Choosing Briese Lawyers for Your Amicable Separation:
A Litigation-Free Approach
When it comes to navigating the complexities of a separation, finding the right legal representation is crucial. If you are seeking an amicable divorce settlement and wish to avoid the stress and expense of litigation, Briese Lawyers is the ideal choice for you. With our commitment to fostering cooperative solutions and prioritizing peaceful resolutions, we offer a unique approach to divorce and separation that focuses on collaboration rather than confrontation. In this blog, we'll explore why choosing Briese Lawyers for your amicable settlement can make all the difference in achieving a smoother and more harmonious transition.
1. Expertise in Amicable Resolutions:
At Briese Lawyers, we focus on amicable settlements. We understand the importance of maintaining open lines of communication, promoting understanding, and finding mutually agreeable solutions. With our experience in alternative dispute resolution methods such as mediation and collaborative law, we are well-equipped to guide you through the process of achieving a peaceful settlement, without giving up your rights or entitlements.
2. Emphasis on Cooperation and Understanding:
Unlike traditional litigation-focused firms, Briese Lawyers places a strong emphasis on cooperation and understanding. We believe that the most successful resolutions are the ones that prioritize the needs and interests of both parties involved and produce fair outcomes, within the context of the Family Law framework. Our lawyers work diligently to foster an environment of respect and effective communication, ensuring that your voices are heard and your concerns are addressed throughout the entire process.
3. Cost-Effective and Efficient:
By choosing Briese Lawyers, you can rest assured that your settlement will be handled in a cost-effective and efficient manner. We understand that lengthy legal battles can be financially draining and emotionally exhausting. With our commitment to finding efficient and mutually agreeable solutions, we aim to save you both time and money, allowing you to move forward with your life in a more timely and financially sustainable manner.
4. Focus on Family and Co-Parenting:
We recognize the significance of maintaining healthy family relationships, especially when children are involved. At Briese Lawyers, we strive to prioritize the well-being and best interests of the entire family. We work diligently to help you establish a cooperative co-parenting relationship, ensuring that your children's needs are met and that their emotional well-being remains a top priority during and after the divorce process.
5. Personalized and Compassionate Service:
Choosing Briese Lawyers means choosing personalized and compassionate service. We understand that separation is a highly emotional and personal journey, and we are committed to providing you with the support and guidance you need. We take the time to listen to your concerns, understand your unique circumstances, and tailor our approach to meet your specific needs, ensuring that you receive the individualized attention and care you deserve.
Conclusion:
When it comes to an amicable settlement, choosing the right legal representation can make all the difference. With Briese Lawyers, you can trust that your matter will be handled with the utmost professionalism, compassion, and dedication to achieving a peaceful resolution. Our expertise in amicable resolutions, emphasis on cooperation and understanding, cost-effective and efficient approach, focus on family and co-parenting, and personalized service set us apart as the ideal choice for your amicable settlement and parenting arrangements. Trust Briese Lawyers to guide you through the process and help you build a brighter and more harmonious future.
Navigating Relationship Breakdown:
Your Path to Empowerment and Resolution
The end of a relationship is a challenging and emotional time, often marked by uncertainty about the future and a range of complex legal concerns. At Briese Lawyers, we understand the turmoil that can accompany this phase and are dedicated to providing guidance, support, and legal expertise needed to make informed decisions that will shape our client’s futures. A decision to book a consultation is a pivotal step toward addressing concerns, gaining clarity, and finding a path forward.
Whether you're navigating a breakdown or contemplating the potential dissolution of your relationship, we are here to provide insights, guidance, and actionable advice that empowers you to take control of your situation.
At Briese Lawyers, our approach to Family Law is a little different. We firmly believe that the process of untangling finances and defining parenting roles doesn't have to be a protracted, costly, and stressful journey. Our core objectives include:
Reducing Conflict:
We strive to minimize conflict to create a smoother transition for all parties involved.Minimizing Stress:
We understand the emotional toll of legal proceedings and work to alleviate unnecessary stress.Empowering Clients:
We believe in giving you the tools to make decisions that are right for you and your family.Focusing on the Future:
Our approach is future-oriented, helping you build a solid foundation for the next chapter of your life.Avoiding Court Battles:
We're committed to avoiding adversarial legal processes and court appearances.Exploring Alternative Solutions:
We're open to unconventional legal approaches that best suit your needs.Pursuing Fair Outcomes:
Our goal is to ensure equitable solutions that work for all parties involved.
Experience That Matters
With a legal practice spanning over three decades, our Principal, Kym Briese, brings extensive experience as a Family Lawyer to the table. Having witnessed the damage that the traditional, adversarial approach to family law can inflict on couples seeking fair outcomes, she is committed to facilitating a kinder, more empathetic separation process. Our approach is to find a less confrontational and more respectful way of helping couples separate, while maintaining their dignity.
Our Scope and Commitment
It's important to note that we do not handle matters involving litigation (court proceedings) or family violence. We are dedicated to supporting clients in reaching their own solutions through direct negotiations, mediation, or arbitration. If a situation requires litigation, we will provide guidance to navigate the process as a self-represented litigant. While our approach might not be suitable for everyone, we understand that some clients prefer a more adversarial route and we can recommend other legal professionals who align with those preferences.
Moving Forward Together
If our approach is what you are looking for, then we look forward to meeting with you, to discuss your concerns, and collaborate on a path that empowers you to move forward with confidence and a clear vision of your future. Your decision to seek guidance during this challenging time is a testament to your commitment to making well-informed choices, and we're here to support you every step of the way.
Planning for the Future:
The Vital Importance of Estate Planning for Couples with a Young Family
As young couples embark on the beautiful journey of starting a family, there's an important aspect that often gets overlooked: estate planning. While it may not be at the forefront of their minds, proper estate planning is crucial for ensuring the well-being of their children and providing peace of mind. In this blog, we will explore the profound significance of estate planning for younger couples who are beginning their family journey.
Securing Your Children's Future:
One of the most critical considerations for young couples starting a family is the appointment of guardianship. Estate planning allows you to choose who will raise your children if something were to happen to both parents. By clearly designating a guardian in your estate plan, you're ensuring that your children will be raised by someone you trust and who shares your values.Asset Protection for Your Family:
Estate planning also plays a significant role in protecting your family's financial well-being. By creating a comprehensive estate plan, you can ensure that your assets are distributed according to your wishes, minimizing potential disputes among family members. Moreover, you can establish trusts and other protective measures to safeguard your children's inheritance until they reach a certain age, ensuring they are financially secure.Minimizing Taxes and Expenses:
Proper estate planning can help young couples minimize the burden of taxes and expenses on their loved ones. By strategically structuring your estate plan, you can take advantage of tax-saving opportunities and reduce the potential impact of taxes. This allows you to maximize the value of your assets, providing more for your children's future.Healthcare and Decision-Making:
Estate planning enables young couples to make important decisions regarding healthcare and end-of-life wishes. By creating advanced healthcare directives and enduring powers of attorney, you can appoint someone you trust to make medical decisions on your behalf if you become incapacitated. This ensures that your preferences are respected and relieves your loved ones from the burden of making difficult choices during challenging times.Protecting Family Harmony:
By engaging in estate planning, young couples can prevent potential conflicts and maintain family harmony. Clearly outlining your intentions in a legally binding document reduces the likelihood of misunderstandings or disagreements regarding the distribution of assets, minimizing the potential strain on family relationships.Planning for Education and Upbringing:
Estate planning provides a unique opportunity for young couples to plan for their children's education and upbringing. By establishing educational trusts or setting aside funds specifically for their future needs, you can ensure that your children's educational dreams can be realized, regardless of what the future holds.
Conclusion:
Estate planning is a vital step for young couples starting a family, as it allows them to secure their children's future, protect their assets, and make important decisions regarding healthcare and guardianship. By taking proactive steps to plan for the unexpected, young couples can ensure that their family's well-being is safeguarded and their wishes are respected. Don't delay this important responsibility—consulting with an experienced estate planning professional at Briese Lawyers is the first step towards providing peace of mind and securing a bright future for your growing family.
Remember, planning for your family's future is an act of love that will provide reassurance and protection for the ones you hold most dear.
Estate Planning:
Safeguarding Your Loved Ones' Future with Briese Lawyers
Estate planning is a crucial task for individuals and families of all demographics. Whether you're a young couple starting a family or retiree looking to protect your assets and loved ones, proper estate planning ensures your wishes are fulfilled and provides peace of mind. In this blog, we will explore the importance of estate planning and why Briese Lawyers (Toowoomba) is the ideal choice to guide you through this essential process.
