We Can’t Agree on Our Property Settlement

Consumer Guarantees

consumer guarantees

 

All Australian traders, whether online or running a bricks and mortar operation, must comply with Australian trading laws and this includes consumer guarantees. This includes laws on consumer guarantees. Since 1 January 2011, businesses must provide consumers with guarantees for most consumer goods and services they sell.

Each circumstance is unique, and we are here to listen to your story and find a solution or answer, contact us.

Goods

Consumers have the right to ask for a repair, replacement or refund if the goods sold are:
• faulty
• unsafe
• look unacceptable, and
• do not do what they are supposed to do.

In each case this is according to what someone would normally expect for the type and cost of the particular goods.

Consumers also have this right if the goods sold do not:
• fit the purpose discussed with the shop owner
• match the description provided
• match the sample or demonstration model provided
• have the extra qualities or performance that were promised before the sale.

Services

Consumers have the right to ask for a repair, replacement or refund if the services you sold:
• were not delivered completely or with adequate care and skill
• did not fit the purpose or give the results that had been agreed to
• were not delivered within a reasonable time.

These rights arise from the consumer guarantees under the Australian Consumer Law that provide consumers with a right to seek remedies where there are problems with goods or services. Other laws apply for products and services you bought before 1 January 2011.

What types of businesses must offer consumer guarantees?

Consumer guarantees apply automatically to most products and services supplied by businesses in retail, service, online and hire situations.

No refunds

  1. It is illegal for businesses to tell customers or show signs stating that they do not under any circumstances give refunds.
  2. Must businesses automatically give a repair, replacement or refund? No. This will depend on the consumer showing proof of purchase and whether or not there is a major problem with the product or service.
  3. Proof of purchase can include a receipt, bank statement, a completed warranty card or a lay-by statement.

Guarantees and the ACCC

guarantees and the accc

Fully defined statutory guarantees apply to all products and services sold in Australia. While there are nine specific rights regarding goods and three regarding service, the essential rules with relation to guarantees are as follows:

  • Goods must be of acceptable quality (taking account of their price and nature) and fit for the purpose they were designed for.
  • Goods must match any description made of them and any sample shown. If you’re buying a product for a particular purpose, make sure you discuss this explicitly with the salesperson. If in doubt, get it in writing.
  • Spare parts and servicing must be available for products for a “reasonable time” after sale.
  • Services must be carried out with due care and skill, and achieve any result specified… If a plumber promises to fix a leak and the leak continues, the onus is on the plumber to repair it.

There are no explicitly specific periods specified for how long goods must be functional for, since this varies enormously depending on the product category. However, as the ACCC has made clear with recent discussions with phone companies, products provided as part of a contract like mobile phones must remain operable and serviceable for the duration of those contracts.

Businesses can extend these rights — for instance by offering a more specific or longer warranty — but they can’t reduce or ignore them. A business might reasonably argue that the conditions applying to an item sold as a “second” are different, but they can’t opt out altogether. A business cannot display a sign stating “no refunds”. As a consumer, you wouldn’t be able to complain about a stitching flaw in a “seconds” pair of jeans, but if they fell apart the first time you put them on, you’d likely be entitled to ask for a replacement or refund, since they don’t meet their intended purpose at all.

The law also clarifies how problems are to be remedied. If the issue with a product is “major” — defined by the ACCC as “one that is so severe that a reasonable consumer would not have bought the good or service if they had fully understood the problem with it” — then the consumer can choose whether they want a refund, replacement or repair and the vendor can’t object to their choice. For less severe problems, that decision can be made by the supplier.

Taking Children Overseas

taking children overseas

A child travelling overseas with a parent can often be an area of concern between separated couples especially when one party has their family roots in a different country. It is illegal to travel overseas with a child under the age of 18 years if Parenting Orders are in place, without permission of all the parties to the Order or an Order of the court permitting travel.
What are your options:

1. SEE A SOLICITOR:  Speak to your Solicitor so that they may communicate on your behalf with your ex and resolve travel arrangements and particulars quickly and amicably.

2. MEDIATION: In the instance communication via solicitors fails invite the other party to Mediation in order to address the issue. If the matter is not resolved at Mediation, the Registered Family Dispute Resolution Practitioner will give you a 60 I Certificate (Family Dispute Resolution Certificate). This Certificate is required to bring an Application before the Court.

3. COURT: Courts are often approached as a last resort. Lodge an Application with the Court in relation to Parenting Matters. You should give yourself enough time, at least 6 months, before your proposed holiday to lodge your Application and have the matter heard and addressed.

