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Communication Extremes, Social Media Campaigns and Family Law Proceedings

By | Articles, Family Law

How being involved in extreme social media campaigns can affect the Court’s perception of a parent’s insight and child focus.

Judge Neville of the Federal Circuit Court of Australia in Caddell & Taggard [2020] FCCA 872 (published 1 June 2020) coined a number of colloquial phrases from popular culture and history in a recent judgement regarding the living arrangements for a three-year-old girl.  From Sherlock Holmes to Chief Justice Gleeson of the High Court of Australia to describing the Father as a “sitting duck”, Judge Neville sought to assist a self-represented litigant to understand how his conduct, perceived by him as genuine and non-aggressive, was actually damaging and harmful to his relationship with his daughter.

The Father’s “zeal” in the presentation of his evidence was considered so alarming by Judge Neville that he cautioned the Father that he was considering proceeding with the matter on a “show cause basis” meaning that the Father would need to show very good reason why the Court ought not make the Orders sought by the Mother. Not shielding the Mother and her legal representatives, nor the ICL from scrutiny, the Court identified that it could have been more assisted by the ICL undertaking a more careful examination of the mother’s evidence and adopting a “less is more” approach to the cross examination of the Father.  The Court noted that when it came to the Father’s cross examination, when a nail has been “hammered into the floor, it serves little purpose other than to inflict needless damage to drive it through the floor”.

The Father was described as a self-represented litigant who was flailing and raging against an array of forces, he perceived to be marshalled against him (it was all a conspiracy according to the Father).  That is what everyone “saw” according to Judge Neville.  But he suggested that the legal representatives ought to have “observed” that there were many other forces at work, including the Father not being able to seek how significant and damaging his conduct was.  The persistent and unrelenting cross examination of the Mother’s advocate was sought to be put to an end by the Court wherein the advocate indicated she had a right to put her client’s case forward in the time that was allocated.  This was considered not appropriate by His Honour.  Confirming what most experienced family law advocates know, His Honour indicated that when he tells an advocate that the utility of proceeding with cross-examination is unnecessary or unhelpful, it was clear guidance that nothing further was required to assist their client’s case.

The Father urged the Court to consider his conduct arising because he was “frustrated” and “annoyed” but not “angry”. The Court did not find favour with this distinction, finding often that the Father was not only angry, but “infuriated”.

The Father could not see that the prolific messages to the Mother (38 on one occasion alone to ask for more time) were more than “extreme” to the Mother. When further incidents of concerning behaviors were put to the Father, he repeated his mantra that he was not “angry” just “frustrated”.

It was the Father’s social media that were his own undoing.  His posts were very candid and public including on various Father’s Rights group pages and the Father’s Rights group he, himself ran.

Judge Neville stated specifically “Lest it not be clear, I regard the Father’s social medial posts to be extremely concerning in every relevant respect”. The Court considered that his social media posts to various “Fathers Groups” clearly presented the Father as he “unashamedly” saw himself, a “crusader” for the rights of oppressed Fathers, that he was their “champion” and someone who would go to any length to ensure that his rights as a Father were not stopped or thwarted by the Mother or anyone else.

After making Orders for the Mother to have sole parental responsibility for the child and a graduated time regime, the Court implored the Father to genuinely seek assistance about how to curb his impulsive and obsessive behaviour, curb his social media posts and to seek advice from experienced lawyers not online in the forums of “aggrieved personalities”

In a Court of impression, how you conduct yourself both inside and more importantly outside of the Court building is of utmost importance.  Guidance from experienced Family Law practitioners, who can speak about who a particular course of action may be perceived is invaluable to achieving an outcome which is in the best interests of your children. Before you post remember – Is it necessary? And when in doubt do not post!

Contact OMB Family Law on 55550000 to have a free and confidential discussion about your parenting matter or any family law dispute, we pull no punches and will give you honest and strategic advice.

Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020

Breaking News: Retail Shop Leases and Other Commercial Leases (COVID-19) Regulation

By | Articles, Property Law

BREAKING NEWS: New Regulation Just Released

The Queensland Government has released the regulations to accompany the Legislation which was enacted on 23 April 2020 dealing with retail and other commercial leases and the Covid-19 pandemic.

Unfortunately, the entire process has taken some considerable time from when the Prime Minister and the National Cabinet initially announced the mandatory code. Then came the Covid-19 Emergency Response Act 2020 on 23 April 2020 and finally, The Retail Shop Leases and other Commercial Leases (Covid-19 Emergency Response) Regulation 2020 on 28 May 2020.

Finally, the regulation provides certainty and clarity as to many of the details surrounding the relationship between commercial Landlords and Tenants in what has turned out to be one of the most contentious areas for businesses and investors alike during the Covid-19 pandemic.

What are those details:

  1. To be eligible you must either have a Retail Shop Lease or a Lease of a premises which is wholly or predominantly used for carrying on a business.
  1. You must be a small to medium enterprise – generally a business with an annual turnover of less than $50,000,000.00.
  1. The Lessee must be an entity that is responsible for employing staff and is eligible for the Job Keeper Scheme.

In those circumstances the regulations apply, and a Landlord is not entitled to take any of the prescribed actions. Those include, taking recovery of possession, terminating the lease, eviction the Lessee, exercising rights to re-enter the premises, seizure of property, forfeiture, damages, seeking payment of interest or a fee related to unpaid rent, claiming on a Bank Guarantee or security deposit, seeking performance under a Guarantee or exercising a right under the lease relating to the lease premises.  These actions are prohibited where a Tenant has failed to pay rent, outgoings or is not open for business during the “response period”.

The “response period” is defined as commencing on 29 March 2020 and ending 30 September 2020. There had previously been some discussion if the legislation would apply retrospectively or would only apply from 23 April 2020.

In circumstances where there is a genuine attempt by a Landlord to negotiate rent, but the Lessee substantially fails to comply with their obligations under the lease or the grounds under which the Landlord takes action are not related to the effects of Covid-19 the Landlord will not be prevented from taking these courses of action.

The parties are required to negotiate rent and other conditions in good faith. The lessee will usually request a reduction in writing from the Landlord to begin those negotiations. This should include true and accurate information to enable the parties to negotiate a fair settlement. This includes provision of accurate financial information or statements about the turnover of the Lessees business.

Within 30 days of receiving such a request the Lessor must offer a reduction in rental in accordance with the regulations, this will include at least 50% of the rental reduction to be in the form of a Rental Waiver.

The reduction in rental and conditions relating to any reduction can be given effect by way of either a Variation of Lease or another agreement between the parties. The regulations provide for a further rent negotiation provision where one party may ask the other to renegotiate if there is a material change of the grounds upon which the agreement between the parties was based.

In relation to any portion of the reduction given by way of deferred rental, that deferred rental will be repayable using a method agreed between the parties over a period of at least 2 years but no longer than 3 years. The Landlord can continue to hold any security deposit until that deferred rental has been repaid.

Specific provision has been made for extending a lease and a Lessor must offer a Tenant an extension (on the same terms and conditions) for the period of the rental waiver or deferral. For example, if a rental waiver or deferral lasted for 6 months then the Landlord must offer to extend the Lease of the Tenant for a period of 6 months on the same terms and conditions, subject to the remaining clauses of the regulations.

This is only a brief outline of the regulations which are quite detailed, and we recommend you contact OMB’s Property Law Team to assist with all leasing matters.

 

Parenting Dispute

What Not to Do in a Parenting Dispute

By | Articles, Family Law

Whilst there is no one fits all strategy in a parenting dispute, there are some pretty safe rules or tips I give my clients when advising them on how to ensure their outcome – negotiated (preferably) or litigated – is something that reflects the best interests of the children.  So, here’s my parenting matters “do not do” list:

  1. Don’t trash talk the other parent

    Children exposed to negative views of their parents will often feel pressure to take sides. Even if you are in another room and you think they can’t hear, think again because kids often enjoy a sneaky listen to adult conversations.  Perhaps have another channel of stress relief rather than a good old “bitch” session.