Securing Your Loved Ones' Future:
Regardless of your age or life stage, estate planning allows you to protect your loved ones by ensuring their future is secure. By working with Briese Lawyers, you can meticulously plan for the appointment of guardianship, ensuring your children are raised by someone you trust and who shares your values. Their expertise in this area ensures that the best interests of your family remain paramount.Tailored Solutions for Asset Protection:
Briese Lawyers understands that each individual's situation is unique, and they offer tailored solutions for asset protection. Whether you have substantial assets or modest ones, their experienced team will help you create a comprehensive estate plan that minimizes potential disputes among family members and safeguards your assets for future generations.Extensive Knowledge of Tax Planning:
Navigating the complex landscape of taxes and understanding their impact on estate distributions is a vital aspect of estate planning. With Briese Lawyers, you benefit from their extensive knowledge of tax planning strategies that can help minimize the tax burden on your loved ones. They will work closely with you and your financial advisor to structure your estate plan in a way that maximizes the value of your assets, ensuring more for your beneficiaries.Expert Guidance in Healthcare and Decision-Making:
Briese Lawyers understands the importance of healthcare and end-of-life planning. With their expert guidance, you can establish advanced healthcare directives, enduring powers of attorney, and other essential documents that ensure your medical decisions align with your wishes. Their compassionate team will help you navigate this sensitive area, providing peace of mind for you and your loved ones.Relieving Family Stress and Conflict:
Estate planning with Briese Lawyers has the added benefit of relieving potential stress and conflict among family members. By clearly outlining your intentions and wishes in a legally binding document, you minimize the likelihood of disputes arising in the future. This preserves family harmony and allows your loved ones to focus on supporting one another during difficult times.Personalized Education and Upbringing Planning:
Planning for your children's education and upbringing is a fundamental aspect of estate planning. With Briese Lawyers, you can create educational trusts and allocate funds specifically for the future needs of your children. Their personalized approach ensures that your children's dreams and aspirations can be realized, providing them with a solid foundation for their future endeavors.
Conclusion:
No matter your demographic, estate planning is a crucial step in safeguarding your loved ones' future and ensuring your wishes are respected. By choosing Briese Lawyers as your trusted partner in this process, you benefit from their expertise in securing guardianship, asset protection, tax planning, healthcare decisions, and more. With their personalized approach and commitment to excellence, Briese Lawyers is the ideal choice for all your estate planning needs. Take control of your family's future today by engaging their services and experience the peace of mind that comes with a comprehensive estate plan.
Securing Your Legacy:
The Vital Importance of Estate Planning for Baby Boomers
As the baby boomer generation gracefully moves into their golden years, it becomes increasingly crucial for them to contemplate a subject that is often overlooked: estate planning. While it may seem uncomfortable or morbid to discuss, proper estate planning is an essential step towards ensuring the security of your loved ones and the preservation of your hard-earned legacy. In this blog, we will explore the profound significance of estate planning for baby boomers in Queensland.
Peace of Mind:
Estate planning provides immense peace of mind, allowing you to rest assured that your wishes will be fulfilled when you are no longer able to communicate them. It enables you to make informed decisions about the distribution of your assets, ensuring that they pass to your chosen beneficiaries, and minimizing the potential for disputes or legal battles.Asset Protection:
By engaging in estate planning, baby boomers can protect their assets from potential risks such as creditors, lawsuits, or unforeseen financial obligations. Through the creation of trusts and other legal instruments, you can shield your wealth and ensure it is preserved for the benefit of future generations.Minimizing Taxes:
Estate planning can also help baby boomers reduce the burden of taxation on their heirs. By employing strategic methods such as gifting, trusts, and establishing tax-efficient structures, you can maximize the value of your estate and minimize the impact of taxes.Healthcare and End-of-Life Decisions:
As we age, it's important to consider our healthcare and end-of-life wishes. With proper estate planning, you can designate a trusted person to make medical decisions on your behalf if you become incapacitated. Advanced healthcare directives and enduring powers of attorney allow you to outline your preferences for medical treatments, ensuring that your wishes are respected.Protecting Family Harmony:
Estate planning can prevent family disputes and maintain harmony among your loved ones after you're gone. Clearly defining your intentions in a legally binding document reduces the likelihood of misunderstandings or disagreements regarding the distribution of assets, minimizing the potential for strained relationships or costly legal battles.Charitable Giving:
For those baby boomers passionate about philanthropy, estate planning offers a unique opportunity to leave a lasting impact on causes they hold dear. By incorporating charitable giving into their estate plans, individuals can support charitable organizations and leave behind a legacy of positive change.
Conclusion:
Estate planning is an invaluable gift that baby boomers can leave for their families and loved ones. By taking proactive steps to protect their assets, outline their desires, and make provisions for the future, baby boomers can ensure a smooth transition of wealth, minimize potential conflicts, and preserve their legacy for generations to come. Don't delay this important responsibility—consulting with an experienced estate planning professional at Briese Lawyers is the first step towards securing your future and providing peace of mind for both you and your loved ones.
Remember, your legacy matters, and estate planning is the key to safeguarding it.
If you have any other questions about this process, please contact our friendly, experienced team.
Are you selling your property?
Do you have a mortgage over the property you are selling?
IF YOU ANSWER YES TO THESE QUESTIONS YOU MAY JUST WANT TO READ THIS VERY IMPORTANT INFORMATION!!
As a Seller of residential Property, your main responsibility is to ensure that ownership of the Property can be transferred to the Buyer immediately after Settlement. For Sellers who have a mortgage over the Property, this means that you need to arrange for that mortgage to be released.
Think back to when you purchased your house. Do you remember the never ending forest of paperwork that you filled out? Maybe you had to do it more than once (missed signatures, coffee spilled over the papers, your dog ate it…we have heard plenty of stories)! Well the bad news is that when you sell your Property, you will again need to fill in some paperwork (so put that coffee in a safe space and keep the dog outside for a bit).
The good news is, the amount of paperwork this time around is less likely to give you terrible hand cramps that are going to keep you up at night, making you wonder why on earth you got into the property market in the first place. In fact, the main document you need to fill out is generally no more than 5 pages. That document is called a “Discharge Authority”. Some banks will let you download this form from their website, but if not, you can contact your bank manager or broker and ask for a copy.
The Discharge Authority notifies your bank that the sale is imminent, provides various details about the sale (including sale price, settlement date, etc), and gives scope for you to authorise your bank to liaise with your solicitor to arrange settlement. Then the bank and your solicitor (us, we hope!) take care of the rest. (On a side note if you have utilised the equity in your property to purchase another property or to go Guarantor for your kids we suggest you contact your bank in this regard immediately)
Ultimately, it is up to you to complete this form and send it to your bank, because until you do that the bank won’t talk to us. Please ensure that the discharge authority includes all loan account numbers, many clients have split home loans (fixed and non fixed interest) & these must be listed individually. Remember to take a copy of the completed Discharge Authority as your solicitor will also require a copy for your file.
Of course, unless your mortgage is completely paid out (well done, you!), your bank wants something in exchange for releasing the mortgage. You guessed it. Money! Your bank will only hand over the release once it receives an amount that is sufficient to pay out the amount owing on your mortgage. In practice, what will happen is your settlement will either happen via PEXA, which is an electronic settlement or your bank will attend settlement. This will occur on the agreed date (we will be there too, on your behalf because we know you have better stuff to do), and will hand over the release in exchange for the sale funds either physically or electronically. The buyer won’t hand over the money unless your bank hands over the release, so it is important to ensure that the release document is ready in time for the settlement date. On top of that, in Queensland, time is of the essence in most residential real estate transactions.
Our advice to you is fill out your discharge authority as soon as physically possible, after the Contract has been signed. We don’t mean the week before settlement, we don’t mean the day after your Buyer has confirmed their finance (and various other conditions you have kindly agreed to give them). We mean straight away. The reason is that banks have certain timeframes (which, helpfully, differ depending on which bank you are with) for preparing release documents. Plus, banks are busy people too, especially with the record increase in sales & purchase transactions Australia wide. So the best thing that you can do to ensure your bank is ready to release the mortgage at settlement is to give them as much time as possible. They will love you for it, and so will we.
If you have any other questions about this process, please contact our friendly, experienced, conveyancing team.
Family Law – choosing and changing schools, who makes the decisions?
In Family Law, unless a Court Order has ruled otherwise, it is presumed that each parent has ‘equal shared parental responsibility’ with regard to major long term decisions involving a child.
So what is equal shared parental responsibility?