A. In order to determine the outcome of an Application the Court takes the following into account:

(i) Length of the proposed holiday

(ii) Effect on the child due to time away from the non-travelling parent

(iii)  Any threat or concerns for the safety of the child or children travelling

(iv)  Whether the Court is convinced that the party travelling will return to the Australian jurisdiction

 

B. The party intending to travel might need to provide the following evidence to the Court:

(i) Proposed length of stay and the purpose of travel

(ii) Benefits, if any, to the child/children from this travel

(iii) Itinerary of proposed travel, copy of the airline tickets, flight details and accommodation details to be provided to the Court and the other party prior to departure

(iv)  Places where the child/children will be staying, contact details, address, e-mail addresses and phone numbers

(v)  Proposed method or methods of communication between the child/children and the non-travelling parent

(vi) Evidence of ties between the travelling parent to Australia such as employment, business interests, close family ties, house, property or assets

(vii) Whether the intended country of travel is a signatory to the Hague Convention on Child Abduction

 

The Court is often concerned about the fact that the party travelling with the children might not return to Australia. The Court might in that instance require a surety to be provided by the parent intending to remove the children from the jurisdiction and to ensure the safe return of the child/children.

The sum for the surety is determined so as to be realistically enticing enough to ensure the return of the travelling parent and sufficient enough to enable the non-travelling parent to take measure for the recovery of the children in the event of an unfortunate turn of events.

If you are intending to travel with your children steps need to be taken well in advance of your departure date so that you are not stopped at the Airport.

Personal Properties and Securities Act

personal properties and securities act

Are you ready for the PPSA?

New legislation called the Personal Property Securities Act (“PPSA”) came into effect recently.  It will dramatically alter the way we deal with personal property and the way in which security over personal property can be protected.

“Personal property” is any property (except real estate and fixtures to land) such as machinery and equipment, motor vehicles, book debts, stock, trademarks and patents etc.

The PPSA will regulate any “security interest” in personal property.  If you do not protect your rights you risk losing your interests in that property.

For example you could lose:

  • priority to another creditor; or
  • title to your property if it is left in the possession of someone else (eg. if they sell it or if they go into liquidation etc ).

How does the PPSA affect you?

If you answer yes to any of the questions below, you should contact us to discuss how the PPSA may affect you and what steps you should take to protect your interests.

  • Do you own personal property that could be in someone else’s possession for longer than 90 days ?
  • Do you consign goods to other people to sell ?
  • Do you manufacture and sell goods ?
  • Do your conditions of sale state that you retain ownership until you are paid (i.e.
    retention of title clause)
  • Have you granted “fixed and floating” charges or have they been granted to you ?
  • Do you include charging clauses in your standard documents to give you security for an obligation ?

Registration

A single national online register of Personal Property Securities interests called the PPS Register (“PPSR”) has been established.

It is essential to register your security interests in order to obtain priority. By registering your security interest you can prevent another person taking ownership of your goods.

Any delay in registering your security interest or inaccuracy in the registration could be disastrous.  New security interests created must be registered quickly and in some cases may be registered before the transaction is completed.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

Don’t Be Threatened Into Doing Nothing

dont be threatened into doing nothing

 

So often we come across situations where a client has been reluctant or hesitant to proceed with a separation, property settlement, or children’s matter because of threats or blackmail from their partner.

Quite often a husband will threaten his wife that he will show she is “an unfit mother” because of something she did in her youth or something which the wife and husband both participated in consensually during the course of their marriage.  A spouse/partner may quite often feel that they would suffer public humiliation over their escapades and that it will end up splashed across the newspapers and over the internet.  We have had innuendoes about sexual escapades, social drug taking, and shoplifting levelled against clients in the hope that they will cave in.

Often a client will relate to us that their partner has threatened that if they don’t give in to their demands or if they don’t get what they want they shall bring up blah, blah, blah or that if he or she tries to leave they will never see their children again because they will let it be known that blah, blah, blah.

Two things prevent this bullying from succeeding.  Firstly, we as lawyers have a duty to the Court not to unnecessarily raise irrelevant, unnecessary, or intentionally inflammatory or embarrassing matters which have no relevance or bearing on the case at hand.  So therefore what a person may have done in their youth or may have done in the past will not and should not be raised unless it has some relevance to the property settlement and/or children’s issues and invariably they don’t.  In fact the Court takes a particularly dim view of a party who seeks to use or capitalise on such issues.

Before a trial commences each of the parties make submissions to the Court to strike out any offending or irrelevant material from the record.  If successful, reference cannot be made to that issue in the course of the trial and the Judge does not take it into account.

