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

It’s a small world after all

Although I specialise in family law, I do on occasions venture into areas where I practised in a past life.

Being admitted in both Queensland and New South Wales can have its advantages.  This includes being able to help out practitioners from regional areas when somethings needs to get done in a hurry.

I was contacted by one of my colleages from a regional centre in the North West Slopes and Plains.  He had a client who was in hospital and he needed a solicitor who was admitted in New South Wales to witness some documents.

Hospital visits aren’t always fun.  Some times you feel like you’re intruding but you have a job to do.  You need to get your timing right so that people aren’t asleep or having dinner.  You also don’t know what condition your client might be in.

I was met by my clients’ daughter in the foyer.  I had read the documents before I came and by way of an ice breaker with her, I notice that she was from a small town that I knew about.  It happens that this lady had recently done a furniture restoration project with the mother of my sister-in-law’s partner!

When I was introduced to my clients, I explained why I was there and they understood what I would be doing for them in witnessing the documents.  What I did not tell them was that I needed to assess their capacity to understand the documents they were to sign.  By way of starting the conversation, I asked the wife what her date of birth was and where she was born.

It turns out that this lovely lady (now in her mid 80s) was born at Coolamon.  This was where my great-grandmother lived after my great-grandfather died.

Then started a lovely conversation with both of them about the fact that they had lived at Winchendon Vale.  This was where my grandfather’s farm Lenton Park was and where my paternal family grew up.  As chance would have it, the husband had been a farmer in the district and knew my grandfather Jim and his brother Trev.  They used to sell clover hay to this gentleman.  He smiled with delight when he was telling me this.

We had a great chat about the Winchendon Vale area, my family, why they had moved away from tthe cold climate for health reasons, farming in general and the fact that this gentleman knew my family, particularly my grandfather.

I never met Jim.  He died about a decade before I was born.  Prior to yesterday, the only people that I had ever met that had known my grandfather were my paternal family.

Being admitted in two states has its advantages.  Particuarly when something like this happens out of the blue.

Best $350 I have ever spent!

#DivorceSelfie goes viral – there is a respectful way to divorce

A Canadian couple have made headlines in Canada after posting a selfie on Facebook taken outside a Court House where they had just filed for divorce. 

Shannon and Chris Neuman filing for divorce in Calgary, Alberta, Canada

“Here’s Chris Neuman and I yesterday after filing for divorce! But we’re smiling?! Yep, we’re kooky like that. Are we smiling because the partner we chose for forever turned out not to be the forever partner we needed? Of course not. We’re smiling because we have done something extraordinary (we think anyway!) We have respectfully, thoughtfully and honourably ended our marriage in a way that will allow us to go forward as parenting partners for our children, the perfect reason that this always WAS meant to be, so they will never have to choose. They’ll never have to wonder which side of the auditorium to run to after their Christmas Concert or spring play, because we’ll be sitting together. They won’t have to struggle with their own wedding planning because we’ll be sitting on the same side of the aisle – THEIR side. 

And now that you know it’s possible – please consider our way if you find yourself on this road, or share out message if we can help remind them that it’s possible to love your kids more than you hate/distrust/dislike your ex (which we have felt at times on the journey but for the record we do actually like each other). Nice work #teamneuman #divorceselfie” 

Shannon and Chris Neuman’s selfie has been shared on Facebook at least 27,000 times.

The Neumans have likely participated in a Collaborative Practice process. Since 1990, Collaborative Practice has helped couples do exactly what the Neumans have done, finalise their relationship and make arrangements for the co-parenting of their children in a non-adversarial way. 

Collaborative Practice uses a different model to the adversarial system. Parties use different professionals including solicitors, accountants, child psychologists, and communication experts to try and resolve their dispute. Parties sign a Collaboration agreement which aims for them to work together on resolving their dispute, be it parenting or property settlement. One factor that assists in keeping matters going to a successful conclusion is that different practitioners assist in resolving the issues. If there is an issue about communication, the communication professional works with everyone to resolve this. The parties enter the agreement knowing that if they head to Court, their solicitors are not able to act for them as this is prohibited under the collaboration agreement. 
The concept of Collaborative Practice started in North America and has worked particularly well in Canada. Ten years ago, Stu Webb (the father of Collaborative Practice) trained the first cohort of Australian Lawyers. Since that time, many practitioners across Australia have been trained in Collaborative Practice. 

In Queensland, Queensland Collaborative Law was established in 2005 to promote Collaborative Practice. There are collaborative practice groups in various different centres across Queensland including Brisbane, Toowoomba, Rockhampton and Cairns. 

In Toowoomba, we have a number of practitioners trained in Collaborative Practice. Through The Advocacy and Support Centre, we are currently trialling a pilot program to assist low-income families use Collaborative Practice to resolve their disputes.   We are supported in our work by the Toowoomba and South West Queensland Family Pathways Network.
Collaborative Practice might not be for everyone, but as the Neuman’s can attest to, it beats being involved in the 2 year rollercoaster ride that you might end up with if you go to court. 

My friend, Emma Williams of Emma Williams Family Law in Carmarthenshire, Wales uses this Bob Willoughby photograph of Frank Sinatra to promote her practice. 

 

 

Divorce your loved one with dignity. Your children will thank you for it in the end.

Andrew McCormack is an Accredited Family Law Specialist and is trained in Collaborative Practice. He is an Associate with the Toowoomba and Brisbane Family Law Firm Best Wilson Buckley Family Law.