60 Minutes, child abduction, and good ratings – a family lawyer’s perspective

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.

Rural Succession and Continuity Roadshow – Day 3 – Rockhampton and the long march home

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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.

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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.

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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.

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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.

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

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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.

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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.

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On the taxi way – looking for more runway

Mr Brandis – you are a genius!

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.

Rural Succession and Continuity Roadshow – Day 2 – Biloela

I had a feeling today that we weren’t going to be seeing any Audis when we pulled into the car park at the Biloela ANZAC Memorial Club.  Not sure why.

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I wonder if there is a Toyota dealership close by?

We started out day 2 of the Rural Succession and Continuity Roadshow again with the story of the Lawrie Family and their succession plan.  This time we were joined by Peter Lawrie.  Unfortunately Peter couldn’t join us in Emerald as he wasn’t feeling well.  Thankfully Peter was much better today and joined his wife Simone to talk about their journey.

 

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Peter and Simone Lawrie

We again broke into groups of the “older” generation and the “younger” generation in the exercise facilitated by Claudia Power.  There were again some common themes that came from the exercise.  Compare the photo below to the photo of the whiteboard from yesterday’s exercise in Emerald.

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Frank Ricci from Entello Group spoke about the different ways that off-farm investment can occur.  In particular, Frank spoke about direct investment in equities such as shares. Frank’s description of becoming a shareholder in a company being akin to owning a slice of the business that the company conducts seem to resonate with the audience.

Frank also spoke about the opportunities that might be open to people wanting to invest smaller amounts of money in the beginning of an investment strategy allowing a portfolio to be built up over time. The Entello Group’s approach looks at direct investment in shares and equities rather than investment in products such as managed funds.

Frank explained that direct investment allows people to see the shares that they own in their own portfolio rather than the ownership of shares within a custodial structure such as a managed fund. Whilst this is a subtle difference it is an important difference and some people feel much more comfortable being able to see exactly what they own at any given time and what this might be worth.

 

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The very dapper Entello cows

Kylie Wilson’s presentation  prompted number of questions about structuring. In particular, Kylie made it very clear that it’s never a good idea to have the land and the business in the same structure for asset protection purposes. More than likely if someone is going to sue you, it’s going to be as a result of your business operations. Having the major asset being your land in the same structure as your business to make you a very easy target in litigation land.

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Kylie laying down the law

During the panel discussion today, I had an opportunity to tell some of my war stories not only from life as a family lawyer but also from what Kylie refers to as my “rocks in your head” position that I sometimes find myself in as the executor of deceased estates.

Being a second-generation solicitor I sometimes have the “delight” of being appointed as the “independent” executor in deceased estates. This sometimes comes from having been known to some of my father’s clients as a somewhat younger (and thinner) version kicking around his offer after school.

During a panel discussion, Kylie made reference to a number of matters that she has dealt with where there have been no succession plans in place and as a result of poorly drafted wills, the situation has been made worse.

This allowed me to segue into the situation that I currently find myself in as the executor of an estate which has a large number of farming properties as part of the estate property. From what I can understand, I was appointed as the independent executor along with the deceased’s accountant as a result of the deceased remembering me assisting my father with debt collection work for a statutory authority in New South Wales.  Yes he apparently chose me because I used to sue him for statutory levies on a regular basis.

The deceased had made a will with a previous solicitor. Dissatisfied about the solicitor’s conduct in a commercial transaction, he uplifted his will taking it to my father’s office and signing a codicil appointing me as an executor. Despite the fact that the deceased had been advised on a number of occasions over a number of years that he should engage in some proper succession planning and update his will, he never got around to doing so.

Unfortunately for his beneficiaries, the lack of updating his will meant that his later intentions about how property was to be divided were never put into a succession plan or into his will. This unfortunately leaves me with the necessity to administer an estate where there are now three unhappy beneficiaries. They are unhappy because I am bound by the terms of a will which are different to what the deceased had apparently discussed with them in terms of his wishes.

