OMB Solicitors, Author at OMB Solicitors

May 14

Undertaking A Development – Property Law

Before undertaking Property Law Development we take a look at the many reason’s to seek legal advice and how we can help.

In this video, Property Law Partner and Accredited Specialist (Property Law) Simon Bennett takes us through the considerations when Undertaking A Property Development.

Contact our Gold Coast Lawyers team for more information here Property Law Enquiries.

Transcript

I’m Simon Bennett from OMB Solicitors, and I wanted to talk to you today about the prospect of undertaking a development, and particularly how OMB Solicitors could help with that development.

So when we talk about a development, it could be a large development, or it could be something as small as a simple duplex, cutting one block into two. There are various types of developments that you could be undertaking.

It could be a land subdivision where you’re just dealing with vacant blocks of land being cut up, it could be dealing with a unit development, either a low rise or a high rise development. It could be mixed use, or we could be talking about a commercial or industrial development.

So there’s a number of steps in the process of undertaking a development, and usually the client would look to identify a block of land as the first stage, and that would involve finding the block of land and making some initial inquiries about its suitability for the development.

Then OMB solicitors would come in and help the client get to a contract. So secure the rights to purchase the property, maybe subject to some conditions, some further inquiries or a due diligence, and we would help them through that process whereby we might look into the title of the property to make sure that there’s no encumbrances or restrictions on the use of that land for the purpose that the client wants.

Things like contaminants, which could prevent or add substantial cost to a development of that land, and any other such items. So getting the right form of contract would be really important, and then undertaking that due diligence from a legal perspective and assisting the client to make sure that that land will be fit for the purpose for which they want to buy it.

Once we get through that stage and the client determines that is the piece of land they want and it’ll be useful for their development, then we’ll proceed with the normal transaction of purchasing the property, including financing or any other requirements right through to a settlement of the land.

So that would be what we would consider the first stage of the process, and then the next stage starts to get interesting because, realistically, with that land, we now need to get some development approvals in place to allow the proposed development, whatever that may be.

This will involve the engagement of a number of experts to help with town planning, surveying, and things of that nature. Once the development approval is obtained, we get to the next really important legal stage, which is drafting the documentation which will allow the land or the units, whatever it may be, to be pre-sold.

These are generally referred to as off the plan contracts, and that term generally refers to the pre-selling of property, land, units, whatever it might be, before there actually built and it’s quite strict and it’s quite detailed what needs to go into these documents, and it’s really important that they’re done correctly because you’re selling a concept or an idea, you’re selling something which yet hasn’t been built.

So in the case of a unit or a high rise, we’re selling a piece of air on a vacant block of land that is going to be turned into a unit and an end purchaser is going to buy.

So the documents really need to be detailed to restrict the seller into building exactly what they’ve told the end buyer that they’re going to build, and there’s a lot of protection placed around the buyer in these documents.

So we’re drafting these pro forma off the plan contracts and depending on the type of development, they’re going to vary greatly, and they’re really important documents, as I said, because if we’ve got a unit development, we’re going to need to draw at the same time a community management statement to create a body corporate for the unit.

So in that situation, there’s levies, budgets, and the like, exclusive use areas to be drafted in, and there may be caretaking and letting agreements as well if there’s management rights involved in that unit complex. For a land subdivision, there won’t be necessarily be a body corporate, so we might not need those things, but we’re still going to need a very detailed disclosure statement setting out exactly what we’re going to develop and the importance of getting these document right, really come at the end of the matter when we’re looking to complete those sales.

So we’re getting those off the plan contracts drafted with all the associated disclosure documentation is a key component. Once we’ve done that, the client will then be able to market for sale and execute contracts for the off the plan development, and as part of that, they’re entitled to take deposits.

Although those deposits are governed, must be held in a trust account until final settlement. So there’s quite a bit of legislation, as I said, governing what must be done on those documents, and if you don’t comply, those agreements just won’t be binding.

Importantly, the Land Sales Act and the Body Corporate Community Management Act are both quite restrictive in what needs to be in those documents. So the developer has been successful in gaining a number of presale contracts. The development proceeds, building approval is obtained, and the building gets completed.

At that stage, we can assist the client with their respective experts to finalise the plans of registration. When they come out of the local authority, they’ll go to the Department of Natural Resources and Mines for registration and a separate title to each of the separate lots is then created.

This is the trigger for the settlement under those off the plan contracts that we talked about and from that point, it’s quite frantic to push and usually on a 14 day period or something like that, get each of the buyers to settlement, and this is where the contracts can get tested and it’s essential that they were drafted correctly at the outset.

Because quite often if the market conditions have changed, let’s say the properties were sold in a strong market, and then the settlements are occurring in a weaker market, some of the buyers may be looking for opportunity not to proceed with those documents.

So it’s really important at the early stages to get them correct, and we would then proceed to hopefully settle all of those contracts and complete the development.

So the process, as you can see, is really from a greenfield site to an absolutely completed development on behalf of the client and it’s a detailed process along the way, but it’s certainly one that we at OMB are familiar with and have helped many clients complete their development successfully over the years.

May 14

Roles And Responsibilities of Body Corporate Committees?

By OMB Solicitors Body Corporate, Videos

What are the Roles & Responsibilities of Body Corporate Committees?

In this video, Body Corporate Associate Tom Robinson talks about the Roles & Responsibilities of Body Corporate Committees and the sometimes onerous tasks involved.

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

Transcript

Hi, I’m Tom Robinson from OMB Solicitors, I’m Associate here and I work in the Body Corporate team and today we’re going to have a chat about the roles and responsibilities of committees and what is the onerous side of that type of role.

I thought the best way to get started was to have a quick look at how a committee is made, created, and appointed, and essentially, the starting point is that a committee can consist of up to seven members. Of that seven members, you’ll have an executive component committee and then also your ordinary members component of that committee.

The executive members are essentially your chairperson, secretary, treasurer. With that role, there’s not really any more responsibility, power, or authority than any of your ordinary members of the committee.

Rather, they have some additional tasks that they do take on, which mostly, with most of the bodies corporates, are delegated in one sense to a body corp manager, and the purpose of that is your body corp manager is engage to take on that administrative role.

So when those executive members don’t have those tasks, your body corp manager takes care of them. They’re essentially the same as any other member on your committee that can be up to seven.

When your committee is elected, it’s done at an annual general meeting each year. The important thing to remember is that you’re only realistically got a one year term on your committee, which is a good thing to remember and then you will be either reelected, reappointed, or there will be a new committee that will come on, so that’s done every year.

Once we have a formed committee, which is done at each annual general meeting, essentially that role of the committee is to look after that day to day administrative management and operation of the body corporate, and essentially what that means is to make and implement the decisions of a body corporate.

A committee has a number of power to make certain types of decisions, and with that, there are also decisions that they can’t make. Some of those restricted decisions will be decisions like you can’t affect the rights or responsibilities of owners.

You can’t change the levies, and of course, any motions or decisions that require a general meeting resolution, whether it’s ordinary special resolution without dissent, they must be at a general meeting and the committee can’t make them.

Some of the other decisions that a body corporate can make, which are quite voluminous, they all have to be done with a basis of reasonableness, and the reason they have to be a reasonable decision is because they are bound by a code of conduct, and that code of conduct basically says that a committee must act fairly, honestly, with confidentiality, and most importantly, in the best interests of all the owners and the reason that’s so important is because a committee can make a decision without any input from owners.

Rather, the only notification that owners will get is minutes and those minutes will come from the committee meeting or the voting outside of committee meeting, and I guess the important part to remember there is that if a committee makes a decision, it must be minuted and they must hold a formal meeting.

There’s no such thing as informal meetings and the reason that’s so important is because it does bind the body corporate and a lot owners have a right to know what the decisions are that a committee are making. So with all that in mind, that’s essentially their role, it’s that day to day management and operation of a body corporate.

But what’s the onerous side of it? What are the risks associated with being on a committee? There are some. There are some, there are some risks, despite the fact that there is obviously Office Bearer’s liability for our committees, which is through the body corporate’s insurance policy.

But essentially, before we go into that type of risk, one of the most common things we’re seeing that’s coming through is with respect to communication. Lot owners can be a bit picky with members and their decisions because they don’t have, in most instances, a right.

So they can be bombarded, those members this can be bombarded and targeted and attacked by a lot of correspondence coming in from what we call a minority group of nuisance owners.

But the flip side of that is obviously, if a committee is communicating with owners, it has to be very careful that if it’s in the minutes, explanatory notes, or even chairman’s letters and those other types of communications.

That there isn’t any false misleading defamatory statements that are made because that can potentially set up a claim against the body corporate, and that ties back into why a committee must act reasonably because that decision is one that is by the body of corporate.

The other aspect that we tend to find is, like I say, there are risks associated with committee members making decisions, and when we talk about that, we like to think of the committee members as a group of volunteer laypersons. So in other words, they shouldn’t try to take on the roles and put on other hats like the roles of accountants, lawyers, engineers, project managers.

Those roles should be best left to those parties, and even if a member on the committee is one of those, it avoids that conflict of interest, which can occur and we don’t want to see that happen.

The reason being is the committee’s scope is rather limited in what they can and can’t do and if they go outside of that scope, whilst there is that protection of Office Bearer’s liability insurance, there are decisions out there where if a committee member does seem to go what we call rogue, then they potentially could be personally liable and not protected under that policy as an exclusion.

They’re probably the main onerous parts of being on a committee and the risk to be mindful of. Essentially, as long as a committee makes reasonable decisions and they stay within their scope and engage the appropriate experts, they will be well and truly protected, and realistically, it can be a bit of fun, and I guess to sum it all up, if you’re not on a committee and you’re part of a body of corporate, have a go.

There’s no requirement to be on the committee and certainly there’s no requirement to stay on the committee. It’s quite easy to resign if you want and at best it’s only for one year term. But otherwise, that’s probably the best part of those those roles and responsibilities.

So we do also come across those situations whereby committee members do get themselves in those situations where they need to engage those appropriate experts and get that advice, and obviously OMB Solicitors, we can provide a lot of that advice to those committees.

