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Property Law Act 2023

By Articles, Property Law

PROPERTY LAW ACT 2023 Queensland

The Property Law Act 2023 (“the Act”) passed the Queensland Parliament on 25 October 2023. The Act will replace the Property Law Act 1974 (Qld) and aims to simplify, streamline and modernise Queensland’s property laws, better facilitate e-conveyancing and electronic transactions, and remove outdated provisions.

The Act has not yet commenced but will take effect on a date to be fixed by proclamation, which may be several months into the future.

The Act will have implications for a range of property matters, including conveyancing and commercial leasing. It is expected that contracts used for the sale and purchase of land will also be updated as a result. The Real Estate Institute of Queensland has indicated it will be updating its contract pro formas before the Act commences and it will be important for all users of these contracts to ensure they are using the correct version once the Act commences.

Some key features of the Act include:

  • A new seller disclosure regime;
  • Updates to reflect the use of electronic conveyancing;
  • New delay events provisions;
  • Changes to the way easements bind successors in title; and
  • New rights for buyers where there is destruction of or damage to a dwelling house.

We consider each of these aspects in more detail below.

Seller disclosure regime

A seller disclosure regime has been introduced for the sale of both residential and commercial property in Queensland. Before a buyer signs a contract of sale, the seller will be required to provide a disclosure statement, together with certain other documents (“prescribed certificates”) in relation to the property they are selling. There are certain exceptions, such as where the seller and buyer are related and the buyer gives a waiver notice. The buyer may be entitled to terminate at any time before settlement if the disclosure documents are not provided (or not provided correctly), or there is a mistake or omission that relates to a material matter, which the buyer was not aware of and had they been aware, they would not have entered into the contract.

Modern conveyancing processes

Provisions relating to the settlement of contracts have been updated to reflect modern conveyancing processes, including electronic conveyancing.

Delay events

Provisions dealing with a delay of settlement due to an adverse event (such as weather, public health emergency, act of terrorism, war or similar event) now apply. These provisions largely reflect the current ‘delay event’ provisions in the REIQ contracts. New provisions also relate to inoperative computer systems for electronic conveyances on the date of settlement.


A covenant in a registered easement will bind both the grantor and grantee of the easement, and each of their successors in title, unless the covenant is expressed to be personal to the grantor or grantee.

Destruction of or damage to dwelling house

Buyers will now have a right to rescind a contract by notice if, after entering that contract, the residential dwelling is damaged or destroyed and is unfit for occupation. This right can be exercised until the earlier of settlement, the buyer taking possession, or the seller restoring the dwelling.

OMB Solicitors has a team of experienced property lawyers Gold Coast that can assist you to navigate these legislative changes. If we can be of assistance, please give us a call on (07) 5555 0000 or email us at

Its just a simple agreement right?

Its just a simple agreement right?

By Articles, Family Law

It Just A Simple Agreement: Financial Agreement

“I just want a Financial Agreement, it’s just a simple one to say that we will each keep our own assets”.

If I (and most family lawyers gold coast I am sure) had $1 for every time they had a client say this to them, we all would be retired!

To put it simply, there are no “simple” Financial Agreements and particularly no simple Financial Agreements that are being entered into at the commencement of a relationship.

To illustrate just how and why these agreements need to be carefully considered, properly drafted and advised upon, below are just some of the many questions (and questions within questions) and queries that I have when discussing Financial Agreements with a client:

  1. Will your assets be kept strictly separate? Will you keep your financial contributions towards these assets strictly separate? Do you now or do you intend to acquire any assets together (this can be any form of asset, from a property to a car, caravan, shares or investments)? If so, what will be the financial arrangements for the acquisition and ownership of this asset?
  2. If there are co-owned assets, how will these be divided if you separate? How gets to keep them? If there is an argument about who gets to keep them, how will this argument be resolved?
  3. Will the agreement cover all assets in their entirety? Or is the intention of the agreement just to “quarantine” certain assets from a claim upon separation? If only certain assets are dealt with then the specific assets not covered will need to be dealt with in accordance with usual family law principles and as such you may end up in negotiations regarding these matters. If you want to specifically avoid all forms of family law application, then the agreement must cover ALL assets.
  4. If there is to be a payment made at payment is to be made from one partner to the other upon separation then how is that calculated? Is it by reference to years of the relationship or number of children? Is there a sliding scale to a maximum amount? Is it based on dollars or percentages? Does the dollar amount increase over time? Is that increase based on CPI or another figure? When is the payment due, is it in one lump sum or over time? What are the consequences of non-payment?
  5. Do you plan to have children? If so, what do you intend to do with the terms of the agreement at that time? Does it terminate or do you put in place different payment arrangements? How will you re-consider the terms of the agreement at that time to consider what is fair and reasonable?
  6. If there is a significant difference between one partner’s income and financial position, will there be provision for support for the lesser financial spouse if the parties separate? If so, how is that to be calculated? How long is it to go on for? Will it decrease over time?
  7. What about your pets? How will they be considered in the agreement? Who will have possession of them at separation? Will you have shared possession? How will their food and veterinary expenses be dealt with?
  8. Do you wish to trigger a review of the agreement? If so when? Is it by reference to years, or events (such as children being born or houses being purchased)?
  9. Do you anticipate receiving an inheritance in the near future? Is this to be quarantined? What will you do if the funds are intermingled with joint assets?

So if you are considering a Financial Agreement at the commencement of your relationship, please consider it as a detailed and complex document that needs careful consideration and most importantly, expert legal drafting.

Taking the time to get proper legal advice about these types of agreement is of utmost importance. Utilising a specialist Family Lawyer is the best way to ensure that your agreement is drafted as you want it to be and is carefully considered and deals with as many of the “ifs, buts and maybes” that could arise.

The specialist family law team at OMB Solicitors can guide you through this process to ensure that your needs are met and your agreement drafted promptly and properly.

New Year – New Family Law Act?

New Year – New Family Law Act?

By Articles, Family Law

What does the Family Law Amendment Bill 2023 mean for Family Law in Australia?

In late January 2023 the Family Law Amendment Bill was released by the Attorney-General’s Department, sparking significant debate around the proposed amendments and what that might mean for past, present and future separated families.

On the back of the number of Family Law inquiries over recent years and most significantly that of the Australian Law Reform Commission, the Government developed a draft Family Law Amendment Bill 2023 to address some of the most important issues in relation to children and parenting matters as an urgent priority.

A summary of the proposed changes and their potential impact are as follows:

Parental Responsibility

Under the proposed reforms, the Government is repealing the presumption of ‘equal shared parental responsibility’ and the resultant requirement to consider specific time arrangements.

The current legislative regime with respect to parental responsibility is very commonly misunderstood and misinterpreted as parentings having an entitlement to equal shared time with their children. This is incorrect and has never been the case. This misunderstanding can lead to parents entering discussions assuming they MUST have particular arrangements, even if they may not consider them appropriate for their children. Furthermore, it has been found that this provision is oft used to continue domestic and family violence post separation.

Importantly, the Court will still be able to make Orders for both equal shared parental responsibility and equal time, but the decision-making process to get there will be significantly different.

Simplified list of best interests’ factors

The current list, contained within s60CC of the Family Law act has two primary factors and thirteen additional factors the Court must consider when deciding about what is in the best interests of a child.

Under the proposed amendments, the list of best interests’ factors will be reduced to six for all children and an additional specific factor for First Nations children. The intention of the changed factors is to provide a more contemporary framework for decision making by the Court.

