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The Rural Family Lawyer

Introducing The Rural Family Lawyer Podcast

So I decided that it was time for a podcast!

I’m a podcast addict myself so instead of listening, I’m producing one.

The aim of my podcast is to provide a general family law podcast for both the public and other practitioners.

It’s a work in progress. I’ll hopefully get it into Apple Podcasts shortly.

I hope you enjoy the first episode.

Family Lawyers do Panto for a good cause

CINDERELLA – QUEEN OF THE DESERT

You’ve heard of Cinderella? You’ve heard the reference “Queen of the Desert”? But what has one to do with the other?

To find out, you need to buy a ticket to Brisbane Family Law Centre’s (BFLC) 2017
Pantomime.

Set in the 80s the panto is a nostalgic look back at all the trends and fads of that time and a great chance to hear all the great hits!

It’s been a few years between shows for the panto, but this year the cast (made up of
Brisbane’s legal fraternity) are back together and raring to go.

The Honourable Margaret McMurdo, Womens Legal Service CEO Angela Lynch and Ann-
Maree David, Executive Director of the College of Law have all agreed to throw on their
dancing shoes for a good cause.

You should also keep an eye out for these familiar faces in the cast: Barristers Jennifer
McArdle, Clare Dart, John Selfridge, Guy Andrew and Matt Taylor and Solicitors including Kay Feeney, Angela Tondelstrand, Sarah-Elke Kraal, Hannah Daley, Sophie Goossens, Michelle Bloomer, Phil Ridgeway, Shannon Bownds, Jessica Craddock, and of course members of the BFLC team.

This year, the panto is raising funds for the Women’s Legal Service to assist them in their
important work helping women and children to safer futures.

All profits raised will help ensure that when a woman reaches out, help is available at the other end of the phone line.

This year’s performance will be held at the Princess Theatre, 8 Annerley Road, Woolloongabba on Saturday, 21 October 2017 commencing at 7pm.

Tickets are available at a cost of $50 per person or 10 for $450. You can book them via the
website https://www.trybooking.com/book/event?eid=284996 but hurry because they’re
selling fast and you don’t want to miss out.

As in previous years, local businesses and other organizations associated with family law
have come on board to sponsor the Brisbane Family Law Centre event. Special thanks go to our Platinum Sponsor, Loyalest and our Silver Sponsors Eagle Street Legal Recruitment and Talent Partners, and BGM Family Lawyers.

To become a sponsor, buy tickets or obtain further details of this fundraiser, please follow this link https://www.bflc.com.au/panto2017/.

So come along and support this year’s pantomime. You know you want to.
For further information, please contact:

Clarissa Rayward, Director

Brisbane Family Law Centre
Telephone: 07 3862 1955
Email: info@bflc.com.au

Website: http://www.brisbanefamilylawcentre.com.au

National DVO scheme to commence on White Ribbon Day

All domestic violence orders (AVOs/DVOs/Intervention/Restraining Orders) issued from the 25 November 2017 will be nationally recognised. This includes temporary/interim and final orders.

Police and Courts will be to enforce a domestic violence orders regardless of the state or territory that issued the original order. Courts will also have the power to vary or revoke any nationally recognised order.

In December 2015, the Council of Australian Governments (COAG) agreed each state and territory would introduce model laws to automatically recognise and enforce these types of orders across Australia. New Zealand orders registered in Australia will also be recognised and can be enforced.

The changes will commence on 25 November 2017 and will coincide with International Day for the Elimination of Violence Against Women (White Ribbon Day).

Details of the scheme include:

• all orders issued before 25 November 2017 will not be automatically recognised as national DVOs and therefore the conditions cannot be enforced nor can the order be varied;

• Victorian Intervention Orders made before 25 November 2017 will be automatically recognised as the legislation applies retrospectively to them;

• you can apply to a court to have an existing order declared a ‘nationally recognised DVO’ by a court in any jurisdiction;

• If you travel interstate or move interstate permanently, you should have an existing order declared or registered;

• People who breach the conditions of a nationally recognised DVO will be subject to the penalties set by the jurisdiction that prosecutes the breach, this means that if the state or territory prosecuting the breach has a higher penalty, it applies.

• Orders issued in New Zealand are not automatically recognised under the National Scheme. However orders made by a New Zealand Court registered by an Australian court as a ‘nationally recognised DVO’.

MEDIA RELEASE Hanson’s comments on family law misguided

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

For media enquiries, please call Max Sutton, Office Manager or Jennifer Ryder, General Manager on 07 4639 0000 

New Year – New Sign – New (and old) Faces

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


Tips for Teachers and Schools

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

Brangelina – An iron clad pre-nup? No such thing!

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. 

Co-parenting from a distance

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