Whether it’s assisting with drafting the type of correspondence to go out, reviewing the minutes, especially if there are topical and competitive topics that are going to be put to the owners, whereby there might be an influx of correspondence coming in, then we can certainly review those types of documents.

We can assist with the engagement of other experts that need to be. But that also includes that we can have that relationship with your body corp managers who take on part of those roles and responsibilities of your committees and give just any of that general advice to assist a committee with its decision making authority and power, including making sure that they stay within their spending limits, making sure that they don’t hit any of those restricted issues, and assisting them with even attending at the committee meetings and general meetings to provide that type of advice.

May 14

5 Common Myths Associated with Estate Planning

By OMB Solicitors Videos, Wills and Estates

What are of the most 5 Common Myths Associated with Estate Planning?

In this video, Wills & Estates Solicitor Steven Mahoney talks about Superannuation myths, who should have a Will and other reasons why it’s important to be prepared in the event of your death.

Contact our Gold Coast Lawyers team for more information on Wills & Estates.

Transcript

My name’s Steven Mahoney and I’m an associate at OMB Solicitors. Today I’m going to take you through the five common myths associated with estate planning.

In order they are, one that superannuation forms part of your estate. Two, that if I die, everything will go to my spouse anyway. Three, that estate planning is only for the wealthy or elderly.Four, that is economical and cost efficient to draught my own will, and five, that anyone can contest my will, so what’s the point of drafting one.

Turning to these in order of the points so, superannuation forming part of your estate. This is often the light bulb moment for a lot of my clients when I advise them that your superannuation is actually governed by an independent piece of legislation and doesn’t form part of your estate.

This is further compounded when I tell them that your superannuation can only be gifted to certain dependents which are as part of your superannuation.

Now, a dependent under the superannuation provisions is either a spouse, a child, someone who you’re in an interdependent relationship with, or your legal personal representative, which is the executor of your will.

This is again important because if you do not have what is called a binding death benefit nomination, which is a fancy word for a will for your super, it is an independent trustee of the industry super fund who will make this decision for you.

Now, there are three certain documents that you can implement to ensure that your superannuation benefits do pass to your nominated dependent. Now, this is via a non-lapsing binding death benefit nomination, which will ensure that it doesn’t lapse a binding death benefit nomination.

Which is usually only valid for a period of three years, or a non-binding death benefit nomination, which is purely just a wish that is given to the trustee to make a decision at their discretion.

So turning to point number three, which also does tie into the superannuation, is that estate planning is only for the wealthy or the elderly.

Now, because a lot of people do have a death benefit or life insurance policy attached to their superannuation, people often neglect to think of the actual size or value of their estate, and quite often this is a lot larger than people give consideration to.

It is also extremely important to give rise to other things such as your digital assets or social media platforms and who you may wish, or more importantly, may wish not to have access to following your passing.

There is also the importance of appointing a guardian for any minor beneficiaries or minor children as well as gifting pets to any certain individuals which you may see fit. Point number two is what’s the point of having a will that everything will go to my spouse anyway?

If you die without a will, you are deemed to have died intestate. Now, if you do die intestate, there are the intestacy provisions of the relevant act which will apply. It is therefore essential to ensure that you do have a will, to ensure that the intestacy provisions of the act aren’t enlivened in which a set formula will dictate which beneficiaries are to receive what.

Point number four is that it is economical and beneficial to draft your own will. Now, many people aren’t aware of the intricacies or important provisions which must be contained within a will.

Now, this includes the important revocation provision, the appointment of executors, the importance to ensure that a will is witnessed by two independent parties who aren’t a beneficiary of the will or cannot be a spouse of any of those beneficiaries, and point number five is that anyone can contest a will and this is obviously a big grievance for a lot of clients who think, what is the point of establishing a will, anyone will contest it.

Now, people often have internal family conflicts, either with siblings, parents, but it’s very comforting for the fact to advise clients that the only eligible applicants to contest a will is a spouse, a child, which also includes a stepchild and an adopted child, as well as someone who is a financial dependent.

Now, if you don’t fall within these categories in Queensland, you are unable to contest a will. So in order to contest a will, there is also consideration which must be given to the timeframe of doing so.

In Queensland, you must notify an executor within six months of your intention to make a claim upon an estate, and you must also file court proceedings within a court of competent jurisdiction within a period of nine months.

It is important to realise that each state does have their own rules which are applied to contesting an estate, and one which is very important is in New South Wales, in which a notional estate is also given consideration as to your trust and companies and your involvement with those as well as grandchildren can contest an estate.

So I hope this video has been of assistance and we welcome you to contact any of our experienced members here at OMB Solicitors if you do wish to further discuss your estate planning affairs.

May 14

What is a Will & Enduring Power of Attorney?

By OMB Solicitors Videos, Wills and Estates

We are often asked the question ‘What is a Will & Enduring Power of Attorney’?

In this video, Wills & Estates Solicitor Steven Mahoney explains why it’s important to have these in place even before you take a trip overseas.

Contact our Gold Coast Lawyers team for more information on Wills & Estates.

Transcript

My name is Steven Mahoney from OMB Solicitors, I’m an Associate here and I’m going to take you through today briefly the explanation of what is a will and an enduring power of attorney and the importance of having those documents in place before you duck off to a quick trip overseas, or it might be an extended vacation.

Firstly, it’s pretty important to understand what is a will and what is an enduring power of attorney, they aren’t concurrent documents. So taking through firstly, an enduring power of attorney is a document which is in existence whilst you’re alive and a will comes into play and only comes into play upon your passing.

So the first thing in many, people head off overseas, they’ve got considerable assets back home, don’t have their estate planning in order. What if something goes wrong? That’s what I want to take you through today and the potential implications that’ll have for your family and also potentially for your loved ones.

So the enduring power of attorney is going to be a document that deals with if something happens to you overseas and we need to take care of your financial matters or your personal matters, that document is going to appoint someone to deal with that on your behalf.

So that might be a parent, it might be a partner, it might be a friend. Having that in place is extremely important and sometimes what I’d say is the most important document you’ll ever sign, because when you’re dead, you’re dead, you don’t have control of that.

But whilst you’re alive, you want to make sure that someone you trust is dealing with your financial manners, both personal and financial, in a manner you see fit.

With your will, we also need to make sure that you’ve got that in play if something were to happen to ensure that your assets are going where you wish to your loved ones and to those who you obviously desire, and one of the things that many young people think, they don’t believe they do have an estate but it’s important to understand your superannuation as well, which might have a death benefit component attached to it, which can have some sizeable amounts.

That in essence doesn’t form part of your estate. So it’s extremely important whether you do have an industry super fund with one of the main industry funds to ensure that you have a binding death benefit nomination in place.

Again, that’s just a fancy word for a will for your super, but we need to make sure as well that that’s going to go across to those parties which you wish to see fit, and it’ll obviously make sure that we take into account both your will, which deals with all of your estate, as well as your superannuation.

Getting those in play, it can be very simple, it can require a quick, simple chat which we can set up in a matter of days. Come in, have a chat to us, get everything sorted to make sure that nothing happens to you whilst you’re overseas and to make sure everything’s in place for now and into the future.

May 14

What Happens if You Die Without a Will?

By OMB Solicitors Videos, Wills and Estates

We are often asked the question ‘What happens if I die without a Will?

In this video, Wills & Estates Solicitor Richard Dawson takes us through the issues that arise from not having a will when you die

Contact our Gold Coast Lawyers team for more information on Wills & Estates.

Transcript

Hi, I’m Richard Dawson, Partner of OMB Solicitors and today I’d like to talk to you about what happens if you die without a will. When a person dies without a will or without a valid will, they are called dying intestate.

Under the intestacy laws, a person has to apply to the Supreme Court in Queensland for what’s known as a grant of letters of administration on intestacy. It is the law which says who will be entitled to apply for that grant of letters of administration.

In most cases, it will be the surviving spouse. However, where the spouse may not be able to act, or he or she may be unwilling to act, then it would fall to the children. If there are no children available to act, then there are usually other next of kin, in an order of priority who apply for court.

One way to avoid having to apply for letters of administration is for a person to do a will prior to their death. This is very important and should be done by all adult people. An application to the Supreme Court can be a very costly exercise.

It’s an application to the Supreme Court, It can take several months to obtain, and during that period, there may be a downtime in which the estate can be administered, or worse still, there could be a contest over who actually has the highest right to apply for letters of administration.

Under the intestacy rules, the estate must be distributed in accordance with those rules and not in accordance with the person’s will, because there is no will. In Queensland, the spouse is entitled to the first $150,000 of the estate and the household chattels and depending if there are any children, that spouse would be entitled to either a half or a third of the residuary estate.

If there are no children, then the spouse is entitled to all of the estate. This can potentially create problems because a deceased person may, in fact, have more than one spouse. You could imagine the fights that would erupt where you have an ex spouse and a current spouse feuding over a deceased person’s estate.

This can be easily avoided by doing a simple and straightforward will through your solicitor. If you would like to prepare a will, please contact our office on 5555 0000, or email the estates team at [email protected].

May 14

Differences Between Single and Multiple Testamentary Trusts in a person’s Will – Video Part 4

By OMB Solicitors Videos, Wills and Estates

What are the differences between Single and Multiple Testamentary Trusts in a person’s Will?

In Part 4 of our Part 5 series Wills & Estates Solicitor Richard Dawson takes us through those differences of a single and more complex multiple Testamentary Trust Wills.

Contact our Gold Coast Lawyers team for more information on Testamentary Trusts.

See Part 1
See Part 2
See Part 3

Transcript

Hi, it’s Richard Dawson, partner with OMB Solicitors. Today, we’re continuing our five part series on testamentary trusts. Today is part four of that series, and we’re going to be talking about the difference between a single testamentary trust versus multiple testamentary trusts in a person’s will.

Like most estate planning, there is no correct approach and it must be dealt with on a case by case basis. For example, use a will maker who is leaving his estate to three children who are going to be the beneficiaries of the estate.