The proposed new factors will be:

  • What arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm
  • Any views expressed by the child
  • The development, psychological and emotional needs of the child
  • The benefit of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so
  • The capacity of each proposed carer of the child to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring; and
  • Anything else that is relevant to the circumstances of the child

In relation to First Nations children, whilst there has always been a factor specifically relevant to their cultural needs, there will now be a standalone factor to ensure this consideration is prominent. An expanded definition of member of family will be applicable to ensure that the court is being more inclusive of the Aboriginal and Torres Strait Islander concepts of family and kinship, which are wider than those currently recognised in the Act.

Simplifying the Court’s enforcement process for parenting orders

The Australian Law Reform Commission identified that the current parts of the Family Law Act relating to enforcing parenting orders and consequences for breach of them are too complex. The redraft provides clearer and more straightforward provisions about the consequences of breaching a parenting order. The intention of the amendments is to assist in parties understanding the importance of complying with parenting orders.

Giving clearer understanding of when a parenting order can be changed

The current amendments will provide for clarity about when a Parenting Order can be changed. The draft bill uses the case law that exists around this issue to put into the legislation what the courts should be look at in deciding whether it would be in the child’s best interests to reconsider the parenting Orders.

Changing how children’s views are heard

The draft amendments make it a requirement, in majority of cases in matters where an ICL (independent children’s lawyer) is appointed to meet with children to explore their views. Currently it is not a requirement, but an option for an ICL to meet with children.

Enabling the discussion of proceedings with family members or friends

Currently, the provisions of s121 of the Family Law Act prohibit the publication in any way of information that identifies people involved in family law proceedings.  Strictly interpreted, this means that a party to court proceedings cannot discuss them with their parents, current partner or trusted confidante. The amendments will remove this strictness and allow private communications between parties and their family members and extending this to a professional, academic or researcher. The amendments will further confirm that public communication by social media, is not allowed.

Protections from harmful effects of litigation

Currently, the only way that a party can be stopped from the filing of many applications is by way of a “Vexatious Litigant” order, the obtaining of which can be expensive and time consuming and only after a significant number of applications have been made. The amendments open up these restrictions and allow the court to stop further applications where it would be harmful to the other party, or the children involved. The amendments reflect that a history of frequently instituting court proceedings is not the most important consideration when protecting a party or a child from the effects of litigation.

The second aspect of these protections extends to the capacity to issue subpoena to and use documents produced under subpoena addressed to medical, counselling or psychological services.

The amendments mean that these records could still be used, but only in certain circumstances. It will be the responsibility of the person seeking to rely upon the documents to establish that the information will not have a harmful impact on the person who’s record they are, if the court admits them into evidence.

Regulatory Regime for Family Report writers

The Australian Law Reform Commission recommended that there be a regulatory regime implemented for Family Report writers involved in parenting matters. This was considered necessary to ensure the quality and safety of these important experts.

The amendment Bill allows only for the power to exist and thereafter the Government will have to take steps to develop and implement the regulations and standards.

So, what does this mean for:

    1. Parents with existing Orders?
      If the proposed amendments become law, nothing will change about existing Orders, they will remain valid and enforceable.
    2. Parents with current Court proceedings
      For the most part, the new law (if amendments are passed) will only apply to proceedings started AFTER the commencement of the amendments.  Thus, if there are already court proceedings on foot, the new law will NOT apply.

When will it all start?

If the amendments are passed into law, there is likely to be a 6 month lead in time before most of the changes come into effect. This will allow family law professionals to become familiar with the changes and the impact upon their advice to clients.

There is currently a consultation process being undertaken, allowing the public and family law professionals to comment on the proposed changes. This process will end on 27 February 2023 after which time the Bill will be considered by Parliament.

Watch this space!

If you have any concerns or questions about these proposed amendments and what they may mean for you, or any Family Law related enquiries or issues, contact the Gold Coast Family Lawyers team at OMB Solicitors for a free initial consultation.

Divorce Month

Divorce Month: Why is January the “D” Month?

By Articles, Family Law

Why Is January The “D” Month?: Divorce Month

Statistically and practically, for family lawyers, January every year sees an influx of inquiries from new clients seeking advice on their relationship breakdown.

Why is that so?  Quite simply it is the holiday season and the stress and disillusionment that can follow from the Christmas period.

Some of the boiling points over the holiday period that contribute to the end of the relationship are:

Financial Pressure

There is no doubt that 2022 brought about significant financial pressure on families and when you combine the interest rate hikes of 2022 with the associated costs of Christmas such as gifts, socializing, family gatherings etc, the pressure on household budgets is immense. The pressure to keep up with those around us or not let our kids down with the presents they want, often sees families living beyond their means.

Extra spending can result in significant relationship stress and take a toll on your relationship. When your relationship is already undressed and stress the Christmas spending can take things over the edge and the already difficult relationship becomes unrepairable.

Extra time with Family

Sometimes dealing with our family is a massive headache at the best of times. Christmas sees an increase in the amount of time spent with our immediate and extended families (including the dreaded in-laws). It is often the unrelenting pressure to “get along” with family with whom we have an already strained relationship that ends up with huge arguments and relationship breakdowns.

Different parenting styles

Holiday mode takes us out of our routines and usual daily life. Often the “non-primary caregiver” is at home, and may want to just do the fun stuff, causing the parent who is trying to keep a semblance of routine and order to feel upset and angry that their routines and arrangements are not being respected.

Changes in routines and behavior impact both child and parent stress levels and can result in sleep disruption. Sleep disruption results in tiredness and tiredness results in short tempers and short tempers result in arguments. Simply having more time in the home together makes more opportunities for conflict and one little argument is often enough to become the breaking point for a relationship.

“Just one more Christmas”

When someone has in their own mind resolved to end their relationship, often they try to keep it together just for Christmas “for the sake of the kids”. This means that after Christmas and when lawyers get back to business, they soon after consulting with a lawyer about ending their relationship.

New Year New Me

The start of a new year brings about the opportunity for self-reflection and re-evaluation of your life and your goals.

If we no longer consider our relationship to be serving our needs, then January seems to be the most logical time to decide to move on.

No matter the time of year, OMB Family Law are available to guide you through your separation. A specialist team of Gold Coast Family Lawyers within OMB Solicitors, OMB Family Law have the resources to help you resolve your Family Law matter. Contact us on 5555 0000 or via our website for an information pack and to arrange a free in initial consultation.

Gold Coast Family Lawyers

Surviving the Holidays OMB Family Law’s Top 5 Tips for Christmas Holidays

By Articles, Family Law

Top 5 Tips for Christmas Holidays to Surviving the Holidays by OMB Family Law’s

The world will not end if the children do not see both parents on Christmas Day.

It may be best to allow the children to spend Christmas Day with one parent and Boxing Day with the other, allowing the children to enjoy time with both sides of the family without feeling rushed.

This is particularly important if seeing both parents would cause the children to spend a significant amount of time travelling between households. A common solution is to alternate the year in which the child spends Christmas or Christmas Eve with each parent.

Remember that Christmas is for the children first and foremost, so put your personal feelings, opinions and wants to the side and make arrangements that benefit your children primarily.

Changeover should be stress-free – do not fight in front of the children.

Exposure to conflict has lasting effects on children and can damage the relationship between a child and their parent.

If you believe that it likely that the other parent will become verbally or physically abusive to you when delivering or collecting the children then you must consider safe alternatives such as having a trusted friend or relative assist with changeover, or depending on the age of the children allowing them to enter their parent’s property and you remaining outside in the car or at the kerb side.

Do not prevent a child contacting the other parent.

It is important for children to have a meaningful relationship with both of the parents where at all possible. If your child wants to call their mother or father in their time with you, use your discretion as to whether timing is appropriate but otherwise you should encourage regular contact especially if the child expresses the wish.