  1. Don’t make your kids feel sad for you, intentionally or otherwise

    This isn’t even direct acts of seeking sympathy it can include unintentional or subconscious behaviour such as:

    • Crying in front of the kids
    • Telling them that their mum or dad is taking them to Court
    • Saying how sad you are about the relationship being over or about having to sell the house or move out.
  1. Don’t refuse to communicate with the other parent

    Your kids need to see you and their other parent getting along. The Court also takes a dim view of parents that intentionally refuse to communicate, as this may cause concern that you cannot promote the relationship between the child and the other parent.  You don’t need to be best friends, just be child focussed and polite.

  1. Don’t withhold time unless there are absolutely necessary reasons for doing so

    The situations within which withholding time may be considered reasonable can include:

    • Violence towards the parent or child
    • Drug and alcohol abuse
    • Risk of sexual abuse
    • Emotional abuse, including the “trash” talk referred to above (but this would have to be extreme.
  1. Don’t make up “mud” and sling it just to try to get an advantage

    Allegations of abuse of drugs and alcohol will be monitored with appropriate testing, such that if there is or has been no problems, this will soon be found out.  Likewise, if you do have a problem and lie about it, this too will be found it.  Truth always is the best option.

  1. Don’t split up the kids, unless there are developmental or other reasons for doing so

    Keeping sibling units together is of most importance, however sometimes with massive age differences (say 7 years and a 6mth baby) there will need to be arrangements put in place that are appropriate for each of their developmental needs.

  1. Don’t think you know it all and don’t have to prepare for court appointed interviews or reports

    This preparation DOES NOT involve telling the children what to say or how to act.  What it means is that you need to consult with your lawyer about what the process will involve, the types of questions that may be asked and how to critically think about your behaviour and reflect on it appropriately.

  1. Don’t engage in behaviour that will see your kids play you and their other parent off against each other

    Yes, children will test your boundaries, but each parent needs to adopt a consistent enough approach to rules and structure.  Absence of this will encourage them to test the boundaries in both households, seizing the opportunity to gain an advantage by making either or both parents feel guilty.

  1. Don’t involve the kids in their parent’s arguments, show them court documents or tell them about the “judge” making them do things etc.

    You are your child’s hero and information provided in family law proceedings is just not information your child needs to know.  This may have the effect of negatively impacting their view of their other parent, who, whilst you do not like too much right now, is still their hero.

  1. Don’t talk about “your” rights instead of focusing on the best interests of your children, even when those interests do not align with what you “want

Parents do not have rights when it comes to children. The Family Law Act makes no provision for this. Children have rights.  Deeply entrenched parental conflict can result in parent’s forgetting this. Before you make a decision to take a step or engage in conduct, stop and think about why you are doing this and how or whether it is in the best interests of your children. If it is not, then simply, do not do it.

Taking the time to consider the above will hopefully assist you in moving your parenting matter forward in the best interests of your children. OMB Solicitors family law Partner Abbi Golightly is an Accredited Specialist in Family Law and a recommended Family Lawyer for complex parenting disputes by the Doyles Guide. Using these skills and knowledge we will guide you through your parenting matter with the best interests of your children as the paramount concern. Contact us on 07 5555 0000 for your free initial consultation.

The Covid-19 List

The Covid-19 List: How to have Your Matter Listed Urgently During the Covid-19 Pandemic

By | Articles, Family Law

The latest practice direction from the Family Law Courts (the Family Court of Australia and the Federal Circuit Court of Australia) provides the “how, what, when and where” of the new Covid-19 List established to assist separated families in the Covid-19 Pandemic.

The full practice direction can be found here.

The Court has set out the criteria for inclusion on the specialist list as follows:

  1. The application must be necessitated as a direct result of the pandemic;
  2. The matter must be urgent
  3. The application must be supported by Affidavit which addresses the mandatory criteria as follows:
    1. Why it is urgent
    2. How the dispute is as a direct result of Covid-19
    3. Details of current allegations of risk (such as abuse or family violence)
    4. Details of the reasonable attempts to resolve the matter by negotiation
    5. Details of how the proposed Respondent(s) can be provided with the court documents including a current email address
    6. If possible, provide (even by way of photos) a copy of the current orders, parenting plans and family violence orders
  4. If safe to do so, you must have attempted reasonably, to resolve the dispute;
  5. The matter must be capable of being dealt with by electronic means

The list will be managed by the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court and will be present in each registry of the Court. Registrars will assess urgency, as is the normal procedure and “triage” them to the COVID-19 List Judge.

In a measure designed to ensure that truly urgent applications are dealt with urgently, the direction is that must be listed within three (3) business days or less if critically urgent.

If found to not meet the criteria for the COVID-19 List, then the matter will be allocated in the usual course of events to a docket Judge in the relevant registry.

As the list will be managed nationally and electronically, your appearance could be before any Judge in any registry around Australia. The Court will however ONLY be dealing with the discrete Covid-19 application and putting in place arrangements to deal with those specific issues.

In order to assist litigants in person particularly, the Practice Direction identifies some example scenarios as to what matters may fit into the Covid-19 List:

  1. Where the current orders are for supervised time and the relevant centre or provider is unable to supervise as a result of their closure or government requirements
  2. Where border restrictions result in the inability for parents and children to travel between homes
  3. Where parents or children have tested positive for Covid-19 or cannot fulfil their parenting obligations as a result of concerns of infection
  4. Where the risk of family violence has increased as a result of the restrictions on movement imposed by the government during the pandemic.

Gold Coast Lawyers at OMB Solicitors can assist urgently with preparation and filing of an Application for inclusion in the Covid-19 List. We have in place all necessary technologies to ensure we can meet with you electronically and attend to filing of material swiftly, such that your parenting arrangements can be managed appropriately during the current global environment.

Contact Abbi Golightly, our Partner and Accredited Specialist in Family Law on 07 5555 0000 for an urgent free initial consultation.

Body Corporate Levy

How to Respond to Lot Owner Questions about Levies

By | Articles, Body Corporate

Can the body corporate change the levies?

While a committee is responsible for day-to-day management of the body corporate (within its expenditure limits), the legislation does not allow a committee to change the budgets set by lot owners at an annual general meeting.

Can we adjust the budgets?

A body corporate can approve the adjustment of its budgets for the administrative and sinking funds at a general meeting. The committee is responsible for preparing the draft budget and will need to act reasonably in considering the nature and extent of any budget adjustments.

What does the body corporate need to consider?

If lot owners are struggling to pay their levies in accordance with the contribution notice issued by the Body Corporate, then the Committee can address the specific concerns of the individual lot owner on a case by case basis.

It is also important to consider the specific needs of your own body corporate (ie, does it have a small or large number of lots; does it have a paid caretaker; does it a high rise or a town house complex ect).

One size does not fit all!

Some bodies corporate have entered into long-term maintenance and service agreements prior to the COVID-19 crisis that requires them to pay a fixed amount each month for a caretaker or service provider to look after all the common property. That includes areas that are not restricted from use, like foyers, lifts, gardens and grounds.

Committees should work with their body corporate managers and other strata industry professionals to appropriately identify and weigh up the extent of any costs which may be variable or possible to renegotiate before committing to any change to their budgets.

There can be serious adverse legal consequences for bodies corporate if they breach these agreements.

What if lot owners cannot pay their levies?

If lot owners do not pay levies, they may lose discounts given to those who make timely payments. They may be liable for penalty interest of up to 2.5% per calendar month (30% per annum) and reasonably incurred recovery costs, which can include administration and legal costs. These additional costs and interest can seriously exacerbate the financial impact of unpaid levies on lot owners.

A body corporate committee may (without calling the general meeting) decide on a case by case basis to reinstate lost discounts, waive penalty interest and/or agree to a payment plan with a lot owner.

What can a lot owner do?

  • A lot owner should inform the body corporate committee early if they are having financial hardship in trying to pay levies – rather than letting your levies fall into arrears, incurring interest and recovery costs.
  • Speak to your bank, loan institution, accountant, lawyer or other advisor to help you pay your levies.
covid family law

Family Law and COVID-19. Your Questions Answered

By | Articles, Family Law

Confusion, concern and worry about your Family Law issues in these Covid-19 pandemic times is understandable.  Abbi Golightly an accredited specialist in Family Law and partner at OMB Solicitors offers some guidance with her COVID Q & A.

Are the Court’s still open?