The presumption was created as a result of amendments to the Family Law Act (Cth) which encourages co-operative parenting by giving parents an equal say in the major decisions involving a child. Parental responsibility applies to each parent of a child regardless of whether the child’s parents are in a relationship or not.
Parents must make a genuine effort to consult with each other and come to an agreement when making decisions involving major long term issues concerning the child such as changing the child’s school or deciding which school their child should attend.
What if we can’t reach a joint decision?
If you are unable to reach a decision with your ex-partner your next course of action is to attempt to mediate the matter. At first instance, it would be beneficial for you to seek the advice of a Family Lawyer to assist you with your matter and provide you with a pathway to reaching an agreement. Once you are aware of your legal responsibility and obligations, you could contact an avenue such as the Family Relationship Centre to make arrangements for a Mediation or you could choose to engage a Mediator privately. It is a requirement before an application to the Court can be made for parents to engage in Mediation and make a genuine attempt to resolve the matter. However, if there has been abuse or family violence in the relationship an application to the Court can be made without partaking in mediation.
Practical points to consider
In circumstances when the parents are unable to reach a decision jointly through Mediation or otherwise, the task falls to the Court. This should always be a last resort if every alternate option has been exhausted.
Following separation, there are a number of factors which may affect a child’s schooling. These can include financial means available to both parents post separation, possible relocation, downsizing residence or the amount of time each parent provides care to a child. Reconsidering a child’s schooling may be an inevitable new reality that needs to be confronted. Examples of this include: A parent with the weekly care of the child has had to relocate a significant distance from the child’s current school; or the child was previously enrolled in a private school but post separation, following the completion of a property settlement between the parties, this is no longer an affordable option.
The Family Court has considered the proper approach for deciding schooling issues in the case of Re G:Children’s Schooling [2000] FamCA462 and the following relevant factors have been identified as:
The views of the child when appropriate;
Any prior agreement in selection of schooling;
Any change to existing arrangements;
Other siblings current and/or future schooling arrangements;
Any anxiety the child may experience as a result of changing peer groups;
The views of the parties about the effect of the change on the child;
Travel time to school; and
Costs of education.
The Court will also consider the relevant subsections of Section 60CC of the Family Law Act 1975 (Cth) which relate to the best interests of the child. However, the point has been made that this list is not exhaustive and the relevant factors will vary in accordance with individual circumstances.
How do I communicate effectively with my ex-partner?
When choosing a school, reasons for each parent’s choices are individual and could include ‘I went to that school so my child should go there too’, ‘this school is closest to home’, ‘this school performs the best academically or ‘this school has the best Arts program’. Whatever the reason may be, it is the parents’ responsibility to come to a joint decision for their child. You as the parents’ know your child best and are the best people to be making decisions for the benefit of your child.
When faced with such a decision whilst going through a separation it is a good idea to keep the focus on the child and to consider the child’s best interests in all communications with your ex-partner. Depending on your relationship, it may be best to text, email or call them to make them aware that you need to discuss and reach an agreement regarding your child’s future schooling. In the lead up to such conversation/meeting you may wish to write some notes with regard to your reasons for the choice of school for your child so that you are prompted to express your thoughts and feelings surrounding this matter and so you can refer back to them if the conversation is veering off track. In addition to your individual choices, the preceding list above provided by the Family Court is a great starting point for making your decision about your child’s schooling future.
Parenting Plans or Court Orders
A parenting plan is any written agreement that is reached by the parents either on their own or with the assistance of a family law professional which deals with matters relating to the care of a child. To be valid, a parenting plan must be signed and dated by both parents.
A parenting Order, is an Order made by the Court determining matters relating to the care of a child. If an Order or parenting plan is in place at the time of enrolling a child in school, provision is generally made under the Order for whether the parents share sole or joint parental responsibility and may dictate how they are to communicate with each other regarding major long term decisions and the requirement to make a genuine effort to make such decisions
Both parents should make their child’s school aware of any parental conflict or the parent’s relationship status if this is going to effect the child. The school should be provided with any parenting plan or Order. If a parenting plan or Order states that the parents have the right to make decisions about major long term issues this includes the right to decide where the child attends school. If the parents have either a parenting plan or Orders which set out who has the right to decide where the child attends school, the school should abide by the Order and require the signature of the parent/parents’ who have the right to make decisions.
When there are Orders and a parenting plan, which prevails?
If the parents have a parenting plan and Orders and both documents set out who has the right to decide where the child attends school, the date of both documents should be carefully checked. If the Orders were made after the parenting plan, the Orders prevail. If the parenting plan was made after the Orders, it is usually the case that the parenting plan prevails unless the Orders specifically say that they may only be varied by subsequent court orders.
School catchment zones
More often than not, when parents’ separate one parent will remain in the family home and one will relocate to an alternate residence. If your child is already attending school it is likely that it would be in the best interests of your child to remain at their current school. However, the question may arise as to which school catchment your child belongs to i.e. the family home or the other parent’s alternate residence. Particularly, if your child is yet to begin the educational journey and you are just starting the enrolment process for your prep aged child.
Basically, to qualify to enrol in a particular state school you must provide proof that your child’s principal place of residence is within the catchment area. Depending on your chosen school, current proof of residency can be provided by way of one of each of the following:
One primary source – a current rental/lease agreement, or rates notice, or unconditional contract of sale; AND
One secondary source – a utility bill (e.g. electricity or gas) showing the same address and the parent’s name.
On this basis, either residence can be proven as your child’s principal place of residence to your child’s school to satisfy the catchment requirements. If the Principal is not satisfied of your child’s residence based on receipt of the above documents, the Principal can further request a properly sworn statutory declaration from the enrolling parent or legal guardian attesting that the student’s principal place of residence is the place nominated in the enrolment application. If you have a parenting plan or a Family Court Order which provides for the living arrangements for the child this can and should also be provided to your child’s school as evidence of your child’s principal place of residence.
School responsibility
If your child’s school is unaware of your separation or any parenting arrangements whether agreed, by parenting plan or by Order of the Court the school may enrol your child with the consent and signature of just one parent on the assumption that each parent can make decisions in relation to the child severally or jointly. However, from a practical point of view, it is in the school’s interests to ensure both parents consent to the enrolment of the child at the school. This may reduce conflict with the other parent in future and possibly stop the other parent withdrawing the child from the school. It is also a good idea for the school to have both signatures on the enrolment form so that both parents are responsible for the payment of the school fees.
If you become aware that your child is otherwise enrolled in a different school or if you do not consent to the child’s current enrolment, upon being brought to the Principal’s attention, the Principal can only enrol your child on a casual short-term basis (usually no longer than one term) which will allow for the dispute to be resolved by the parents either by agreement or by Court Order.
It is not the responsibility of your child’s school Principal to determine disputes between parents regarding enrolment of a child. If you are separated, and your child is due to commence or change schools, you should attempt to agree in writing on the choice of school well before the commencement of the next school year. In circumstances where there is a dispute and no Court Orders, you should obtain advice from a family lawyer as soon as possible to ensure sufficient time to resolve the dispute prior to the commencement of the school year.
Further advice with respect to parenting matters can be obtained by contacting one of our Family Law Solicitors. We will provide you with child-focused advice, representation and support in relation to establishing parenting arrangements that will meet the needs of your children.
Qld Government's Temporary Amendments to the Residential Tenancies Act
Here is the latest update regarding the Legislation in relation to the Temporary Amendments to the Residential Tenancies Act which has been released for the Covid-19 emergency period.
The Queensland Government has implemented a range of measures to deliver better protections and improved stability in Queensland’s rental market. These include:
Tenants who are suffering or have suffered excessive hardship because of COVID-19 who cannot meet their rent commitments cannot be evicted or listed in a tenancy database for rent arrears.
Fixed term agreements due to expire during the COVID-19 pandemic will be extended to 30 September 2020 unless the tenant requests a shorter term.
Require property owners to only end COVID-19 impacted tenancies with approved reasons and required notice periods.
Provide new approved reasons to allow property owners and tenants to end their tenancy agreement if they need to during the COVID-19 emergency period, including if they are experiencing domestic and family violence with protections in place to limit their liability for end of lease costs.
Capping break lease fees for eligible tenants if their income has reduced by at least 75% and they have savings of less than $5,000.
Owner obligations for routine repairs and inspections have been relaxed but regulatory obligations to ensure tenant safety in the rental property continue to apply.
Tenants may refuse physical entry for non-essential reasons, including routine repairs and inspections, particularly if a member of the household is a vulnerable person. However, tenants must agree to virtual inspections if physical inspections cannot take place.