Let them enjoy telling their other parent about all the wonderful things that have occurred in your household and allow their other parent to experience that joy. It is only a small imposition on your time, but will mean the world to the other parent.

Communicate and be flexible

Keeping an open communication with the other parent is best for the children as long as that communication is respectful. You should try to provide information to the other parent on anything to do with the children that is relevant to the other parent’s time with the children or regarding the children’s activities, schooling, health or wellbeing. Also if changes need to be made to arrangements from time to time, try to accommodate if possible provided enough notice is given.

Allow your child to take items of comfort or gifts between homes.

Particularly for young children, having favourite and familiar items with them can assist them to settle in the other parent’s home, such as teddy bears, blankets, or favourite toys, provided that there is a clear understanding between the parents that these items travel with the child and if something is left behind and the child becomes distressed, how that item will be delivered back.

Making children keep their toys and gifts at your house creates a circumstance whereby the children think something is wrong with their other parent’s home.  Allowing free passage of toys and belongings ensures that the children feel they have two homes rather than two “houses” – the difference is immense

Where problems arise, consider mediation as a first option.

Unhelpfully many services including legal services close over the Christmas and New Year period. Unless there are very urgent circumstances or there is a significant risk of harm (in which case you can contact the police), you should contact a mediation service in the New Year to arrange for Family Dispute Resolution so that 2024’s holiday period doesn’t suffer from the same hiccups that 2023 did.

If you anticipate issues, then please engage with your legal team now, to ensure that steps can be taken to progress matters and agreements reached, prior to the Christmas 2023 closure.

From the OMB Family Law family to yours, we hope that your 2023 holiday period is filled with joy and wonderful memories.  We remain available to assist you until 23 December 2022 and from 9 January 2023.  Urgent matters arising in the holiday period can be attended by contacting our Family Lawyers office on 55550000 and leaving a message or reaching out to us via our website.

But I don't use it – why should I have to pay

But I don’t use it – why should I have to pay?

By Articles, Body Corporate

Community Title Scheme

Within a Community Title Scheme (yes, I am referring to your “body corporate“) this is a very common statement that we hear often from people – “But I don’t use it, so why should I have to pay for it?”.  Some recent examples of this statement are:

  • I don’t use the swimming pool – why do I need to pay for it to be heated?
  • My windows are on the ground floor and I clean them myself – why do I need to pay for all the other windows being cleaned?
  • I don’t wash my car on the common property – can’t the Body Corporate charge the users of the common property water in the car washing bay?

Looking at that last example, as one of our very astute readers recently commented, not all owners will wash their vehicles and some owners will wash their cars more than others (some owners or occupiers may not even have a car to wash!).

So – with the unfortunate volunteer committee members again having to be the “fun police” – how does a Committee deal with these types of questions?

The scope of a resident’s ability to perform certain activities on common property can be uncertain, particularly if there is no clear regulation with a Body Corporate’s by-laws.

The example we will use today is the ability for residents (owners and occupiers) to wash and clean their vehicles on common property in the car washing bay (ie, in a designated bay).

When we consider the regulation of this activity, we need to consider many aspects including:

  • Nuisance of the activity – is the facility contained within (and part of) the common property?
  • A resident’s right to undertake a normal activity
  • The cost to use the common property including common property water and power
  • EPA/Council controls/impact – detergents, oils and disinfectant wastewater is not permitted to enter the public stormwater drainage.

Firstly, is there a specified area allocated to car washing by the Body Corporate and secondly, is there a by-law regulating the matter?

If there is no specified area within your building/basement, then it is quite possible that washing your car on common property will cause a hazard. Council issues may arise with the common property not having proper drainage, or a proper system with an arrestor pit to stop contaminants going into the stormwater system. Many complexes will lack proper drainage, a dedicated car washing bay and the availability of water to allow residents to properly wash their vehicles.

If this is your situation, then it may be reasonable for a Body Corporate to refuse to allow residents to wash their cars on common property. The chemicals and substances used to wash/clean the vehicle could cause damage to the common property (pipes, plumbing and drainage) and run off into the stormwater drainage.

If your body corporate does have a designated washing bay for vehicles with a proper drainage system that complies with Council regulations, then the by-laws ought to appropriately regulate the washing of vehicles on common property.

Such regulation will typically deal with:

  • hours/time of use (ie, to limit disturbance, it is not to be used during the night-time)
  • duration of use
  • To be kept clean and tidy
  • not to be used for any other purpose other then a car washing bay

Once a dedicated car washing bay is identified by the Body Corporate and an appropriate by-law is put in place, we can now deal with the question of “fairness”.

The inclusion of a car washing bay may be seen as a ‘beneficial facility’ to the scheme which can be a selling point for lots or tenancies. Whilst some owners may never feel the need or want to use the car washing bay, that is not to say a potential tenant or purchaser of that lot, would view the car washing bay in the same way.

Yes – washing a vehicle will increase water usage (and maybe electricity), but it is not for the Committee to police the use of common property water and electricity.

All body corporate lot owners must pay their share of body corporate costs, which is an intrinsic part of community living. The owner’s contribution schedule will detail what is their share of body corporate costs, which will include the shared cost of water usage for common property.

Every lot owner is aware that they will need to contribute to all common property expenses – despite the fact of whether or not they use them.

If lot owners have raised concerns about such expenses within your Body Corporate, then the first step is for the lot owners to come together to discuss this amicably.  As a Committee, you might do this by putting forward the idea of a regulated car washing bay at a committee meeting. This will allow for the other members of the Body Corporate to be informed of the discussion towards the issue raised.

Obviously, how this is approached will be dependent of the size of your body corporate and the issues that are affecting your specific scheme.

If it is not physically (or legally) possible to allow the washing of vehicles on common property to continue, then it should at least be discussed thoroughly to ensure all parties are aware of the concerns and reasons why restrictions to this activity may be implemented by the Body Corporate.

Alternatively, the discussion might result in an arrangement to ensure car washing is regulated in the by-laws, together with communicating this to all owners and occupiers.

The argument of “I don’t use it, so why do I have to pay,” should have no traction within a community living environment. Living in a “community” requires tolerance, respect and an understanding that community property will be used in different ways by residents (or some residents may choose not to use that property at all).  But that is a choice – just in the same way that a resident may choose not to use the swimming pool or tennis court or the communal laundry room.

Pet Disputes – The Full Court says "put your money where your mouth is"

Pet Disputes – The Full Court says “put your money where your mouth is”

By Articles, Family Law

Ownership Of A Pet In A Family Law Dispute

Despite pet ownership being a hallmark of Australian life, it is not very common to see the Full Court of the Federal Circuit and Family Court of Australia, in an appeal judgement, making a specific comment on the ownership of a pet in a family law dispute.

In Grunseth & Wighton [2022] FedCFamC1A 132 (26 August 2022) the de facto Wife appealed an order which provided for the division of assets after a relationship of just under three years in the proportions 47.5% to her and 52.5% to the de facto Husband, as well as requiring the transfer of ownership of a pet dog.

The primary judgement devoted some 25 paragraphs to the determination of who was to own Roxy, and it concluded that the de facto wife was to transfer ownership of the dog to the de facto husband.

In reaching that conclusion the primary judge found that the de facto Wife was the registered owner of Roxy, had paid for Roxy and was at law her legal owner. However, the Court went further to state:

  • Roxy was joint de facto property.
  • It was conceded by her that the parties had purchased Roxy to be with the de facto husband’s daughter, who had chosen her from the litter, named her and been with the de facto wife when they had collected her.
  • It was not appropriate to make an order to transfer ownership of Roxy to a third party who was not a party to the proceedings.
  • However, given that Roxy was joint property, purchased at a time when the parties were intermingling funds and given the de facto husband had an emotional interest in the ownership of Roxy, the “justice and equity” resulted in it being appropriate to transfer ownership to the de facto husband.