Yes, however procedures have been put in place conducting hearings mostly by telephone or video conferencing. 

Will my court date still go ahead?

Yes, in the majority they will proceed although some matters which are considered “not urgent” will be adjourned to a future date, to allow urgent matters to be dealt with. 

What do I do if I feel concerned for my safety?

If you are in immediate danger, call 000.  The Court is prioritising urgent matters concerning the safety of children, dealing with them via telephone or video conference. 

I am isolating – do I have to physically go to Court?

Generally speaking, no. The Court has implemented a new “Face-to-face in-court Protocol” to ensure that social distancing requirements are strictly followed.  Contact a Family Lawyer to discuss the specifics of these protocols. 

My matter had an appointment for an interview to get a report, how will this work?

The Court will contact you to make arrangements.  Adults will be contacted by phone or video.  If children need to be interviewed, an assessment will happen about how that will occur.  If those interviews have to occur face-to-face, then the interviews will follow the required protocol. 

How might COVID-19 impact my parenting arrangements?

The court is aware that strict compliance with parenting orders may not be possible and in fact may be impossible.  The best option is to try to reach an agreement with the other parent and failing that contact a specialist family lawyer for advice.  In the highly unusual circumstances, which Australian families now face, there may be situations that make compliance very difficult.  The Court expects parents to continue to act in the best interests of the children and act reasonably.

How can I change my parenting agreement or order?

  • Communicate with the other parent and if agreed, it should be documented in writing, even by text message. 
  • Get help to reach an agreement.  Contact a Family Relationships Centre, or your family lawyer who can help you by phone, video call or other contactless means. 

If you need any further information, please do not hesitate to contact our Gold Coast lawyers for a free, initial consultation.

COVID-19 - Closing of Common Property Facilities

COVID-19 – Closing of Common Property Facilities

By | Articles, Body Corporate

A number of lot owners have been asking “are my levies going to be reduced/discounted if the committee closes the gym”?

This question stems from the Government’s decision to close the use of recreation facilities in the public.

So what about a body corporate?

This article focuses on the operation of common property facilities during this Pandemic – that is, pools, gyms, BBQ facilities and surrounding areas.

Government Regulations and Restrictions

Common property facilities are technically considered part of the private property of a body corporate.

The Government imposed regulations and restrictions for public use pools, gyms and other facilities, have recently been amended to apply to bodies corporate and its facilities.

These restrictions are in addition to the Government rules relating to social distancing and prevention of spreading COVID-19. These rules apply to everyone and every household, apartment and in turn, your body corporate.

So what facilities must the body corporate close and are there any facilities or common property that a body corporate may keep open, subject to social distancing?

Regulation of Common Property Facilities in COVID-19 Pandemic

The starting point is that bodies corporate (and its owners and occupiers) should ensure they are each doing their bit to comply with the Government imposed regulations and restrictions to prevent the spread of the virus.

The decision to keep open or close areas of common property requires consideration of many factors.

Queensland Health has published (on 31 March 2020) an extensive list of non-essential business, activity and undertakings that must be closed.

A link to that direction is here.

A number of activities, which are considered facilities within bodies corporate, are now included in this list. We outline the main common property facilities that must be closed below:

  1. Swimming pools;
  2. Spas;
  3. Barbeques;
  4. Recreation rooms;
  5. Gyms (indoor and outdoor); and
  6. Saunas.

Regarding any other social sporting-based activities, these may still operate but that is limited to two (2) people with social distancing observed.

An example of this would be a common property tennis court.

If there are other facilities that are not required to be closed and a body corporate wishes to keep those facilities open, it may need to consider new regulation of the use of those facilities to comply with the COVID-19 restrictions. This is done by updating the scheme’s by-laws.

To amend the by-laws requires the body corporate to hold a general meeting (i.e. AGM or EGM).

If the facilities stay open, it is likely that the body corporate may need to consider additional and professional cleaning/sanitising of the facilities. This will be an additional expense.

Reduced Costs?

If schemes are required to close majority of their facilities – will there be a reduction in levies?

The short of it is that levies must still be paid by owners.

If a body corporate can reduce its maintenance costs of facilities, then it is likely the future levies may reduce due to a surplus evolving from what was budgeted.

Bodies corporate can consider managing any surplus by reducing levies for the next financial year or applying credits to owners’ accounts (especially against owners’ accounts that may have lost employment and are behind in payment of their current levies).

Otherwise, a body corporate can adjust the current levies (resolved at its last Annual General Meeting (AGM)) however, this will require the calling and holding of an Extraordinary General Meeting (EGM) to modify levy amounts. Careful consideration is required when considering this option.

Summary

Each body corporate will need to consider what is in the best interests of the scheme.

Bodies corporate should familiarise itself with the recent direction published by Queensland Health to ensure that they comply with the compulsory closure of facilities.

Fines will issue if there is a breach of these health directions.

Gold Coast lawyers at OMB Solicitors, we can assist those bodies corporate that wish to continue to provide facilities that are not required to be closed by preparing revised by-laws to regulate the use of the facilities in accordance with the Government regulations and restrictions.

Regarding the compulsory closure of non-essential activities/facilities, OMB Solicitors can assist in preparing correspondence to all owners and occupiers outlining that requirement.

COVID & Landlords of Commercial & Retail Premises

News Alert: COVID & Landlords of Commercial & Retail Premises

By | Articles, Property Law

As promised, here is the latest update on the evolving situation with Landlord and Tenants on Commercial, Industrial and Retail Premises. The Prime Minister has announced this afternoon that the National Cabinet has met and has made some decisions around this space, which we have all been waiting for.

Most importantly, it has been announced that the National Cabinet have introduced a Mandatory Code which will be legislated in each State. Landlords and Tenants are required to comply with the terms of this Mandatory Code.

The code will require Landlords and Tenants to negotiate in good faith. Landlords aren’t going to be able to terminate a Lease and Tenants are going to have to comply with the remaining terms of the lease.

The Code will apply where the business of either the Landlord or the Tenant has suffered as a result of the Covid-19 Pandemic, so that either business is an eligible business under the governments recently announced Commonwealth JobKeeper program and has a turnover of less than $50 Million.

The parties are then going to have to reach an agreement whereby the proportionate amount of reduction in a Lease rental will apply in cases where the Job Keeper Program already applies to that business. The reference to the Proportionate amount is the amount of reduced turnover of the Business suffered as a result of the  Covid-19 Pandemic.

In that circumstance and if those provisions apply, then the rental will be required to be reduced proportionate to the reduction in the business (for example if a business’s turnover has reduced by 50%, that business will see a 50% reduction in the rental for the period of the Pandemic). This rent reduction can be made up of “rental waiver” and “rent deferral”.

In respect of those proportions the  “rent free” proportion must make up at least 50% of the rental relief. The “rent deferral” component can be deferred and paid back over a period of not less than 12 months, but usually will be paid back over the remaining term of the lease (for example if the remaining term of the lease is longer than 12 months it would be paid back over the entire term, however if the lease term is shorter than 12 months that tenant will still have 12 months to repay those rent monies).

Rental increases under a lease will be frozen and penalties and interest charges will not be able to be charged, nor can guarantees or bonds be called upon.

These are important changes as the landscape is constantly changing and as things arise further, I will continue to keep you updated. Please remember though any agreements reached between Landlords and Tenants must be documented as the potential disputes in the future will be greater than the problem itself.

Please keep safe and if you have any queries whatsoever please do not hesitate to contact our Gold Coast lawyers.

How Landlords Should Respond to COVID-19

How Landlords Should Respond to COVID-19

By | Articles, Property Law

We understand that being a Landlord at the moment is an extremely difficult time. We all await further clarification from the Federal Government as to what incentives, if any, will be offered to Commercial Landlords to assist with concessions that may need to be made with their Tenants. Some Australian Banks have announced they will defer loan repayments on loans up to $10 million dollars for Landlords that provide certain assistance to Tenants.

There are a number of incredibly important considerations for a Landlord during this time including maintaining a relationship with Tenants, ensuring that once we emerge from this crisis that your commercial premises have sustainable tenancies and businesses that can hopefully rebound and continue to operate and add value to your properties and the ongoing consideration of ensuring you have sufficient income to meet your financial needs.

