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Post-Separation Assets – Who Gets What?

By | Articles, Family Law
Who gets what will depend on the facts

Australian statistics show that one third of relationships end in separation or divorce. The growing breakdown of relationships caused by divorce or separation has allowed for the distortion and generalisation of what is perceived to be ‘Who Owns What’ in a property settlement. The reason for the misinformation is due to there being no specific rules that indicate which party will retain what in the event of a breakdown in relationship.  Each case is fact specific and will be determinable on those facts, each case differing from the one before and after it.

Property Settlement – the Law

Property settlement after separation is governed by the Family Law Act 1975 (Cth) (‘the Act”) and is applicable to married couples’ and De Facto (same sex and heterosexual) relationships. A property settlement may be applied for any time after the breakdown in relationship occurs and need not wait until divorced.

Get started quickly

Because a property settlement order will deal with assets and liabilities that exist at the time the order is made, it is strongly recommended that negotiations for a property settlement begin as soon as is practicable after separation. If you delay, and in some cases, parties have delayed for ten or more years, then the Court will deal with what property exits then, and not when you separated. One of the parties may have accumulated substantial additional assets since separation, and the other party may have run up substantial debts. The property settlement then (in 10 years) would look completely different to a property settlement reached within a reasonable time of separation.

Time Limits

Where a couple gets divorced they must commence property settlement proceedings (i.e. Bring a Court Application) within twelve months of the divorce. Whereas for a married and De Facto couple the application must be bought forth within two years of the breakdown in relationship. Where proceedings are not bought within these limits, a loss of rights may occur due to being outside the time frame.  The law takes into consideration the below factors and does not considered the way in which the relationship deteriorated.

This the way a Court will tell you “Who Gets What”

Judges have a wide discretion to make orders for property settlement. In some circumstances, a court will not make any order at all dividing the property, if it appears to the judge that it is just and equitable that each party should keep the property they have without making any adjustment.

However, if the judge decides that an order is necessary to adjust property interests, then orders to divide the property on a just and equitable basis will be different in almost every case, as the circumstances of each particular case that comes before the court are all unique and different.

In applying the legislation over the years, the courts have defined a framework within which it must work to achieve what is a fair and equitable division. This framework involves an approach with four or five steps.

The Steps involved in working out “who Gets What”

The steps to working out a property settlement now may be summarized as:

  • What are the legal and equitable interests of the parties in their property;
  • Should these interests be altered;
  • What are the contributions of each party and what weight should be given to the contributions;
  • What is the future of each party and should there be any adjustment for that;
  • How is the proposed division to be implemented?

Step 1-  What are the legal and equitable interests of the parties in their property

The Court determines what the legal and equitable interests of the parties are in their property.

This will be all assets, liabilities and financial resources in joint names, and in each party’s separate names. Until an order is made, for family law purposes both parties have an interest in each asset in the property regardless of who owns it. The Court will take into account all of the property and financial resources in existence at the time that the order is made. Both parties have an obligation to make full and frank disclosure of all assets and liabilities that exist to each other and to the Court.

The Court then attributes values to each of the parties’ interests. Generally, the court will value the items as at the date that an order is made.

Step 2- Should the parties interests be altered

Once all the property is identified and valued, the Judge will take a step back and look at the length of the relationship, who brought what into the relationship, who owns what now, is there jointly owned property and/or bank accounts or did the parties keep their property separate, and was that their intention or agreement.

If the Judge is of the view that no adjustment in property interests is warranted, then no property settlement order will be made, and each party will keep what they currently own.

However, if relationship circumstances are such that an order is necessary to adjust property interests (and in most cases it will be), the Court proceeds to the next step.

Step 3 – What are the contributions of each party and what weight should be given to the contributions;

The Court determines the contributions that the parties have made to the acquisition, conservation and improvement of the property.  The contributions can be direct and indirect, financial and non-financial as well as relating to a homemaker/parent role and otherwise to the welfare of the family unit.  The Court will take into account the contributions made:

  • at the commencement of the relationship,
  • during the relationship, and
  • since separation.

Some of the general principles that apply to the assessment of contributions are:

  • There is no presumption that contributions are equal or that they were made in “partnership”;
  • An evaluation must be made of the actual respective contributions of each party;
  • Although in many cases the direct financial contributions of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case;
  • Care must be taken to recognise and distinguish a windfall gain;
  • Whilst decisions in previous cases where special factors were found to exist may provide some guidance to Judges, they are not prescriptive, except to the extent that they purport to lay down general principles;
  • It is ultimately the exercise of the Judge’s own discretion on the particular facts of the case that will regulate the outcome; and
  • In the exercise of their discretion, the Trial Judge must be satisfied that the actual orders are just and equitable.

In a short relationship (up to seven years) the Court is more likely to adopt an asset by asset or “piecemeal” approach to the assessment. Relationships beyond that time will be regarded as a mid to long term relationship.

In mid to longer range relationships the Court is more likely to adopt a global assessment of contributions.  When taking into account the contributions of the parties the Court will have regard to any period of separation prior to commencement of the relationship.

The assessment of contributions will not be equal in circumstance where:

  • One party has made a greater initial contribution than the other; or
  • One party has received a significant inheritance (particularly late in the relationship);
  • One party has received a significant gift (particularly late in the relationship);

Step 4 – Future Needs

The Court then assesses the future needs of each party, having regard to the various factors set out in the Act. These factors involve looking at and assessing the difference between each of the party’s:

  • current income;
  • income earning capacity,
  • property and resources,
  • superannuation entitlements,
  • deficits in health,
  • ages,
  • closeness to retirement; and
  • the need for one party to care for children of the relationship.

Step 5 – How is the proposed division to be implemented

The Court will then give consideration on how the proposed division of property is to be implemented. For example, an order may be structured where the wife gets to the retain the former matrimonial home as the primary care provider for the children, and the husband keeps his superannuation and business assets.