In considering the de facto Wife’s appeal of those orders. The court considered the competing evidence and concluded that the de facto wife:

  • Paid for Roxy’s purchase
  • Paid for her desexing, registration, food, vaccinations, medications and grooming

Referring to the “emotional interest” referred to by the primary judge, the Full Court commented (commencing at 63):

As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant, and the Court is not, in effect, to undertake a parenting case in respect of them.

If the animals have significant value, they can be valued in the usual way. Of course, as with other assets, a party may have a particular reason for wishing to keep the animal and that can simply be dealt with in the ordinary course.

It is more difficult in the case of a family pet of limited financial value. If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.

The appellant submitted that the primary judge erred in taking into account the emotional attachment of the respondent and his daughter Ms T, to Roxy and in failing to take into account the attachment of the appellant to Roxy.

These submissions are fundamentally inconsistent. However, we do not need to resolve them. For the above reasons, all the orders will be set aside, and the fate of Roxy determined as part of the re-exercise of discretion.

In ordering that Roxy should remain with the de facto Wife, the Court also considered the financial cost of Roxy and required the de facto Wife to pay the de facto Husband $800 which was Roxy’s purchase price, with the suggestion that he use this to assist his daughter to purchase another dog.

This case illustrates both the extent to which Australians are prepared to litigate for their beloved pets, but also the clear position of the court that issues such as emotional attachment and connection with an animal are irrelevant. Parties should take on board the wise words of the Full Court and if they genuinely wish to retain the pet, then they should put their money where their mouth is and make an offer to retain it, at a significant value.

What's the worst that could happen – Mistakes in Family Law proceedings

What’s the worst that could happen – Mistakes in Family Law proceedings

By Articles, Family Law

What Mistakes In Family Law Proceedings?

Being involved in a Family Law dispute is stressful, emotionally taxing, and expensive. At all times, it is important that you follow the advice of your legal representative, who is best placed to guide you strategically through the minefield of a Family Law matter.

We are often asked, what can I do to make this easier? And often the answer to this is to advise you what NOT to do. Here are some top tips on what mistakes in Family Law are.

Involving your children in your matter

It is unfortunately common for parents to involve their children in a matter unnecessarily. This is a massive mistake. It does not help your child’s emotional development and can in fact be completely disastrous for their long-term emotional health and relationship with you and their other parent.

Undoubtedly it will affect the Judge’s view of you and does not promote your parenting skills.

Involving a child in the dispute, by speaking badly about the other parent or the other parent’s family to the child or telling the child about the areas of dispute between the parents, are an indication of lack of insight into the child’s best interests. IF the Judge thinks you lack insight then they will not consider you to be the kind of parent that a child should live with or spend a lot of time with, which would be the worst-case scenario.

Not being open and transparent about your assets

The long and the short of it is, you must disclose your assets. This disclosure must be full and complete and transparent. Thinking you can hide your assets or transfer them to another person to make sure that your ex cannot claim on them, is engaging in conduct which will leave you open to your entire property settlement agreement being re-opened.

Non-disclosure of financial circumstances can shatter a party’s credibility before the court. It is not only against the law not to disclose your financial circumstances, but failure to disclose often prevents a matter from being resolved early and by agreement. Your ex’s lawyer will advise them against reaching an agreement if you have not been open about your financial circumstances.

The court will assume, if you do not disclose everything, that you have something to hide and therefore that you are dishonest and therefore not a credible witness.

Often, if the Court concludes that you are hiding assets or that you have not been transparent with your disclosure, it will make property settlement Orders which are not in your favour. When in doubt – disclose!

Social Media use and abuse

Facebook is often the biggest source of evidence for Family Lawyers. It seems to be the place that parties go to vent about every aspect of Family Law – from the Court, to their ex, to their lawyers.

Publishing any information about your family law proceedings is a contravention of section 121 of the Family Law Act 1975. This section makes it an offence to publish information which could identify someone involved in a family law matter being determined by the court.

With one click of your phone or computer, and by publishing that rant, not only are you breaching the law, but you are strategically giving your ex great evidence to use against you.

It is advisable to deactivate all social media profiles until after the family law matter is complete in order to avoid this common pitfall.

Expecting your Ex to Change

You cannot make a person change. Simple but true. You cannot force them to agree with you. You cannot force them to be what you consider “reasonable”. It is important to focus on your conduct, your case and your strategy and let them run their own race.

Not formalising your agreement

If you do not formalise your agreement, then you have a ticking time bomb in your pocket. In the absence of a formal agreement for your property settlement or parenting matter, then you run the risk of your ex popping up in years to come asking for a property settlement despite you having divided your assets years ago.

In some cases, the Court will not disturb an informal property settlement, but more often than not, they will not. This means that the assets the Court looks at will be the CURRENT assets, valued at the CURRENT value, not what they were one, two or five years ago.

Now whilst you may think that you can trust their word not to come back for more, it is far better to assume the worst and formalise your agreement. Even if you do not consider yourself to have any assets of significance NOW, you may have in the FUTURE and if you don’t tie things up, then you are leaving yourself open to having to deal with claims against your future assets.

Don’t let your emotional drivers take over

Family Law disputes are inherently emotional. But what is important is that you don’t let your emotional drivers impact upon your capacity to make commercial decisions about resolution of your property matter. Put your business hat on and be commercially sensible.

Obviously parenting disputes are vastly different, but it is important in that space, not to let your hurt over your relationship issues and unresolved feelings of hurt and disappointment, to drive a dispute about your children’s living arrangements.

Resolution and the control that it affords you is worth its weight in gold. Be realistic in your expectations and get advice from a Family Lawyer who will guide you around those expectations. Whilst the advice you receive may not be what you want to hear, it is likely to be what you need to hear.

Not getting advice when you need it

When someone says to you, oh you don’t need a lawyer, they will only make it worse, that should set off alarm bells for you.

It is akin to trying to diagnose your illness via google.

So, unless you have a law degree, then getting advice is simply ensuring that you are proceeding on an informed basis, armed with skills and information that you ordinarily do not have. A good Family Lawyer is not your warrior, they are your shield, protecting you from making decisions which are contrary to your interests and guiding you towards a sensible, safe outcome.

The specialist-led team at OMB Family Law are available to guide you through the Family Law minefield and our family lawyers help you avoid these mistakes and possibly many more. For strategic, sensible and sensitive Family Law advice, contact OMB Family Law on 5555 0000 or via our website or social media including our Partner Abbi Golightly’s Instagram @divorcinglightly

Financial Disclosure in Family Law

Financial Disclosure in Family Law

By Articles, Family Law

Yes — Bank Statements (not just balances) are required (and more!)

“Please send me your bank statements, tax returns, pay slips, superannuation statements ……” This is one of the most common, but arguably important emails you will get from your Family Lawyer during the conduct of your property settlement matter.

Undoubtedly, financial disclosure is tedious, time-consuming and often feels like an invasion of your privacy. However, it is, undoubtedly, the most important aspect of ensuring your property settlement matter has the best chance of prompt resolution in a way that is safe from challenge down the track.

Financial disclosure is where you provide all information relevant to an issue in your case. The duty you owe to disclose is owed both to the Court and to the other party. The duty begins before Court proceedings are filed and continues until such time as the matter is finalised. The requirement is to provide all documents that you have in your possession (i.e., physical documents), power or control (i.e., you have the capacity to obtain them, such as downloading bank statements or requesting your accountant provide them).

