appeared in Border Living Magazine.

All articles and posts on this site contain general legal information and is not a complete statement of the law.  You should obtain specific advice about your own circumstances and not rely upon any articles or posts until you have done so.  Andrew McCormack and Best Wilson Buckley Family Law Pty Ltd will not accept any liability or responsibility for loss occurring (including negligence) as a result of any person or entity acting or refraining from acting in reliance on any material contained herein.  Information current as at date of posting.

Liability is limited by a scheme approved under professional standards legislation

One of my bad habits is to check my Facebook news feed when I wake up in the morning.  This morning I saw an article in the Sydney Morning Herald about another “child abduction” that 60 Minutes had been involved in in 2002.

The article by the Herald’s “entertainment reporter” Michael Lallo recounted the story of Theo Johnstone who was apparently “breaking his silence” about the involvement of 60 Minutes with his mother in recovering him from Greece after his biological father had taken him on a six-week holiday and never returned him to Australia.

I’m not entirely sure how this story falls within the remit of an entertainment reporter as it clearly wasn’t entertaining but more likely the Herald wanting capitalise on the furor (or at least some SEO/Google catchwords) given the article in The Australian published on Saturday by Jacquelin Magnay where she alleges that the Nine Network tried to hide its links to the failed international recovery of the children of Sally Faulkner.

It’s taken me a while to process my own opinions about the situation that took place in Lebanon, the Nine Network’s involvement and the allegations that it has paid in excess of $100,000 to a private security firm that apparently specialises in recovering children who have been abducted, and whether Sally Faulkner is the victim.

When I make reference to Ms Faulkner being a victim, I do so taking into consideration what apparently happened in her former partner removing their children from Australia but also whether she has simply been used by a media organisation to try and pull off what would be quite a salacious story if it had all gone to plan.

The story in the Sydney Morning Herald has some parallels to Sally Faulkner and her situation. However, an important difference to consider is that in Theo Johnstone’s case, he had been taken to Greece by his father on the premise that he would return after a six-week holiday. Greece is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  Mr Johnstone’s mother went through the proper channels and obtained orders from a Greek court allowing her to return her child to Australia. At the time, Theo’s mother was probably advised that in the event her former husband not return Theo, he could be recovered under the Hague Convention.

Some countries are very good at enforcing the Hague Convention and others not so. Australia has an impeccable track record of enforcing the Hague Convention even though this has drawn significant criticism. The Italian Girls case is a prime example. The Courier-Mail thought itself far more qualified than the judges of the Brisbane Registry of the Family Court in determining how the Hague Convention should be applied and enforced. It appeared to me at the time that The Courier-Mail really didn’t take into consideration that, as a signatory to the Hague Convention if we did not properly apply the law in this country, how would our citizens go about trying to use the Hague Convention to recover children in other Convention countries?

If The Australian’s reporting is correct in that members of the 60 Minutes crew were to be involved in “crucial aspects” of the recovery plan (read – the bits that would make for gripping drama), one has to wonder whether this was simply a way of grabbing a salacious story with all the human emotion and drama that attaches to this type of situation. I have to question whether this was simply a ratings grab rather than 60 Minutes wanting to write the wrong is that has occurred. Certainly would appear that little thought was given to whether their conduct was illegal under Lebanese law. Whilst I understand that Sally Faulkner’s former partner was likely in breach of orders made under the Australian Family Law Act, those orders are not enforceable in Lebanon.

From what I’ve managed to read in the media, there are some similarities between what happened in Theo Johnstone’s case and what to Sally Faulkner’s children – mothers had been led to believe that their children would be returned to them after a holiday overseas.

From a practical point of view, it’s questionable whether Sally Faulkner should have let her children go to Lebanon with their father at all. If she had obtained advice about this prior to agreeing to the holiday, she may well have been advised that Lebanon is not a signatory to the Hague Convention.

What hasn’t come out in the media coverage is whether the separation of Ms Faulkner and her former partner was highly acrimonious and whether she had any reason to believe that the children would not be returned after a holiday. In my experience, there can sometimes be a distrust between parties about these types of issues particularly when one party is a citizen of a non-Convention country.

The question often asked is how can things like this be prevented from happening in future. Generally speaking, court orders restricting children from being taken out of Australia without the consent of both parties are effective in ensuring that children simply do not disappear with a non-resident parent. However, in circumstances where it is generally in the best interests of children to understand their cultural heritage and experience overseas travel, there is always a question about how you make sure they will return when they are supposed to.

There are a number of mechanisms that can be used to ensure compliance with court orders. However, the most important consideration will always be where is a child travelling to and is that country a Convention country. If the answer is no, the simple response should always be that it is not in the best interests of the child to travel to that country.

Andrew McCormack is an Accredited Family Law Specialist and an Associate with Best Wilson Buckley Family Law.

Today was the last day of our roadshow through Central Queensland. I learned a few things while I have been away. These include:

• horses need to be vaccinated for Hendra virus every six months or vets won’t treat them;
• you can do a three-point turn in an Embraer E190 Jet;
• Telstra obviously forgot to roll out any telecommunications infrastructure anywhere near the Department of Agriculture, Fisheries and Forestry’s conference centre in Rockhampton; and
• always read the fine print when checking in online for your flight.