Conclusion

In Property Settlement Court proceedings, the Judge will decide “who gets what”. That judge has very wide discretion and may make a completely different order to the Judge in the next courtroom. You may like the order that is made, or you may detest it.

Suggestions

Before or during your relationship, enter into a binding financial agreement under the Act so that you (and not a Judge) can determine “Who Gets What” should you separate.

If you do separate without a Financial Agreement in place, it is important that you consult a family law solicitor to ascertain what your entitlements are likely to be, and then attempt to reach agreement as to “who gets what”, either personally, through your solicitors or at a mediation. If an agreement can be reached, your agreement can be finalised by consent orders of the Family Court or a Financial Agreement.

Contact our Gold Coast Lawyers

If you require assistance or advice with respect to:

  1. Your likely entitlements upon separation;
  2. Negotiation of a property settlement
  3. Preparation of a Financial Agreement,
  4. Organising a mediation,
  5. Commencing court proceedings or the preparation of consent orders.
Gold Coast Lawyers

What Happens to a Business in a Family Law Dispute?

By | Articles, Business Law, Family Law

Introduction

In family law property settlement proceedings  all assets and liabilities of each party, (whether they are owned jointly or separately) are combined to form what is commonly known as the “matrimonial property pool.” This pool of assets and liabilities is then subject to scrutinization and possible division by the Court upon separation.

A business interest, owned either separately or jointly, and whether in a partnership, sole trader, company or trust structure, can be treated by the court as “property” as defined in the Family Law Act 1975 (Clth) (“the Act”) and will fall into this asset pool. Each spouse’s business interests will need to be valued (if a value is not agreed to).

In the case of a small business operated as sole trader or a partnership between the spouses, it is generally the assets of that business that largely determine its value. If the business has little by way of assets, and generates income though one or both spouse’s efforts, skills or trade (e.g. a plumbing business), its value may be very little (nominal). Other businesses may have a corporate and/or trust structure, extensive assets and goodwill, and each spouse’s interest in that business will need to be valued. This may involve a valuation of the entire business enterprise, with the value of the share owned by the spouse (or spouses) then calculated.

If one spouse wishes to retain their interest in any business, they should be aware that the value of that interest will be attributed to that spouse’s portion of the overall split and will give them a financial resource to offset future needs.

Financial Disclosure

Each spouse has an ongoing obligation to give full and frank financial disclosure of all documents relevant to the valuing of any business interest. This includes business records, financial statements, bank records, BAS and tax documentation

Different Types of Business Structures

Sole Trader

A sole trader (like a tradesperson or professional consultant) is a “personal exertion” style of business, with few employees, if any.

Generally, the Court would order (and it is common sense) that the spouse who runs this business will retain the business, as he or she has the necessary skills and training to continue with the business.

A value needs to be attributed to the business, because it is an asset that the sole trader is keeping. Because a sole trading business generally just relies on the personal reputation and skills of a sole trader, a modest value is normally applied to such a business interest.

However, if there are multiple employees and the business has goodwill such that it may be sold as a going concern, then the value of business will be determined by the usual valuation processes by a business valuer, and full disclosure of the books and records of the business will need to be made.

It is also possible that in addition to being an asset retained by that spouse, the court may take the business into account as a future financial resource of the spouse retaining the business.

Partnerships

Partnership businesses may be constituted by both spouses in partnership with each other, or partnerships with a third party or parties.

Spouses in Partnership

When spouses are in partnership, they are normally running a “personal exertion” style of business. If one spouse wishes to retain the business, a value will be determined for the business, like valuing a sole trader business.

However, if the business has employees and goodwill and has been operating for several years, it will need to be formally valued by a business valuer.

For one partner to buy the other out of the business, the partnership will be dissolved and (often in exchange for paying to the other spouse half the value of the business), the continuing spouse will be operating the business as a sole trader.

Partnership with Others

Where the partnership involves third parties, the other business partners will be impacted by separation. The partner who has separated will be going through a tough time and may lose focus on the business.  Third parties are also very uncomfortable with the obligation on the spouse partner to make full and frank disclosure of the business, its assets and its dealings.

There will usually be a written partnership agreement, which will generally say what is to occur if one partner was to leave the partnership, if one partner wants to sell his or her interest to the other partners, and what is required to bring the partnership to an end. Separation of a partner may trigger a buy/sell arrangement between the partners. These clauses will generally have been drafted to preserve the business and maintain its value.

If you are not separated and you are in a partnership with your spouse or third parties, I strongly recommend that you contact us with instructions to prepare a partnership agreement (if you do not already have a professionally prepared agreement), so there is certainly as to what will happen to the business if one or more of the parties go through a separation.

Company Owned Businesses

Where a company owns and operates a business, and that company is a “family company”, with the spouses being the only shareholders and office holders, then the Court will generally deal with the business as a type of partnership between the spouses. The business will need to be valued, and it will either be sold, or the party with the requisite skills to keep the business running may buy out the other party, and a share transfer between the spouses will be effected.

However, if the company has third party shareholders as well, it will again be necessary to determine the value of the shares in the company, by valuing the business and any other assets of the company. The value of each parties share in the company will then be determined by the Court, considering the company’s share structure to see if there is an equal or an unequal shareholding, and what rights and benefits attach to different classes of shares.

During the valuation process, director’s loan accounts will need to be considered, and whether the loan is in credit or debit. Repayment arrangements for these director’s loans will generally be made or suggested in the valuation process.

If one party has a majority of the shares in the company, that may affect the way the company is operated and valued.

If the separating spouse shareholder has a minority shareholding with a third party, then the value of the minority shareholding may be given a lesser value as the minority shareholder is unable to make determinations about the operations and the future of the company.

If the separating spouse shareholder has a majority shareholding with a third party, then that spouse will be able to exert a majority influence and control the operations of the business.

Any shareholders agreement entered between the shareholders will also be carefully securitized. Shareholding Agreements may include method to determine value and trigger events (such as separation from a spouse), leading to the implementation of a buy/sell arrangement.