The first question the lawyer needs to ask is, is it appropriate to use a single testamentary trust for the three children? Or if circumstances permit, would it be more appropriate that three separate testamentary trusts be used, one for each child?

In the case of using a single testamentary trust, it would be appropriate if all of the children were under 18 years of age and there was a trustee or preferably co trustees managing the testamentary trust on behalf of those minor children until they turned a responsible age, usually 25. Another reason for using a single testamentary trust would be to protect the assets going into the trust, which we call the trust fund.

Now, this might consist of shares, cash, a property portfolio, and the family home. Where there is risk of a child entering into a divorce or a family relationship breakdown situation, the single trust offers the most robust protection in that situation because there is a great deal of protection from the family court because there is more than one primary beneficiary, namely the three children and their children who are all beneficiaries of that one testamentary trust.

Another reason you might use a single testamentary trust is where the will maker wants to pass it to the next generation, but also for them to act as custodians for future generations, and this would be quite often the case in very large estates.

Another circumstance where a single testamentary trust is appropriate is where there is one large asset which is difficult to split. For example, you might have the family home and a business premises which earns rental income, it’s very difficult but not impossible to split that real property arrangement.

Moving to circumstances where we might use a multiple testamentary trust arrangements, that is, one testamentary trust for each child. Circumstances which the lawyer would need to consider would be the geographical location of the adult children.

For example, if you had one child on the Gold Coast, one child in Melbourne, and one child in London, it’s very inappropriate to have one testamentary trust if those three children were the trustee, it’s very impractical. Each of those children will always have a different risk and investment strategy, depending on their personal circumstances.

So, that has to be factored into consideration, if one was a high risk investor and one was a low risk taker, you’re going to get conflict. So it might be appropriate in that instance to set up a multiple style testamentary trust will.

One practical but quite often overlooked consideration is the relationship between the children. Whilst we hope our children get along with one another, quite often they don’t, and this will create legal and practical issues and complications down the track if the siblings fight amongst themselves.

You also have to look at the beneficiaries themselves, the children themselves and their children and you might have a happily married couple with three children in the white picket fence scenario versus the other child who might be a bachelor and loves to roam the world, traveling at will. So there’s different styles of trusts being set up for those different types of children.

Probably lastly, and most importantly, is the various controlling mechanisms for that multiple testamentary trust, and that will depend on the child themselves. You might have, for example, a very responsible, capable, and intelligent child who can act as a sole trustee of their own trust with little or no risk.

Then you might have the wayward child who is likeable and loveable but probably needs a little big brother looking over his shoulder, therefore, you would have a co-trustee arrangement. For example, that child and maybe a sibling, or that child and an independent trustee, such as the family lawyer, or the family accountant, or a trusted aunt or uncle, so to speak.

The third situation is where you have the spend thrift beneficiary or the beneficiary that has various troubles like alcohol, drug addictions, or a gambling problem, or has the very high risk of entering into a family relationship breakdown down the track.

In that instance, you would strongly consider not having that child as a trustee at all and have them have that trust arrangement with two independent trustees, for example, a brother or a sister, and an independent, experienced trustee like the family lawyer or the accountant or both.

So, as you can see, there are many different arrangements that can be put in place with testamentary trust wills, essentially, it depends on a case by case basis. If you’re planning to come in for an estate planning meeting, expect to put aside at least an hour because they’re the type of questions that I’m going to ask you about your family dynamic so that I can recommend to you the most appropriate testamentary trust will for your family and future generations.

Thank you and I look forward to speaking to you at the next session, which will be the last series of our five part series on testamentary trust.

May 14

Tax Advantages to setting up a Testamentary Trust within your Will – Video Part 3

By OMB Solicitors Videos, Wills and Estates

The benefits of having a Testamentary Trust for Tax Advantages.

In Part 3 of our Part 5 series Wills & Estates Solicitor Richard Dawson takes us through the benefits of using the structure of a Testamentary Trust for Tax advantages.

Contact our Lawyers Gold Coast team for more information on Testamentary Trusts.

See Part 1
See Part 2

Transcript

I’m Richard Dawson, Partner at OMB Solicitors, and I’m in charge of the estate planning team. Today, I want to talk to you about setting up testamentary trusts within your will and the tax advantages of doing so. A testamentary trust is a trust that is established in a person’s will.

It comes into effect when the will maker passes away and the executive administers their estate. There are a number of advantages of having a testamentary trust in your will, and one in particular is income splitting for tax advantages.

For example, let’s say a deceased estate was worth one million dollars, and it left that million dollars to a testamentary trust. In that testamentary trust, there may be a number of beneficiaries. For example, the deceased person’s children and grandchildren.

One of the advantages in a testamentary trust is that children and grandchildren under the age of 18 are taxed at adult marginal rates. This is different from family trusts, which are more commonly used to run family businesses and the like. So let’s use an example, let’s say the million dollars was invested and the return on the investment was 5 % per annum. That will generate $50,000 a year in taxable income.

The trustee of the testamentary trust, which more often than not is the deceased person’s child or potentially grandchildren, they have the day to day management and responsibility of administering the testamentary trust. One of those responsibilities is to ensure that a tax return for the trust is lodged after 30 June each financial year.

Using the $50,000 income as an example, let’s say we had three grandchildren under the age of 18. The trustee has the ability to split that $50,000 to each of those three grandchildren, and the first $18,200 for each grandchild is tax free. Therefore, you can see the $50,000 a year in income from that testamentary trust is completely tax free.

One of the advantages and peace of mind for the will maker is instead of paying the tax that would otherwise have been paid if that million dollars was left to an adult child on a high taxable income, the tax savings can be used for the grandchildren’s education.

Therefore, I like to say, let the tax man pay for the grandchildren’s education. Think of it this way, instead of paying the tax that would have been payable to the ATO, the testamentary trustee can pay it to the school headmaster to be used for private school education, sporting needs, or any other maintenance that these young children or grandchildren may need in their life.

So, If you would like any further information about testamentary trusts or the advantages and disadvantages as to why they are used, please get in contact with me or one of my estate team members, and we’ll be more than happy to assist.

Thank you.

May 14

The Benefits of a Testamentary Trust – Video Part 2

By OMB Solicitors Videos, Wills and Estates

The benefits of having a Testamentary Trust and using it to your benefit.

In Part 2 of our Part 5 series Wills & Estates Solicitor Richard Dawson takes us through the analogy of using the structure of a Testamentary Trust as a Bank Model.

Contact our Lawyers Gold Coast team for more information on Testamentary Trusts.

See Part 1
See Part 3
See Part 4

Transcript

Today, we’re going to talk about part two of our five part series regarding testamentary trusts. Today’s topic will discuss the benefits of a testamentary trust and using it in a similar style as a bank.

For example, if I use the scenario where a testamentary trust has been set up in a will maker’s estate and a million dollars, for example, has been placed into that testamentary trust following the completion of an estate administration then the trustees of the testamentary trust in effect can act as a bank manager and they are able to loan the beneficiaries of the testamentary trust with money under certain circumstances.

For example, let’s say one of those beneficiaries wanted to purchase a principal place of residence but there was risks in that beneficiary’s marriage. For example, if it was a bit rocky, they may wish to put a loan agreement in place to ensure that if in the event of a divorce, that the trust’s capital loaned to purchase that principal place of residence could be repaid.

So, think of the trustees as a bank manager and the beneficiary as a customer. If that customer ever went to the bank manager and asked for a loan on terms to purchase a property, then the bank manager is going to ask for two things.

One, a formal written loan agreement with various terms such as interest repayments, interest rate and the term, and they also asked for a first registered mortgage to be placed over the property so that the bank’s interest, or in this case, the testamentary trust’s interest, is secured by the mortgage.

The advantages of having a loan agreement and a first registered mortgage on title is that the trust’s capital will always be protected. So, assume the beneficiary comes to the bank manager and says, I want to purchase a principal place of residence for $800,000, will you lend me the money? The trustees, who act as the bank manager, will then say, yes, we do, on these terms and conditions.

They will complete a loan agreement and a first registered mortgage, and the money will be lent to the beneficiary to buy the principal place of residence. The advantage of this is that the customer, namely the beneficiary, can, one, save on stamp duty because they will receive the primary place of residence exemption, which is a lower stamp duty rate than if purchasing in the name of the trust as an investment property.

Secondly, as it is a principal place of residence, there will be no ongoing land tax obligations, which could save thousands of dollars a year.

Thirdly and probably most importantly, when the property is ultimately sold, hopefully under good terms and conditions, not under a family court property settlement, but when the property is sold, if there has been any capital gain achieved during the course of ownership, then that capital gain is 100 % tax free because the person owns the property as their principal place of residence.

So, practically speaking, if they purchase a property for $800,000 and there is, say, for example, over 10 years, there might be $400,000 or $500,000 capital gain, the property is now worth $1.2 or $1.3 million. The loan has to be repaid.

So there’s $800,000 has to be repaid to the testamentary trust bank account, and at the discretion of the trustee, depending on the terms of the loan agreement, they may also wish for the compounding interest, which may or may not have been paid along the way, that can also be repaid back to the trust.

Therefore, there might be several hundreds of thousands of dollars in unpaid interest, which can be accumulated and paid back to the testamentary trust. So not only has the trust provided a principal place of residence for the beneficiary over many years, the beneficiary may not have had to pay interest or principal repayments depending on the loan agreement, and the trust’s investment in the principle property has been secured by way of a first registered mortgage.

So overall, there are some very good benefits with using the testamentary trust as a bank account and allowing the beneficiaries the use and enjoyment of their principal place of residence, knowing that their investment is secured. There are a number of other ways that we can use the trust as a bank, but if you need further information, please contact me at our office and I’ll be happy to discuss those benefits with you.

Essentially, that is the benefit of using a testamentary trust account as a bank. Next series, we’re going to talk about the roles of a testamentary trust in a person’s will, protecting the beneficiaries from a family court property settlement, and also protecting a beneficiaries from various creditors and predators.