Secondly, there is a ban imposed on anyone publishing the names, address, or employment of a party in Family Court proceedings.  It extends to witnesses and to anything which may lead to the identification of a party or witness to the proceedings.

So even if for some reason the circumstances of a case were published in the papers it would be done in such a way that the parties identities are not revealed.  You may have seen newspaper reports of Family Court proceedings where the parties are referred to as, K v K or C v C.  That is to protect the identity of the parties.

Section 121 of the Family Law Act is unequivocal in stating that:

1.   A person who publishes in a newspaper or periodical publication or by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this act that identifies:

(a)   A party to the proceedings;

(b)   A person who is related to or associated with the party to the proceedings or is, or is alleged to be in any other way concerned in the matter to which proceedings relate; or

(c)  A witness in the proceedings;

is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 1 year.

It’s amazing the relief that I have seen from the faces of clients who may have been held to ransom for years by belligerent, bullying, overbearing, and intimidating partners when they realise that their “little secret” is not going to end up on the front page of the morning paper and that they can stare their partner down thus allowing them to pursue their full rights and entitlements without fear.

Who Is Entitled to Read the Will of a Deceased Person

Who is entitled to read the will of a deceased person

This is something we encounter quite a lot from people who believe, for whatever reason, that they are entitled to read or obtain a copy of a Deceased person’s Will.

But who is actually entitled to do so?  The answer lies in Section 33Z of the Succession Act.  Section 33Z (1) (a) says that only an entitled person can inspect a deceased persons Will.

So who is an entitled person? Again we need to go to Section 33Z(4) of the Act which states that an entitled person is either of the following:

(a)   a person mentioned in the Will, or mentioned in any earlier Will as a beneficiary; or

(b)   is a spouse, parent, or child of the Testator; or is a person who would be entitled to a share of the Estate if the deceased had died intestate; or

(c)   a parent or guardian of a child mentioned in the Will or who would be entitled to a share of  the Estate if the Testator had died intestate; or

(d)   a creditor or other person who has a claim against the Estate.

What is a testamentary trust?

It’s also worthwhile mentioning that you can create a testamentary trust (you can also create more than one of these trusts) and nominate a trustee to oversee the distribution of your capital and assets, via this trust.  The trustee can also be a beneficiary of your Will, but this isn’t necessary. As a trustee of your testamentary trust, they are also entitled to read your Will.

So if you are named as an Executor of a Will and someone demands to read or obtain a copy of the Will, first make sure they are entitled to do so.

Should you wish to discuss any matters regarding the matters raised in this article please contact Mr John McLaughlin of McLaughlin & Associates on 3808 7777.

Legalese and Parenting Matters

Legalese and Parenting Matters

Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.

Instead the following terms are utilised:-

“LIVES WITH” – which details the person with whom a child/ren is to live;

“SPENDS TIME WITH”  which defines the extent of contact between a child/ren and the other parent;

“SPECIFIC ISSUES”   which sets out various aspects of parental responsibility, such as schooling.

Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years.  This parental responsibility remains whether or not either party decides to remarry or have other children.

When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.

Occasionally parents need assistance to work out what is the best care regime for their children after separation.  In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court.   Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.

If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.

Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.

Enduring Power of Attorney

enduring power of attorney

Enduring Power of Attorney

When people think of estate planning they usually think of the need for superannuation, life insurance and income protection but equally important is the need for a Will and an Enduring Power of Attorney. I have spoken at length over the last month about the need for a Will now I wish to turn to the equally important aspect of having an Enduring Power of Attorney.

What is an Enduring Power of Attorney?

It is a document given by one person (the Donor) to another person (the Attorney) which enables the Attorney to act on behalf of the Donor and to do all things which the Donor could himself do. The Attorney in effect steps into the shoes of the Donor and can sign documents, access bank accounts etc.

Why do I need one?

Everybody should have an Enduring Power of Attorney appointing either their spouse, relative or close friend to act on their behalf in the event that they are either absent or mentally incapable of handling their affairs e.g. if you are out of town and need documents signed or access to monies or something to be done on your behalf which only an authorised person can do for you.

But the real benefit of an Enduring Power of Attorney is that the power to act on your behalf continues after you become mentally or physically incapable of doing things on your own behalf. For example, we have had cases where the husband and wife may, for tax purposes, have an investment property, shares or money invested in one persons name only. That person has suffered a stroke, heart attack or been in a motor car accident such that they are either physically or mentally incapable of handling their own affairs. The spouse may need to sell some of the assets or access some of the money in order to provide ongoing medical care for the injured party but because they don’t have an Enduring Power of Attorney that cannot easily be done. Instead, a Government appointed Trustee is nominated and as you can imagine, the process becomes very expensive and bogged down with red tape. That could all have been avoided by the making of an Enduring Power of Attorney.