Again, if you are reading this and you are not separated and have shares in a company with your spouse and/or third parties, I strongly recommend that you contact us with instructions to prepare a Shareholders Agreement, to give certainly as to what will happen to the company and business in the event of one or more of the parties going through a separation.

The company constitution may also be relevant.

Discretionary Trusts and Unit Trusts

Who is in control” is the most important aspect of a Trust Structure.

In a discretionary trust, which includes what is commonly known as a family trust, the Court will consider the trust deeds, the identity of the appointor of the trust, and the history of use of the trust. The Appointer has the power to replace the Trustee, so the Appointer is the “Controller” of the Trust. If the Appointer is a spouse, then it is likely that the Court will treat the Trust as “matrimonial property” rather than a financial resource.

Family Discretionary Trusts are usually set up to hold a family’s assets or to conduct a family business. The Trustee of the Trust will own the assets and operate the business on trust for the beneficiaries.

The beneficiaries of discretionary trusts are usually immediate and extended family members, other family companies and charities. In a discretionary trust, beneficiaries have no interest in the trust property unless the trustee exercises its discretion to distribute to them.

The trust deed will need to be examined to determine how the Trust can be varied to remove a beneficiary spouse who will no longer be involved in the business due to separation. Generally, one spouse will take over the business, which will require a Deed of Amendment to be prepared and executed to remove the spouse as beneficiary, and possibly also to provide for a share transfer by that spouse of any shares owned in the Trustee (if the Trustee is a company).

If the trust is a unit trust, it may be treated with the same principles that apply to a company. The units in the Trust will be valued, and the trust deed examined to see if units can be transferred between unitholders. The trust deed (and any unitholders deed) must be examined carefully as to the duties, powers and obligations on the Unit Holders. The financial records of the business must also be considered.

So, what will happen to your business on separation?

Where both spouses have worked in the business and then go through a separation, this will have obvious and significant repercussions and likely impacts on business continuity and profitability. It may also affect the staff.

In most situations, one of the separating spouses will seek to retain the business free of the other spouse. If that agreement is reached, then orders will be drafted to make that happen according to the type of business structure. The transfer of interest in the business from one souse to another may also be accompanied by payment to the exiting spouse of a “settlement sum” which will often be the value of the exiting spouses share in the business. Otherwise the business will be an asset that one spouse is keeping, so its value will need to be considered in determining a just and equitable division of all assets between the parties.

Whilst it is quite uncommon for a business to continue to be operated by two spouses who have separated, it sometime does happen, generally for an agreed number of years, after which the spouses will meet to decide its future or sale and the division of sale proceeds. Whilst a Court would not make that order (the Court makes a “once and for all” property settlement so that all financial ties are broken), the spouses could agree to implement such an agreement in a Financial Agreement made under the Act.

If neither party wished to retain the business then the business (or their shares in the business) will need to be sold, and the sale proceeds divided in a just and equitable manner. Appropriate orders will be prepared by your solicitor for the sale or transfer of shares, according to the type of structure that operates the business.

As the spouse who retains the business will also have a continuing financial resource at their disposal, the court will take this into account when considering the “future needs” of the spouses before adjusting property between them.

Contact Us

Please contact our Gold Coast family lawyer Gary Mallett for any further information on what will happen to your business upon separation, and for legal assistance with

  • Property settlement negotiations and mediations;
  • Commencing property settlement proceedings in Court;
  • Drafting the necessary orders to deal with your business as you have agreed;
  • Prepare a Shareholders Agreement (for a company or unit trust); or
  • Any other legal advice on separation.
Don't know how to get a divorce in australia? Contact OMB Solicitors Today.

How to Get a Divorce in Australia

By | Articles, Family Law

There’s no doubt about it. Ending a relationship is never easy. But in Australia, ending a marriage is relatively simple – at least in the eyes of the law. This is because, unlike the divorce process in the United States, divorce in Australia doesn’t address some of the most emotionally volatile issues such as child custody, child support, spousal maintenance and the division of marital assets in detail. In fact, the only issues addressed when you apply for divorce here are whether you are legally eligible to do so and whether or not you’ve followed all of the applicable rules.

To be eligible to file for divorce in Australia, the only requirement in most cases is that you and your spouse have separated for one year. The only exception to this rule is if you are filing for divorce less than two years after you got married (inclusive of the time when you were separated). In such cases, you must see a court-approved counsellor with your spouse and file a signed counselling certificate with the court upon completion. If you and your spouse are unable to fulfil this requirement for any reason, you must ask the court’s permission to get divorced.

If you were married abroad, you may still apply for divorce here if you or your spouse:

  • Regard Australia as your home and intend to live indefinitely in Australia and are an Australian citizen or resident, or
  • Are an Australia citizen by birth or descent
  • Are an Australia citizen by grant of Australian citizenship
  • Ordinarily live in Australia and have done so for 12 months immediately prior to filing for divorce

If you meet one of these criteria, you can go ahead and prepare your application for divorce. If you aren’t comfortable filling it out yourself, you can also do so with help from a lawyer. If you choose to consult a lawyer, be sure to bring the following to your appointment:

  • Marriage certificate
  • Identification
  • Information about any children under the age of 18
  • Any current or pervious orders associated with family law

Once you’ve completed the application you and/or your spouse must sign it so it can be filed with the appropriate court (along with any other applicable documents), and a hearing can be scheduled.  If only one of you does so, it is considered an individual application, and if you both do so, it is considered a joint application.  This is an important distinction, because it determines who must do what from now on.

For example, if you filed an individual application, you must serve a copy of the copy on your spouse. You must also file two documents related to the service with the court. The first of these is called an Affidavit of Service, and the second is the Acknowledgement of Service (when required).

Furthermore, if you file an individual application and you and your spouse have children age 17 or younger, you must attend the hearing. However, you need not do so in person, as long as you seek permission to participate by telephone.  If need be, you can also attend at the relevant court registry. In this case, you must still serve the application on your spouse and file the paperwork specified in the previous paragraph.