If you are involved in Court proceedings regarding property settlement and you do not provide full and frank financial disclosure, the Court may:

  • Refuse to allow you to use information or evidence to support your case
  • Suspend or dismiss the case
  • Make a costs order against the non-disclosing party

Financial disclosure is daunting. Getting expert family law advice is an important aspect of understanding what is required of you.

The Federal Circuit and Family Court of Australia Rules 2021 sets out specifically some documents that a party is required to provide PRIOR to the first Court event. These are:

  • Three most recent tax returns AND assessments;
  • Documents showing your superannuation interests
  • If you have an ABN, your four last BAS statements
  • If there is a partnership, trust, or company (other than public company) in which you have an interest – copies of the three most recent financial statements and last four BAS statements.

Other more general requirements include the obligation to disclose all documents which would establish:

  • Your earnings and income
  • Any interest in any property
  • Any interest in any financial resource (such as a Trust or deceased estate)
  • Your liabilities

These more general obligations require disclosure of bank statements, pay slips and the like. It is important that you gather these documents promptly when requested by your lawyer and ideally prior to your first consultation with your Family Lawyer.

The consequences for failing to disclose and your matter being finalised without full and frank financial disclosure can include your agreement being set aside or “voided” by the Court and allowing your former partner to make further claims for property settlement.

Alternatively, if you have not resolved your property settlement matter and the Court considers that you have intentionally withheld relevant information from the other party and the Court when it makes its decision about the division of your assets, the Court may give your ex more of your assets. This is because there is an assumption that you are hiding assets if you do not provide full and frank disclosure.

If you are involved in a property settlement matter and you are not sure of what is required of you, contact the team at Gold Coast Lawyers who will guide you through your obligations and assist in getting you a prompt and safe resolution of your property settlement. Contact Family Lawyers us on this 5555 0000, via our website or through our social media.

Family Law Proceedings for locating your Spouse-Family Lawyers Gold Coast

Locating your Spouse in Family Law Proceedings: What do you do when you don’t know what to do or where to go?

By Articles, Family Law

Recently, Olivia Wilde was in a midst of a press conference when suddenly, on stage, someone appeared with an envelope. They approached her and handed her documents. And with an instant, that person highlighted exactly the wrong way to go about serving your former partner with notice of upcoming Court proceedings. Now whether Jason Sudeikis knew that this was about to occur or not is the subject of much internet debate, however, what is clear, is that Olivia was properly served.

When you commence proceedings in Family Law matter, it is necessary to ensure that the other party is aware of the requirement to appear in Court on the listed return date. The process of ensuring they are aware is called “serving” them with the documents. In accordance with the Federal Circuit and Family Court of Australia Rules 2021, in the case of an Initiating Application, service is required to be “personal”. This means the documents must physically be handed to the named Respondent. Personal service often requires the appointment of a professional person, known as a Process Server, to attend at the Respondent’s place of work or home and seek to locate and identify the Respondent and hand them the necessary documents.

If the Respondent has a Solicitor appointed, that Solicitor can accept the documents on their client’s behalf, which is a far more efficient and cost-effective way of serving Court materials.

However, what do you do when you don’t know where your former partner lives or works? What if it has been many, many years since you have had any contact with them? The Court will not allow a matter to continue and possibly be resolved in the absence of the Respondent unless it is completely certain that all steps have been taken to locate and serve the Respondent and that they have chosen not to participate in the legal proceedings.

In these circumstances, it is necessary to make an Application for Substituted Service or for the requirement to serve the documents to be dispensed with.

Other ways that service can be properly affected on a Respondent to an Initiating Application, or an Application for Divorce can include:

  1. Service by registered post to their last known address – a search of the electoral roll is often required to establish this.
  2. Service by email.
  3. Service by Facebook messenger (very rarely ordered, but can occur); and
  4. Service by way of provision of the documents to a family member or new partner, with the expectation that they will bring the documents to the named Respondent’s attention.

The court will require good evidence that you have taken all steps necessary to locate the Respondent before allowing Substituted Service and in this regard, it is necessary to ensure that your Application for Substituted Service and supporting material is completed correctly and appropriately detailed.

If you are considering commencing proceedings for parenting orders, property settlement or divorce, and you are having concerns about locating and serving your former spouse or partner, then the expert Gold Coast Family lawyer team at OMB solicitors can assist you– contact us on 5555 0000 or via our website or social media.

Balconies and Balustrades…the bane of a body corporate?

Balconies and Balustrades…the bane of a body corporate?

By Articles, Body Corporate

The Bane of a Body Corporate

When driving up and down the Gold Coast Highway, you would be remiss to overlook the many towering high-rise buildings that sprawl the coastline. What may be less discernible, however, is the balconies that extend from these buildings – and which provide a vantage point for owners and occupiers to marvel at the seashore.

However, the responsibility for maintaining balconies and the balustrades that enclose a balcony is a contentious issue in community titles scheme living. The (significant) costs which may be involved in the repair and maintenance of balconies and balustrades only add to the issue.

Is a lot owner responsible, at their cost, for undertaking repairs to a balcony, given they enjoy its use? Or is it the body corporate’s responsibility to complete these repairs?

Format Plan Maintenance

The responsibility for maintaining balconies and balustrades is largely dependent on the type of survey plan with which a body corporate is registered, being either a:

  1. building format plan (“BFP”); or
  2. standard format plan (“SFP”).

This is because the survey plan will define the boundaries of a lot, which in turn, determines the responsibilities for maintenance within a lot.

Building Format Plan

For lots registered under a BFP, lot boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. In the event a lot is separated from another lot or the common property by a floor, wall, or ceiling, the boundary is the centre of the floor, wall, or ceiling.

Similarly, a balcony area is defined by floors/ceilings, walls and balustrades. Where there is a railing or balustrade, the boundary of the lot will be the outer face of the railing or balustrade.

In the case of a balcony with no upper structural element (i.e. there is ‘open’ airspace above the balcony), the upper boundary will be defined by the extension of the ceiling of the adjoining structure on that lot.

The regulation modules provide that a body corporate is responsible for maintaining, in a structurally sound condition:

  1. foundation structures;
  2. roofing structures providing protection; and
  3. essential supporting framework, including load-bearing walls.

There have been adjudicator orders (see Portside Noosa Waters [2019] QBCCMCmr 623) which have confirmed that a balcony that extends over an area of common property or lot property is considered a “roofing structure that provides protection”.

The effect of this is that a body corporate is generally responsible for maintaining, at its cost, the balcony structures for lots registered under a BFP where they provide “roofing protection” to lower level lots.

However, a lot owner is responsible for maintaining all fixtures and fittings within the lot boundary, including the balcony area, which comprises part of the lot property. This may include any balcony tiles and lights.

In terms of maintaining balustrades, the regulation modules provide that a body corporate is responsible for (among other things) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property.

Where lots are enclosed (i.e. there is a railing or balustrade which encloses or provides a barrier to a balcony area), the boundary of the lot will be the outer face of the railing or balustrade, as confirmed by the Registrar of Titles Directions.

As a result, a body corporate is generally responsible for (among other things):

  • maintaining the foundation structures of a balcony, this may include the concrete slabs and balcony columns;
  • the waterproofing cavity underneath a balustrade; and
  • replacement of the railings, balustrades and parapets which are situated precisely on the boundary of a lot and the common property.

Standard Format Plan

For lots registered under an SFP, land is defined horizontally using marks on the ground or a structural element of a building. The boundaries of these lots will be defined by the measurements shown on the survey plan. The effect of this is that a lot owner is generally, responsible for maintaining (among other things):

  • the inside of the lot, including all fixtures and fittings;
  • the outside of the building within the lot boundary, including exterior walls, doors, windows and roof; and
  • balcony and balustrades, if contained within the surveyed lot boundary.