With this in mind, a number of Landlords have been receiving approaches from Tenants regarding rental waivers or assistance packages. Given that we cannot be fully aware if any assistance is going to be provided to Commercial Landlords, we see the following as the 3 main options available to our Landlords at this time:

  1. Provide a “Rental Waiver” – this is a fairly simple process of waiving rental for a specific period of the lease. We would need to be specific as to whether this includes or excludes outgoings;
  2. Provide a “Rental Reduction” – this is a process where the rental may be reduced depending on the reduced capacity of the Tenant and again should be specific as to whether it includes or excludes outgoings;
  3. Provide a “Provision of a Rent Moratorium” – this would relate to a specific period where rent is frozen. This means that the rent is not payable under the lease however it is not forgiven or waived by the Landlord. The Landlord could advise that after the Rent Moratorium period the Landlord will reassess the rental during the moratorium period which should allow a Landlord to either require repayment of that rental (say over the period of the remainder of the lease or some other period determined by the Landlord) or alternatively, the Landlord could agree to forgive or reduce that rental at that time;

This last alternative allows the Landlord to defer making a final decision in the reduction or waiver of rental until further information is to hand, including the length of this current crisis and the basis on which each individual is able to recover from the downturn.

We believe the most important element of any of these solutions is that the Landlord properly document any agreement which is reached. No agreement should be reached without proper review and documentation. The reason this remains so vital is that the greatest asset that the Landlord will have is the value of their premises and potentially the ongoing tenancies. If there is dispute at a later point regarding what agreement was reached or the specific terms of that agreement or the ability of the Landlord to later make a determination, each of these may result in substantial dispute and/or

litigation at a future point in time. This has the potential to cause more damage than the current situation if in the instance the Landlord is in a dispute with a large number of its Tenants.

We would recommend that each Tenant is dealt with on a case by case basis and bound to strict confidentiality failing which any agreement may be forfeited.

It may further be prudent that:

  1. the Landlord negotiate the terms subject to final agreement and documentation to save incurring any unnecessary costs; and
  2. the costs of documenting by the agreement are either born by the Tenant or potentially on a shared basis between the parties OMB Solicitors will assist with this documentation.

We believe this is an essential time for our Landlords and we look forward to providing you whatever assistance you need during this period.

Levies COVID-19

News for Owners Corporations (NSW) Regarding COVID-19 and Levy Recovery.

By | Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

Owners Corporations are challenged with balancing its statutory obligations with the rights of owners and occupiers (and the broader community) during this unfortunate pandemic. As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors address three frequently asked questions about current levy recovery procedures.

Whilst Owners Corporations and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Strata Committee’s need to continue making decisions to ensure the obligations of the Owners Corporation are met.

  1. How might a Strata Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Strata Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Strata Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Strata Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Strata Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Strata Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic

OMB Solicitors have implemented several strategies in dealing with levies moving forward. These strategies include:

  1. a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt; NEWS FOR OWNERS CORPORATIONS LEVIES & THE IMPACT OF COVID-19 As at 27 March 2020
  2. providing additional advice to the Strata Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;
  3. increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and
  4. discussing with the Strata Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.
  1. Should the Strata Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

An Owners Corporation is responsible for looking after common property and attending to all repairs. Accordingly, to ensure the Owners Corporation can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there are legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how an Owners Corporation recovers a levy from a lot owner (at this stage). Accordingly, Strata Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

At OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

If you have any questions regarding the above, please do not hesitate to contact our Gold Coast lawyers.

COVID-19 Rent Relief

COVID-19 Rent Relief

By | Articles, Property Law

As you are all aware, we are all anxiously awaiting the announcement of the Government’s rent relief package which is expected as part of the third stimulus package, as a result of the COVID-19 crisis.

We understand that tenants are now coming forward requesting rental relief in the form of reduced rental and/or no rental for a certain period of time due to the economic crises we are currently facing. At present it is too early to know how best to fix the situation until we have a better idea of how long this crisis will last and what other relief will be forthcoming. We do suggest that where assistance is given, it is given on a case by case basis for now.

It is imperative for all Landlords and Tenants to support each other as best they can in this crisis. However, any discussions on rent abatement, short-term agreements to defer some rental and any negotiations be put on hold until we know the full extent of the Government and financial institution relief package which should roll out in the next few days and weeks. Landlords and Tenants will then be able to make an informed decision and enter into negotiations which will benefit both the Landlord and the Tenant for the foreseeable future.

It is important to remember that where the tenants have been in substantial arrears prior to the onset of the COVID-19 pandemic, those rental arrears would not form part of any relief provided but would remain in place.

Further, it is important to note that where an agreement for rental reduction or rental abatement is being offered, you might also consider reaching an agreement with your current tenants to extend the lease term and exercise options early. Any variations to Leases or agreements reached should be documented by way of the appropriate Deeds to safeguard both Landlords and Tenants.

Both Simon and his Commercial/Property Team are here to help guide you step by step through this trying time and we will be sending  further emails to you explaining the options and obligations for both Landlords and Tenants once we are in receipt of the full information from the Government in the coming days/weeks.

In the meantime, please do not hesitate to email or phone either Simon or Lisa with any queries or concerns you may have.

Stay safe!!

Body Corporate Levies

News for Bodies Corporate (QLD) Regarding COVID-19 and Levy Recovery

By | Articles, Body Corporate

Frequently Asked Questions About Levies & the Impact of COVID-19

The Queensland Government recently reported that “Bodies Corporate and their committees have a statutory obligation to act reasonably”, which includes balancing the statutory obligations of a Body Corporate with the rights of owners and occupiers (and the broader community). As the uncertainty surrounding COVID-19’s impact on the nation, and the world, continues OMB Solicitors address three frequently asked questions about current levy recovery procedures.

Whilst Bodies Corporate and residents must consider the impact of COVID-19 on their buildings, including implementing appropriate steps to limit transmission of the virus, Committee’s need to continue making decisions (i.e. by way of VOCM) to ensure the obligations of the Body Corporate are met.

  1. How might a Committee deal with a failure of a lot owner to pay levies considering the impact of COVID-19?

Given the social and economic impacts of COVID-19, Committees need to draw an appropriate balance between compassion for individual circumstances and maintaining a scheme’s healthy financial status. In this regard, it is likely that Committees may be faced with increased hardship and payment plan requests from lot owners. It is important, during these times, for Committees to consider each matter on a case by case basis and (if necessary) ask lot owners to provide evidence of financial hardship (i.e. redundancy letters or a Statement of Financial position) prior to making a decision.

Whilst there is no obligation on a Committee to waive any portion of the debt, circumstances may arise which warrant a waiver of interest or a payment plan that would see the debt satisfied within a reasonable period of time.

In this regard, any payment plan requests need to be considered having regard to the lot owner’s payment history, the future needs of the scheme, how many lots are in the scheme and how the payment plan request may impact upon the day to day running of the scheme i.e. paying for insurance, caretakers or other essential expenses.

If an owner has been in arrears for a significant period of time and prior to March 2020, then the Committee ought to consider a separate strategy of the management of that debt (in consultation with its legal advisors).

  1. How is OMB Solicitors dealing with levy recovery processes during the COVID-19 Pandemic?

OMB Solicitors have implemented several strategies in dealing with levies moving forward. These strategies include:

a compulsory telephone call from our experienced staff to all owners referred to levy recovery to ensure a specific examination of the individual circumstances, which will result in an appropriate management of the debt;

providing additional advice to the Committee prior to the institution of legal proceedings (if such proceedings are necessary), including advice on hardship and payment plan requests;

increasing the timeframes for debt management and exploring the financial options with each individual lot owner; and

discussing with the Committee how to manage and meet its financial obligations during the COVID-19 Pandemic.

  1. Should the Committee refer a lot owner to levy recovery given the COVID-19 Pandemic?

The short answer is yes.

As advised by the Queensland Government, it was confirmed that a Body Corporate must maintain common property in good condition (including the cleanliness of such common property). Accordingly, to ensure the Body Corporate can meet its financial obligation of insurance, repair, maintenance and cleanliness – contributions must continue to be paid by owners.