Tenants and property owners should work together to reach agreement. If agreement cannot be reached, parties are required to undertake conciliation to resolve disputes and achieve conciliated agreements, which form part of the tenancy agreement.
Insurance - why it matters!
There is often confusion about who is responsible for the property insurance for the period between entering into a Contract and the settlement date.
When you sign a contract to buy a house or a unit or even vacant land, one of the first things you will be told is – take out insurance.
“Why is it so important? I don’t even own the property yet”, you might ask.
What do Contracts say about insurance?
The standard terms of contract usually provide for the risk in a property to pass from the Seller to the Buyer from 5pm on the first business day after the date that the Contract is signed by all parties. These standard provisions are contained in the “fine print” of the Contract.
This means that if the property is damaged between the Contract date and settlement, the Buyer is required to proceed with the purchase. Obviously that would not be the case if the Contract was still conditional upon a satisfactory Building and Pest inspection or Finance approval (as those conditions would fail) but once the Contract is unconditional, you are committed, no matter what.
Your next question then will most likely be “What type of insurance do I need?”
If buying a home
You would be encouraged to arrange a Home and Contents package which also includes public liability. This type of policy would insure the property for any third party personal injury claims; the dwelling against loss or damage as well as your content (eg fixtures and fittings / electrical motor burn out etc).
If buying a unit
If buying a body corporate unit or townhouse that is part of a Community Titles Scheme, the body corporate is responsible for insuring the building for replacement value and public liability for the common property and any other relevant body corporate assets. It will not however, cover the contents of the unit (for example, carpets, curtains, internal blinds and appliances) nor will it cover public liability insurance for the interior of the unit.
If buying vacant land
It is a common misconception that it is not necessary to take out insurance when buying vacant land. There are still relevant risks that Buyers need to insure themselves against. Public liability insurance is essential when it comes to protecting yourself from possible claims relating to bodily injury or property damage. For example, if someone were to have an accident and injure themselves on your property, this type of insurance would protect you as the owner of the land against a damages claim.
Most financiers will require evidence of insurance prior to settlement (noting their interest), so the earlier you have it in place the better and it will avoid you overlooking it in the excitement of packing and getting ready for your move. In the event that your Contract is terminated (eg due to finance being declined) you can simply cancel your policy and obtain a pro-rata refund of any premium paid.
Taking these simple steps will ensure you have peace of mind that regardless of what happens, you and your assets are covered.
Relocation with Children
It is a misconception of some separated parents that relocating to another area with children is a relatively simple affair. You find another house, book the removalists, enrol your children in a new school and you inform the other parent that time arrangements have now changed to holiday periods. Right? Well….no, actually.
The above could almost run as a list of how not to approach the issue of relocating. It is not the inherent right of the parent with whom the children are primarily living to decide where the children should reside. Locality is considered by the Court to be a ‘major long term issue’ especially in circumstances where there will be a change to arrangements for time with the other parent/schooling etcetera. These types of decisions must be made in consultation with and the agreement of the other parent, even if there are no orders in place.
There is of course a considerable difference between relocating across town and moving to the other side of the country. It may even be that your current orders will allow you to relocate within a specific distance of the other parent (example 30 kilometres), as long as the other party is notified of the move. A relocation within this radius ensures that children are able to continue at their current school, remain in their current community, and maintain a strong relationship with the other parent. If there is no change to arrangements and the move will not make it significantly more difficult for the children to spend time with the other parent, then it’s probably not a ‘major, long term issue’.
But what if you are wanting to move further away than down the road and the orders you have in place, or the informal arrangements with the other parent, cannot practically continue due to distance? In that case, you will be required to come to an agreement with the other parent about your proposed relocation, or failing this, to apply to the court for an order permitting the move.
There is good news if you and your ex-partner have a good relationship as they may agree to your relocation once they are satisfied that their relationship with the children will not be adversely impacted. If you are able to have an open discussion with the other parent about their concerns, your commitment to supporting and promoting the children’s relationship with them through telephone and FaceTime calls, and your willingness to continue to involve them in the long term decision making for the children (which is required where there is shared parental responsibility), you may be able to reach an agreement without the need to apply to the Court. The level of trust and respect for each other as parents will have an impact on your success in negotiating your relocation.
In the event you cannot agree, you have the option of then applying to the Court for a variation to the existing orders or, if there are no orders in place, a parenting order based on the proposed relocation. The court will consider your relocation proposal and the parenting proposal of the other parent and will decide which proposal is in the long term best interests of the children having regard to the considerations set out in 60CC of Family Law Act 1975 (Cth).
In the event of a unilateral relocation – that is, you go without consent or an order - the Family Court has the jurisdiction to order that the children return to their previous place of residency. If necessary, this could include an order for a change in the primary care arrangements. Even if the Court would ultimately agree to the move, most Judges take a very dim view of any parent that moves without consultation or worse still, in the face of an objection and expect that the status quo of the children’s arrangements should be maintained, pending the Court’s determination.
Paper Certificates of Title No Longer Have Any Legal Effect!!
As at 1 October 2019, paper Certificates of Title no longer have any legal effect. A paper CT is now classed as an item of historic or sentimental value only.
It no longer needs to be deposited with the Titles Registry when a transaction is lodged over the title ie. a mortgage & no longer needs to be dispensed for a transaction to proceed ie. the sale of a property!
The electronic title held in the Titles Registry will continue to be the point of truth for ownership and other interests in land in Queensland.
INTERESTING FACT! Only about 11% of titles in Queensland still had a paper Certificate of Title in existence.
How much weight does the Court give to the views of children in family proceedings?
Separation can be a difficult time for not only the parties involved but also their children. Although we often see that parents' wish to shield their children from the unpleasantness of a family break down, understandably they also want to ensure that the children's wishes are taken into account for parenting arrangements.
This gives rise to the question, do your children have a say in who they want to live with?
The Courts primary concern when determining parenting arrangements is to make orders which are in the best interest of the children. In determining this, the Court must take into account the benefit to the children of having a meaningful relationship with both of the children's parents and the need to protect the child from physical or psychological harm or family violence.
The wishes of the children are only one of the additional considerations when the Court is determining parenting arrangements. There is no set age for when a child's views will be considered however, the weight the Court will give to the children's wishes will depend on the child's age, maturity, level of understanding and ability to express their view.
Whilst it is not appropriate for children to be called to give evidence in family law proceedings, there are a number of way in which children may have a voice in the proceedings:
Expressing their views to a Family Consultant during Family Report interviews. The Family Consultant may then include the views of the child in the Family Report which they prepare and provide to the Court;
Expressing their views through an Independent Children's Lawyer, who will obtain the children's views, providing the children are sufficiently mature and possess an appropriate level of understanding. The Independent Children's Lawyer will then advise the Court of the children's wishes; or
The wishes of the children may be included in either parties' affidavit, however, the evidence will hold less weight than an independent report and great care needs to be taken to ensure that children have not been inappropriately exposed to any proceedings.
In the High Court of Australia case of Boldermonte v Boldemonte [2017] HCA 8, the Court reiterates that the children's wishes are relevant, but not determinative. The matter concerned parties who had separated in 2010. They had two sons aged nearly 17 and 15 years old and a daughter aged nearly 12 years old.
In 2016, the Father travelled to New York with their two son's for a holiday. The parties' daughter did not attend. Not long after their departure, the Father advised that he wished to remain living in New York with their sons who also wished to remain in New York.
The High Court held the views or wishes of the children, "are but one consideration of a number to be taken into account in the overall assessment of a child's best interest" and that the Court will "take into account not only the views expressed by the child, but also any factors….that the Court thinks are relevant to the weight it should give to the child's views. The factors that the provision gives as relevant are the child's maturity or level of understanding, but plainly the Court may consider other matters to be relevant". In addition, the Court considered important the lifestyle the father was offering them in New York exerted an influence over the children’s choices, and that the views expressed by them had been ‘contrived’ by the father.
The Court found that despite the sons’ refusal to live with their Mother that they must return to Australia and in the event the Father returned to Australia, they could continue to live him. Otherwise provisions would need to be made for the sons’ to live with the mother if they chose to do so, live in accommodation provided by the Father together with paid supervision services or live with friends' families.
In short, although your children have a right to have their voice heard in relation to parenting arrangements, the weight given to the views of the children will be determined by the individual facts of each case.
Bianca McDuff
Ex-spouse Ordered To Hand Over Half of His Lottery Winnings
The recent United States of America case of Rich and Mary-Beth Zelasko & Zelasko demonstrates the importance of finalising your property settlement after separation.