Finally, even if you file an individual application, your spouse has the right to file a response seeking changes to the application if he or she disputes any of the details, or if he or she simply opposes the application. Another thing to keep in mind is that even if your spouse pursues this option, he or she is not required to attend the hearing.

At the hearing, you will be asked about the application, and if you have minor children, the judge will also ask questions to ensure that they will have a chance to spend time with you and your spouse. If all of these questions are answered to his or her satisfaction an order will be granted accordingly.

On the other hand, if you file a joint application, the ensuing process is much easier. This is because neither one of you will be required to attend the hearing, whether you have any minor children or not. This also eliminates the need to serve the application on your spouse or file related documents with the court.

In either case, the divorce order will take effect, or become “final,” one month and one day after the hearing. At this point, the court will send a copy to each of you, and you’ll no longer be legally married.

Conversely, failing to take any of these steps can result in denial of your application. If this happens, the court will usually give you time to correct any deficiencies prior to another hearing. If you need help correcting a mistake that resulted in the denial of your initial application or to lessen the chances that your divorce application will be rejected due to a technicality, contact our Gold Coast Lawyers today.

Are you left out of a will? Call us today.

What Can I do if I Have Been Left Out of a Will?

By | Articles, Wills and Estates

If you have been excluded from a Will, it probably seems like a slap in the face. You may be feeling hurt and angry – especially if the person who passed away was a parent or another close relative. As a result, you may be wondering if there’s anything you can do. In Queensland, the answer is “yes.” In fact, there are a few ways in which you can challenge – or contest – a Will.

One way to do so is by making a Family Provision Application – but only in certain circumstances.

You may qualify to make this type of application if you were:

  • The deceased’s spouse (including a de facto partner);
  • The deceased’s child (including step and adopted children); and/or
  • The deceased’s dependant (In order for any person to be a “dependant” they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death).

and your needs have not been properly addressed through his or her Will, or because he or she died without making a valid Will.

If you meet any of these criteria and wish to pursue this option, you have nine months from the time the person died to file this type of application. However, it is important that you notify the Executor of the estate that you intend to do so as soon as possible. This is because he or she has the authority to make the allocations specified in the Will and wrap up related matters six months after the person’s death as long as he or she has not been notified about any potential claims on the estate.

Missing this deadline does not automatically invalidate your ability to make a Family Provision Application. However, you’ll have to convince the Court that you had a valid reason for missing the deadline before you can proceed.

It is also important to note that just because you feel you have been treated unfairly doesn’t mean the Court will agree. Ultimately, it is up to the Court to decide whether or not the Will fully addresses your needs. It will make this determination based on:

  • Any provisions previously made to you by the estate
  • Your financial situation and other circumstances specific to your case
  • How much money the estate has on hand
  • Whether anyone else is contesting the Will based on lack of adequate provision
  • Your relationship with the deceased

Courts will also consider challenges based on some other contentions. The first is that the person who created the Will – and left you out of it – was bullied, intimidated or coerced into doing so. The second is if the person who made the Will in question was mentally or intellectually capable of doing so. And lastly, the Court will consider a contention that the person who made the Will made a legally binding agreement to craft the Will in a certain way, a breach of the agreement ensued and you were adversely affected.

Keep in mind, however, that you can only challenge a Will in Queensland if the person who died had land and/or a home in the State; or if he or she was a permanent resident of Queensland at the time of death, but held his her assets elsewhere.

Having said that, you do not have to live in Queensland in order to contest a Will here. In fact, you can do so without leaving home. Before you initiate the process, however, it is important that you fully understand it – so if you do live somewhere else, be sure to consult a Queensland lawyer before pursuing this option.

Finally, you may be wondering how much all of this costs.  Generally, the Court decides who must pay the legal costs associated with the contention of the Will.  In most cases, if the Judge rules in your favour, the estate will pay for any legal costs you have incurred.  However, if the ruling goes against you, the Court may order you to pay the legal costs incurred by the Executor.  This underlines the importance of seeking legal advice from a reputable law firm who have experience in this type of litigation.

Clearly coping with the death of a loved one is never easy – and discovering that you have been left out of his or her Will while you are grieving complicates matters even further. If you feel that you have been wrongfully excluded, it is important to consult a qualified lawyer about these and any other legal remedies that may be applicable to your case.

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Nuisance Communication – Rights of Body Corporate

By | Articles, Body Corporate

Ten phone calls, fifty voice messages and a disgruntled lot owner who wants answers yesterday – there is always one. But when does it constitute a nuisance communication and what can you do about it?

Let’s face it, whether your neighbor’s TV is turned up to the max, the teenager next door is hosting a party or there are children screaming in the park, there is generally always something that you could complain about – that’s the joys of community living. But sending voluminous, repetitive or abusive phone calls or communications to the Body Corporate or manager could end up doing more harm than sitting back and biting your lip every once in a while (As difficult as that may be).

The question which needs to be considered is when the lot owner or occupiers complaints become a nuisance in itself?

Section 167 of the Body Corporate and Community Management Act 1997 (the Act) deals with nuisance and provides that:

the occupier of a lot included … must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The scope of this section is surprisingly narrow.

In its application, even where excessive communications or telephone calls are being made to the Body Corporate Manager which would naturally fall within the ordinary meaning of ‘nuisance’, this does not itself mean that the elements of section 167 of the Act have been satisfied.

If the communications were not made from within the scheme, then it would not make sense to say that the nuisance interferes with the use of a particular lot or area of common property.

When you’re faced with this issue, one can usually turn to a nuisance By-Laws (contained within the Community Management Statement) for enforcement.

However, where section 167 of the Act or a nuisance By-Law does not apply in your circumstances, i.e. the nuisance does not directly interfere with the use of lot or common property i.e. nuisance communication to the Body Corporate Manager, the recent decision of Deagon Village [2018] QBCCMCmr 208 (20 April 2018) may assist with filing the gap.