Who should have one?

The simple answer is: Everybody! Spouses should each have one appointing the other their Attorney, the same applies for people in defacto relationships. But also think of the need for the elderly to appoint a child or children Attorney for them and also single children appointing a parent or parents as their Attorney.

It is especially important for adult children to think about their parents as they get older. By having an Enduring Power of Attorney a son or daughter can help their parents as they get on in life with accessing bank accounts, handling documents etc and in the event of mum or dad suffering a stroke or heart attack being able to handle their affairs.

For example, we had a case where an elderly woman suffered a stroke and was physically and mentally incapable of handling her affairs. The family home was in her name only and the children had to place her in a nursing home. The problem was that the home had to be maintained, the rates and insurance paid as well as meeting the costs of nursing care. There was no Enduring Power of Attorney. If there had been, the children could have sold the family home, placed the proceeds on trust for mum and met her ongoing care from the sale proceeds.

So think about it, if you have parents (it doesn’t matter how old they are now) seriously consider the benefit to them and you of having an Enduring Power of Attorney so that one day you will not face the same problems as the family mentioned above.

 

Video 

Prefer the video format? Our principal, John McLaughlin, provides an informative Law Talk episode about the Enduring Powers of Attorney

The Importance of Having a Will

importance of having a will

It never ceases to amaze me the number of people who don’t have a Will or if they do have one it is grossly outdated and does not reflect their current circumstances.

The bottom line is that everybody from the age of eighteen (18) should have a Will and that Will should be reviewed regularly to ensure that it keeps up with your changing circumstances.

But first, lets go back to basics. What is a Will? A Will is a legal document that enables a specified person or persons (your Executors) to distribute your assets according to your wishes when you die. Your assets include your house, land, car, bank accounts, insurance/superannuation policies and any other goods that you may own at the time of your death.

Your Will sets out which asset goes to which “beneficiary”. Beneficiaries can be family members, friends, charities or other organisations. If you have a young family, your Will can also state who is to be the legal guardian of your children in the event that they are left without a parent.

For the time being, keep this in mind, if you don’t have a Will then you don’t have a say in how your assets will be distributed or who will administer your estate for you. That will be done by the Government adhering to a rigid formula.

If you don’t have a Will or you need to review your existing one, please don’t hesitate to contact us.

Do Grandparents Have Rights

do grandparents have rights

 

Frequently in today’s busy society, grandparents are being called upon to spend their retirement years assisting in the care of their grandchildren, especially where both parents are working. A strong bond between grandparents and grandchildren ensues as grandparents invest their time in the important role of nurturing and developing their grandchildren when their parents are at work. When a divorce fractures a family unit often the bond between grandparents and grandchildren is overlooked.

Often grandparents suffer the heartbreak of their child’s divorce, not only because heir child is in pain, but because they find that they can be cut off from contact with their grandchildren, especially where the divorce is bitter and hostile.  This is traumatic to both the grandparents and the grandchildren. This is particularly relevant where, for example, the father’s parents have been caring for the children but after separation the mother refuses to allow them access to the children or vice versa.

What can grandparents do in this situation? The Family Law Act recognises that the best interests of the children are a paramount consideration when determining who they shall live with and spend time with. A fundamental factor in this is the role that a grandparent can play in the care and development of their grandchildren and the strong attachment they may have with each other. The law recognises that families are unique and that persons, other than parents, can also provided a significant role in the upbringing of children.

Each matter is judged on its own particular set of circumstances and merit. Grandparents have the right under the Family Law Act to bring an Application to the Court and be heard on the issue of contact with their grandchildren.  If a Judge determines that it is in the best interest of the grandchildren that they would be well served by spending time with their grandparents then the Court will make an order to facilitate this contact.

However, Court should only be viewed as a last resort as it is expensive and can lead to the exponentiation of conflict and create more bad blood between waring partners. An alternative to Court is mediation or negotiation with a view that an agreement can be reached between the parents and grandparents regarding the ongoing contact grandparents are to have with their grandchildren.

Seeing Your Children This Christmas

Seeing your children this christmas

The festive season should be a time of fun and togetherness. Unfortunately it often turns into a nightmare for parents who are separated especially in regards to spending time with their children.

If you and your ex are in dispute you are often left asking these questions:

• Will I get to see the children during the holidays?
• How long will I have them for?
• Can the children and I have Christmas together?
• Will they be able to spend time with my extended family?

So what are your options:

1. SEE A SOLICITOR

It is advisable to consult a Solicitor at the outset in order to look at your options and be informed of your rights. A solicitor can guide you through the entire process and try to make it as simple and seamless as possible.