Our session today in Rockhampton was the smallest of the three sessions we have presented so far. However, in terms of some the questions that were raised by participants, the small-group atmosphere seemed to allow people to open up more than some of the largest sessions.

Today we were joined by Lex and Janet Lawrie, the parents of Peter Lawrie. Lex and Janet had become well known to some of us not only through their work with RCS but also for those of us who had for the last two days seen the DVD presentation with commentary by Simone and Peter.

Belinda from Entello Group facilitating a discussion with one of the “younger generation” groups

Claudia Power’s facilitated exercise seemed to resonate with the participants. We had an almost equal number of older and younger generations in the room. Again a number of the concerns discussed in the small groups were very similar to those discussed in both Emerald and Biloela. The whiteboard pictures seem to have some common topics. These include financial security, family harmony, and having a vision for the future.

One of the topics that was discussed in some detail during the panel session was not only financial security but the security of assets in the event of a marriage breakdown occurring. From the discussion, it was clear that the older generation are quite concerned about the consequences that might arise if there is a marriage breakdown and what that might do in terms of putting the assets of both generations at risk.

Simone and Peter Lawrie helping one of the groups determine their most important concerns.

Frank Ricci from Entello Group

I have thoroughly enjoyed my experience working with RCS, Entello Group, the Lawries, and my colleague Kylie Wilson.

It is quite clear to me that RCS have a passion for facilitating rural succession planning and their tagline of “empowering people” could not be truer.

Frank, Tony, and Belinda from Entello Group also have a passion for ensuring that families consider the importance of building off farm assets to assist in succession planning and to ensure that both generations have a diverse range of options when looking at their future financial security.

As always, Kylie’s knowledge of succession, taxation, and stamp duty laws and the logistics of putting into effect succession plans prior to the death of members of a generation is invaluable. It certainly makes me want to rethink some of the tactical aspects of what I do.

As I mentioned above, I have learned a lot from my interactions with my fellow presenters and also from the participants during the roadshow.

Kylie and I were both having conniptions at one point when we realised that we needed internet access to enable Kylie to display her presentation and yet being in a large provincial city we had no access to 4G broadband. We were all shaking our heads at the fact that we had better Internet access in Biloela then we did in Rockhampton. After much gnashing of teeth, standing on one leg holding up a 4G hotspot, and Tony’s threats to go and find a coat hanger to use as an aerial, we managed to get some limited 3G connectivity via Kylie’s phone.

It was likely that the sugar fix in the form of some fantastic goodies from Simone’s bakery in Rockhampton, Artisan gluten-free bakery saved our sanity.

As Confucius apparently said, “every journey begins with a single step”. My journey home was nothing if not slightly eventful. After having realised that the airport was in the opposite direction of travel to what he first thought, my cab driver finally got me there.

Thankfully the lovely staff at Virgin were able to get me onto my flight even though it had closed.

My ride home was a far bigger jet, an Embraer E190.

As I mentioned above, it was necessary for the pilots to do a three-point turn to have sufficient runway to take off. The distance required for an E190 to take off at maximum takeoff weight is a shade over 2 km. I have no idea how long the runway at Rockhampton is but it was necessary for the pilots to enter and backtrack on the runway to have enough distance to take off.

Anyway I am home now in Toowoomba after having received a warm welcome from my family and lots of daddy  cuddles. Time for bed and to prepare for what awaits me in terms of my inbox and the Federal Circuit Court sittings tomorrow.

On the taxi way – looking for more runway

Now for those who know me well, you’d never though that I’d be saying this!

However, with the appointment of Catherine Carew QC to the Family Court of Australia in Brisbane I must compliment the Attorney-General on making this much needed appointment.

I have had the pleasure of knowing Catherine for many years, having briefed her and been against her.  Regardless of which side she was on, I have always admired Catherine for her polite and civil manner when dealing with people.  I can’t recall ever having seen her flustered.  

One of my matters with Catherine was a bit of a hospital pass when, at very late notice, we had to brief her as a result of our long-standing counsel in the matter having been (as chance would have it) appointed to the Family Court.  The trial was in Sydney and we had some high-powered opponents against us.  Up our end of the bar table sat myself, Partner Reagan Wilson, and Catherine.  Catherine had her trusty MacBook Air, I had my iPad, MacBook, and portable printer, and Reagan his iPad.  The other end of the bar table had two silks, two juniors, at least 3 solicitors, and the most technology they had was a Lamy fountain pen.  Their combined charge out rates were probably about $35,000 per day.  

They started to make fun of our technology.  They didn’t make fun of it when Catherine was asked by the Judge to provide a further copy of her submissions.  “Certainly Your Honour, my instructor will print you one right now” was her response.  The Judge was grateful and the other side didn’t know what to say.  Catherine’s cross-examination of the father in the trial could only be described as “masterpiece theatre”.  Oh and for the record, we were victorious.

Catherine’s manner is eminently suited to judicial office and I whole-heartedly congratulate her on her appointment.