I look forward to speaking with you then. Bye for now.

May 14

Can I Still Do a Property Settlement in a Short Relationship?

By OMB Solicitors Articles, Family Law

It’s an unfortunate fact of life that many relationships don’t last. And when a couple splits up, there are difficult questions around how assets that were part of the marriage or de facto relationship are to be divided.

This situation is often made more difficult when there is a property settlement to be decided after a short marriage – one considered to be five years or less – ends. While there is no set formula used by relevant courts to decide property settlements in short marriages or de facto relationships, different factors are taken into account compared with the circumstances surrounding the break-up of longer term couples.

How do property settlements work?

Where there is property to be divided after the dissolution of a relationship, the settlement is a financial order made under family law by a court which is considered “just and equitable” for both parties.

It should be noted that just and equitable does not automatically mean a 50:50 split. The contributions each party has made to the marriage are considered in deciding the property settlement, including both financial and non-financial, such as caring for children or maintaining the family home. The future needs of each party are also considered, with the court deciding the weight to be attributed to all of these factors.

Property settlements after a short marriage

Courts assess the factors outlined above in a different way when the relationship in question was five years or less.

While non-financial domestic contributions are considered roughly equal in value to financial contributions in longer marriages, this is not necessarily the case in short marriages. The financial contributions of both parties to a short marriage are likely to be given greater weight in any decision on a property settlement, particularly if the couple has no children (meaning neither party had the considerable domestic responsibility of childcare). Alternatively, the court may place an equal value on non-financial and financial contributions if the domestic duties were onerous.

If following separation one of the parties remains the primary carer of children from the marriage, the court may also make additional adjustment on his/her entitlements to the share of the settlement, regardless of the short duration of the marriage.

The initial contributions to the marriage by each party will also be more closely examined, including savings, an inheritance or a property. These are given greater weight in settlement of a short marriage because they likely still exerted a substantial effect on the union before it ended.

The result is that one party’s initial contributions to the marriage may be excluded from the property pool to be divided. If one party’s initial contributions are included in the pool of assets, adjustments may be made in favour of the other party.

If the parties kept their financial affairs largely separate during the short marriage, this will also be taken into account when determining the property settlement.

In conclusion

As mentioned above, each property settlement matter resulting from a marriage break-up will depend on the specific facts and circumstances of the relationship, particularly when the marriage is short.

It is advisable to discuss all the details of your matter with our specialist family lawyers in order to receive accurate and timely advice on property settlement outcomes in the unfortunate event of a relationship ending.

Contact our Gold Coast Lawyers today for more information.

May 09

The Difference Between a Power of Attorney and Enduring Guardianship

By OMB Solicitors Wills and Estates

Power of attorney and enduring guardianship are different legal documents designed to take effect if you are sick, absent or become incapacitated and are unable to make certain decisions for yourself.

While a power of attorney is generally considered to be a device by which you empower a chosen ‘attorney’ (a person you grant authority to) to make financial and legal decisions on your behalf, an enduring guardianship specifically empowers your nominated ‘guardian’ to make lifestyle, health and welfare decisions for you, such as deciding where you live or what medical treatment you should receive if you are unable to make these decisions yourself. In Queensland, however, it should be noted that an enduring power of attorney can be nominated to do both of these things.

In the simplest terms, both are legal documents that empower someone you trust to conduct your affairs on your behalf should you not be able to.

The power of attorney

There are a number of different types of powers of attorney, as well as differences in the meaning of the term between each state and territory in Australia.

In Queensland, a power of attorney is governed by the Powers of Attorney Act 1998 (the Act). The Act sets out two types of power of attorney: General power of attorney under Chapter 2 of the Act; and enduring power of attorney under Chapter 3 of the Act.

General power of attorney is a legal document that gives your attorney the authority to make decisions about financial and legal matters on your behalf. This power lasts only for as long as you, as the person who appoints them, has ‘capacity’ — the general power ceases to operate should you lose capacity to make decisions. This type of power is often used for short-term purposes and as a means of convenience, for instance when you need someone to look after your financial and legal affairs in Australia while you’re travelling overseas.

A general power of attorney can be revoked by you, as the principal, by deregistering a registered power of attorney; when you die; or if the attorney resigns, has impaired capacity or becomes bankrupt or insolvent.

An ‘enduring’ power of attorney most significantly differs from the general power in that the powers continue should you, as the principal, lose capacity to make your own decisions. Essentially, you appoint your attorney while you have capacity in order to make important decisions for you if you later lose that capacity.

Under the Act in Queensland, an enduring power of attorney must:

Be at least 18 years old;
not be a paid carer or a health provider for the principal;
not be a service provider for residential services where the principal is a resident; and
if the person would be given power for a financial matter, not be bankrupt or taking advantage of the laws of bankruptcy as a debtor.

An attorney can also be the public trustee (if you have no-one else you trust) or a trustee company.

In Queensland, an enduring power of attorney can also be used to authorise medical and health decisions, also known as an advance health directive (AHD). An AHD would take effect if your capacity becomes impaired, and works as if you had personally given the direction or had capacity to make the decision.

The AHD could include directions to the attorney(s) consenting to your future health care, including matters as serious as whether a life sustaining measure is to be withheld or withdrawn.

Enduring power of guardianship

This power involves appointing a guardian to make certain personal and health care decisions on your behalf when your decision-making capacity becomes impaired.

Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision-making capacity can apply for a guardian to be appointed. Adults with impaired decision-making capacity can also apply on their own behalf. If you have no-one who fits the description above, a public guardian may be appointed for you.

Your guardian must be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.

In Queensland this power is covered under the Guardianship and Administration Act 2000. Under this Act, guardians cannot make decisions on:

Financial or property matters, unless they have also been appointed as your attorney for financial matters under an enduring power of attorney described above.
Special health care matters, including sterilisation or tissue donation.
Special personal matters including making or revoking a will, consenting to marriage or relinquishing a child for adoption.

Generally, guardians can be given the authority to make decisions for an impaired adult such as:

where they live;
what support services they receive;
with whom they have contact or visits;
general health care matters;
the approval of containment and seclusion in certain limited circumstances;
the approval of chemical, physical or mechanical restraint;
restricting access to objects;
other day-to-day issues.

Guardians are appointed by the Queensland Civil and Administrative Tribunal and can take the form of a single guardian to make decisions on all, or only, specified personal or health care matters; two or more guardians to make decisions together or to make decisions separately on specifically nominated matters on your behalf.

You can revoke your appointment of a guardian at any time by putting this decision in writing and making sure a copy is given to your guardian.

Questions around power of attorney and guardianship are often clarified by speaking with a legal professional experienced in the area of estate planning. Contact our Gold Coast Lawyers today for information or advice on any of the issues raised in this article.

Apr 12

What You Need to Know About the New Cladding Laws in Queensland

By OMB Solicitors Articles, Body Corporate

In 2018 this resulted in the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) coming into effect on 1 October 2018. The legislation and it’s operation is a data collection strategy which will recognise and evaluate the risks involved with cladding products on privately owned buildings in the state of Queensland.

There are a number of obligations under the legislation in which building owners (i.e. Bodies Corporate) need to be aware. These obligations and timeframes are outlined below.

Stages and obligations

Stage 1: Buildings must be registered if they are located in the ‘compliance zone’. A building is considered to be in the compliance zone if:

It is any of classes 2 to 9 (this includes residential and commercial buildings, excluding houses); and
between the period from 1 January 1994 but prior to 1 October 2018, a building development approval was issued to build the building or alter the cladding;
is of Type A or B construction (three storey buildings or taller).

A checklist can be found through the Queensland Building and Construction Commission (QBCC) website and will help to determine whether the building is one of those with non-conforming cladding. A time limit of 29 March 2019 was set for building owners to complete this checklist. If after registration it is identified that the building has a rendered surface finish or combustible cladding or you are unsure of the building materials, you will be directed to complete Stage 2.

Stage 2: Before 29 May 2019, a statement will be required from a building industry professional as to whether the cladding on the building is non-conforming. If you know for a fact that the building has non-conforming cladding, you can simply notify the QBCC directly and by-pass Stage 2.

Stage 3: Before 27 August 2019, buildings which are found to have combustible cladding, building owners must engage a qualified fire engineer to undertake a fire risk assessment to determine the overall fire safety of the building and whether rectification works are needed. The QBCC requires the name of the specific fire engineer by the above date and by 3 May 2021, the QBCC must have received the final report. If you fail to follow these rules, the consequences include a total range of 50 and 165 penalty units, amounting to around $6,527.50 and $21,540.75 in fines.

Obligation to disclose

If a building has non-conforming cladding, it does not necessarily have to be removed if other fire safety mechanisms adequately cover the fire safety requirement. However, the risk that it could still be considered a defect is an issue. A building with non-conforming cladding must be disclosed to interested buyers of the property as a defect they should be aware of. This should be done via providing a copy of the status of compliance with the process outlined above to every owner and tenant of the building, as well as be put on view in a visible area of the building. In the instance that non-conforming cladding is not disclosed, the situation might result in litigation for non-disclosure against all those involved with the selling of the building, including the sellers themselves, the sales agents and the lawyers involved with preparing the contracts for sale.

If an owner of building with non-conforming cladding sells the building prior to completing the above steps, it is required that before the settlement, the current owner provides copies of all relevant documents to the buyer, as well as a notice containing information about the extent to which the seller has complied with the obligations required. The seller must also provide a copy of the notice given to the buyer to the QBCC. From then on, the new owner will take on the responsibility to conform with the remaining regulations.

If you have any questions in relation to the obligations of the Body Caporate or the building owner to comply with this legislation, please do not hesitate to contact our Gold Coast lawyers.

Apr 10

The Most Commonly Asked Questions Regarding Parenting Rights Post Separation

By OMB Solicitors Articles, Family Law

It’s 8:40 AM on the first Monday morning back at work for me after the Christmas New Year break. Whilst I stare at the 2000+ emails requiring my urgent attention, I receive a phone call.