2. MEDIATION

The Court encourages parents to try and resolve these issues between themselves. Couples are often required to attend mediation with a positive view to resolving the matter. A genuine attempt needs to be made to deal with any issues.

It is imperative to keep the best interest of the child or children always in the forefront and be able to look past individual grievances so as to reach a solution and resolve issues as swiftly, smoothly and seamlessly as possible.

In many situations a person might be exempt from attending mediation if the matter at hand is urgent, or where a parent is unable to participate due to an incapacity or lack or physical proximity or if there are concerns in regards to the risk of child abuse or family violence, or if there is an alleged contravention of an Order made within the last 12 months.

3. COURTS

If an Agreement cannot be reached or time does not permit, the Court can be approached as a last resort. If however an Agreement is reached your Solicitor can help draft the terms of an agreement in the form of Consent Orders and lodge them on your behalf with the Court.
You do not have to face this stressful time alone. We at McLaughlin & Associates are here to provide you with the help, support and guidance so that you do get to spend time with your children these holidays.

Why Have a Power of Attorney?

enduring power of attorney

 

What is Probate and how does this relate to a Power of Attorney?

What is Probate? This isn’t always required but essentially, it’s when the Supreme Court recognises that a Will is valid. As you will see below however, Power of Attorney is totally different and in fact, ends upon death.

We have found that many people believe that a spouse (whether married or de facto) is able make decisions on behalf of their partner, as a matter of right, due to their relationship.

This is simply not the case.

The decision making process is solely within the purview of each individual person and is generally only able to be transferred to another when a person enters into a Power of Attorney document.

When a person (known as the Principal) enters into a Power Attorney document they are, in effect, transferring their power to another person (known as the Attorney).

It is the transfer of this personal power which permits an Attorney to make decisions for and/or act in the place of the Principal. The types of decisions that an Attorney can make are broad ranging, from financial matters, such as selling a house, taking care of the finances to personal/heath matters such as deciding about where a person will live. A Principal can also limit an Attorney’s power, should they wish to do so, or expand upon it to allow the Attorney to enter into conflict transactions. This is particularly relevant where an Husband/Wife has been appointed as an Attorney.

Where an Attorney has also been appointed to make decisions regarding Personal/Heath matters, this power only commences when the Principal has lost his or her mental capacity.

Having a valid power of attorney is beneficial for a number of reasons, such as:-

  • older people are able to appoint the person they want to take care of things
    for them should s/he not be able to do so in the future;
  • going overseas for an extended time, and want a person in Australia to take
    care of things;
  • where a person suffers poor heath and wants to ensure that their affairs
    are in order should they lose capacity.

Powers of Attorney documents are also beneficial should you have an accident and lose your mental capacity.  In this instance, should you not have a Power of Attorney, a relative would need to apply to the Tribunal to be appointed as your Guardian and Administrator.  This can be a lengthy process and it may be that necessary a government body would have to look after you/your affairs until any other appointment has been made.

There are two types of Power of Attorney Documents, being:-

  • A General Power of Attorney – this type of document is generally only used when a Principal wants their Attorney to operate on their behalf for specific transaction.  These types of transactions are generally involve commercial transactions and do not permit the attorney to make decision for the health care of the principal.
  • An Enduring Power of Attorney – this type of document is generally used when a Principal wants to ensure that the Attorney can act on their behalf for a full range of financial matters, and also assist the Principal should he or she need assistance in Personal/Health Matters upon the loss of mental capacity. However the primary difference between these two types of documents is that the power provided under a General Power of Attorney will end on when the Principal losing his or her mental capacity whereas the Enduring Power of Attorney will continue to remain in full force and effect.

When appointing an Attorney, the Principal should appointment a person whom they trust will act in their best interests.  There are also other requirements, such as your attorney not being your paid carer or health care provider.

Problems can occur if the Power of Attorney document has not been completed correctly or it not been witnessed correctly.

A witness’s duty extends further than merely witnessing the Principal’s signature. The witness must also judge whether or not the Principal understands the nature and effect of the Power they are providing.

If not, then the power of attorney can be challenged by any interest party.

Therefore, it is important that if you are considering providing this Power to another person, that you be properly informed, by a legal practitioner, as to the nature and effect of the Powers you are providing to another person(s) under the Power of Attorney document.

If you are still asking yourself – What is Probate? – check out our document of Technical Details.