Mr. Rich Zelasko was ordered to pay $15 million to his wife who he had been separated for more than two (2) years. This decision may come as a surprise to many however, there has been similar decisions made in Australia in relation to lottery winnings after separation.
It is a common misconception that the Court will determine the parties assets and liabilities as at the date of separation. Instead, regardless of any time gap between separation and the date upon which the property affairs is determined, the Court will look at the value of assets and liabilities as at the current date. This includes any assets acquired after the parties relationship has ended.
In the matter of Farmer & Bramley (2000) FLC 93 - 060, the husband and wife had lived together for a period of twelve (12) years. During the relationship the wife was the primary career for their child, supported the husband whilst he suffered from a heroin addiction and supported him financially whilst he studied. The wife’s endeavors assisted the husband to obtain fulltime gainful employment.
There was no property of any value at the time of separation and the parties financial circumstances during the relationship were at all times modest. Eighteen (18) months after separation but prior to the parties’ divorce, the husband won $5 million in the lottery.
The Family Court awarded the wife $750,000.00 (15% of the $5 million).
In reaching their decision, the Court took into account the wife’s significant financial and non-financial contributions throughout the marriage, the disparity in the parties’ financial circumstances, the wife’s ongoing care of the child and the future needs of the wife.
A similar decision was found in the matter of Bradley & Weber [1998] FamCA 90 where the Court awarded that the wife to receive 20% or $225,000.00 of the $1.27 million lottery winning by the husband six (6) months after separation.
It is important to note that there is no automatic right to lottery winnings received after separation. In the matter of Eufrosin & Eufrosin [2013] FamCA 311, the husband and wife had been married for approximately twenty (20) years. Throughout the relationship the wife regularly purchased lottery tickets. Six (6) months after separation, the wife purchased a lottery ticket which resulted in her winning $6 million in prize money.
The husband argued that he was entitled to a portion of the wife’s lottery winnings as the lottery ticket had been purchased from joint funds.
The Court ultimately ruled against the husband finding that the parties had a system in place were they were both at liberty to make regular withdrawals of funds from their joint account and apply such funds for their own individual purpose. At the time of purchase, the Court further noted that the parties had commenced the process of leading separate lives, which included leading separate financial lives.
Accordingly, the wife retained the $ 6 million lottery win and the husband was ordered to pay her legal costs.
We cannot stress the importance of seeking legal advice post separation about your particular circumstances. If there is one thing to come from the above cases it is they do demonstrate the complexity of the Family Law Courts.
Bianca McDuff
Sperm Donor Recognised as a "Parent"
In the High Court decision of Masson v Parson [2019] HCA 21 made 19 June 2019, Mr. Masson successfully appealed against a decision that as a sperm donor, he was not a "parent" of a child.
In 2006 Mr. Masson provided his semen to the biological mother of the child in the belief that he would, as the child's parent, be named on the child's birth certificate as her father and would support and care for her.
Although the child lived with her biological and non-biological mother's from birth, Mr. Masson had an ongoing role in the child's life and provided financial support & input into her health, education and general welfare.
In 2015, after marrying in New Zealand, the child's biological and non-biological mother's attempted to relocate to New Zealand with the Child. Mr. Masson, wanting the child to remain in Australia, applied to the Family Court of Australia for a restraint on the child relocating to New Zealand, shared parental responsibility and regular time with the child.
The High Court found that as the biological and non-biological mother's were not considered to be in a 'de facto relationship' at the date of conception (the non-biological mother therefore not being deemed to be the other parent) Mr. Masson was a "parent" of the child.
In making its decision, the Court found:
"to characterise the biological father of a child a "sperm donor" suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case."
This decision will no doubt have broad applications for private arrangements of sperm donors and parties utilising artificial insemination procedures in the future.
Masson v Parson [2019] HCA 21 at 54.
Payment of Deposit
Under the Terms of Contract for Buyers of Residential Property
In the majority of Contracts to buy residential property, the Seller will require that the Buyer pay a Deposit. The Deposit is a small fraction of the Purchase Price and shows some commitment that the Buyer is serious about purchasing the Property. It seems pretty basic – the Buyer pays an agreed amount. That amount sits in an account not to be touched again until either the Contract is terminated or settlement is completed. Easy, right? Mostly it is easy, but there are some traps that you can be caught by, if the terms for payment of the Deposit are not complied with.
This blog will explain why the Deposit is an important (but often overlooked) key term of any Contract to buy residential property. It will also address some common questions we are asked regarding the Deposit and will aim to make sure that your next transaction does not become complex simply because the Deposit payment terms were not followed.
When is it due?
The due date for payment of the Deposit should be negotiated before the Contract is signed. The standard wording of the REIQ Contract suggests the Deposit will be due on the date the Buyer signs the Contract. It becomes difficult to track this, and can become problematic if bank transfer issues arise such as the Deposit being paid into the wrong account.
We generally suggest the Deposit should be 3 Business Days after the Contract Date. This date can be easily calculated, which gives certainty to all parties as to the due date for the Deposit. It also gives extra time to fix any potential bank transfer issues.
How much should I pay?
The Deposit can be any amount that is negotiated before the Contract is signed. The most common amount for a Deposit is $1,000.
The Seller will want to have a higher Deposit amount because this will show that the Buyer is serious about purchasing the Property. If the Buyer commits a serious breach of the Contract, the Seller can claim the Deposit. A higher Deposit will make it less likely a Buyer will pull the pin at the last minute, because there is more money at risk.
The trap here is that the Deposit should not be more than 10% of the Purchase Price (20% for Off the Plan Contracts). If the Deposit is more than that, the Contract will become an “Instalment Contract”. Instalment Contracts are a topic for another day, but at this stage all that needs to be said is in 99% of cases you do not want an instalment contract.
Who do I pay the Deposit to?
The Deposit should be held in a Trust Account, so that it is covered by trust legislation. Usually the Selling Agent will have a trust account, so they can hang onto the Deposit.
If the Selling Agent doesn’t have a trust account, then the Seller’s Lawyer can hold the Deposit. If they don’t have one, the Buyer’s Lawyer can step up to the plate. If they don’t have one, just give up. We’re kidding – in that case the Deposit will be held in an account that will be set up specifically to hold your Deposit. This rarely happens though, and Briese Lawyers operate a Trust Account so if we are acting for either party in the transaction then the Deposit can be held by us. We promise to take great care of it.
What happens if I don’t pay the Deposit on time?
Strictly speaking, late payment of the Deposit is a substantial breach of the Contract. The Seller can terminate the Contract and claim the unpaid amount as a liquidated debt (or if you paid it after the due date, the “paid” amount). In practice, everyone is pretty casual when it comes to late payment. That said, there are some cases where we have been instructed to terminate a Contract and claim an unpaid Deposit. It’s not a fun situation to be in, so just pay the thing on time and avoid the stress.
Who ultimately receives the Deposit?
This question depends on what happens to the Contract, so we’ve broken it down into some different scenarios:
Contract Settles:
The Deposit will be deducted from the purchase price at Settlement, and the Seller will keep the Deposit. In practice, the Selling Agent usually keeps it and reduces their commission by the amount of the Deposit, or refunds the Deposit if there is some leftover after payment of the commission. This explains why the Selling Agent keeps it in their trust account. It’s much cleaner this way.Contract is Terminated – no breach:
The Buyer will receive the Deposit back. Sometimes the Buyer can’t quite get Finance. That’s ok, it happens. The Seller will give the Buyer their Deposit back and move on to the next Buyer. No hard feelings.Contract is Terminated – substantial breach:
Uh oh. This one is bad – something went wrong and there are probably some bad feelings floating around. Whoever committed the breach loses the Deposit and it is given to the other party.Contract is Terminated under cooling-off provisions: If you terminate the Contract under the cooling-off period, the Seller can charge you a penalty of 0.25% of the Purchase Price. That penalty can be taken straight from the Deposit. In fact, that penalty can only be taken from the Deposit. This means that if you haven’t paid the Deposit, the Seller can’t charge that penalty.
Contract is never formed: You’ve been negotiating terms and you paid the Deposit early. That’s ok. If you can’t agree to terms with a Seller (maybe that cashed-up couple you saw snooping around the open house were willing to pay more) and the Contract is not formed, you will get the Deposit back.
General Advice
We will leave you with some very general advice, which we hope you will find helpful:
Pay on Signing
This could be both very good, and very bad, advice depending on your circumstances, so please carefully consider this advice. If you pay the Deposit straight away but decide to terminate the Contract during the cooling-off period, you can wave goodbye to your Deposit. On the flip side, if you don’t pay the Deposit straight away and you miss the due date, you’ll have debt collectors on your tail until you pay it.