I say to the receptionist ‘can you please take a message and I’ll get back to them later’. She tells me that the caller is in tears and needs to speak with someone urgently.

I take the call. His name is Steve. He told me that he has a young daughter called Amanda and has been married for 10 years. His wife’s name is Tammy. Steve told me that he works away in the mines in Mount Isa on fly in fly out basis. He spends 2 weeks at the mines and then comes back home for a week. He said this was the only job that he could get, and it earns good income for him and his family which is the only reason he took it.

He told me that when arriving back home from his last stint in Mount Isa for the year just prior to Christmas, his wife Tammy, and daughter Amanda, were gone. So was most of the furniture from their house, all Amanda’s and Tammy’s clothes, possessions and beds were gone. Even their king-size matrimonial bed was gone.

He said that he thought he and Tammy had been growing apart and she was becoming more distant from him, however he had no idea at all that this was going to happen.

He told me he spent Christmas on his own in an empty house sleeping on a blow-up bed on the floor. He has been self-medicating with alcohol and he is so depressed that he wants to end his life and for it to be all over. He said the only thing he is living for is to be able to spend time with Amanda again.

I told Steve that ringing me this morning is the best thing that he could have possibly done. I told him that I have been practising family law for over 30 years, that there is a light at the end of the tunnel, and by taking it step-by-step he will get there. I told him that what he’s feeling now is a completely normal reaction but will be nothing but a distant memory in the future.

I arranged an appointment for Steve to come and see me that afternoon. I referred him to a good counsellor to deal with his depression issues and explained to him that in a marriage of that length with a 5-year-old daughter are you not only grow up together, you grow together and become one. You’re like a nice big ripe watermelon until someone pulls out a cane knife and slices you write down the middle. Now one half of you is gone and where it was is very raw. You need time to heal and grow a scab over that cut which takes time.

Steve said to me he does not know where Amanda or his wife would have gone to, or why she left without giving him notice or reason.

Steve was concerned because he was a fly in fly out worker and wanted to know how we can find Amanda and Tammy, what his rights are as a parent post separation with respect to his children. He said, “now that she has done this and has taken Amanda away from me, there is no prospect of reconciliation between us whatsoever”.

He then turned to the family law questions that I knew were coming. I knew they were coming because these are the most common family law questions that I am asked following the separation of two parents with young children, particularly where one parent has taken the children away from the other and/or will not let the children spend time with the other parent.

Question 1: Steve asked, “what rights do I have with respect to my daughter Amanda?”

I told Steve that under the guiding principles of the Family Law Act 1975 (“the Act”), which is the main piece of legislation dealing with family law in Australia, there is a presumption that following separation both parents will continue to have equal shared parental responsibility for any children of the relationship.

I explained to him what equal shared parental responsibility means. It means that both parents have an equal parental right or ability to play a primary role in decision-making for any major issues for the children, such as schooling and medical issues, where the children will live, what the children’s names will be, and overseas travel until the children turn 18.

I told Steve that both he and his Tammy will continue to have joint parental responsibility for his daughter Amanda unless that is altered by the court which in his circumstances is not likely at this time.

Question 2: Steve then said, “if I have equal shared parental responsibility, does that also mean I am entitled to equal time with Amanda?”

The Act says if the parents have equal parental responsibility, the child’s parents are to consider firstly whether an order that the child spend equal time with the parents. Equal parental responsibility and equal time with both parents are very different things.

I explained to Steve that with respect to equal time, that is 50-50 or one week on one week off type arrangements, the court has recognised that such an arrangement can only work in limited circumstances.

The parents should be living close to each other and to the child’s school;
there must be no ongoing domestic violence issues between the parents and the child (particularly at changeovers) must not be subject to domestic violence;
there must be no risks of child abuse, alcohol or illicit substance abuse in the presence of the child,
there must be no emotional or other physical abuse to the child;
the parents must be able to communicate with each other regarding the child’s schooling and parenting without arguing after every second sentence;
it must be otherwise “reasonably practicable” for equal time to work;
most importantly (and this is a paramount consideration) the proposed equal care arrangement must be in the best interests of the child; and
(also, a paramount consideration) the child must be protected from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

My advice to Steve was that in his case, if he continues to be a FIFO worker, equal time will simply not be practicable because of his work commitments. He then said to me ‘I would be prepared to leave that job move close to where Amanda is, if we can find her. Even if it’s in Timbuktu. She means that much to me.”

I said in that case, he will need to establish good communication with Tammy about parenting decisions, he should be close to Amanda’s school and Tammy’s new residence for practical reasons, and most importantly Amanda must not be subjected to or exposed to any domestic violence.

The domestic violence Steve told me about that did take place, particularly when his wife had been drinking had been exposed to Amanda. I told him that this must never happen again. There must also be good communication at changeover and no arguing or pushing each other swearing at each other or any emotional abuse.

It may turn out that his wife continues to drink and become violent, Amanda are may be safer living with Steve. I told him that the court would appoint a family report writer to prepare a family report to make recommendations to the judge as to what is in his daughter’s best interests.

I also told Steve that if Tammy and Amanda have moved out of the area to make it extremely difficult for Steve to spend any time with Amanda, we can ask the court for an order that they be relocated back to this area to maintain the status quo until the court can determine what is in the best interests of Amanda.

Question 3: What is substantial and significant time?

If equal time is not possible, then the court must consider the importance of the child having a meaningful relationship with both of the child’s parents and giving substantial and significant time to the parent with whom the child does not live. The old regime where the father would only get to spend time with his child every second weekend and half the school holidays is not considered to be substantial and significant time.

I explained to Steve that there is also an obligation on both parents to facilitate (make possible) and encourage the children to spend meaningful and significant time with the other parent. I told Steve that if it is at all possible, equal time should be considered.

Additionally, and particularly relevant in Steve’s case, is the fact that because Steve is a fly in fly out worker, a 50-50 equal shared care arrangement would not be possible because of his work commitments. Practicality needs to be considered as well.

I asked Steve if there had been any issues of domestic violence, alcohol abuse or illicit substance abuse by Tammy against him. He told me that Tammy was the heavy drinker, and after a few drinks she would become violent and occasionally would strike out and on one occasion she kicked him in the head. Steve denied that he provoked her to do this. He said she was psychopathic and out-of-control when she had drunk too much. Steve said that he is a mine worker and he drinks heavily himself, however he does not become violent like Tammy does. I asked him why he thought Tammy left, and he said that he suspects she is having an affair because he is hardly ever at home.

I told Steve that while many parents might think that think equal time is the best arrangement post separation, most of the time that does not turn out to be the case.

Equal parenting or week about arrangements can sometimes lead to extra pressure on the children, particularly once you factor in the children’s schooling and extra-curricular commitments, age, and any health issues.

Parents also need to factor in their own lifestyle, financial means and commitments which may impact on their ability to spend meaningful time with the child while in their care.

Week about arrangements, of their nature, may place too much of a burden on the child’s psychological state and ability to be apart from one parent more than the other. This is particularly the case for younger children who may still be dependent on their primary carer. Amanda falls just within this category, and I told Steve that if Amanda is safe living with her mother and she is not exposed to or neglected by excessive alcohol use and associated violence, then she will most likely remain living with mum. However, if Amanda is not safe in that environment, it may be turned out to be in Amanda’s best interests for her to live with Steve. I told Steve depending on how things go, in a year or so they made look at trying and equal shared care arrangement if the circumstances allow.

Both parents must also have the ability and capacity to properly care for the child and meet the child’s before equal time is simply assumed.

Question 4: how do I find Amanda and Tammy?

I told Steve that in these circumstances, where Tammy has left with the child she must perceive some conflict, threat or an emotional need to be away from him. Tammy will be likely even if we find her, to resist or restrict Amanda spending time with him.

Steve said he still has an email address for Tammy, although he doesn’t know if she still uses it. I said the best thing we should do immediately is to write to her in a civil and polite manner and ask her why she has left, where she has gone to, and what proposals she has for Steve to spend time with Tammy.

If there is no response to that letter (which will give a very short timeframe for a response), then we will have to issue legal proceedings for a location order and a recovery order (to force Tammy to relocate back to the area to maintain the status quo) and some interim parenting orders. We will also ask for the court to appoint a family consultant to prepare a report once Tammy and Amanda have been found.

Question 5: if we find Amanda and Tammy before issuing Court proceedings, what should we do next?

I told Steve that if we happen to find Tammy and Amanda’s whereabouts from communicating to her through her email or by other means, the first sensible step is to try to organise a mediation with Tammy. Mediation (referred to in the Act as “family dispute resolution conference”) this can be done through either government mediation services or private mediators. A mediation is required before court proceedings are issued, unless there are circumstances of extreme urgency or there is a risk of harm to the child being exposed to family violence or child abuse.

The benefit of mediation is that it provides both parties with the ability to discuss their concerns about parenting matters with an independent mediator, which may provide them with a better perspective on what is in the best interests of Amanda.

Amanda will not be included in the mediation, and I told Steve that when he starts communicating with Tammy it is very important for him and Tammy to not put Amanda in the middle of any parenting discussions where arrangements for Amanda are being discussed. This will put uncalled for emotional pressure on Amanda.

Question 6: Steve then asked me “what if mediation fails and I still cannot see Amanda?

I told Steve that if he fails to reach an agreement at mediation, the mediator will give him what’s called a section 60 I certificate authorising him to commence legal proceedings. I did say that in the circumstances of his case where Tammy took Amanda away without any notice or informed consent, and due to the domestic violence and alcohol issues, he probably falls within an exception to having to file a section 60 I certificate to get court proceedings underway. However, if there is a possibility that mediation might have worked, I always recommend trying that first.

Question 7: What are the benefits of issuing Court proceedings? Will I get Orders in place quickly?