In that case, the Adjudicator had to determine:

  1. Whether it was appropriate to make orders that the respondent ceases to engage in conduct allegedly to be causing nuisance or unreasonable interference with others at the scheme? and,
  1. Whether it is appropriate to make an order restricting the ability of the respondent’s communication with the Body Corporate and its representatives?

On the first issue, the Adjudicator was tasked with applying the test of ‘reasonableness’. Generally, the Adjudicator has found that whilst what is reasonable to one may be unreasonable to another, most decisions on this point come down to the repetition, tone and frequency of the correspondence (as applied in the case of Tank Tower [2015] QBCCMCmr 322 (9 July 2015).

In Deagon Village the orders restricting communication by a lot owner were sought as:

  1. The respondent made a number of phone calls to the Body Corporate Manager and committee members in which on any given day varied. In some cases, more than ten calls were received on particular days, often in quick succession and sometimes occurring late at night through to early in the morning.
  2. When the calls were not answered, the respondent left excessive numbers of voicemails, sometimes continuing until the voicemail box was full, with more than 50 voicemails reported in one particular day.
  3. The phone calls and voicemail message made by the respondent were seen as abusive and involved profanity and yelling, and in most cases, were not about matter the body corporate or the body corporate manager could assist with.
  4. It was also shown that the conduct of the respondent was negatively affecting the wellbeing of the persons receiving those calls as well as their employees.

Whilst the adjudicator was satisfied that the respondent’s conduct amounted to nuisance communication, given the calls were not made from within the scheme, there was difficulty in finding that the nuisance was in conjunction with the use of the lot or the common property, such that it would be in breach of section 167 of the Act.

Notwithstanding this, even without a breach of section 167 of the Act or the by-laws, there still remained the question of whether the Body Corporate could decide to impose restrictions on communications in the face of conduct such as that of the respondent within Deagon Village.

In considering the submissions from both parties, the Adjudicator considered that the Body Corporate should not be placed in a position where the resources of the Body Corporate are unfairly burdened by the lengthy, repetitive and offensive communications of a single lot owner.

In the circumstances, the Adjudicator was satisfied that the Body Corporate had the right to place some restrictions and protocols on how lot owners and occupiers communicate with its representatives irrespective of whether or not a nuisance by-law or section 167 of the Act could be applied.

The restrictions imposed included:

  • Telephone communication (including the leaving of voicemails or text messages) may only be made in the event of a genuine emergency or where the Body Corporate for Deagon Village has expressly invited it;
  • Telephone communication may only be made to telephone number expressly nominated for the purpose by the Body Corporate for Deagon Village;
  • Other than in the circumstances above, all communication with the Body Corporate for Deagon Village must be in written form and addressed only to the postal or email address nominated for that purpose by the Body Corporate; and
  • Written and verbal communication must be courteous and not abusive or offensive.

With all considered, the adjudicator ordered that the body corporate was not required to respond to any communications from the Respondent, and was permitted to disregard any communications that were unreasonable in the circumstances.

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A Ten Point Strategy to Make Sure Your Estate Planning is Up to Date

By | Articles, Wills and Estates

It’s one of those things that we all know we should do – but we don’t necessarily want to do it. As adults we’re all aware that it’s important to have a will – and other measures – in place to ensure that our affairs are handled properly if something horrible were to happen. So at some point, most of us bite the bullet and “put our affairs in order.” For those of you who are still procrastinating, however, here are some tips to help you create an effective estate plan, and manage it once you’ve done so.

Begin by taking stock of your personal circumstances. Do so by making a comprehensive list of all of your assets, including but not limited to your investment portfolio, and all personal and real property.

Then consider the following:

  • How do you want you assets to be distributed?
  • Have you nominated a beneficiary under your superannuation policy?
  • Who will look after your children if something happens to you and/or your spouse?
  • Who can you trust to ensure that your wishes are carried out as stipulated in your will?
  • Who will handle your financial matters if you are unable to do so?
  • Who will make medical decisions on your behalf if you can no longer make them yourself?

The next step is to draft your will. You can do this (and draft other legal documents in your estate plan as long as you are at least 18 and don’t have any physical or psychological issues that would render you legally incompetent) with the assistance of a qualified legal professional, or on your own using legal resources available online. Although choosing the latter may seem like a more affordable option, consulting a lawyer can save you time and money in long run. Specifically, he or she can help determine which assets you can automatically include in your will – and which ones (such as joint assets, superannuation and life insurance policies) you can’t and most importantly, the implementation of strategies to ensure your hard-earned assets go to the beneficiaries you have chosen, as opposed to those you have not.

Don’t forget to choose an executor. This is crucial because the executor is the person who will oversee the distribution of your assets and other matters as stipulated in your will. Make sure it is someone you trust and is equipped to cope with family squabbles and any unpleasant issues that may surface. He or she may be a friend, relative or a financial or legal practitioner.

Next, make sure you’ve assigned power of attorney. By doing this, you’re giving someone the legal authority to make decisions and/or take certain actions on your behalf in certain circumstances. You can designate power of attorney to someone for only a limited time; in the event that you are no longer able to make your own decisions; or to make decisions regarding your medical care if you are unable to do so.

You should also consider creating an advance health directive.  Creating this document is another way to ensure that your wishes about medical treatment and related matters are known in the event that a catastrophic illness or injury renders you incapable of making decisions about your care.

While you are at it, talk to your Gold Coast Lawyers about the pros and cons of creating a testamentary trust. This is a trust that is included in your will, can be used to protect your assets, and will only take effect when you pass away.

This may be a viable option for you if:

  • Your beneficiaries are not yet legal adults
  • Your beneficiaries are mentally incapable of handling certain responsibilities
  • You want to keep your beneficiary/ies from squandering their inheritances
  • You do not want family assets to be divided in a divorce settlement
  • You want to protect family assets in the event of bankruptcy

The trustee, or person who administers the trust, will also be appointed in your will. He or she is in charge of the assets set aside for the beneficiaries until the trust is no longer in effect. How long the trust remains in place is up to you. Usually, it will be effective until a minor becomes an adult, gets married or successfully completes their education.