Our advice here is that if you’re sure this is the Property for you, pay that Deposit and move on to bigger and better things. Like booking your Building and Pest Inspections, or meeting with your Finance Broker/Banker. If you’re not so sure about whether this is the Property for you, try to negotiate a longer timeframe for payment of the Deposit before you pay it, then hold off on paying the Deposit for as long as you can (just don’t miss the due date!).
Bank Guarantee/Deposit Bond
If the Seller wants a large Deposit but you don’t have the cash, you can ask your bank to provide what is known as a “Bank Guarantee” or a “Deposit Bond”.
This is effectively a promise from your bank to the Seller that if at any point the Deposit becomes payable to the Seller, your bank will pay the Deposit to the Seller. The bank then takes the money from you, so the Seller doesn’t have to.
As you can imagine, banks don’t give away Bank Guarantees lightly, so at the very least you will need to have some equity built up (sorry First Home Owners). You will also need to negotiate a longer timeframe for “payment” of the Deposit, because the bank will take some time to have the required paperwork prepared.
Where a Bank Guarantee or Deposit Bond is involved, the Deposit won’t be deducted from the purchase price. You’ll need to factor this in to your loan.
We strongly suggest you take legal and financial advice that is specific to your situation before you embark on paying the Deposit with a Bank Guarantee or Deposit Bond.
Investment of Deposit
The REIQ Contract allows the parties to invest the Deposit in an interest-bearing account.
If you are required to pay a large Deposit, have a lengthy time between the Contract Date and Settlement, and would prefer not to obtain a Bank Guarantee or Deposit Bond, you can ask for the Deposit to be invested.
We suggest you don’t do this with smaller Deposits or short settlement timeframes, because the cost of bank fees payable to invest the Deposit and pull it out of that investment account before maturity might outweigh the interest earned.
The REIQ Contract stipulates that any interest earned on the Deposit will be given to the party that is entitled to the Deposit (see previous comments regarding who is entitled to the Deposit)
Contract Deposit vs Bank Deposit
As a Buyer, you might have heard your bank talk about a Deposit when calculating how much money you can borrow. It is important that we point out the “Deposit” you pay to the bank is separate to the Deposit you pay to the Seller.
We hope that this blog has given some insight into the important of paying the Deposit on time. It is a very easy part of the Contract to dismiss, but as you can see it can become quite technical and can cause major problems if the rules and requirements are not met.
The Briese Lawyers Conveyancing Team are always ready and willing to help with any Deposit related questions you have. Please contact the team if you have any questions or concerns.
Fur Baby in Family Law Tug-o-war
The rise of the "fur baby" as an alternative to having children has been highlighted in a recent family law case.
In Downey & Beale (not Beagle), the Federal Circuit Court was asked to determine who was the owner of the dog, (name and breed omitted for privacy apparently so we'll call him Spot).
After a five-year relationship, Spot's parents managed to reach agreement about the division of all of their assets, including their jointly owned home, but neither could bear to part with their fur baby.
Each alleged that Spot in fact, belonged to them and each was prepared to pay their lawyers to take the matter to trial. Somewhat surprisingly, in law a dog is considered a "chattel" rather than a person with four legs and a tail, so the Court has the power to make orders about who owns the chattel and whether there should be any adjustment of interests in that chattel.
Spot was purchased early in the relationship by Mr Beale. He alleged that he bought Spot for himself, but Ms Downey claimed that Spot was an early birthday present for her. There was no dispute that Mr Beale paid the $300 fee for Spot, but Ms Downey claimed she was the one who found Spot's adorable picture online and chose him.
Spot lived happily with his parents but it was apparently Ms Downey who took him to the vet as she was able to produce to the Court five vet bills which were addressed to her and referred to her as "owner". She also produced bank statements to evidence payment of expenses from her bank account for a pet.
Spot was never registered until eight months after the parties separated, at which time Mr Beale registered him and listed himself as the owner. The Court took a cynical view about this step, given that by that time it was already apparent that the dog's ownership was in dispute.
Ultimately, after considering all the evidence, the Court found that Spot had been purchased as a gift for Ms Downey, she had possession of Spot and she had contributed to his maintenance in such a fashion that it could not be considered appropriate to vary ownership.
My view about this case? Seems a bit "ruff" that Dad didn't even get alternate weekends and half the holidays............ :)
The Importance of Pre-Nuptial Agreements
"Pre-nups" have been made famous by famous people. You can be sure that the likes of the Kardashians and the Rhineharts and the Murdochs wouldn't walk down the aisle without one. But does your average wage earner need one, and if they do, are they worth the paper they are written on?
In short, yes and yes.
Whilst we don't have too many celebrities knocking on our door in Toowoomba to draft their pre-nups, they are becoming increasingly common for your average couple. A pre-nup - otherwise known as a Financial Agreement under the Family Law Act - can be entered into before or during a marriage or a defacto relationship. We especially recommend them in these scenarios:
Where a couple are marrying or moving in together a bit later in life where they have already accrued some assets such as equity in a house and superannuation.
Where it's a second marriage and there are adult children of one or both the parties who are worried about their inheritance.
Where a couple are buying a property together, with one of the parties contributing more to the purchase price than the other.
The terms of the Agreement can be tailored to suit the couple's particular circumstances. For example, they may want to 'quarantine' the assets which they each hold at the start of the relationship and then share all assets which are acquired during the relationship equally.
While it might not seem very romantic, it's worth looking at it in the same way as you look at insurance - you don't want or expect your house to burn down, but you insure it just in case the unthinkable happens.
Many people are under the mistaken impression that a Financial Agreement will not hold up to a challenge in the Family Courts. However, recent cases have demonstrated that the Courts are very reluctant to interfere with an Agreement where all the legal requirements have been met and both parties have been made aware of the consequences.
In one recent case before the Family Court, the Judge dismissed the wife's application to set aside a Financial Agreement on the basis that she did not know the extent of the husband's assets when she signed the Agreement, and further that the Agreement would cause hardship to the children of the marriage (who were in her primary care).
The Court found that while the wife would have had a very different outcome if the Agreement had not been entered into, that was not sufficient grounds to set it aside. Nor was the fact that she didn't know exactly what the husband's net worth was. Nor was the birth of their children a "material change in circumstances" which would warrant the setting aside of the Agreement.
A properly drafted and executed Financial Agreement provides a secure insurance policy for couples as they enter a marriage or defacto relationship, freeing them to focus on building their relationship without fear of the financial consequences.
Our family law solicitors are experts at drafting such Agreements. For more information, call Briese Lawyers on 07 4638 4833.
What Happens To Your Will When Your Relationship Ends
Up until June 2017, the end of a de facto relationship did not have any impact on any Will which the couple might have made during their relationship. That meant that if they neglected to make new Wills, their old Wills (which usually left everything to their former partner) remained effective.
We once acted for a son and daughter who were to receive nothing from their late father's Estate as he had neglected to change his Will after the very bitter end of his de facto relationship. He died eight years after he finalised a property settlement with his former spouse but that had no impact on his Will, which left everything to her. The result was that his children had to engage in a long and costly legal process in order to get any benefit from his Estate.
Married couples have long been in a different position, as a divorce automatically revokes any gift or appointment of a former spouse under a Will (except for an appointment as trustee of any property for their children). The Queensland Parliament has now corrected this anomaly by adding a new section which deals with revocation on the end of a de facto relationship.
Of course, the question which is bound to arise is how we determine when a de facto relationship has ended!
Whilst this new provision will provide some level of assurance for separated de facto couples, it will not change our recommendation that it is wise to have new Wills and Enduring Powers of Attorney prepared as a priority after separation, regardless of whether it was a marriage or a de facto relationship. That way, you will not die wondering who will benefit from your Estate.
Are You Selling Your Property?
IF YOU ANSWER YES TO THESE QUESTIONS YOU MAY JUST WANT TO READ THIS VERY IMPORTANT INFORMATION!!
As a Seller of residential Property, your main responsibility is to ensure that ownership of the Property can be transferred to the Buyer immediately after Settlement. For Sellers who have a mortgage over the Property, this means that you need to arrange for that mortgage to be released. This blog will explain how you can obtain the all-important release of mortgage, it will take a brief look at the ramifications if you don’t have it available at settlement, and we will let you know the magical, mind-blowing secret to making sure you will have the release ready on time, every time*.