Video

Prefer to watch a video? Our principal, John McLaughlin, provides an informative Law Talk episode about the Enduring Powers of Attorney

Property Settlement for De Facto

property settlement for de facto

Until recently the law governing defacto relationships was vague and confusing to say the least but now there is new legislation in the Queensland Property Law Act which will hopefully make things easier when defacto couples separate, with regard to property settlement.

One plus is that defacto couples in Queensland will now have easier access to the Courts to settle their disputes and achieve an amicable property settlement outcome. Previously, a defacto spouse generally had to rely on the law of trusts to establish a claim on property which was not registered in his/her name. The new Legislation is similar to the law governing division of property for married couples.

Who is a defacto spouse? The Act describes a defacto spouse as “one of two persons, whether of the same or the opposite sex, who have lived together as a couple”.

The first thing that you will notice is that the Act covers same sex couples.

Two people are a couple if they have lived together on a genuine domestic basis, in a relationship based on intimacy, trust and personal commitment to each other. Therefore, two people living together merely as flatmates cannot be considered as living in a defacto relationship and cannot come within the Act.

As Brisbane’s experts in Estates, we’re here to help you on your journey.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

The Pole Dancer and the Prenup

The pole dancer and the prenup

Prenup agreements are now part and parcel of the Australian Legal Industry whereas they used to be something you would only read about in the Hollywood tabloids.  However, amongst the legal fraternity there has been growing fears as to how watertight these agreements are.  Many lawyers are now worried that they themselves will be sued by disgruntled clients whose agreements haven’t stacked up in the eyes of the Court.

The Sun-Herald has reported that thousands of pre-nuptial agreements may be ruled invalid if one man’s mission to extricate himself from a multi-million dollar payment to the pole dancer he married is successful.

Lawyers are closely watching what is known in family law circles as “the pole dancing case” for its potential to disrupt every agreement signed since 2004 amid claims the legislation surrounding pre-nuptial agreements is in “disaster territory”.

The man, who was given the court pseudonym of Mr Wallace, is challenging his pre-nuptial agreement on several grounds, including that the law governing such agreements is faulty.

Mr Wallace became besotted with pole dancer Ms Stelzer after meeting her at a Sydney club around the time he separated from his first wife. They married seven years later in 2005.

The parties entered into a pre-nuptial agreement that provided that Mr Wallace would pay Ms Stelzer $3.25m if their relationship broke down within four years. They separated less than two years after they married.

Mr Wallace, who has net assets of over $16m, is now claiming the agreement is invalid. He claims that Ms Stelzer, who has just over $10,000 in assets, behaved fraudulently when she professed before the marriage that she loved him, wanted to have children with him, and spend the rest of her life with him.

Mr Wallace also provides that his original solicitor did not give him proper advice on the advantages and disadvantages of entering the agreement. His current solicitor, Trevor Hall, asserted that the weakness of the legislation meant no financial agreement signed between couples was safe. “Every binding financial agreement ever entered into is at some risk of being set aside if years later a spouse wants to suggest that the advice they received was not proper legal advice”, Mr Hall said.

In 2004, amendments were made to the Family Law Act that required solicitors to certify they had taken certain steps to ensure their clients understood their agreements. This resulted in a wave of litigation with people attempting to avoid their obligations on the basis that their lawyers had not followed those steps meticulously. In 2010, amendments were made to the Act relaxing the wording.

Mr Wallace claims the changes should not apply in his matter retrospectively as that is unconstitutional.

The appeal has alarmed the Attorney-General for its potential to affect thousands of agreements. It has appointed Senior Counsel to intervene in the matter, joining Ms Stelzer’s barrister in maintaining the agreement is valid.

Family lawyer Duncan Holmes said more people were challenging their agreements on the basis of inadequate legal advice and lawyers were concerned about their liability. “The legislation is in disaster territory”, Mr Holmes said. “Well intentioned legislation is getting corrupted and lawyers are running scared”.

In 2011 His Honour Justice Benjamin upheld the validity of the pre-nuptial agreement saying that Mr Wallace’s case was coloured by criticism of Ms Stelzer, whose evidence he preferred. “At many levels this criticism seemed to endeavour to demean her and their relationship, bearing in mind the wife’s initial occupation and the circumstances of their meeting”, His Honour said.

Mr Wallace has appealed to the Full Court of the Family Court of Australia.

 

As Brisbane’s leading experts in Family Law, we’re here to provide you guidance and equip you with what you need to know in prenup agreements.

 

Neighbourhood Disputes

neighbourhood disputes

The new Act came into effect late last year (2011) and it introduces new responsibilities and rights in relation to trees.  The Act introduces the new expression of “tree keeper”.  The tree keeper is the person who is responsible to maintain the tree and ensuring that it does not become a nuisance.