The first step in determining whether a body corporate or a lot owner is responsible for maintaining a balcony or balustrade is therefore to identify the survey plan with which that lot is registered.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist body corporate lawyers team has recently seen a number of committees seek advice on the responsibilities for maintaining balconies and balustrades within community titles scheme living.

To ensure bodies corporate understand their statutory obligations and take appropriate action in maintaining the common property in good condition, including any balconies and balustrades which are the responsibility of a body corporate, strata managers and committees should consult with Gold Coast lawyers at OMB solicitors.


Sound the Alarm: New Fire and Smoke Alarm Laws for Queensland Dwellings

By Articles, Body Corporate

While Queensland Summers are synonymous with beach cricket and barbeques, the warmer weather also brings with it one of the less attractive features of living in a tropical climate… fires.

Before COVID-19 changed the meaning of “hot spots”, the Queensland Government amended the Fire and Emergency Services Act 1990 (Qld) by introducing additional obligations on property owners and managers with regard to the installation and maintenance of fire and smoke alarms in domestic dwellings.

Dwellings refer to any houses, townhouses and units.

What has changed?

Currently, fire and smoke alarms in existing dwellings must:

  1. be photoelectric (i.e., detect visible particles of fire combustion);
  2. not be more than ten (10) years old;
  3. operate when tested;
  4. be installed on each storey and in every bedroom; and
  5. be interconnected with every other smoke alarm in the dwelling.

However, from 1 January 2022, these requirements will apply to dwellings being sold, leased or where an existing lease is being renewed. The new legislation will have the effect of making Queensland properties the safest in Australia with regard to fire safety.

How does this affect bodies corporate?

The Queensland Fire and Safety Services (QFES) is empowered to enforce compliance with the new fire and smoke safety standards. The QFES does not differentiate between lot owners in a community titles scheme. This means that a body corporate, as a separate legal entity, is responsible for ensuring the scheme, including all dwellings, complies with the fire and smoke alarm regulations.

There are significant financial costs, which may be issued to the body corporate by the QFES if the scheme does not comply with the appropriate fire safety standards. These fines are often not covered by insurance, including office bearers’ liability.

If not budgeted for, a body corporate may be required to charge an additional levy to strata owners to cover any fines.

In addition, a failure to comply with the fire and smoke alarm requirements also presents potential issues for bodies corporate negotiating competitive insurance premiums.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist strata practitioners have recently seen a number of bodies corporate enquire as to the effect of the new smoke and fire alarm legislation and how a community titles scheme can ensure it is compliant.

Given the significant penalties which apply for non-compliance, it is important that body corporate managers understand the new requirements and the strict timeframes that apply.

To ensure bodies corporate understand and take appropriate action in complying with the new fire and smoke alarm regulations which come into effect from 1 January 2022, body corporate managers should consult with OMB Solicitors.

On a Scale of One to Ten (Years) The appointment of a building manager in a NSW Strata Scheme

On a Scale of One to Ten (Years): The appointment of a building manager in a NSW Strata Scheme

By Articles, Body Corporate

The Appointment Of A Building Manager In A Strata Scheme

In a year dominated by COVID-19, vaccines and lockdowns, do not be surprised if you missed an equally significant headline from New South Wales’ highest court – the appointment of a building manager in a strata scheme!

When the Strata Schemes Management Act 1996 (NSW) was amended by the Strata Schemes Management Act 2002 (NSW), the legislation restricted a building manager from continuously extending an agreement for more than 10 years after the Amendment Act, including any term or option to renew the agreement.

Previously, a building manager could be engaged by an owners corporation indefinitely.

However, it appears that the recent appeal decision of Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 has, for the time being at least, affirmed the legislature’s intention when it introduced a 10 year limit on the appointment of a building manager in a strata scheme.

Australia City Properties Management Pty Ltd

In Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111, there was a dispute between the building manager and the owners corporation regarding the term of the management agreement (“Agreement”), which was entered into on 30 March 2001 – before the Amendment Act.

While the Agreement, dated March 2001, was for an initial period of ten years, with an option to renew for three (3) additional terms of five (5) years, the building manager and owners corporation entered into two (2) deeds of variation (“Deeds”) in March 2010 and March 2015 – after the Amendment Act took effect.

The Deeds had the effect of extending the term of the Agreement beyond the 10-year limit, such that it had an expiration date of March 2041.

In August 2019, the owners corporation terminated the Agreement, on the basis that the building manager had been “grossly negligent” in performing its caretaking duties. The manager argued that the Agreement was not validly terminated and as such, was entitled to damages in the amount of $2 million. These damages were calculated on the basis the Agreement was for a (total) term of 40 years.

Supreme Court Appeal

The issue on appeal was whether the Deeds in 2010 and 2015 were considered “caretaker agreements” under the Amendment Act, such that they were limited to a term of 10 years.

In determining whether the Deeds were limited to a term of 10 years, the Supreme Court considered their “text, context and purpose”.

Given the purpose of the Deeds was to grant a further option under the original Caretaking Agreement, the Court held that the Deeds were, in fact, separate “caretaker agreements”, as defined by the legislation.

The effect of this is that the Deeds were “read down” to expire on 29 April 2025, rather than March 2041, such that the Agreement was limited to a term of 10 years.

As a result, any award of damages to the service contractor for unlawful termination of the Agreement would be calculated up to April 2025.

While Australia City Properties Management may ultimately reach the High Court of Australia, for the time being at least, the decision by Chief Justice Bathurst has provided guidance on the term of a management agreement in a strata scheme.

Will Queensland follow?

While the term of appointment for building managers in NSW strata schemes is (currently) capped at a maximum term of 10 years, the same cannot be said of schemes across the border.

In Queensland, bodies corporate which are regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (“the Accommodation Module”) may appoint a service contractor for a maximum term of 25 years, including any terms of extension.

And if you thought snap lockdowns were long…

Bodies corporate regulated under the Body Corporate and Community Management (Standard Module) Regulation 2020 are currently restricted to a term of ten (10) years.

Given the significance of the decision in Australia City Properties Management, it will be interesting to see if Queensland follows the lead of New South Wales and implements a limit on the term of a caretaking agreement for schemes regulated under the Accommodation Module.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist strata practitioners have recently seen a number of building managers attempt to circumvent the 10-year limit by requesting owners corporations extend their management agreement beyond this term.

Owners corporations should consult with OMB Solicitors when reviewing (or varying) the terms of its management agreement, to ensure it complies with the legislation.

Dealing with Building Defects and Strata Insurance Claims

Dealing with Building Defects and Strata Insurance Claims

By Articles, Body Corporate

The sudden collapse of a Miami apartment block on June 24, killing more than 98 people, made headlines around the world and focused attention on the horrific consequences of unaddressed building defects.

Initial findings on the collapse of the Champlain Towers South in the Florida suburb of Surfside suggest long-term degradation of reinforced concrete supports in the underground parking garage caused by water penetration from a leaking pool was a major factor.

In Australia, the increasing popularity of living close to work, retail and transport facilities means ever more high-rise apartments in our major cities and regional centres. As a result, developers rapidly construct new blocks to meet the demand, not always with the rigour required of modern construction and building codes.

High profile local cases of building defects such as the slanting of Sydney’s Opal Tower and the fire at Melbourne’s Lacrosse building have highlighted some of the legal issues involved for owners in such properties, which we’ll look at in this post.

Building defects and strata properties

A building defect can be caused in a number of ways, from faulty workmanship to poor design, use of defective materials, or a failure by a builder to follow standards set out in the National Construction Code.