Once you’ve conferred with your lawyer and drafted all of the legal documents you’d like to include in your estate plan, let your executor and relatives know what they are and where you keep them. You should also keep and let them know where to find any other significant legal and financial paperwork including your:

  • Birth certificate
  • Marriage certificate
  • Personal insurance policies
  • Documents pertaining to real estate holdings
  • Financial and retirement information
  • Superannuation papers
  • Investment documents (securities, share certificates, bonds)
  • Health insurance documents
  • Pensioner concession card
  • Any deposits for funeral investments

You should also get into the habit of going through all of the paperwork in your estate plan at least once or twice per year. Doing so will allow you to be proactive when it comes to making any changes. This is especially important when it comes to your will, which should be amended in the event of:

  • The sale of important assets
  • The creation of a family trust
  • The acquisition of new assets
  • Additional financial obligations
  • Changes to your personal affairs
  • Changes to your super or SMSF

Whenever you make changes to your will, you should also ensure that any beneficiary designations on insurance policies and so forth also reflect the changes. 

Finally, it is important to keep the lines of communication with relatives open throughout the estate planning process. By being candid about your wishes from the outset, you’ll reduce the likelihood any misunderstandings and hurt feelings in the long run.

Could an unsent text message be a valid will?

Will Shock: Could an unsent text message be a valid will?

By | Articles, Wills and Estates

In Queensland, a valid will is written and signed by either the person making the will (the Testator) or directed by the Testator in their presence.

The testator must sign or acknowledge the signature in the presence of two or more witnesses and the Testator must sign with the intention of executing the will.

The Queensland Supreme Court Case of Nichol v Nichol[1] recently delivered, saw the Court validate an unsent text message as a will.

A man died in October 2016 and was survived by his wife Julie of one year, who had left him days before. The deceased had a very close relationship with his brother David and nephew Jack. His death was sudden and unexpected.

No formal will was ever found, but when the body was discovered, his mobile phone was nearby.

There was an unsent text message saved to drafts which read:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will”

The Nichol’s case is one of many cases all over Australia where a suicide note, draft will, unexecuted will and electronic wills, such as a Facebook status or Tweet on twitter, have been valid wills. Without the intent, the application for the informal will to be validated won’t proceed.

The judge held[1] that four elements constituted the text being a valid will.

  1. Was there a document?
  2. If so, did the document purport to reflect testamentary intentions?
  3. When the document was created, did the deceased demonstrate that it was his intention that the document operate as his will?
  4. Did the deceased have testamentary capacity?

 

[1] [2017] QSC 220.

Having a valid will is the only reliable way to ensure that your estate goes to family or friends of your choice after you pass away. A valid up-to-date will can help reduce stress for your family and friends, limit the costs to administer your estate and lessen the possibility of disputes over your possessions.

Please call Gold Coast Lawyers at OMB Solicitors to plan your estate.

Protecting My Interests in Property

Protecting My Interests in Property

By | Articles, Property Law

A Caveat is a legal document registered on the Title of a property which generally prevents dealings with that property without the lodger’s consent. Once registered on Title, it acts as a warning or formal notice to advise the public that someone (the Lodger) has an interest in the land or property.

The most common query regarding a Caveat is can it be lodged to protect the recovery of the debt? The general answer is no. A Caveat can only be lodged when there is a “caveatable interest” and this generally means an equitable or legal interest in the land or a right, power, or privilege over the land which is the basis of the Caveat. There are a number of examples of this including an equitable mortgage, constructive trust or agreement which provides that a property is charged or encumbered with the repayment of a loan. These are just some of the examples that may constitute a caveatable interest; however, it is important to note that it is more than a mere claim for damages.

The Caveat, however, is a very powerful tool which prevents the party from dealing with their property and may heavily impact the owner of that property by preventing them from selling or mortgaging their property. As a result there is substantial liability which may be imposed on a person who lodges or continues with the caveat without reasonable grounds. In the event that another party suffers loss or damage as a result of that lodgement the lodger of the caveat may be liable for those damages or loss.

Any party wanting to lodge a Caveat should seek specialist legal advice and it should bear in mind that all times the potential liability that may attach if the grounds for lodging that Caveat are insufficient and the caveat causes loss or damage. The general rule for a caveat is that it will automatically lapse after a three-month period unless proceedings to support that Caveat are commenced. There are certain types of Caveat that will be non-lapsing however.

When Mediation Fails

When Mediation Fails and an Agreement Cannot be Reached

By | Articles, Family Law

When alternative dispute resolution processes do not resolve the property or parenting issues in dispute with your ex-partner (taking into account that these processes require the co-operation of your ex-partner) you will need the assistance of the Family Court or Federal Circuit Court process to resolve your matter.

Are there time limits?

Unless you bring proceedings in the Family Court of Federal Circuit Court for a property settlement or spouse maintenance within 1 year from the date of your divorce being finalised, you lose the right to bring such proceedings without leave of the Court (which is not readily given).

What Happens During the Court Process

The process in both the Family Court and the Federal Circuit Court of Australia follow the basic procedures below, with some minor variations, namely:

  1. An Initiating Application and an Affidavit by you in Support of the Application and a Financial Statement if a property matter, or a Notice of Risk if a parenting matter, is filed in the Court and served on the other party. A Court filing fee is payable;
  2. The other party must file and serve a Response, Affidavit and Financial Statement (or Notice of Risk) within fourteen (14) days of the first Court return date;
  3. The matter comes before the Court for the first time for a case assessment conference (Family Court) or for a “first return date” (Federal Circuit Court) and interim hearing if necessary (both Courts);
  4. The Court will make any orders by consent on the first return date, and will normally order that the parties attend a conciliation conference or a private mediation (for property matters) or that a Family Report be prepared and/or an Independent Children’s Lawyer (“ICL”) be appointed for the children (parenting matters);
  5. If the matter does not resolve at the conciliation conference or private mediation (property matters) or in line with the recommendations of the Family Report Writer and/or ICL (children’s matters), the matter is returned to Court for trial directions;
  6. The matter is prepared for a hearing, and a barrister is appointed to prepare for attend the hearing.
  7. The matter is heard by a Judge for a final decision.
  8. The Judge will hand down his or her decision, and this decision can only be appealed on certain grounds within twenty eight (28) days.