Issuing Court proceedings in the family law courts can be an expensive and drawn out process, both financially and emotionally. Generally, at the 1^st return date, which in urgent circumstances may be as quick as in one week, but in normal circumstances is probably 2 to 3 months away we can ask for some interim parenting orders and for a family report to be prepared. The matter is then generally adjourned for 6 to 8 months to enable the family report to be prepared. The family report writer will make recommendations to the judges to what is in Amanda’s best interests. 9 times out of 10 the judge will make orders along those lines. However, if he or Tammy disputes the recommendations the matter will be set down for trial which could be another 6 to 12 months away, or longer if the proceedings are in the family Court of Australia.

I have written another article which is on our website called “What if mediation fails”. In that article I explained the court process in more detail. I suggested that Steve read that article and all the other articles of our website dealing with the family courts and parenting matters, so he can get a good grasp of how everything works.

Question 8: How can I safely communicate with Amanda’s mother about Amanda?

Steve asked me what will be the best to communicate with Tammy about Amanda in circumstances where there will most likely be hostility. Phone calls can readily get out of control, and text messages can be misinterpreted.

I suggested to Steve that he and Tammy communicate by email only in what is known as the FYO RR method as follows:

I said to Steve “, so you wish to inform Tammy that Amanda now knows how to do backstroke, that her homework for the week has been finished, or that she has found a good friend next door to your house. But you also need ask Amanda if she knows what happened at school on Thursday because when you picked Amanda up from school she had a scratch on her face. You also want to know what her test results were. You also wish to enquire about the roommate she has, and if Amanda is safe around him.”

I said “using the FYO RR method you will communicate this by email in short bullet points under 2 headings, the 1^st being FYO (for your information) and the second heading will be RR (response required). You will give her a week to respond. If Tammy is caught up with something and cannot respond within that week, Tammy will email you during that week to tell you that she needs an extension of time and will give you a time by which she can reasonably respond. If that time is reasonable you will allow it.

So, your email will look as follows:

Dear Tammy

RE AMANDA

FYO

Amanda has learnt how to do backstroke and did it well today. She is excited about that;

Amanda’s homework for the week has been completed;

Amanda has made friends with the girl next door. She is one year older than Amanda and her name is Vicky. They enjoy spending time together.

do you know what happened at school on Thursday because when I picked Amanda up she had a scratch on her face. It’s not too deep but it looks like a nail scratch.

Can you please let me know the results of Amanda’s blood tests? I would appreciate it if you could send me a copy and let me know what the doctor said.

Amanda has informed me that you now have another person living in your house. Can you please tell me a bit about him to help satisfy me that Amanda, being only a young girl, is safe around him?

You have one week to reply to the RR questions, which means that the deadline is 5 PM on Monday, 12 September 2019.”

Steve said he thought that was a great idea, and he would try down the track.

What was the result?

I took down all of Steve’s details and then prepared a letter to Tammy setting out a brief history of the relationship, the circumstances that Steve now finds himself in, and his proposals with respect to be able to spend time with Amanda. I won’t tell you what happened from here. I won’t tell you if we found Tammy and Amanda through that letter or if Steve had to go through the lengthy process of court proceedings. I also won’t tell you why Tammy left with Amanda, but I will tell you that she returned to rent a house near his. I also won’t tell you if she was forced to return by order of the court or if she did it voluntarily. No

I will however tell you that Steve now has a fantastic relationship with Amanda, and they get to spend a lot of fun time together. Steve takes Amanda to her swimming lessons, they go Kayaking together he assists her with her homework during the time that he has with her.

Steve and Tammy communicate very effectively about Amanda using the FYO RR method and Amanda is doing very well at school as a result.

Please contact our family lawyers Gold Coast at OMB Solicitors if you find yourself in circumstances like any of the above so that we can assist you to find yourself enjoying a happy relationship and spending meaningful time with your child, like Steve and Amanda now enjoy.

Please note that the names and circumstances in this article are completely fictitious, and every individual’s circumstances will differ. However, I have over my career found myself acting for people in very similar circumstances to Steve and in all cases a good outcome was achieved in the end for the child and her father.

Apr 04

Building Management Statements

By OMB Solicitors Body Corporate Videos

In this video, our Elisha Quigg answers the 5 most commonly asked questions relating to Building Management Statements (BMS’s).

Answers the questions relating to Building Management Statements

Apr 04

Body Corporate WorkCover Insurance

By OMB Solicitors Body Corporate Videos

In this video, our Tom Robinson discusses Workers’ Compensation or WorkCover Insurance your Body Corporate should have in place.

Video to discusses Workers’ Compensation or WorkCover Insurance

Hi, I’m Tom from OMB Solicitors. I’m an associate in our OMB Solicitors Body Corporate Gold Coast team.

And today I thought we’d have a bit of a discussion about body corporate insurance. Specifically, though, I’d like to focus on workers compensation insurance or WorkCover and volunteers workers insurance or voluntary workers insurance.

The reason I wanted to bring up these two types of insurances is because we’ve had a few queries from some committees recently about the types of caretaking that they’re now undertaking at their schemes.

Now the reason we’re talking about different types of caretaking is because we’re starting to see a lot of our long-term management rights agreements come to an end. Now, these are the long term agreements that the developers entered into originally when they were the original owner on behalf of the body corporate 20, 30, 40, 50 years ago, and now they’re starting to come to an end.

So our body corporate is in a position, especially with our smaller schemes, where they have an opportunity to explore other types of caretaking arrangements. So what we’re starting to see is a lot of these short, smaller size schemes are developing and exploring these alternative options for caretaking of their bodies corporate common property. Now the reason this is coming about is, like I say, because a lot of these longer-term agreements are coming to an end. But what they’re exploring is your shorter-term engagements, some of them which are actually on up to only a month-to-month basis.

So what this results in is your individual people like your Joe blogs down the road who’s coming in to maintain certain areas of common property. That’s how this comes into your workers compensation insurance, your WorkCover and your voluntary workers insurance. Now the reason we bring in these insurances up is because when we look at our work cover insurance, which is under our Workers Compensation and Rehabilitation Act, is basically, if you engage a person under a contract of service to do anything, then WorkCover insurance is required.

Now, whilst it’s usually only applicable to employees, it’s not necessarily a be-all and end-all in the sense that you can still include subcontractors and contractors in that arrangement depending on the specific type of engagement that is there.

Now, the reason I mentioned that is because a lot of our contractors, especially on a shorter-term basis, might be under an individual or under an ABN. And in that instance, WorkCover insurance will need to be taken out. It won’t apply to your companies or organizations. Hence why this is mostly applicable to our smaller schemes. But what that does is essentially if someone comes onto the body corporate’s common property and performs work under a contract of service, the body corporate’s common property becomes a workplace.

And with that, we need to make sure the body corporate is protected in case there is an accident or injury or anything like that that happens on-site. That’s what the workers compensation or work cover insurance will protect the body corporate from.

So the starting point is contacting our insurer, contacting our insurer or our insurance broker and identifying do we have workers compensation insurance in place and if not, asking for a quotation for that amount of cover, which is usually a pretty nominal fee. So there is no reason why a body called shouldn’t be looking at getting workers compensation insurance.

Our advice is find out if you’ve got it. If you haven’t got it, get it, unless you have a very good reason why you don’t need it.

Now what that leads into is then our voluntary workers insurance. So voluntary workers insurance is a little bit different. It’s basically to protect the body corporate from anyone who attends on our common property and performs work or tasks that are of a volunteering nature. So that might be our keen activist lot owners who like to go out on site, do a bit of gardening, maintain the pool, change the light bulb in the stairwell and things like that where we’re not asking them to do it and they’re not getting paid to do it. It’s completely voluntary. But of course that may set the body corporate up for liability for injury or worse if that person happened to injure themselves on the common property.

Now voluntary workers insurance is usually included with the body corporate schemes insurance, but I have seen instances where it’s not. So it’s very important to contact our insurer again or our broker and make sure that we have that as an absolute minimum insurance in place. Again, it’s normally just chucked in as part of your insurance policy, unless it was specifically requested not to be in there, which would be quite strange, then it should be included.

But if it’s not, again having it included, there shouldn’t be a situation where we don’t have voluntary workers insurance. It’s a very nominal fee to have it included. Like I say, it’s normally just part of your policy anyway. A starting point, contact your insurer and find out whether or not we have that insurance.

So I guess just in summary about these two types of insurances is with especially our smaller schemes where they might be employing or contracting individuals or you’ve got committee members or owners who are quite keen to maintain areas of the common property, we have those appropriate insurances in place and that they are sufficient to protect our scheme and our body corporate.

So as a starting point, contacting our insurer, finding out whether or not we have those insurances in place. And if we don’t, why haven’t we is the question we need to ask and basically getting it and only not having it if there is a sufficient reason as to why your broker should be able to help you with that, if we obviously have brokers available.

If you do have any questions about your insurance, of course, contact OMB Solicitors.

We’d be happy to have a look at those policies and let you know and provide your advice as to whether or not you have those insurances in place and guide you to the right areas to make sure that we have those insurances.

Apr 03

One of the Most Important Things You Need to Do Following Marriage or Divorce / Separation

By OMB Solicitors Articles, Family Law

The Effect of Marriage on your Will

Marriage is a time of joy and commitment. However, by saying the words “I do”, you are also inadvertently saying the words “I do hereby revoke my Will“. For those who are preparing vows to be together until “death do us part”, you do need to think about what happen when death does, in fact, part you.

In Queensland, section 14 of the Succession Act 1981 (Qld) provides that Marriage automatically revokes a Will, unless the Will was expressly made in contemplation of the marriage.

If a Will is made in contemplation of marriage, the contemplation must clearly state the testator (Will maker) expected to marry the particular person and intended that the Will should not be revoked.

The effect of Divorce (or separation from a Civil Partnership / de facto relationship) on your Will

In Queensland section 15, 15A & 15B of the Succession Act 1981 (Qld) sets out the effect that divorce (or separation from a Civil Partnership / de facto relationship) has on a Will.

Unless a contrary intention is shown in the Will, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) revokes the following:-

Any beneficial interest the testator’s former spouse/civil partner/de facto partner had under the Will;
Any appointment the former spouse/civil partner/de facto partner has as an executor, trustee, advisory trustee or guardian under the Will; and
Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse/civil partner/de facto partner.