A person affected by an overhanging tree can still exercise the common law right of abatement (eg: by lopping branches and roots to the boundary).  Now a neighbour can decide whether or not to return the lopped branches or roots or to dispose of the cuttings themselves.  When exercising the right of abatement, neighbours must take care to comply with any applicable tree or vegetation protection orders.

If a neighbour wants the tree keeper to take responsibility for lopping the branches of their tree hanging over the boundary, then the neighbour can serve a notice for overhanging branches upon the tree keeper.  This notice can be used for branches which are more than half a meter over the boundary and less than 2.5 metres above the ground.  If the tree keeper does not respond to the notice, the neighbour can proceed to have the lopping done and recover from the tree keeper a max sum of $300.00 per annum.  Importantly, responsibility is placed on the tree keeper to ensure their neighbour’s land is not affected by a tree growing on the tree keeper’s land. For the purpose of the Act, land is affected by the tree if a neighbour can demonstrate that the tree caused serious injury to a person, serious damage to land or property or interferes with their enjoyment of the land.

“QCAT” (Queensland Civil Administrative Tribunal) has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that the land is affected by the tree.

Be Careful When Buying a Used Car

buying a used car

The Office of Fair Trading has warned consumers to beware of discrepancies between what they are promised by salespeople and what is stipulated in the contract.

A story was reported by a man who decided to buy a second-hand car at a dealership and was told by the salesman that a new car stereo would be installed at no extra cost.

The buyer signed the contract, which did not list the stereo as an extra, but was assured by the salesman that the stereo would be added to the contract later.

When he went to collect the car a few days later, he found that the stereo had not been installed as promised.  He was told that the salesman he had dealt with was unavailable and the dealership manager told him, that there were no extras listed in the contract and so he was not entitled to the free installation of the car stereo.

Verbal agreements can form part of a contract but are often impossible to prove. There are also other considerations to take into account when signing a contract to buy a motor vehicle.

If you buy a car privately, you are not entitled to the normal protection of:

 the cooling-off period,

 you will not get a statutory warranty,

 the seller is not obliged to give you a REVS certificate or Vcheck nor are they bound by the same laws and code of Conduct as licensed dealers, and

 you cannot access the compensation claim fund if anything goes wrong.

Buying from a licensed motor dealer can be more expensive than a private sale, but it is often safer. All motor dealers selling used cars in Queensland must be licensed.  Licensed motor dealers who sell cars privately may actually be breaking the law, and they must disclose to all intending buyers that they are licensed and provide a cooling-off period and statutory warranty.

When you buy a used car from a licensed dealer, you are entitled to:

 A one business day cooling-off period,

 A statutory warranty;

 A guarantee of clear title on the vehicle;

 Protection by the motor dealer’s Code of Conduct;

 Access to a claim fund which may compensate you if you have suffered a financial loss because of the motor dealer’s actions.

De Facto Property Disputes

de facto property disputes

A defacto spouse can now apply to the Court for a division of property where:-
(a) The relationship was for a minimum of two years; or
(b) There is a child of the relationship under the age of eighteen; or
(c) Where you can’t bring yourself within (a) or (b) but can show that a serious injustice would result from failure to recognise a defacto spouses financial or non-financial contribution.

So even for relationships of a relatively short duration say six to twelve months, you can still make application to the Court for a division of property where you can show a serious injustice would result.

Such applications must be brought to the Court within two years of the end of the relationship.

A defacto spouse still has the right to seek child maintenance pursuant to the Child Support Act and other disputes concerning children such as residence and contact can still be dealt with by the Family Court.

Property Disputes

Unfortunately, couples cannot always agree as to the division of property upon the breakdown of a marriage. Others simply don’t know what they are entitled to and need advice as to their entitlements.

At McLaughlin & Associates we take a caring and sympathetic approach to matrimonial matters. We try our hardest to ensure that property disputes are resolved between the parties without the need to go to Court and on average 90% of disputes are able to be resolved without the need for a Court hearing.

If agreement can be reached with your spouse on how to divide up your assets/liabilities an Application for Consent Orders can be made to the Family Court. If you are unable to reach an agreement, you can apply to the Court for Property Orders.

The law governing the division of assets is complex and therefore, we strongly recommend that you seek our advice before making any decision on such division.

First Home Owners Grant

neighbourhood disputes

As of the 1st July, 2000 first home buyers may qualify to receive a one off $7,000.00 grant from the Federal Government. Maybe you, your children or someone you know can take advantage of the grant!

There appears to be a lot of confusion and misinformation about who is eligible for the grant. For example, I had a client who was informed by her Bank Manager that she was not eligible for the grant because she was not buying a “new” home. Wrong!