Whilst there is legislative change with respect to enforcement of Judgments (i.e. bankruptcy and Statutory Demands), unfortunately there are no amendments to the regulations governing how a Body Corporate recovers a levy from a lot owner (at this stage). Accordingly, Committees are doing their best to manage the impact upon the financial circumstances of their scheme by operating “business as usual” with the overriding considering of addressing the effect of the virus on lot owner’s individual circumstances.

A message from OMB Solicitors

During these times of uncertainty, OMB Solicitors have implemented an action plan to ensure all levy recovery matters are actioned in a timely and appropriate fashion. We confirm that we are currently running business as usual and are taking steps to continue to minimise any disruption.

Over the last 2 years, OMB Solicitors has invested heavily in technology which allows us to seamlessly work remotely if required and have been operating electronic Body Corporate files for approximately 12 months.

As this pandemic is ever evolving, our action plan and our levy recovery processes are fluid and will continue to adjust as we monitor the situation via the Australian Government Department of Health and World Health Organisation.

Gold Coast lawyers at OMB Solicitors we are all doing our part to minimise the risk of infection including practicing social distancing. In conjunction with this, we ask that all meetings are conducted via phone call or video conferencing. Should an onsite meeting be required, we further request that you advise if you have previously been in contact with the Coronavirus or have travelled within the last 14 days prior to the meeting.

 

Force Majeure

Force Majeure: How does an ‘Act of God’ Clause Affect Your Contract

By | Articles, Property Law

On 30 January 2020, the Director General of the World Health Organisation declared the novel coronavirus COVID-19 (“Coronavirus”) outbreak around the world a “public health emergency of international concern”.

We recognise in this difficult time, many of us may be also concerned with our ongoing contractual obligations and how the unforeseeable event of Coronavirus may affect the contracts that we are parties to. In this article, we shall provide insights on what is a force majeure clause and how the Coronavirus may affect contractual obligations.

What is Force Majeure?

Force majeure is a legal concept designed to provide remedies for parties affected by an unavoidable or unforeseeable event. Common examples of force majeure events include earthquake, explosion, natural disaster, terrorism and war.

Eventhough force majeure is a civil law concept, force majeure clauses are used in Australian contracts because of its similarity to the doctrine of frustration in common law. The doctrine of frustration applies when the performance of a contract must be radically different from what was intended by the parties.

Does Force Majeure apply to the Coronavirus outbreak?

The Coronavirus is a recent new global crisis, therefore it is not likely that contracts will include express clauses referring to the event of a Coronavirus outbreak. Whilst in China, the government has issued thousands of Force Majeure Certificates for businesses relying on force majeure clauses in contracts, it is still uncertain whether the Australian government will provide similar provisions. The questions that should be addressed are:

  1. Is Coronavirus considered a force majeure? This will largely be determined by a particular clause and that specific drafting of the clause.
  2. What notice is required to be given to enact the force majeure? It is often essential that correct notice be given pursuant to the specific clause.
  3. What relief can be obtained? Often if the appropriate clause applies, the relief may be temporary for the period of time that the event occurs.
  4. Is there an obligation on either or both parties to mitigate their loss?

If there is no force majeure can the common law help?

Without new government provisions, the test required in common law is to analyse the risks the parties agreed to take and the precise wording in the contract. In addition, the party relying on the clause will need to prove to the court that the event is beyond the reasonable control of the party seeking relief.

In Australia, frustration may be applicable in the following circumstances:

  1. A change in law rendering performance illegal. In the current situation, if the law requires the quarantine of a personal service provider, the service provider will be frustrated by such unexpected event as not quarantining and performing personal services to other individuals will be considered illegal.
  2. Physical destruction of the subject matter of the contract. In the situation of Coronavirus, an example would be if goods are contaminated and required to be destroyed. In such event, if the goods are being traded, the destruction of the goods may render the contract frustrated due to unexpected events.
  3. Restraint by injunction. In the landmark case of Codelfa Construction Pty Ltd v State Rail Authority of NSW, construction work noise affected the local residents and work shifts needed to be reduced as a result of injunctions. The majority of the court considered that the contract had been frustrated. In the current situation, if the government restrains trade by injunction due to infected personnels, this may give cause to frustration in contract.

It is important to note that irrespective of the magnitude of the Coronavirus outbreak, parties to a contract are still under an obligation to provide notice if the party seeks to rely on a force majeure clause or the doctrine of frustration under common law.

Force Majeure in Property Contracts

In Queensland, there is no automatic right to pull out of a contract even in the event that a property is damaged. In addition, most Queensland property contracts indicate that “time is of the essence”, this means time limits must be strictly observed in all circumstances and there is no automatic right for a party to extend dates because of delays.

Property Purchase and Sale Contracts

In the standard Real Estate Institute of Queensland Contract for Houses and Residential Land (“the Contract”), clause 6.2 provides a Suspension of Time clause for events when a party is unable to perform a Settlement Obligation solely as a consequence of a Delay Event. Such Event is defined in clause 6.2(8)(b) to include:

  1.  A tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
  2. Riot, civil commotion, war, invasion or a terrorist act;
  3. An imminent threat of an event in paragraphs (i) or (ii); or
  4. Compliance with any lawful direction or order by a Government Agency.

If you are currently negotiating a real estate contract, it is important for a special clause to be inserted in regards to Coronavirus/a pandemic.

If the contract has already been signed, it is important to note that you are only entitled to an extension if the other party agrees to an extension. In the current circumstance, if you become aware that there may be a potential delay due to the outbreak, it is important to communicate with the other party as soon as possible and negotiate a new settlement date.

Conclusion

Given that there is no clarity yet as to when the Coronavirus outbreak will be contained, it is important for parties under contractual obligations to prepare for circumstances where the relevant contractual obligations may be affected. Consult our Gold Coast lawyers for advice appropriate to your situation.

If you are in current contract negotiations, you should certainly consider including a force majeure clause that will protect you from the consequences of being unable to perform contractual obligations due to Coronavirus and other similar biological disasters.

Short Term Letting

Short Term Letting – Body Corporate

By | Articles, Body Corporate

The advent of short-term stay platforms such as Airbnb and Stayz have been a boon both for those looking for extra accommodation options in popular locations and those looking to make some extra income from letting out a spare room or granny flat in their residence, or their entire property.

But this evolution of the internet’s ‘gig’ economy has also brought with it some pertinent legal challenges. For example, what are the implications of short-term letting when you own a property within a body corporate?

Bodies corporate are perhaps naturally predisposed to resisting the trend to short-term letting, worried about the overall effect of itinerant people passing through the property, a concern perhaps enhanced by some media horror stories of properties short-term let by people who use them for raucous, all-night parties.

A couple of court decisions in recent years have helped clarify the issue of whether a body corporate can, through its by-laws, ban owners from letting part of their property through a platform such as Airbnb, which we’ll look briefly at in this article.

The case of Hilton Park CTS 27490 v Robertson

In this 2017 Queensland Civil and Administrative Tribunal (QCAT) case, the position of owners within bodies corporate was clarified when the Tribunal ruled that unit owners were legally entitled to offer their units for short-term rentals. QCAT stated that any attempt made by the body corporate to restrict owners from using their property in this way through a by-law or by other means was invalid and was not enforceable.

The decision relied on s 180(3) of Queensland’s Body Corporate and Community Management Act 1997 (“BCCMA Act”), which essentially states that by-laws cannot restrict the type of residential use of the lot if the lot may lawfully be used for residential purposes. In addition to the above, as the term ‘residential’ has not been clarified or defined, it is to be broadly interpreted and so permits any residential use of the lot.

The decision in this case remains the law for properties which fall under the BCCMA Act.

More recently in 2019, the general view of banning short term letting was challenged by the Fairway Island GTP v Redman and Murray decision, where the body corporate successfully banned short-term letting through the use of a by-law.

The case of Fairway Island GTP v Redman and Murray

In this decision handed down in the Queensland Magistrates Court, a Hope Island resort on the Gold Coast successfully relied on one of its by-laws to ban short-term letting through platforms such as Airbnb by its lot owners.

The key difference with the decision in the Hilton Park case of 2017 is that the resort in question in this case remained governed by earlier legislation, the Building Units and Group Titles Act 1980 (Qld) (“BUGTA”), rather than the BCCMA.