The Will of the testator then takes effect as if the former spouse/civil partner/de facto partner had died before the testator.

However, in Queensland, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) does not revoke—

the appointment of the testator’s former spouse/civil partner/de facto partner as trustee of property left by the Will on trust for beneficiaries that include the former spouse’s/civil partner’s/de facto partner’s children; or
the grant of a power of appointment exercisable by the testator’s former spouse/civil partner/de facto partner only in favour of children of whom both the testator and the former spouse/civil partner/de facto partner are parents.

Conclusion

Marriage and divorce/separation can have unknown and unintended consequences on your Will. The next document that you should sign after your Marriage Certificate, should be a new Will.

Similarly, if your marriage/relationship doesn’t turn out to be “happily ever after”, you need to give consideration to updating your Will.

Whether you are getting married or divorcing/separating, we recommend you contact our experienced Gold Coast lawyers team to discuss the legal implications and effects on your Will.

Mar 19

Five Frequently Asked Body Corporate Questions Answered

By OMB Solicitors Body Corporate Videos

In this video, OMB Solicitors Associate, Tom Robinson is joined by Annaka Faulkner to answer the frequently asked questions asked by bodies corporate.

In this video, answer the faq by bodies corporate

Mar 11

buying property tips for gold coast solicitors

5 Property Buying Tips You Need to Know

By OMB Solicitors Articles, Property Law

On a list of stressful life experiences, buying a property consistently ranks near the top. And with good reason. It is a huge financial commitment.

Luckily, there are a few simple ways to make the process a little bit easier. Here are five property buying tips that can help reduce the stress of the experience.

Get proper advice from qualified professionals

Perhaps the single most important step you can take to ensure a trouble-free property buying process is to enlist the help of qualified professionals. A banker, accountant or lender can determine how much you can afford to spend. A real estate agent can help you find a property in that price range. And a lawyer can help you avoid making costly mistakes by identifying issues including, but not limited to:

Improper building additions or renovations that may have to be removed or changed at your expense.
Problems with current title deeds and legal ownership of the property that may complicate the deal or cause it to fall through.
Legal matters that can have adverse affects on property value and development.

A lawyer well versed in commercial and residential real estate can also help you avoid potential pitfalls by reviewing any and all relevant documents before you sign them.

Don’t let your emotions govern your decisions

When buying a property, falling in love at first sight is not always a good thing. If anything, it can sometimes be counterproductive. This is because the actual purchase is strictly a business and financial transaction, and should be handled as such.

While it is important to keep this in mind throughout the process, it is especially important when you inspect the property. Remember, sellers will sometimes use ‘smoke and mirrors’ such as cosmetic upgrades to conceal serious structural deficiencies. Even something as simple as a fresh coat of paint can hide significant damage. Sometimes, the current owner is simply unaware of significant issues with the house. In either case, you should be careful to look beyond the aesthetics.

Once you’ve done your own inspection, hire a professional inspector, who will easily identify both minor and significant issues. If need be, you can get an architecture report, which will also identify any outstanding issues and save you money in the long run.

Be sure to read the fine print

By their nature, real estate contracts are complex legal and financial documents. Even so, it is important that you read it thoroughly and ask your lawyer or other relevant professional about any aspects of the contract you don’t understand before you sign it.

By taking this simple step, you can easily identify potential issues that would otherwise be expensive or take a lot of time to address in the long run.

Identify land use and related issues early on

There’s nothing more aggravating than buying a property based on the assumption that you can make certain changes or use it in a certain way – only to find out afterwards that you can’t. That’s why it’s important to research (or have your lawyer research) any rules and regulations that dictate how the property can be used or changed. Examples include restrictive covenants or planning overlays.

Don’t assume the property valuation is accurate

Basically, there are three key issues at the crux of every residential and commercial real estate transaction:

the asking price;
what the buyer expects or is willing to pay;
what constitutes a fair/reasonable/acceptable offer.

Accurate valuation of the property is important because it affects all three of these issues. As the winning bidder at auction, or as a buyer who signed an unconditional contract, an accurate valuation ensures that you paid a fair price. On the other hand, an inaccurate valuation may cause you to pay more than what the property is really worth. And because nobody wants to do that, it’s advisable to use an accredited professional to ascertain an accurate valuation.

In summary, purchasing a property can be an overwhelming experience, especially if you are doing it for the first time. But it doesn’t have to be. You can make the process easier by consulting qualified professionals, approaching it rationally rather than emotionally, reading contracts carefully and asking plenty of questions before signing them. Identifying land use issues early on and enlisting the services of an accredited valuer are also important steps you can take to achieve peace of mind.

To learn more about how we can help you purchase a property, contact our Gold Coast lawyers today.

Mar 06

The Importance of Sole Company Directors having a Will

By OMB Solicitors Articles, Wills and Estates

As adults, most of us are probably aware that dying intestate (without a valid will) can complicate matters for our families and loved ones. But did you know that dying without a will can also complicate things when it comes to your business matters? It’s true, especially if you are the sole director and shareholder of a company which operates your business.

Immediate concerns

Generally speaking the death of a sole director and shareholder who has not left a valid will has a significant impact on the company because:

it creates an immediate void in leadership;
there are immediate financial and logistical ramifications;
who takes over the directorship and how long will that take.

A closer look

Directors are in charge of managing a company’s business activities. Specifically they are tasked with:

acting in good faith and in the best interests of the company;
avoiding conflicts between the company’s interests and their own personal interests;
preventing the company from conducting business during insolvency;
taking certain steps to facilitate the process when the company is being wound up.

Legally, a proprietary company must have at least one director and he or she must live in Australia. Any company with publicly-sourced funded shareholders must have at least two directors, most of whom must live here. Any public company must have at least three directors (exclusive of alternate directors), and at least two of them must live here.

In most cases, if there are several directors and one passes away, there is minimal disruption. This is because the surviving director/s can simply step in to run the company on a daily basis. Or, in some cases, they will select one of their peers to do so on an interim basis, usually until the shareholders/members choose a permanent successor.

In companies where there are several shareholders, the death of one also tends to cause minimal disruption. This is because the directors can usually continue the daily management of the business until the shares are distributed to the beneficiaries of the will.

By leaving a will, a sole director can also ensure that there is a smooth transition in the company leadership and operations following his or her death. The reason is that section 201F of the Corporations Act 2001 permits the executor to appoint the successor. Put simply, the executor is authorised to address this matter quickly, thereby avoiding any prolonged disruption. Under these circumstances a replacement director can usually be appoint within 24-48 hours.

Whereas, if the sole director has not left a will, a relative must make an application to the Supreme Court to apply for a Grant of Letters of Administration and this usually take months thereby leaving the business in limbo. What is more, the Court decides who is granted Letters of Administration not the deceased director. Imagine the ramifications for the company if the bitter and estranged spouse was appointed, which is highly possible given their right of priority to apply, unless there is a divorce.

The effect on operations

During this time, operations may cease entirely. This usually happens when the lack of a duly authorised manager results in the inability to continue daily operations, including routine business and financial transactions. When this occurs for a protracted period, the results can be devastating. Among other things, employees who can no longer be paid will leave, and the company’s reputation will suffer.

Even if someone wants to buy the company, the lack of a recognised shareholder may hinder their ability to do so – or at least their ability to do so quickly. Without someone to authorise the transfer of shares, any sale would be put on hold pending the appointment of the deceased’s legal personal representative and the settlement of the estate.

Complications may also arise if the final decision to wind up the company is made so all beneficiaries can be paid out. Specifically, a lengthy delay may have an adverse effect on the company’s value compared to what it would have been if operations remained unhindered.

The significance of a valid will

Of course, a will isn’t valid unless it is:

signed by the person who made it;
appoints an executor (up to 4 persons)
witnessed in front of at least two other adults who are not beneficiaries;
made when the deceased was of sound mind, memory and understanding.

To learn more about making a valid will and the importance of having one if you are the sole director or shareholder of a company, contact the Estate Planning Partner, Richard Dawson, or our Gold Coast Lawyers team on 07-5555 0000 or [email protected]

Feb 25

The Pitfalls of Buying a Property with the Objective of Redeveloping it

By OMB Solicitors Articles, Property Law

When entering into any contract for the purchase of property, it is important to ensure that all bases are covered and both parties know what is expected from them. When purchasing a property for redevelopment, there are a few extra steps that buyers should take to ensure they are aware of how they can deal with land they are looking to develop. Developers should seek additional advice and information about the property, as well as ensuring allowances are made in their contracts, so they are not faced with any nasty surprises after settlement.

In any contractual negotiations, conducting due diligence to ascertain as much information on a property as possible is crucial. Here at OMB Solicitors, it is standard practice to include various searches in our conveyance of purchase matters. Where property is purchased for redevelopment however, we recommend to our clients that specific searches and additional expert advice is also sought. It is important that such information is gathered, so that any restrictions or issues with the property which may affect redevelopment are brought to light. Seeking review and recommendation from sources, including but not limited to, town planners, engineers and surveyors for example, allows purchasers to have the greatest understanding of the lengths and limitations a development project may encounter.

Another tool we suggest prospective developers consider is the Gold Coast City Council’s ‘City Plan‘. The City Plan outlines, maintains and protects the Gold Coast community’s intentions for future development. A crucial part of the City Plan which developers must consider is zoning. Zoning is the categorical assignment of areas around the Gold Coast into ‘zones’ which ultimately affect how land can be used and (re)developed. It is important that developers consider the zone property is located within so they are aware of the restrictions and requirements which may be enforced.

Not only should developers conduct such due diligence, they should also ensure that their contract provide allowances so this information can be sought prior to a developer being locked into a deal. Special Conditions can be included in contracts so that purchasers have time to conduct these investigations and terminate a contract without penalty in the event the due diligence does not stack up.

The inclusion of special conditions which stipulate the contract to be ‘subject to’ the satisfaction or undergoing of such searches or research should be a non-negotiable term of a contract if a developer is planning to redevelop a parcel of land. If these additions and changes are not made to contracts, purchasers may find themselves in breach where they have taken excess time to meet conditions, or unable to terminate a contract if the property can not be used as envisioned.