For a fault caused by any of these means to be considered a defect, it must carry the risk of damage or destruction to the building or make it unable to be used for its intended purpose. This is considered a major defect.

A minor defect, by contrast, is any defect that is not a major defect and will usually be a cosmetic fault.

Common building defects include damage caused by inadequate waterproofing or cracks which appear in walls, ceilings and floors due to issues with a building’s structure.

In Queensland, a building defect is a faulty or unsatisfactory work under the terms of the Queensland Building and Construction Commission Act (‘the Act’).

Under the Act, statutory warranties exist in relation to new buildings, enforced by the QBCC. Within these periods, the builder is responsible for remedying any defects.

Defect liability periods in Queensland

Defect liability periods are the time limits in Queensland within which an owner or body corporate can make a claim against the builder to remedy defects.

Structural, or major, defects such as water leaks, major cracks and structural failure have a defect liability period of six years + six months from the ‘practical completion’ date of the building in Queensland.

Non-structural defects such as frayed carpet, or paint and tiling defects, for example, have a 12-month defect liability period.

Once a defect is detected and known about, it must be reported to the builder within 12 months through lodgment of a defective building work complaint with the Queensland Building & Construction Commission.

Defects found on both individual and common property in strata properties are covered by the statutory warranty. The body corporate may bring an action to have the defect remedied on behalf of a lot owner.

It’s important for a body corporate to act quickly once a building defect is known about as after the expiration of the warranty, responsibility for rectification will generally fall on the body.

It should be noted that a body corporate is not responsible for building defects within lots unless those defects relate to the structure of a building and the building was created in a building format plan.

Strata insurance claims

Strata insurance is taken out by a body corporate to cover public liability, damage to common property and common area contents, theft, recovery after a catastrophe, and legal liability for office bearers.

Many strata insurance policies include excluding any loss or damage arising from an existing defect in the building’s construction and/or design.

Such exclusion may leave a body corporate with limited or no cover in relation to building defects.

Bodies corporate should also check a similar exclusion is not part of the public liability coverage of the policy so that they are covered in the case of personal injury that might result from a building defect.

A body corporate can reduce its exposure by establishing the practical completion date of the building and being aware of the statutory warranty period; commissioning a defect report well before the expiry of the warranty; actioning any defects identified in the report before the liability defection period expires.

Consult specialist legal professionals

OMB Solicitors’ specialist practitioners in this area of the law mean we regularly advise bodies corporate on the complexities of strata insurance policies when building defects arise in buildings.

We will help advise on the fine print of the policy. We will also provide a body corporate with the right advice to enforce rectification of defects through the QBCC, or a separate contractual claim against a developer or builder in relation to defects.

Call us Gold coast Solicitors today if advice is required on any of the issues raised in this article.


No-Fault Compensation Scheme

By Articles, Compensation

Since COVID-19 vaccination conspiracy theories have flooded social media, political campaigns and patient advocacy groups, one question remains unanswered and that is, who is liable in the event one develops adverse side-effects from the vaccine?

Australia has a long-standing compulsion for systematic and routine vaccines that are at times a legislative requirement. These include, ‘No Jab No Pay’ and ‘No Jab No Play’ in some Australian states. While some vaccines may be mandated, Australia does not provide a no-fault injury compensation scheme for rare vaccine injuries.

No-Fault Compensation Scheme – What is it?

A no-fault vaccine compensation scheme recompenses individuals who have sustained an injury following the administrations of a certified manufactured vaccine.

Australia in contrast to its international counterparts, the USA, UK and New Zealand, does not have a no-fault vaccine compensation scheme. This means that an individual that sustains a vaccine-related injury must bear the associated costs in accessing treatment via our publicly funded health systems and will not obtain any compensation for their pain and suffering. As a result, those affected are forced to embark on a complex and expensive litigation process to seek compensation and related expenses.

Australia’s Current Position

Australia currently has a fault-based system for handling negligence claims. The process is long and arduous and can take years to be settled or decided. The issue associated with the current fault-based system is that settlement may not cover long-term costs associated with care and other expenses.

Recently, Prime Minister Scott Morrison announced a new vaccine indemnity scheme. This scheme means that health practitioners that have been found liable as a result of adverse events from administering the COVID-19 vaccines will be compensated by the Commonwealth of Australia.

It is well established that Pfizer is the vaccine of choice for under-60’s in Australia. However recently, the national cabinet stated that “GPs can continue to administer the AstraZeneca to Australians under 60 years of aged with informed consent”.

The real implementation of the indemnity scheme, therefore, is design to support allied health practitioners and reduce the real and perceived impediments in administering the AstraZeneca vaccine to the under-60’s population. It seeks to shift exposure to possible claims from existing insurers to the Commonwealth of Australia.

However, this does not negate nor prohibit patients from suing health practitioners for negligent advice in relation to the purported risks and benefits of a particular vaccine.

This falls well short of a no-fault injury compensation scheme to allow for compensation award to include income indemnities, reimbursement of medical expenses, personal assistance expenses and travelling expenses that be resultant of the vaccination injury.

Moving Forward

The current use of ‘first in human’ phase III clinical trial rollout makes it foreseeable albeit rare that a vaccine-related injury may occur. Notably, rare vaccine injury is not a new phenomenon. Guillain-Barre syndrome is another rare vaccine-related injury that is caused by the influenza vaccine.

With the current climate and public questioning the safety of the vaccine as a result of blood clots occurring from the AstraZeneca vaccine, one would think that the Australian Government ought to implement a no-fault vaccination scheme. Of course, if it is the proposition of the Government that being vaccinated is for the benefit of society, society should be safeguarded from the possible risk of a vaccine injury. It follows that the Australian Government should recompense individuals who fall victim to a vaccine-related injury.

The implementation of a no-fault vaccination scheme could increase public trust in the system rather than undermine current hesitancy and lack of confidence in the vaccine program. Hence, it would be timely that Australia now legislates and introduce a no-fault compensation scheme for all vaccinations. This is a crucial step in navigating a pathway forward from the COVID-19 pandemic.

Family Law Court Australia

Family Law Court’s Merger – Important Things to Know

By Articles, Family Law

Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.

With thanks to Jacky Campbell at Forte Family Lawyers Gold Coast (published via here are the ten most important things to know about the merger:

  1. The Court will now be known as The Federal Circuit Court and Family Court of Australia.
  2. The new Court will commence operation on 1 September 2021.
  3. There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1).  The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
  4. All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
  5. Division 2 will also hear general federal law matters as well as Family law.
  6. Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
  7. There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
  8. There will be new Rules of Court to abide by.
  9. The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
  10. There is a diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.

To a greater or lesser extent, we are very much in wait and see mode.  Watch this space.

sharing pets

Every Dog has its Day – Dogs, Definitions and Decisions on Shared Care

By Articles, Family Law

In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).

If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?

In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.

On 10 February 2021, the Court published Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) ( in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.

For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.

After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act.  These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as

Proceedings between the parties to a marriage with respect to the property of the parties to the  marriage or either of them, being proceedings (i) arising out of the marital relationship.

The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”.  There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.

Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).  Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).

Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations.  The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act.  The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.

The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs.  The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.

The Court relied upon the authority of Gaynor & Tseh [2018] FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband.  In that authority the Court stated:

Th Family Law Act makes no reference to pets.  It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.

Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:

The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.

The case highlights further why reaching an agreement (which can include matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet-related or otherwise).


COVID-19 and the Effect on Workers Compensation and Personal Injury Litigation

By Articles, Compensation, Insurance

Covid-19 has had a significant effect on our global situation and the way in which we are required to adapt to what is now considered a new normal way of life. Specifically, in the legal sphere of workers compensation and personal injury litigation; employers, insurers and lawyers are faced with the challenge of arranging independent medical examinations’ (“IME“) with social distancing measures and government health directives affecting how they proceed.