Significantly, BUGTA does not place the same statutory restrictions on by-laws as the BCCMA, the latter ensuring that a by-law cannot be oppressive or unreasonable having regard to the interests of all owners or occupiers of lots and the use of the common property.

The implications

The vast majority of Queensland’s 50,000-plus strata schemes are governed by the BCCMA and so the decision in Hilton Park remains the more applicable law. But the decision in Fairway Park has emboldened managers of strata schemes to urge the state government to reconsider the ability of bodies corporate to restrict short-term letting by unit owners.

The Strata Community Association (Qld), for example, which represents more than 1.2 million Queenslanders who live in apartments, units, townhouses and other strata title property, welcomed the Fairway Park decision for restoring the power of the body corporate to make a by-law that “protects community interests”.

Additionally, some legal commentary has suggested that future applications by bodies corporate regarding short-term letting under the BCCMA may rely on the Magistrate’s interpretation of the term ‘residential’ under BUGTA in the Fairway Park decision.

For the majority of owners in Queensland, though, bodies corporate cannot prohibit the letting of your property through platforms such as Airbnb and Stayz through by-laws.

If you are unsure of the status of your property under the current law, and are interested in either undertaking, or preventing, short-term letting within the property, contact our Gold Coast lawyers today. We are experienced, expert legal professionals on all matters relating to body corporate and strata management. Call our body corporate team today on (07) 5555 0000.

Defamation in Strata

Defamation in Strata. What You Need to Know

By | Articles, Body Corporate

Anyone who has had dealings with strata management and bodies corporate will know that in worst-case scenarios, they can become minefields of petty politicking and administrative overkill. Often, relations between managers and owners/tenants can become so acrimonious as to lead to legal action between the parties, as a number of high-profile court cases demonstrate.

The focus of this article is on the legal action of defamation, where either tenants/owners or strata managers have sued for statements they believe damage their personal or professional reputation.

It’s helpful to begin with a quick look at what constitutes defamation and what the law does to protect those who believe they’ve been defamed. Defamation is designed to protect people from false or damaging statements being made about them that may cause harm to their personal or professional reputation. A successful action for defamation can provide compensation for financial and other losses resulting from a defamatory publication of any kind.

What constitutes defamatory material? Emails, articles, blogs, novels, poems, photos, songs, cartoons, drawings, paintings, online reviews, social media posts and more can be defamatory. Material that is defamatory can also be broadcast or spoken, i.e. on a TV or radio show, or in a public presentation.

Case example 1

In Walden v Danieletto, a Queensland case decided in 2018, Mr Walden, a lot owner, owed overdue levies to the body corporate. He paid this online the day before a general meeting of the body corporate but because the amount he paid did not exactly match the amount owing, the system operated by the body corporate manager – Mr Danieletto – did not pick up the payment.

As a result, the body corporate manager declared at the general meeting that Mr Walden was “unfinancial”, a finding also entered into the minutes.

Mr Walden took exception to this declaration on four grounds, saying it imputed that he was a delinquent payer; could not afford to pay his body corporate levies; had financial difficulties; and was insolvent.

Mr Walden commenced defamation proceedings against Mr Danieletto claiming his reputation had been damaged to the amount of $100,000. The action failed in the Magistrates Court, the judge finding that Mr Walden had not been defamed and that, even if he had been, the matter was trivial and the defence of qualified privilege (that is, Mr Danieletto’s acts were committed in the performance of a legal or moral duty, were properly exercised and free from malice) applied. The magistrate found there had not been malice on the part of the body corporate manager, he’d just been doing his job.

“Do people hate or ridicule one another about overdue bills?” posited the magistrate in explaining why Mr Walden had not been defamed. “Do these cause people’s estimations of one another to be lowered where neither the amount, the period they are late, or the reason are known? Clearly not. Ordinary people accept that other ordinary people are neither infallible or perfect.”

Mr Walden appealed the decision and again lost, with the District Court judge upholding the original decision and again finding that:

  • Reputational harm could not have occurred because the matter was so trivial.
  • The actions of the body corporate manager were reasonable in giving members of the body corporate information about which they had an interest in receiving.
  • The owner had commenced numerous proceedings against the body corporate and if other owners were poorly disposed towards him, it was more likely to be because of this than anything the body corporate manager did.

Case example 2

In the 2019 NSW case of Murray v Raynor, apartment block tenant Ms Murray won an appeal against a NSW District Court decision finding that she had defamed My Raynor, chair of the block’s strata committee, in an email she sent to fellow tenants in response to Mr Raynor’s emails to her insisting that she lock her mailbox.

Mr Raynor was awarded $120,000 in defamation damages, including an amount for aggravated damages, after the District Court judge found Ms Murray had no defence to Mr Raynor’s claim that her email implied he was a “small-minded busybody”.

However, this matter went on appeal to the NSW Court of Appeal where the original decision was set aside on the basis that a defence of qualified privilege was available to Ms Murray. The court also found the award of aggravated damages to Mr Raynor was “manifestly excessive” for an email that was addressed to 16 other people. The decision has also cast doubt on the statutory cap on damages for non-economic loss in defamation cases where aggravated damages are awarded.

In conclusion

As is clear from the cases cited here, the bar is quite high in order to prove you have suffered reputational damage in the context of strata matters.

Understanding the most common defences to defamation can help you understand whether commencing an action against someone you believe has published or said something defamatory about you is a good place to start. Legal professionals experienced in this area of the law can help explain these defences, which may include that:

  • the publication was an honest opinion, rather than statement of fact;
  • the publication was of public concern or substantially true;
  • the publication was obligatory for a legal, social or moral reason;
  • you are unlikely to have sustained any real harm to your reputation;
  • the person you claim defamed you did not know or ought not to have known that the published material was defamatory;
  • the publication was made in a privileged context (parliament, a court, a tribunal, etc).

OMB Solicitors has specific experience in acting for both clients who have been defamed and also defending clients that have been accused of defamation. We have a good understanding of the alternative dispute resolution requirements contained in Queensland’s Defamation Act, as well as how to progress a matter through the court system if the matter cannot be resolved through mediation.

If you consider that you have been defamed or you find yourself in a situation where someone is alleging that you have defamed them, then OMB Solicitors can help. Contact us today on (07) 5555 0000.

First Family Law Appointment

Your First Family Law Appointment

By | Articles, Family Law

One of the most challenging — and rewarding — aspects of practicing family law is helping clients through some of the most challenging times of their lives. More often than not, they are going through separation and/or divorce, and need help with financial or parenting matters. In some cases, they are seeking legal advice about both. Accordingly, we do everything necessary to ensure that our clients understand their legal options. We also ensure that they have the information they need to make informed decisions.

This process begins at your first appointment. Since being prepared for this meeting will help alleviate your stress and anxiety, we’ve decided to share some insight into what usually happens at this time. Keep reading to learn more.

What to expect

When you schedule your first meeting, we’ll ask you to provide some basic information about yourself and your case. We may also ask you to provide additional details on an intake form when you come in. However, the initial consultation is your first chance to share your story directly with one of our family lawyers. Specifically, you’ll have an opportunity to tell him or her what prompted you to seek legal advice, and how you’d like the matter to be resolved.

This is also an important chance for you to share any specific questions or concerns with the lawyer. To make the most of it, consider making a list of any such matters before the meeting. That way you can simply bring it with you, so you won’t feel as stressed about remembering everything during the actual meeting.

In addition to answering your questions, the lawyer will provide some basic information about relevant legal processes, your legal rights and so on. He or she will also ask some follow-up questions about your case. With all of the information you have provided in hand, he or she will assess your situation and advise you accordingly.

Afterwards, you’ll be able to ask any questions about the advice and information you’ve received.

Helpful paperwork

Knowing what you should bring to your first meeting with a family lawyer can also help lessen any stress or anxiety you experience before meeting a family lawyer. The type of paperwork we’ll need depends on your specific circumstances.

For example, if you are seeking legal advice about financial issues related to divorce or separation, gather some basic information about any individual and joint assets. These may include bank statements, along with documents reflecting ownership of your home, vehicles and so forth. Paperwork related to your superannuation, income and any other financial resources.