Redeveloping property can be a rewarding and exciting time for purchasers. It is important however, that due diligence is undertaken, and proper additions are made to contracts so that pitfalls can be avoided. Seeking expert advice is crucial to ensure that property can be developed as proposed. Ensuring that contracts reflect the intentions and expectations of both parties is also fundamental in achieving a successful outcome for all involved.

Contact Gold Coast Lawyers today if you need any further advice on the preliminary actions that should be taken when redeveloping property, or if you would like to find out more about how contracts can be drafted to suit your redevelopment needs.

Feb 21

whats next after a property settlement agreement

We’ve Come to an Agreement in Relation to Our Property Settlement. What Do We Do Now?

By OMB Solicitors Articles, Family Law

Firstly, give yourself a pat on the back! It is great that you have reached agreement, as you will save the considerable legal costs involved in arguing over who gets what and ending up in court.

Once an agreement has been reached between you as to how you wish to divide your assets and liabilities in a family law settlement, you have the option of entering into a financial agreement or consent orders to formalise and finalise your agreement.

You will need to have either consent orders made or a financial agreement in place, to legally resolve the dispute once and for all (so that it can be used in resisting a court application in the future with respect to the same issues).

Consent orders or a financial agreement will also be required to obtain the stamp duty exemption for the transfer of any interest in property pursuant to your agreement.

Consent orders are often preferred over financial agreements, where a potential future breach of the terms of the agreement by one party is sensed as a serious likelihood by the other party. It is easier and less expensive to enforce compliance with consent orders than it is with financial agreements.

It is also often less expensive to both parties to formalise their agreement with consent orders, and consent orders are harder to set aside than a financial agreement.

I will explain both options to you further below:

Consent Orders

We will draft any agreement reached in the form of consent orders, and file those orders in the Family Court with an Application for consent orders. It will be necessary for both parties to sign. Your spouse will not need a lawyer (if he or she chooses not to) for this process.

If the consent orders contain a superannuation split, flag or otherwise impose an obligation on the trustee of a superannuation plan, we must first serve written notice of the terms of the order on the Trustee of the superannuation plan in which the interest is held.

After the application for consent orders is filed, a Registrar of the Family Court will consider the application. If the Registrar is satisfied that the orders should be made, the Registrar will sign the proposed orders and sealed copies will be sent to us. Your court appearance for this process is not required, as the Registrar will decide the application in chambers in the absence of the parties.

If the Registrar is not satisfied that it is just and equitable for the orders to be made on the information before the court, a notice will be sent to us with a brief explanation as to what further information or evidence is required.

It may be necessary for the application to be ultimately heard in court, however this generally only occurs in rare cases where the orders appear to be grossly unfair to one party.

In a best-case scenario, the Registrar will make the consent orders, and sealed copies will be returned to us within 1-3 months of filing.

Financial Agreement

It may be preferable or necessary to prepare a financial agreement in certain circumstances instead of consent orders. These circumstances include:

where the parties cannot wait for consent orders to be made (a financial agreement is binding as soon as it is signed by both parties);
if the property settlement is unfair to one party, or
assets or businesses are to be continued be jointly owned by the parties.

If a financial agreement is preferred, then we will draw up the required agreement. Once the terms are approved by you, we will send it to your spouse (or their lawyer) to review and settle the terms by negotiation.

A financial agreement aims to oust (remove) the jurisdiction and power of the family law courts in relation to all financial matters to which the financial agreement applies. The financial agreement is not filed in the court.

The financial agreement can deal with all or some of your property, and spousal maintenance and superannuation.

To be binding the financial agreement:

Must be in writing;
Must specify which section of the Act it is made in accordance with;
Must be signed by both of you;
There must be a Statement of Independent Legal Advice for each of you from a qualified legal practitioner setting out the matters referred to in the Family Law Act (“the Act”), and confirming that the advice was given to you each before you signed the financial agreement;
The Statements of Independent Legal Advice must be exchanged;
One party will retain the original financial agreement and the other will be given a copy;
There should have been full and frank disclosure of all financial matters between both of you (however this is not strictly necessary under the Act); and
All of the technical requirements set out in the Act must be complied with.

A financial agreement is a complex and technical document and takes a lot of time to prepare. There are schedules with all assets and liabilities. A comprehensive letter of advice to you is also required.

Your spouse will need a solicitor to advise him or her on the financial agreement and sign a certificate of advice, otherwise it will not be binding.

If either of the parties breach a term of the financial agreement, the other party can apply to a family law court to enforce the financial agreement. If the financial agreement is held to be valid and enforceable, the court can enforce the terms of the financial agreement as though those terms were orders of the court.

The Advantages and Disadvantages of a Financial Agreement Compared with Court Orders

The advantages to you of making a financial agreement may be summarised as follows:

Entering into a financial agreement brings certainty to the outcome of the division of your property. This also applies to consent orders.
Entering into a financial agreement also brings certainty to the payment of spousal maintenance, and unlike consent orders made by the court, the spousal maintenance clauses in the financial agreement (if binding) can be used to resist an application being made to the court for spousal maintenance by either party in the future.
The terms of a financial agreement are generally not construed by the court to see if they are “fair” or “just and equitable”, unless they are grossly unfair to one party and that party was unduly influenced or coerced (forced) into signing the financial agreement by the other party directly or through some unconscionable (unreasonable or unacceptable) conduct, or duress.
Because the agreement is not filed in the court unless one party wants to enforce it or set it aside, the court does not have the opportunity to see if the financial agreement effects a “once and for all” division of assets. A financial agreement therefore gives you more flexibility than a court order, as the court requires a final division of the party’s assets and looks to sever all financial ties between the parties.
You will avoid the costs of protracted court litigation over a property settlement following separation, which in some instances can cost up to $120,000 (or more).

The disadvantages of making a financial agreement or consent orders include:

You are contracting out of your right to have a court determine a just and equitable division of your assets and assess your entitlement to property and/or spousal maintenance following separation;
The terms of the financial agreement might not be within the range of your likely entitlement, depending on the date of separation, your future needs at the time, the size of the asset pool at that time, and the contributions (both financial and non-financial) that you have made. At least with consent orders you have the security of a court registrar reviewing the terms and being satisfied that they are within your likely range of entitlements.
Financial agreements are able to be set aside by a court if they are not drafted and executed in compliance with the Act, and for a number of other reasons including non-disclosure of a substantial asset, fraud, undue influence, unconscionable conduct, duress, mistake and where it is no longer possible or it is impracticable to carry out the terms of the financial agreement.

For any further advice and assistance discuss all the details of your matter with our specialist family lawyers for your family law property settlement matter, or which is the best way to proceed when you have reached an agreement, please contact our Gold Coast lawyers team at OMB Solicitors.

OMB Solicitors

Before undertaking Property Law Development we take a look at the many reason’s to seek legal advice and how we can help.

Contact our Gold Coast Lawyers team for more information here Property Law Enquiries.

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What are the Roles & Responsibilities of Body Corporate Committees?

Contact our Gold Coast Lawyers team for more information here Body Corporate Enquiries.

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What are of the most 5 Common Myths Associated with Estate Planning?

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We are often asked the question ‘What is a Will & Enduring Power of Attorney’?

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We are often asked the question ‘What happens if I die without a Will?

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What are the differences between Single and Multiple Testamentary Trusts in a person’s Will?

Contact our Gold Coast Lawyers team for more information on Testamentary Trusts.

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The benefits of having a Testamentary Trust for Tax Advantages.

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The benefits of having a Testamentary Trust and using it to your benefit.

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It’s an unfortunate fact of life that many relationships don’t last. And when a couple splits up, there are difficult questions around how assets that were part of the marriage or de facto relationship are to be divided.

How do property settlements work?

Property settlements after a short marriage

In conclusion

Power of attorney and enduring guardianship are different legal documents designed to take effect if you are sick, absent or become incapacitated and are unable to make certain decisions for yourself.

The power of attorney

Enduring power of guardianship

Stages and obligations

Obligation to disclose

It’s 8:40 AM on the first Monday morning back at work for me after the Christmas New Year break. Whilst I stare at the 2000+ emails requiring my urgent attention, I receive a phone call.

Question 1: Steve asked, “what rights do I have with respect to my daughter Amanda?”

Question 2: Steve then said, “if I have equal shared parental responsibility, does that also mean I am entitled to equal time with Amanda?”

Question 3: What is substantial and significant time?

Question 4: how do I find Amanda and Tammy?

Question 5: if we find Amanda and Tammy before issuing Court proceedings, what should we do next?

Question 6: Steve then asked me “what if mediation fails and I still cannot see Amanda?

Question 7: What are the benefits of issuing Court proceedings? Will I get Orders in place quickly?

Question 8: How can I safely communicate with Amanda’s mother about Amanda?

What was the result?

In this video, our Elisha Quigg answers the 5 most commonly asked questions relating to Building Management Statements (BMS’s).

In this video, our Tom Robinson discusses Workers’ Compensation or WorkCover Insurance your Body Corporate should have in place.

The Effect of Marriage on your Will

The effect of Divorce (or separation from a Civil Partnership / de facto relationship) on your Will

Conclusion

In this video, OMB Solicitors Associate, Tom Robinson is joined by Annaka Faulkner to answer the frequently asked questions asked by bodies corporate.

On a list of stressful life experiences, buying a property consistently ranks near the top. And with good reason. It is a huge financial commitment.

Get proper advice from qualified professionals

Don’t let your emotions govern your decisions

Be sure to read the fine print

Identify land use and related issues early on

Don’t assume the property valuation is accurate

Immediate concerns

A closer look

The effect on operations

The significance of a valid will

Firstly, give yourself a pat on the back! It is great that you have reached agreement, as you will save the considerable legal costs involved in arguing over who gets what and ending up in court.

Consent Orders

Financial Agreement

The Advantages and Disadvantages of a Financial Agreement Compared with Court Orders

Have a Question?

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