If there are any urgent matters which need to be determined by the Court prior to a final hearing, either party can bring an interim or urgent application in which case the matter will be dealt with depending on the urgency of the matter.

On the return date of an interim or urgent application, the Court will make a determination of the matter on an urgent basis and the matter is determined on the affidavit material filed and the submissions of both parties.  Normally oral evidence is not given at such a hearing. Affidavits must not be more than ten (10) pages in length, and the number of exhibits which can be attached is limited.

Important Considerations

During the Court proceedings, it is important to remember that:

  • Your personal appearance is required on all Court dates, including mentions and callovers, unless excused by the Judge beforehand;
  • You will need our assistance to prepared affidavit material (which may need to be settled by counsel) and this can be time consuming and costly;
  • Barristers will be required to be engaged for all defended interim hearings and for the final hearing of the matter. Whilst solicitors will generally appear on mentions, callovers, and where consent orders are being made, solicitors are not generally experts in Court advocacy and will engage counsel to provide the best possible representation of you and presentation of your case at defended and final hearings, particularly where cross-examination is required.
  • Every Court appearance carries with it an opportunity to resolve the matter or particular issues in dispute by consent with the other party, and therefore the most should be made of these opportunities.
  • Judges in the family court arena have a very wide discretion when it comes to making property adjustment orders, and this wide discretion gives limited rights to appeal a seemingly unfavourable decision towards a party.
Wills – The Unavoidable Topic

Wills – The Unavoidable Topic

By | Articles, Wills and Estates

It’s human nature to refuse to accept the obvious – nothing is more certain than death and taxes. Making a Will isn’t morbid – it is the only way to protect hard earned assets.

Most people wouldn’t leave their car door open with a wallet displayed on the front seat. Few people leave their homes open so thieves can help themselves but many people leave their estate wide open to claims. A valid will ensures assets go to those who are near and dear. The absence of a Will leaves the estate open to claims from all and sundry and this includes the taxation office.

There is no legal obligation to make a will, but it is the smart option. Without a Will, assets can be distributed by anyone to anyone. When people die without leaving a will, assets are distributed according to a legal formula.

The process applies to financial assets, property, and may determine the guardian of children under 18 years of age. Avoid creating ongoing hassles and legal wrangles by preparing an estate plan.  This usually means writing a straightforward will and an enduring power of attorney.

Enduring power of attorney offers protection if an accident or a medical condition prevents people handling their own affairs. An executor is appointed to ensure a will is followed to the letter. Power of attorney allows a trusted person to deal with financial and legal affairs of another.

A will can be relatively straightforward or a complex legal document incorporating protective clauses and tax effective structures such as testamentary discretionary trusts (TDTs). TDT’s are not for everyone, but can be very advantageous.

TDT’s may offer tax advantages and protect assets involved in Family Law Court proceeses or creditors threatening bankruptcy.

TDT’s also protect spendthrift beneficiaries from themselves and ensure ongoing care for children, grandchildren and mentally disabled beneficiaries.

Legal advice is recommended when making a will. It is essential to cover all likely eventualities, choose an executor to administer the estate; appoint the guardians of children, list assets and liabilities (individual, jointly owned or placed in a trust), name beneficiaries, show how assets should be distributed and make provisions for the future of any children.

Recent legislation allows people to place large proportions of their wealth into superannuation.

Superannuation is not always distributed according to a person’s will because the asset is controlled by the trustee of the superannuation fund.  This is not usually the executor of the estate.

The superannuation fund trustee may decide who receives the proceeds of the fund.  This is an important estate planning issue.

Gold Coast Lawyers at OMB Solicitors has almost 40 years estate planning experience. For further information contact Simon Bennett on 07 5555 0000.

This article was featured in Label Magazine, by Simon Bennett

Signing a Power of Attorney

Don’t Get Lost in the Shuffle

By | Articles, Wills and Estates

Volcanic ash created an international debacle as people were stranded far from home; it highlights the need for a back up plan

Life does not always go to plan but most people are unprepared for the unexpected according to Gold Coast solicitor Simon Bennett. Simon says responsible people prepare for all eventualities. “Life is unpredictable, we must hope for the best and be prepared for the worst,” he says.

“People can sometimes become incapacitated due to a so-called act of god like the volcanic ash eruption or as the result of an accident or illness. It is essential to have a plan of action in place to avoid compounding the problem. A power of attorney ensures a trusted family member, friend or professional person is able to take over financial and health affairs,” Simon says.

A power of attorney is a legal document that allows any person aged 18 years or over to nominate another to deal with financial, health and any other situations if they are not capable of dealing with these matters themselves. An enduring power of attorney continues if the loss of capacity is ongoing. It allows the person with the enduring power of attorney to make decisions on behalf of another.

Simon says government officials take over when people who are no longer capable of dealing with their own affairs have failed to arrange a power of attorney. “It would be terrible to rely on state officials.

“These people have no idea of what an incapacitated person would want or expect. The individual becomes a faceless subject of the State. A power of attorney ensures individuals don’t get lost in the shuffle. OMB Solicitors experienced legal team can help everyone plan for the unexpected,” he says.