On the other hand, if you are seeking legal advice regarding parenting issues associated with separation or divorce, we’ll need different material. Bring any written records you’ve kept about relevant issues or concerns such as custody, child support, and visitation. Copies of any journal entries you’ve made or are making about how the breakdown of your marriage has affected your children will also be helpful. This will ensure that your lawyer is fully informed regarding your circumstances and concerns. It also saves a lot of legwork if we need them for the preparation of future court documents.

In either case, you shouldn’t stress over bringing everything to the initial consultation. There will be other opportunities to provide additional documents if necessary, and we will let you know what we need.

Bringing someone with you for moral support

Another question prospective clients often have prior to their first meeting with a family lawyer is whether they can bring someone along for moral support. The answer is, of course you can.

We fully understand that you are going through a stressful time, and you may feel overwhelmed. Accordingly, you are welcome to bring a friend, relative, colleague or anyone else that can help you feel more at ease. Having said that, it is important that anyone you do bring understands that anything we discuss at the first meeting is strictly confidential.

You should also be aware that you don’t have to bring anyone with you if you don’t want to. It is entirely up to you.

Cost

Perhaps the single most important concern people have about meeting with a family lawyer is how much it will cost.

For your convenience, the family law team at OMB Solicitors offers an initial half hour free consultation. This is when we’ll go over most of the matters detailed above.  At this stage, we’ll also give you a comprehensive breakdown of the costs involved.

As a follow-up, we also offer a full untimed family law consultation for $400 plus GST, where we will try to get any additional information needed to provide you with an initial letter of advice, and a detailed letter to the other party.

You can schedule an initial consultation by clicking the link on our family law page. You can also do so by sending email to: [email protected].

Enduring Power of Attorney

Enduring Power of Attorney: The Difference Between Appointing an Attorney ‘Severally’ Versus ‘Jointly’ in Queensland

By | Articles, Wills and Estates

When people come to plan out their affairs for the later stages of their life, they are generally encouraged to nominate an enduring power of attorney.

This is a legal document used to appoint a person to make important decisions about their property and/or financial affairs should they lose capacity to do so on their own. By doing so, you can have some control over how your financial affairs are conducted once you lose personal capacity, rather than a public guardian or the courts where no enduring power of attorney exists.

The attorney you appoint can manage your bank accounts, pay bills and other debts, and sell or buy property and assets on your behalf.

Who should you appoint as an attorney?

An attorney should be a responsible person you trust, and preferably someone with an understanding of, and experience in, managing sometimes complex financial matters. They may be a family member, a close family friend, or a trusted professional such as an accountant, financial adviser or lawyer.

Importantly, you can also appoint more than one person with enduring power of attorney. When doing so, these attorneys can act:

  • Jointly and severally: the attorneys can make decisions together or separately;
  • severally: they can make decisions independently of the other attorneys;
  • jointly: the attorneys must agree on all decisions.

It’s important to seek the benefit of legal expertise when appointing more than one attorney. The people chosen need to be able to cooperate with each other and have the interests of the principal – the person who appointed them – uppermost in their mind when fulfilling the role.

Why appoint more than one attorney?

There are numerous reasons a person may appoint more than one person with power of attorney. Perhaps one or more of the people you appoint travels a lot, or perhaps you just want a ‘checks and balances’ approach that joint or several attorneys can bring to their roles in managing your affairs.

Joint attorneys, it must be remembered, need to both agree in order to act, including doing such things as attending a bank together if signatures are needed or to withdraw funds from the principal’s account. This setup can act as a safeguard that both will act without self-interest when it comes to managing your affairs. Conversely, jointly appointed attorneys can sometimes lead to conflict and inconvenience, particularly where, for example, two siblings who do not get along hold the roles and cannot agree on the details of managing your financial affairs, or are not always available to make joint decisions.

Attorneys appointed jointly and severally can make decisions independent of each other, which can lead to mistrust and conflict if there is disagreement on how each of them has acted. Suspicion by one attorney of financial abuse by another could – in a worst case scenario – lead to litigation in order to stop one of the parties acting any further.

There is also the issue of appointing a person who is older or of similar age to you, who may either die or lose capacity before you do. In the case where one of your attorneys dies or cannot continue in their role, what happens next depends on how the attorneys were appointed. Where attorneys were appointed jointly and one of them is either unwilling or unable to carry out the role, the enduring power of attorney will automatically cease. One of the advantages of appointing attorneys jointly and severally, or severally, is that the power continues despite one of them being unable to act. The other attorneys continue to make decisions under the power on your behalf.

When does an enduring power of attorney end?

People of any age can make an enduring power of attorney so long as they have the mental capacity to understand the nature and effect of the power when they sign the document.

An enduring power of attorney ends:

  • By revoking it (so long as you have mental capacity at that time);
  • at the time of your death;
  • when only one person was appointed as your attorney and dies or is unable to continue;
  • when you have appointed two or more attorneys to act jointly and one of them dies or can no longer act as your attorney.

Enduring power of attorney may also end due to bankruptcy and other legal reasons. In these cases legal advice should be sought.

If your enduring power of attorney has ended and you no longer have the mental capacity to make a new one, the Guardianship Tribunal may be able to make orders so the enduring power of attorney can continue. For example, if your enduring power of attorney has ended because a jointly appointed attorney has died, the Tribunal has the power to reinstate the enduring power of attorney so that it can continue in your best interests.

The importance of legal advice

Appointing an enduring power of attorney is an important decision to be made as part of the estate planning process. As we’ve outlined here, there are pros and cons to empowering more than one person to be an attorney who can manage your financial affairs.

Consulting experienced estate planning lawyers with years of experience in this area of the law is a wise course of action. At OMB Solicitors we can expertly advise you on the benefits and the potential pitfalls when it comes to enduring power of attorney, particularly the issue of appointing more than one attorney. Contact our Gold Coast lawyers on (07) 5555 0000.

Sun Rise Images With Girl

What Effect Does Domestic Violence Have on a Property Settlement

By | Articles, Family Law

As police, advocates, social workers, and mental health professionals all can attest, domestic violence takes a tremendous toll on victims. In addition to lasting physical and emotional scars, it often creates financial hardship as well. In some cases, this is because the physical injuries inflicted by perpetrators render the victim incapable of working or unwilling to do so. In some cases, the victims can and do work, but the abuse they’ve suffered affects their job performance. This in turn can lead to disciplinary action or termination. Finally, domestic violence can also make it harder for the victim to find gainful employment.

Even so, the ways in which domestic violence affects property settlements in divorce can vary greatly depending on the specific circumstances of each case. In this article, we’ll take a closer look at this complicated, yet important issue.

A benchmark case

The Full Court of the Family Court set legal precedence for the consideration of domestic violence as a factor in property settlement claims with its ruling in In the Mar­riage of Ken­non. In this particular matter, the divorcing couple had been married for four years and did not have any children.

The court ruled in pertinent part: “… where there is a course of vio­lent conduct by one par­ty towards the oth­er dur­ing the mar­riage which … [has] had a significant adverse impact upon that par­ty’s con­tri­bu­tion to the marriage, or, … [has] made his or her con­tri­bu­tions significantly more ardu­ous than they ought to have been, … [this can be tak­en] into account in assess­ing the par­ties’ respec­tive con­tri­bu­tions with­in s 79.

The court added that there must be evidence that the vio­lence “occurred during the course of the mar­riage and had a dis­cernible impacton the victim’s contributions in order to be “relevant.”

When all was said and done, the court did amend the property settlement in the wife’s favour because of the extent to which domestic violence affected her contributions. However, the specific percentages associated with the adjustments are unknown.

Because the decision set a legal precedence, adjustments to property settlements based on similar findings are now called “Kennon” adjustments.

Quantifying the effects of domestic violence

In ensuing cases, the court has tried to calculate values for adjustments based on the impact that the domestic violence had on the victim’s contributions. In a case styled as Kozovs­ka & Kozovs­ki, the court adjusted the assets meant for the wife by 10 percent. They did so  based on the domestic violence she endured at her husband’s hands,  and the resulting impact on her con­tri­bu­tions. In another case, Dixon & Dixon, the assets allocated to the wife were adjusted by 20 percent. This adjustment was also attributed to the impact the domestic violence she endured had on her contributions.

Another case in point

For clarification, let’s consider another case.