This is one of the reasons why estate planning documents such as wills and powers of attorney need to be regularly reviewed and updated.

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I was also able to tell some of my favourite war stories,  The Farmer’s Daughter and the Paddock Poacher.

This is a case study is taken from a real-life situation where the Paddock Poacher was the son-in-law who was in a situation where a considerable amount of farming property had been gifted by his parents-in-law to their daughter and to him. Had it not been for the gifting of the farming property (free of debt), there would have been very little in terms of property to divide between himself and his wife when they separated. However, the dilemma in the circumstances was the considerable contributions that had been made by the wife’s family. In an ideal world, a financial agreement could have been entered into when the property was gifted by the wife’s parents setting out the contributions that had been made on behalf of the wife and dealing with what might happen on separation.

It could have been a situation where the farming properties might have been quarantined and remain within the wife’s family and the other assets that have been built up during the marriage divided between the husband and the wife.

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L-R – Peter Lawrie, John Moor (RCS), Kylie Wilson (Anderssens Lawyers), Me

The panel session also saw a number of questions raised about having initial discussions about what each generation wants to achieve from succession planning. Claudia Power from RCS spoke about the importance of early involvement in the facilitation process to ensure that each generation is able to put forward what they see as important and what they want to achieve.

 

It’s important to engage all of the generations in succession and continuity planning. This also includes the generations that don’t actually know that they might have some involvement later down the track. I’m pretty sure this young fellow below might not have understood some of the concepts today but he will more than likely reap the rewards of his parents and grandparents engaging in proper succession and continuity planning.

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It was my turn to drive from Biloela to Rockhampton. The drive went a lot quicker than I expected and this was due mainly to most of the drive being taken up by a teleconference with the Federal Shadow Parliamentary Secretary to the Shadow Attorney-General. On Wednesday last week, Graham Perrett MP spoke to a group of concerned family law practitioners in Toowoomba about the current situation in the family law courts and the crippling delays that we are facing. Unfortunately I was in court and couldn’t attend the consultation.

However, I spent a fair amount of time putting across my concerns about the current family law system, the lack of judicial resources, the lack of funding for our court system and the fact that I believe that the current family law system is broken and needs a considerable amount of reform.

After some slightly anxious moments when the low fuel indicator came on in Kylie’s Izuzu DMAX and the fact that petrol stations between Mount Morgan and Rockhampton appeared to be non-existent, we managed to arrive in Rockhampton before totally running out of fuel. It would have been an interesting picture for someone to have snapped seeing two solicitors try to push a pretty big ute towards a petrol station.

Rural Succession and Continuity Roadshow – Day 1 – Emerald

It was an early start this morning to set up for our first presentation in Emerald.

John Moor from RCS opened the proceedings with introductions of all the speakers and an outline of the RCS approach to succession planning.

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First cab off the rank was Simone Lawrie who spoke about her family’s succession planning journey facilitated by RCS.  Claudia Power from RCS also spoke about her own experience in relation to succession planning and facilitated a discussion between the “younger generation” and the “older generation”.

It was clear from the discussion among the groups that there were a number of key concerns that both groups about the approach to succession planning and what they wanted to achieve.

The picture below clearly shows that both generations want to see family harmony, independence, financial stability, and fairness as some of the key concepts when undertaking and determining a rural succession plan.

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Kylie Wilson’s presentation included a number of real-life case studies which certainly provoked some thought among the participants. It was particularly interesting to note that whilst there are some people out there claiming to undertake rural succession planning, you need to ensure that you are getting good quality advice.

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In one particular case study that Kylie spoke about, there was of substantial issue relating to transfer duty and capital gains tax which could have seen hundreds of thousands of dollars paid necessarily in tax and duty. Fortunately,  on advice from Kylie, the parties were able to legitimately minimise the tax and duty payable.

The panel discussion looked at a number of different issues including the importance of off farm investment strategies to assist in funding succession planning. As part of the panel discussion, my presentation on how family law and succession planning can collide what I hope will received. I used a number of different case studies to emphasise that as part of a rural succession plan, it is sometimes necessary to consider what might happen if marriage breakdown occurs either in the older generation or the younger generation.