Think back to when you purchased your house. Do you remember the never ending forest of paperwork that you filled out? Maybe you had to do it more than once (missed signatures, coffee spilled over the papers, your dog ate it…we have heard plenty of stories)! Well the bad news is that when you sell your Property, you will again need to fill in some paperwork (so put that coffee in a safe space and keep the dog outside for a bit). Sorry. But the good news is, the amount of paperwork this time around is less likely to give you terrible hand cramps that are going to keep you up at night, making you wonder why on earth you got into the property market in the first place. In fact, the main document you need to fill out is generally no more than 5 pages. That document is called a “Discharge Authority”. Some banks will let you download this form from their website, but if not, you can contact your bank manager and ask for a copy. The Discharge Authority notifies your bank that the sale is imminent, provides various details about the sale (including sale price, settlement date, etc), and usually gives scope for you to authorise your bank to contact your solicitor to arrange settlement. Then the bank and your solicitor (us, we hope!) take care of the rest. We are happy to help you prepare this form, but ultimately it is up to you to complete it and send it to your bank, because until you do that the bank won’t talk to us.
Of course, unless your mortgage is completely paid out (well done, you!), your bank wants something in exchange for releasing the mortgage. You guessed it. Money! Your bank will only hand over the release once it receives an amount that is sufficient to pay out the amount owing on your mortgage. In practice, what will happen is your bank will attend settlement on the agreed date (we will be there too, on your behalf because we know you have better stuff to do), and will hand over the release in exchange for the sale funds. The buyer won’t hand over the money unless your bank hands over the release, so it is important to ensure that the release document is ready in time for the settlement date. On top of that, in Queensland, time is of the essence in most residential real estate transactions. The short explanation is that if you can’t settle (i.e. you can’t hand over the release of mortgage) on the due date, the Buyer can sue you for damages. That’s a scary story for another time.
This brings us to our final point – the “magical, mind-blowing secret” we promised you earlier. It’s actually really easy. Here it is: fill out your discharge authority as soon as physically possible, after the Contract has been signed. We don’t mean the week before settlement, we don’t mean the day after your Buyer has confirmed their finance (and various other conditions you have kindly agreed to give them). We mean straight away. The reason is that banks have certain timeframes (which, helpfully, differ depending on which bank you are with) for preparing release documents. Plus, banks are busy people too. So the best thing that you can do to ensure your bank is ready to release the mortgage at settlement is to give them as much time as possible. They will love you for it, and so will we.
If you have any other questions about this process, please contact our friendly, experienced, and funny (see above) conveyancing team.
*Here it is. The expected disclaimer where we tell you that we can’t really promise that our secret works. If it did, we probably wouldn’t hand it out for free. But to be fair, it should work most of the time. We think.
Enduring Power of Attorney - What is it and do I require one?
What is an Enduring Power of Attorney?
There are two types of Power of Attorney – the Enduring Power of Attorney and the General Power of Attorney.
An Enduring Power of Attorney allows health, personal and/or financial affairs to be dealt with in the way you wish, even (and particularly) if you lose the capacity to make decisions for yourself. For example, if you suffer a head injury, develop dementia etc.
What decisions can my Attorney(s) make?
Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interests and sign all necessary legal documents. The power begins:
for personal/health matters - only when you are incapable of making decisions yourself;
for financial matters - you can specify whether the power is to begin immediately, on a particular date or on a particular occasion, such as your incapacity.
Your Attorney can make decisions such as deciding where and with whom you live, or day to day issues including diet and dress, or those relating to basic health care. However, your Attorney can not make decisions relating to special health matters and special personal matters on your behalf, such as making a Will, or making or revoking a Power of Attorney.
Your Attorney can only act in your best interests and must act with honesty and care and it is an offence not to do so. In relation to your health care, your Attorney must ensure that any decisions made for you contribute to your health and well being and must take into account the advice of your doctor/health care provider
What happens if I don’t have an Enduring Power of Attorney?
If you were to temporarily or permanently lose capacity to make decisions and did not have an Enduring Power of Attorney, the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney (could be your spouse, a relative or a close friend). Alternatively, your family would need to make an application to the Guardianship & Administrative Tribunal regarding the management of your affairs.
How do I complete an Enduring Power of Attorney?
Your Solicitor can offer practical legal advice regarding these documents, and prepare them on your behalf. At Briese Lawyers, we frequently prepare Enduring Powers of Attorney for our clients.
Family Law Testimonial
I recently did an initial consultation with a Family Law client. Hers was not an unfamiliar story. She had been reluctant to go to a lawyer (for a variety of reasons) but expressed feeling a great sense of relief and empowerment once she had actually done so. When she shared that with me I told her that I would love to be able to reach out to more people in her situation that could benefit from the peace of mind of just knowing what their rights, entitlements and options are. In response, she provided the following testimonial:
"Divorce is emotional and unchartered territory. I was hoping to settle assets with little drama and in the best interest of both my Ex and I. It's tricky, even with the best of intentions and relationships.
Friends suggested I sought legal advice and recommended Kym Briese. Kym had previously done all the legal work for our home purchase, so I knew I would be in good hands.
In just 1.5 hours I felt empowered. Knowledge is power!
Now I have a good idea of what I should expect as an outcome from the divorce proceedings and the confidence to ask for what I'm entitled.
Although hesitant to seek legal advice at first, I'm so thankful I did. I have a clear road map to move forward and the confidence to take the next step.
Thank you so much Kym."
KP
What is an Advanced Health Directive and should I have one?
An Advanced Health Directive (AHD) clearly states what sort of medical treatment you do and do not want to receive if you are seriously ill and comes into effect when you are unable to make your own decisions. You may also set out preferences about organ donation and life sustaining medical treatment.
How an AHD works:
You will out a form with general or specific wishes for treatment; and
Your General Practitioner certifies that you understand the choices you have made; and
Treating medical staff will subsequently refer to your AHD if you can no longer make decisions for yourself.
When entering into an AHD, you should consider:
1. That you may express wishes in a general way:
Any particular type of medical treatment you do or do not want to receive;
Specifics regarding medical conditions that medical staff should know, for example an allergy to certain medications, or Diabetes; and
any religious beliefs that may affect your treatment, such as blood transfusions.
2. That you may also give specific instructions about what treatment you do or do not want to receive if:
you have a terminal illness;
you have an incurable illness;
you have an irreversible condition;
you are permanently unconscious; or
you are so seriously ill or injured that you cannot survive without a life support system.
3. That you may state whether you would want any particular type of medical intervention to keep you alive, if you had any of the above conditions. Such interventions may include:
emergency measures such as CPR;
artificial feeding; and
a machine to keep you breathing.
You may authorise your Attorney/s to make decisions about health matters should your directions in your AHD be inadequate.
If you wish to donate your organs only for transplantation and not for scientific purposes, you should register your name on the Australian Organ Donor Register. You may use your AHD to authorise tissue and organ donations for the purpose of transplantation or for other medical or scientific purposes.
Further details with respect to Powers of Attorney or Advanced Health Directives may be obtained by contacting one of our lawyers, who can offer practical legal advice and guidance, ensuring that your wishes are looked after.
Elder Abuse
This fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.
Judge Sends Queensland Father to Jail
The recent events which led to a Family Court Judge jailing a father should serve as an important reminder to parties to comply with Court Orders.
Whilst this was an extreme case, Judge Cassidy did note that it was important that Court Orders be obeyed to ensure the proper working of a court system. Too often, parties underestimate the implications of not following Court Orders. There are significant consequences that can be imposed and parties should ensure that they fully understand what these are.
If you have breached an Order without reasonable excuse, the Court may impose any of the following consequences:
Vary the Order;
Compensate for the time lost with a child as a result of the contravention;
Order you to attend a post separation parenting program;
Order you to pay all or some of the legal costs the other party has incurred;
Require you to enter into a bond;
Require that you attend and participate in community service;
Order you to pay compensation for expenses lost as a result of the contravention;
Order you to pay a fine; or
Order you to a sentence of imprisonment.
What is considered as a reasonable excuse?
If a party fails to comply with an Order, the Court will consider whether the person contravening the Order had a reasonable excuse. A reasonable excuse may be considered in circumstances where:
The party contravening the Order believed that their actions were necessary to protect the child from harm;
The breach of the Order only lasted as long as it was necessary to protect the child from harm; or
The party contravening the Order failed to understand their obligations.
How do I change an Order?
If an existing Court Order no longer reflects the arrangements in place for a child, then it should be changed. Also, if parties are no longer able to comply with the Order, then it should be changed. If you have significant concerns in relation to facilitating the terms under an Order and if you believe that your Orders need to be altered, then it is important that you first discuss your concerns with a legal practitioner. Not all grounds for changing an existing Order are significant enough for a Court to consider.