Do not get lost in the shuffle

This article was featured in Label Magazine, by Simon Bennett

Putting a Price On Pain & Suffering

Putting a Price On Pain & Suffering

By | Articles, Insurance

Recent reform to awards for pain and suffering for those who have suffered a workplace injury brings the Workers Compensation & Rehabilitation Act into line with the damages available under the Civil Liability Act for motor vehicle and other accidents, thereby creating a more uniform compensation scheme in Queensland.

Serious injury invariably leads to loss of income and added expenses for the claimant. The cost of medical treatment coupled with an inability to work during rehabilitation is a source of serious financial strain for many Australian families. A successful claim for damages will help offset this loss.

Unless the claimant is a minor, the right to claim will generally expire three years after the accident occurred, or after the claimant became aware their injuries were caused by an accident. Thus, it is vital that claims are initiated in a timely manner.

Personal injury claims only succeed if another person (such as your employer or other vehicle driver) owed a duty to the claimant, and breached that duty through negligent action or inaction. A causative link to the injuries must also be demonstrated.

Negligence by the claimant may reduce or eliminate the compensation. Claimants must avoid obvious risks and take care for their own safety.

Awards for pain and suffering (general damages) are based on medical opinion which determines the severity of the injury suffered and any resultant long term impairment. For injuries sustained from 1 July 2010 onwards, the Workers Compensation & Rehabilitation Regulations Injury Scale Value tables sets out the awards payable.

However, there is more to a personal injuries claim than simply attempting to quantify the pain and loss of enjoyment of life suffered. Additional types of awards may be made to successful claimants:

  • past economic loss (and past superannuation);
  • estimated future economic loss (and future superannuation);
  • past hospital/medical/rehabilitation costs and related out of pocket expenses;
  • predicted future rehabilitative expenses and out-of-pocket expenses; and
  • care provided, in the past and/or future, by family and friends, or employed carers and other service providers.

These awards aim to put the claimant back in the position they would be in had the negligence and resultant injury not occurred. This can return some kind of financial normalcy to the lives of those affected by serious injury.

 

 

Ladies Protect Your Assets

Ladies Protect Your Assets

By | Articles, Family Law

Women who have gone through a separation or divorce will be the first to tell you that the process is daunting, expensive, lengthy and exhausting. You work hard, build your wealth, meet “Mr Right” and fall head over heels into a relationship, only to realise some years later that “Mr Right” was not all you expected. Suddenly, the joyride comes to an abrupt stop as your relationship is reduced to paperwork and numbers.

It is a harsh reality when you are told by your solicitor that when it comes to your property matters, it does not matter that he cheated on you, and that it does not necessarily matter that he did not bring the same amount of wealth into the relationship or contribute as much as you did financially… the reality is, he potentially has a claim to your assets, even those you owned prior to your relationship. You can fight it in Court and potentially win, but in most cases; it will cost you more than it’s worth, both financially and emotionally.

So what do you do? At the risk of saying the words that are still considered by many as taboo, you protect your assets, and you get him to sign a Binding Financial Agreement, or what is more commonly referred to as a Pre-nuptial Agreement.

Sure, it’s easier said than done, after all, how do you ask the man you love to sign a document that in short says, “in case we don’t work out, I keep my things, and you can’t touch them”. It implies you do not trust the relationship will work and that you do not trust him… at least that is how a lot of people see it. What you are really saying is, “I have worked hard to build my wealth. If things were to get ugly between us, promise me you won’t try to take away what I have worked so hard on my own to build.”

A Binding Financial Agreement will protect the assets you have accumulated prior to moving in with or marrying your partner. At the same time, it will allow you to decide together, in advance, and whilst you both have each other’s best interests in mind, what you think is fair and what you will do with your property in the event you separate.

You can do this and be proactive, or alternatively, take a reactive approach and try and sort through the mess when both of you are broken hearted and potentially upset at one another. Spend a little now to secure your interests, or spend a lot later in a bitter fight to the end, where potentially, no one wins.

Binding Financial Agreements can be entered into prior to or once a couple are living together; and at any time prior to or during a marriage. If you have separated, and you are concerned about your rights, we can also assist you. Contact our Gold Coast Family Law Solicitor on 07 5555 0000.

This article was featured in Label Magazine, by Simon Bennett

Happily Ever After

Happily Ever After

By | Articles, Family Law

The urban myth lives on despite the reality of separation, divorce and bitter wrangles.

An ever increasing number of marriages fail to fulfil the happily ever after expectations most people dream of. Gold Coast lawyer Simon Bennett says it is wise to set romance aside and enter into marriage with a degree of protection.

“Few people would enter a business partnership without an agreement that protects against the unforeseen; the same rules should apply to marriage. It’s not very romantic but it does go someway to avoiding the hassles that can result from a relationship breakdown,” Simon says.

“Approaching a relationship breakdown is difficult when emotions are running high and most people are focused on anger, resentment and revenge. Both parties should take a commonsense approach and settle for a fair, equitable and just resolution. It is easier to do this when there is a cohabitation agreement in place,” he says. When a marriage or relationship breaks down there are a number of areas that must be resolved. These usually include property settlement, financial maintenance and custody of children.

Simon says that during a divorce, property settlement involves the division of matrimonial property, including all assets and liabilities including superannuation. “Division of property or deciding how much time is to be spent with children shouldn’t be about greed or point scoring. Family Law can far too often become the enemy rather than the means of resolving disputes, rectifying relationships and allowing parties to move forward,” he says. “The custody of children can be very complicated. Specific issues may include parental responsibilities such as day to day decision making, the time each parent spends with the child or children and child maintenance. Financial maintenance is generally controlled by the Child Support Agency,” he says.

“Advice should be sought from an experienced divorce solicitor. This ensures both parties are fully aware of their positions. The initial discussion should outline a plan for reasonably resolution. The next step generally involves another meeting with the parties involved and their representatives.

“When issues are resolved, agreements can be entered into. Where children are involved Family Court Consent Orders can be obtained. If agreements can’t be reached further legal advice is recommended,” he says.

This article was featured in Label Magazine, by Simon Bennett

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