However, one takeaway from the COVID-19 crisis is the opportunity of finding newfound solutions and creative services to deliver safe and defendable mechanisms to assist injured or ill people return to work and/or functioning capacity. As such, telehealth (albeit by video conference or by telephone) for IME’s has become an essential development to ensure the continuing progress of litigation during the current pandemic.

What is telehealth?

Telehealth is one of the many terms used to describe the application of technology to provide non-face-to-face contact with patients. Other terms include “telemedicine” and “e-health”. Telehealth services include, but are not limited to, remote doctor and other specialists, psychologists, occupational therapists and patient consultation via video link or telephone. Telehealth is not just a technological advancement. It is the solution to assist workflow and also patients to be assessed at in the comfort of their own home.

Recent Case Decision

A recent decision in the Supreme Court of Rockhampton, Tyndall v Kestral Coast Pty Ltd [2020] QSC 56, dealt with whether the request for IME both by a rheumatologist and vascular surgeon via telehealth was unnecessary.

Crow J ordered that “in the event that the Plaintiff is unable to personally attend the examination due to COIVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology as requested by the [specialist]”. This demonstrates the Courts willingness to adapt and work with social distancing restrictions.

Paradigm shift

The Australian Government has introduced temporary telehealth services to the Medicare Benefits Schedule (MBS). This is separated into three categories, namely face-to-face, video-conferencing, and tele-conferencing when videoconferencing is not an available means of service. Allied health services have experienced a significant influx in the demand for the MBS telehealth consultation, of which half of these consultation were conducted via videoconferencing. Evidenced by the recent decision and move with telehealth in general, it seems that post-pandemic, telehealth may well be here to stay and will continue its advancement to facilitate the new norm for clinicians and patients alike.

How Telehealth Works

There are many ways in which IME’s can take place.

  1. Interview Based
    This takes place either via telephone or video conferencing. This may be conducted for either psychiatric or physical assessment. This includes a preliminary review of medical records as provided and the conduction of an appointment style examination.
  1. Interview based with supporting Allied Health provider under supervision and direction of specialist
    Like an interview-based appointment, however, in this circumstance an allied health worker is physically present with the ‘patient’ during the examination and under the direction of the specialist conducting the physical examination.
  1. Unsupported physical examination whereby the specialist conducts the examination
    Again, similar to the above, though in this circumstance there is no one physically present. The specialist in this circumstance make visual observation and guides the ‘patient ‘ to undertake movements for virtual assessment of tenderness, gait and other necessary observations that are required to be addressed to determine a claim, required payment (from insurer), resolve the particular dispute and or support the claimant back to work / functioning capacity.

OMB Goal Coast solicitors work closely with health care providers to ensure that you are the centre of care and your workers compensation claim or personal injury matter is a smooth experience. Our Gold Coast Lawyers here at OMB Solicitors will ensure that you are provided with the best available treatment providers and, if needed, your independent medical assessment is conducted within the comfort of your own home.

For more advice, please contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you with Lawyers Gold Coast.

Public Liability

9 Reasons why you should get Legal Advice if you Suffer an Injury in a Public Place

By Articles, Compensation, Insurance

If you have suffered an injury whilst out and about and are considering your options and what to do next, here are 9 reasons why you should consider seeking legal advice to assist you in seeking compensation:

  1. It is not as simple as simply taking someone to court

In Queensland, the legal process which may need to be followed after someone has suffered the injury in a public place is set out in the Personal Injuries Proceedings Act 2002 (QLD) (‘the Act’).  The Act provides a number of ‘Pre-Court’ procedures that must be followed before you can step foot in a courtroom. These procedures can be extensive so it may be helpful to seek legal assistance.

  1. You have to act fast

If you have suffered an injury in a public place or as an invitee on a premises, Section 9 of the Act provides you with nine (9) months to serve the person who caused your injury (‘the Respondent’) with a Notice of Claim. The nine (9) month period will begin from the date of the incident which caused your injury or from the date you first begin to suffer symptoms from your injury. If you do not give the Notice of Claim within this time, you will be required to provide a reasonable excuse for the delay. If you decide to seek legal advice, a Notice of Claim must then be provided one (1) month after you have instructed a lawyer to assist you. We do recommend that you seek legal assistance when drafting your Notice of Claim.

  1. The Respondent may raise issues with the Notice of Claim

Following receipt of the Notice of Claim, the Act provides that the Respondent must provide a response to confirm whether they consider themselves to be a proper respondent (Section 10) and whether the Notice of Claim complies with the requirements of the Act (Section 12). We recommend seeking legal assistance to make sure you take the correct steps and can provide an appropriate reply, to any response suggesting that the Respondent is not the proper respondent or that the Notice of Claim is not compliant.

  1. The Respondent may argue that they are not liable for your injuries

After you have provided the Notice of Claim, Section 20 of the Act, allows the Respondent six (6) months to investigate the incident and provide a liability response. The liability response will give notice as to whether the Respondent admits liability for the incident or denies that they should be held responsible. The liability response should also contain an offer to settle your claim reflecting the Respondent’s position.. Should the Respondent deny liability, you will be required to gather evidence justifying why they are liable and should be required to pay you compensation for your injuries.

  1. You will have to provide evidence of your injury

In order to receive compensation for a personal injury, you will be required to gather evidence showing what injury you have suffered and how it has affected you and your health and day to day life. This will include obtaining medical records from any and all medical treatment providers (doctors, specialists, surgeons) you have attended both before and after the incident. You also may consider undergoing an independent medical examination to further illustrate the injury you have suffered and how it has affected you. Seeking legal assistance can help you gather these records and consider what evidence you may need to evince your injury.

  1. You must comply with the disclosure

During the course of the ‘Pre-Court’ procedures, you and the Respondent will be required to comply with disclosure obligations. This means that you must provide the Respondent with documents you obtain that are relevant to the facts in issue to your claim. Failure to comply with these obligations can be considered by the courts and negatively affect your claim. We recommend seeking legal assistance to ensure any evidence gathered is disclosed in accordance with your obligations.

  1. You will have to attempt to resolve your claim out of court

Before you are able to commence a proceeding in court, the Act requires you to attend a compulsory conference or a mediation with the Respondent – or give the reason as to why it is not appropriate. The compulsory conference will allow both parties to present their case and attempt to settle the claim through exchanging offers of settlement. We recommend seeking legal advice to assist you in participating in a compulsory conference so that your case is presented as best it can be and appropriate offers of settlement are exchanged.

  1. You can run out of time

In Queensland, you only have three (3) years to complete the ‘Pre-Court’ procedures and commence legal action in the courts for the personal injury you have suffered. This three (3) year period usually begins from the date your action arose, being the date of the incident. Occasionally, it may begin on the date your injury manifests, but at times, this distinction can be difficult to navigate. This limitation period is provided in the Limitation of Actions Act 1974 (QLD) and can only be extended under limited exceptions. The three (3) year limitation period also applies if you have suffered an injury in a motor vehicle accident, work accident or medical incident. It is important that you commence proceedings before this period lapses.

  1. Obtain legal assistance from a supportive and skilled professional

Instructing a lawyer to assist you to navigate the ‘Pre-Court’ procedures provided under the Act will allow you to obtain advice from an industry professional, interested in your claim and eager to assist you following your personal injury.

We recommend seeking legal advice if you suffer injury so that you can be assured your claim will follow the ‘Pre-Court’ procedures and requirements set out in the Act.

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