Do you know what happens if you die without a Will?
If you die without a will, you will have died “intestate”. The distribution of your estate will be in accordance with the rules set out in the Queensland Succession Act 1981 (assuming you lived and owned assets in Queensland).
Straight away, the administration of the estate is made more difficult because strictly speaking, no-one has authority to administer the estate until appointed by the Court. Alternatively, where there is a will, the executor’s authority to act comes from the will itself. Accordingly, the expense of obtaining a Grant of Letters of Administration from the Court may need to be incurred, whereas this may not have been necessary if a will had been made.
Secondly, the distribution may not be as clear cut as you think. Some clients tell me all their assets are held jointly with their spouse so there’s no need for a will. That may be the case if one of you dies, but what happens if you both die together? The law assumes that the younger survived the older for one day and so the joint assets would pass under the younger’s estate to their family members instead of being split between both of your families which may have been intended.
A further issue is that where there are children, not all assets pass to the spouse. The children will take a share of the estate and their share will be held on trust until they turn 18. This could cause some unintended difficulty for the surviving spouse. Usually, everything is left to the spouse in the first instance and only to the children on the death of the second spouse. Further, the age of 18 is usually increased under the will to ensure a greater maturity when a child receives an inheritance.
A final complication arises where land is held in different states of Australia – the intestacy rules can differ slightly from state to state and therefore the beneficiaries of one parcel of land may be different to another.
The cost of putting in place a simple will is relatively inexpensive given the complications that can arise post death if the intestacy rules come into play. Call us today to arrange your estate plans and ensure that your final wishes are put into place.
Is it worthwhile appointing a guardian for my infant children under my Will?
The simple answer is "yes".
A guardian appointed under the Will has all the powers, rights and responsibilities for making decisions about the long-term care, welfare and development of a child that are ordinarily vested in a guardian. An example of such a decision would be in relation to a child's education and religious upbringing.
Generally, the appointment will take effect on the death of the last surviving parent. In that case, the guardian would also have the right to have the child's daily care (ie. custody of the child) unless another person obtains this right under a Court Order. This is your opportunity to express your wisehes as to who should look after your child and this appointment will stand unless somebody strongly disagrees and he or she would need to go to Court to argue the point (with no guarantee of success).
The appointment of a guardian can also provide comfort to divorced parents. You can specify that the appointment should take effect on your death, even if the other parent is still alive. The surviving parent would have to make decisions about the long-term care, welfare and development of the child jointly with the guardian you have appointed unless he or she applies to the Court to have the appointment revoked.
Often, the thing worrying young couples the most is who would look after their children if they were no longer around. Appointing a guardian under your Will is your opportunity to choose the person you want to look after your children and can give tremendous peace of mind.
The Ins and Outs of Child Support
When parent's are unable to reach an agreement with respect to the cost of raising a child, they are able to apply for an administrative assessment through the Child Support Agency.
In assessing the contribution to be paid, the Child Support Agency uses a particular formula that considers a range of factors. Some of these factors are:
The costs of raising a child, which has been determined by independent research;
Both parent's annual income; and
The level of care that each parent has with the child.
Once an assessment has been determined, the Registrar from the Child Support Agency will send correspondence to the parent's advising of the assessed monetary amount and the manner in which the assessment was calcualted.
If you are not satisfied that the child support assessment accurately reflects your circumstances, then you may be able to apply for a change of assessment through the Child Support Agency.
The Child Support Agency outlines ten (10) reasons that a parent can apply for a change of assessment. They are:
The costs involved with spending time with your children is more than 5% of your adjusted taxable income;
Your child or children have special needs that require additional financial support outside the normal day to day expenses;
There are extra costs associated with the care of the child in the manner that both parties intended;
The child or children earn an income or have financial resources available to them;
You have provided money, goods or property for the benefit of the child or children;
The costs of childcare for the child or children under twelve (12) years of age is above 5% of your adjusted taxable income;
You have out of the ordinary necessary expenses to support yourself;
The assessment does not reflect either parent's income, property or financial resources;
You have a legal duty to support another person; and
You have a responsibility to support another residential child.
Before considering this option, it is important to note that under the Child Support "forumla", general household and day to day costs are considered in the assessment. Extra's like private school fees, daycare fees, costs associated with extra curricular activities and special medical expenses have not been included and will be considered under reasons two and three, outlined above.
If you would like to ensure that these additional costs are taken into account, then you may need to consider the option of entering into either a Limited Child Support Agreement or a Binding Child Support Agreement in addition to or in replace of your Child Support Assessment. You may also consider making an Application for a Change of Assessment.
If you would like to discuss any of these options, please contact our office and schedule a time to speak with one of our lawyers.
DIY Consent Orders - Do They Hold Up?
When parties reach an agreement in relation to property or parenting matters (or both), the terms of that agreement can be drafted into Consent Orders to be filed with the Court. Once Orders have been filed, the Registrar will determine whether the documents have been drafted correctly and whether the terms of the Agreement are worded in a manner that is fair and reasonable to those involved.
When documents have not been drafted correctly or the terms of the Agreement have failed to take into account a significant asset, liability or issue relating to a child or the terms are simply not worded clearly enough, the Court will not approve the Orders and the parties involved will each receive notification that the Orders have been requisitioned.
It is normally at this point in time that the parties will seek independent legal advice and request assistance in getting the Orders over the line. It has been our experience that separating couples who enter into Do It Yourself Consent Order Kits lack a general understanding of how the law works as a backbone to the Agreement and therefore are unable to provide the Court with Orders that will hold up.
Whilst parties must be commended on being able to set their emotions aside and come to an agreement on how they want their property divided or how the children will spend time with each of them, the Courts still require that the agreed terms be drafted in a manner that is acceptable and further that the Agreement is fair and reasonable and if related to children, that it is in the best interests of the child.
What the Court's consider as 'fair and reasonable' is often an area where parties can run into problems. The laws governing family law are not black and white, there are many factors that need to be considered and without a clear understanding of how the strings all tie together, it can be difficult for a lay person to craft a document that meets the necessary threshold.
Another issue of great concern that often occurs as a result of parties entering into DIY Consent Order's is the lack of understanding that a particular party may have in relation to the effects of an Order. It is really important for individuals who are entering into these Agreements to understand that it is a legal document and therefore affects their legal rights.
At Briese Lawyers, we understand that often parties are trying to resolve their issues without incurring large legal costs. However, we strongly recommend that if you have come to an agreement in relation to property and parenting matters (or both) that you attend upon a legal practitioner and seek advice in relation to the terms of your agreement before filing documents with the Court. What may cost a small fee now, may end up saving you significant time and unnecessary stress down the track.
Have You Got An Enduring Power of Attorney?
Did you know that if you were to temporarily or permanently lose capacity to make decisions and do not have an Enduring Power of Attorney ('EPOA'), the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney. Your family would be left to make an Application to the Guardianship and Administrative Tribunal for the management of your affairs.
An EPOA is a legal document that you can prepare to give someone else the power to make personal or financial decisions on your behalf. Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interest only and sign all necessary legal documents.
An EPOA for personal matters only begins if you become incapable of making decisions. You can choose whether you give an attorney immediate power or can set a certain time for when the power is to start. If you lose capacity to make decisions before the time you set, the EPOA begins as soon as your Attorney has been notified of your condition.
Too many Australian's don't have an EPOA and therefore face the risk of having their personal and financial interests handled by someone that may not fully know and understand their needs and wishes.
Don't be one of them!
Judge Orders Payout to Married Millionaires Mistress
A Taiwanese business man has been ordered to hand over $800,000 in 'gifts' to his ex mistress. Justice Lyons of the Supreme Court discerned that the items that the business man had purchased were intended to be loving gifts to his mistress.
Whilst the above Order was made in response to a Civil Claim being initiated, it is important to note that under the Family Law Act a party to a de facto relationship may apply to the Court for a property order, providing the Application is made within the necessary time frames.
The Court considers a multitude of factors when determining whether a relationship is a 'de facto relationship'. Some of these factors are the duration of the relationship, the nature of the relationship, the financial arrangements between the parties, the nature of the residence, including the ownership or use of the property and the reputation and public aspects of the relationship.
In the above case, the Taiwanese business man was spending large amounts of his time with his mistress in the South Bank unit he had purchased in her name whilst his wife was away. The court considered this in making their decision and further considered the public perception that the couple were in a committed and loving relationship.
Whilst the above case was heard in the Supreme Court it serves as a timely reminder that what the Family Law Act may not catch, a Civil Claim may.