It is unfortunate but necessary to have discussions about what might happen. This is not purely from the perspective of the family who might see a son-in-law or daughter-in-law taking their hard earned assets accumulated over generations if there is a marriage breakdown. As Kylie and I discussed, it can sometimes be looked at as having some sort of insurance in place for peace of mind.  This ensures that not only do families have some certainty but there is also some certainty for a spouse who might leave as a result of a marriage breakdown.

After a quick spot of lunch, Kylie and I started on the 3 1/4 hour drive from Emerald to Biloela. Surprisingly, the country is looking very green from recent rain and there appeared to be a good amount of feed for some of the Brahman cattle that we saw on the way.

It’s always interesting to see the different types of traffic you have on inland highways. There were plenty of road trains, cotton module carriers, and even a road train carrying ammonium nitrate explosives to one of the nearby mines!

We have safely made it to Biloela and did so in time to see a fantastic sunset over the town.

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Rural Succession and Continuity Roadshow

And so it begins…

I’m currently waiting to board my flight to Emerald for the Central Queensland Rural Succession and Continuity Roadshow presented by Resource Consulting Services, The Entello Financial Group, Anderssen Lawyers and Best Wilson Buckley Family Law.

We will be presenting to audiences in Emerald, Biloela, and Rockhampton over the next week about succession planning and business continuity between generations.  My role will be to address the issues about how family law issues may need to be addressed in the context of intergenerational succession planning.

This is my ride to Emerald – an ATR72.  Bigger than I am used to given my experience in flying in my father-in-law’s Cessna 182TR.

I’m travelling with my colleague from Anderssen Lawyers in Brisbane, Kylie Wilson.

Over the next few days I’ll be keeping you informed about what we are doing.

Making changes – Schooling

 

I recently posed about issues of parental responsibility and how parents need to try and make decisions jointly about major long-term issues for a child. One issues that can arise after separation is where a child will attend school.

During a relationship, parents may have discussed where a child will go to school and the type of school. There may have been an agreement that a child would attend a private school for part or all of their education. Sometimes there may be no option other than for a child to attend boarding school as a result of the location of a parent.

A common issue that I see in my practise is there being a disagreement about where to send a child to school and who will pay for it. Even though parents may have reached an agreement during the relationship, that does not necessarily bind them moving forward. Separation can have fi nancial implications for both parties and this can have an impact on the ability to meet costs such as private school fees.

Ultimately, parents need to assess their ability to meet school fees and how this could be shared. This may mean making some compromises about who pays for certain things such as tuition fees, books, excursions, or laptops. The legislation sets out a number of objects which were included in the Act to support the long standing principle of ensuring that the best interests of children are the priority of not only parents but also of a Court.

Unfortunately, the child support system does not recognise the payment of school fees as being essential for a child and does not take this into consideration under the general assessment of how much child support should be paid. However, parents can reach an agreement to credit the payment of school fees towards their child support liability or agree to pay such fees on top of their general child support liability. To enable this to occur and be binding on both parties, a Binding Child Support Agreement
must be prepared and registered with the Department of Human Services – Child Support.

Where a child may go to school and the type of school can also be a major issue. Generally, the Courts do not like to become involved in these types of issues. If it becomes necessary for a Court to determine where a child will go to school, a judge is not likely to undertake a lengthy evaluation of why one school might be better than another.

The Court may take into consideration factors such as:

1. where a school is located (particularly if there is a shared care arrangement in place) and the type of school;

2. whether the is any religious or cultural preference;

3. whether the child may be gifted or talented in various areas and whether a particular school is considered as a centre for excellence;

4. any preference that the child may have expressed (subject to their age and maturity);and

5. whether a child may have siblings at a particular school.

Schooling is a major long-term decision for a child. It is not a matter that should be decided unilaterally by one parent.

This article originally appeared in the Summer Edition of Border Living Magazine – www.borderliving.com.au