In this particular matter, the husband and wife were both in their 40s and had been together for nine years. The wife had two kids, both of whom were teenagers, from a prior relationship. The couple’s asset pool consisted of a house valued at $470,000. Both parties claimed that they made initial contributions, although the husband disputed his wife’s assertion on this point. The parties also disagreed on the use and the amount of compensation received after the husband was injured in a serious motor cycle accident.

However, the real issue at the crux of the matter was the wife’s assertion that she and her children were victims of ongoing violence throughout the relationship. The husband denied any physical violence occurred. After the couple separated, the husband breached the Intervention Order his wife sought because of the domestic violence. He ultimately went to prison for more than three years for violating the Intervention Order and other offences. Soon after he got out of prison, he again breached the Intervention Order by calling and threatening his wife.

Based on the evidence presented, the court awarded a 7.5 percent adjustment to the wife. This was because the domestic violence perpetrated by her husband made it harder for her to continue contributing to the household. The court also made a 10 percent adjustment in the wife’s favour because she was solely responsible for caring for the kids, and the effects of the abuse limited her ability to work.

There’s always an exception…

Of course, there are always exceptions to the “rules.” Take the matter of Bel­more & Bel­more , for example. In this particular Family Court case, the husband and wife had been married for more than 30 years and had several children. Of significance here is that the husband was convicted of a serious assault on his wife and punished accordingly, and there was evidence of additional domestic violence. Even so, the court did not feel it could justify an adjustment in favour of the wife based on Ken­non.

Here’s why. The most seri­ous assault, which result­ed in the hus­band’s incar­cer­a­tion, occurred after he and his wife separated. Only violence that occurs while the couple is together can be used as the basis for a claim for a property settlement adjustment based on Ken­non.

Clearly, this is an important but complicated issue. If you have been the victim of domestic violence, you are getting divorced and you are concerned about how the violence could affect your property settlement, getting the proper legal advice is essential. Contact our Gold Coast lawyers by phone, email  or through our website, today.

ARE YOU LEGALLY PROTECTED FROM BUSHFIRES?

Are You Legally Protected from Bushfires?

By | Articles, Property Law

This month Bushfires are raging across Queensland and destroying lives, homes and valuable properties along the way. The current situation across both Queensland and New South West is dire, with 50 bushfires burning in Queensland and 60 burning in NSW. At least three people have lost their lives to the fires and many others missing and injured. There are over 150 homes destroyed by blazes. Experts have warned that “this disaster is far from over and the worst may be yet to come with summer ahead.” With Christmas holidays just ahead, many Aussies may also travel for holidays, leaving their properties vulnerable to potential risks.

In this article, OMB Solicitors would like to discuss some of the important legal preparation Queenslanders should do.

Insurance

  • Make sure your insurance is up to date, and has the right cover for fire and flood.
  • If you are letting your property, you’ll need to let your insurance company know you’re no longer living there and arrange landlord’s insurance. Your tenant will probably want to get contents insurance and many companies require door and window locks to be of a certain standard.
  • If you are letting your property for short-term rentals (e.g. Airbnb, Stayz, Wotif etc.), you must check if your policy is compatible for this purpose. Certain policies may also distinguish between professionally managed properties or self-managed properties.
  • Consider obtaining Insurance advice about securing life, TPD and trauma insurances.
  • If your property gets damaged, be prepared to lodge an insurance claim soon after the event.

Emergency contacts

  • Keep a list of emergency contacts you may need for dealing with recovery from a disaster.

Important Documents

  • Prepare or update your Will and Enduring Power of Attorney. We recommend seeking proper legal advice from us when it comes to setting up a Will and/or Enduring Power of Attorney.
  • Prepare an important documents kit, including a description of your home and a list of your valuable belongings. Compiling passwords and keeping this with your estate planning documents is also a handy hint.

In the event of a disaster you can contact Gold Coast Lawyers at OMB Solicitors at 07 5555 0000 for legal advice. We are here to help.

Thinking a man

10 Ways to Improve Your Debt Recovery Process

By | Articles, Ligitation
One of the most frustrating aspects of running a business is not being paid on time for the goods and services you provide. Customers who don’t pay on time eventually cost your business time and money in chasing them to settle their bill, not to mention the impact on your cashflow.

While businesses in this situation certainly have legal rights that allow them to take action to collect from debtors, there are also many pre-emptive things a business can do to both reduce the prospect of indebted customers, and improve your internal processes for recovering debt. We’ve listed 10 essential points any business should consider when approaching the area of debt recovery.

  1. Know who your customers are

Many of the problems with customers who struggle to pay stems from a lack of initial due diligence on the part of the business that extends them credit. By first checking publicly available company information and otherwise gathering as much information as possible about the business you’re lending to, you can effectively ‘screen’ those who are likely to be able to repay from those who are not… and hopefully reduce repayment problems.

  1. Offer customers incentives for early or instant payment

A decision to offer a debtor a discount or some other incentive to pay you back early or on time obviously needs to be weighed against the costs of chasing them for payment. Many businesses will prefer to be paid back at a slight discount, maintaining cashflow, rather than spend time and effort chasing debts. If discounting payment is not an idea you wish to entertain, other incentives such as offering certain customers exclusive products or access can also encourage on-time payment

  1. Have clear, transparent and accessible contracts and terms

While it seems obvious, many businesses use contracts that are either too vague on key details, or alternatively too heavy with legalese for those to whom they extend credit to understand. The guidance of a legal representative with experience in debt recovery is often essential in helping a business draft a succinct, clear and transparent document which sets out payment terms, methods of payment, time limits, manageable credit limits and penalties for non-payment by those they extend credit to. This can avoid any ‘they said-he said’ disputes later, and prove crucial if legal action for debt recovery is later required.

  1. Provide different options for repayment

By diversifying the methods by which customers can pay, you can encourage them to honour their obligations rather than ignore or delay them. A payment plan or instalments might be better than not getting payment at all, but obviously this decision will depend on the size of your business and your cashflow position.

  1. Make someone in the business a ‘debt recovery officer’

Many businesses make the mistake of having more than one person responsible for chasing up late or non-paying customers. This can lead to confusion and duplication, particularly in larger businesses with many clients. Ideally there is one person, or a dedicated team leader, responsible for debt collection, streamlining the interaction of the business with debtors. In smaller businesses, if this seems too big a job for one person, external experts can be employed. Many law firms now offer specialist debt recovery services.

  1. Ensure there is a systematic invoicing process where you follow-up on late payments

Following on from point 5, a debt recovery officer should be managing a systemised process of invoicing and follow up of late payments. Whichever way this is done, the process should be accessible to all those involved in transactions between the business and clients. The process should also be clear and transparent for the customer, so they are aware of what the follow-up contact is in relation to.

  1. Communicate verbally with the debtor

This point follows on from 5 and 6 but again, also applies to anyone in the business who deals with customers. In these days of email and online portals, it’s easier than ever for customers who owe money to ignore or put off requests for payment until it suits them to pay. Sometimes a good, old-fashioned chat on the phone between, say, the debt recovery officer and the client, can lead to quicker payment. There’s still no substitute for dealing with a real human.

  1. Insist on a written payback commitment

While there may be a contract in place, and there have been polite requests for payment and even a friendly chat on the phone, you should also consider a written ‘payback’ commitment presented to the debtor when the debt becomes payable. Here the debtor acknowledges the debt, explains why it hasn’t been paid on time and promises to pay it back by a specific date in a return email or letter. This document, like a contract, will also assist if later legal action is required for non-payment.

  1. Keep a record of all contact details and communication with the debtor

A comprehensive and accurate record of all the ways the business has contacted the debtor should be kept. These days, various software tools make this easy to do. A record of the contact made with the debtor will be vital if legal action needs to be commenced against the debtor.

  1. Stop the account and take legal action

Obviously there comes a point where a business has tried everything to get a customer to pay, without success. At this stage the logical course of action for the business is to cut off service and/or credit to the client and consult a lawyer about the next steps to recover the debt/s.

OMB Solicitors has many years of experience in advising and guiding businesses on debt recovery actions. If any of the issues raised in this article provide you with questions or concerns, contact Gold Coast Lawyers today on (07) 5555 0000 or [email protected]

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