Lets have a look at some of the requirements for eligibility.

  • For a person to be eligible for the grant they must:-
  • Be buying or building their first home.
  • Enter into a Contract to buy an existing home or build a new home on or after 1 July, 2000.
  • Be an Australian Citizen or permanent resident.
  • Intend to reside in the home as their principle place of residence.
  • Start living in the home within a reasonable time.

Other points to know are:-

  • The payment is not means tested.
  • Trusts and Company’s are not eligible for the grant.
  • The payment will be made regardless of where the person buys or the value of the home they are buying/building.
  • It applies to both new and established homes.
  • It does not apply to holiday houses or investment properties.

There are some catches to eligibility so it is vitally important you speak with a person who knows what they are talking about.

Will & Estate Planning Advice

will and estate planning advice

 

Who or what is an executor of an estate?

An executor of an estate is responsible for carrying out the wishes of the deceased person. Essentially, they manage the estate according to the outline of the Will. For example, the executor of estate can organise the funeral, locate and identify the Will, apply to the Supreme Court for probate, determine the beneficiaries, inventory, value and collect all assets, pay insurances on assets, pay any outstanding debts, manage accounts, prepare and lodge tax forms, defend the estate against claimants and distribute the assets according to the Will. 

If there are any mistakes made by the executor of an estate in administering the estate, they can actually be liable for the financial losses to the estate, for example, where insurances have not been paid and fire burns down a building (which is an asset of the deceased). You can however, refuse to be named as an executor of an estate and ask the Public Trustee to administer the estate. Once you accept the responsibility however, it is often difficult to remove yourself from the role, but it can be done.

Preparing your Will

Here are a few ways that we at McLaughlin & Associates can help you in preparing your Will:-

  • Make sure your Will is valid – that is, properly drawn up, correctly signed and witnessed.
  • Make sure your wishes are clearly set out.
  • Make sure that you have made adequate provision for your spouse and children, including who should be legal guardian of your children.
  • Advise you on choosing an Executor, Trustee and Guardian.
  • Discuss relevant Tax Laws.
  • Advise on the possibility of claims against your estate and avoid or limit disputes between remaining family members.
  • Avoid the problems with intestacy – the imposition of a State appointed Administrator applying pre-determined rules to the disposition of your assets.
  • Keep you Will in safe custody free of charge.

What Does ‘De Facto’ Mean for Me?

what does de facto mean for me

Generally the question of whether or not a de facto relationship existed will occur and one of them seeks to divide up the property. When this happens, the dynamics of the relationship is reviewed to establish whether or not the couple have/has lived together in a ‘genuine domestic basis’.

The term ‘genuine domestic basis’ contains a number of factors and is the foundation of what forms a de facto relationship.

These factors are contained in the Family Law Act and include:-
• Length of the relationship;
• Did the parties live together, and if not why not;
• Whether a sexual relationship existed between them;
• The degree of financial dependence or interdependence and any arrangements for financial support;
• Ownership, use and acquisition of property;
• Whether the relationship is or was registered under a State law as a prescribed kind of relationship*;
• The degree of commitment to a shared life together;
• The care and support of children;
• The reputation and public aspects of the relationship.

This is not an exhaustive list and the particular circumstances of each couple are taken into account.  No one factor is more important than the other nor is the genders of the couple.

There is a common misconception that couples need to live together for two (2) years before they are classified as de facto partners.  This is not correct. Living together in a ‘genuine domestic relationship’ does not have a specific time period associated with it.

However, there are time factors which may apply when a party wishes to commence court proceedings for division of property.

Generally, the question of whether a de facto relationship exists is relatively simple to answer and most parties agree when separation occurred.  However this can become a complex issue. For example, what happens in a situation where a couple continues to live in the same house to raise their children, but in all other respects are living separately? In this instance one party may believe that they have separated (they may no longer be sharing a bedroom or they may be keeping monies separate), but the other party may believe they are still together.

The key question which needs to be answered is – did one party form the intention to separate and did s/he act on that intention?  A secondary matter is  –  was that intention to separate communicated to the other party?

If this is disputed, then the couple’s actions and their finances will be relevant. For example:-
• has a party been excluded from the other party’s family events;
• did they go out together as a ‘couple’,
• has the other party been removed as a spouse/partner from tax returns, or
• have they severed their financial connection to such an extent to demonstrate the lack of mutual commitment to a shared life?

If separated couples are unable to agree whether a de facto relationship existed or not, or about the date of separation, then the Family Court has the power to make a declaration on this matter.

If You Own A Pet, Read This

If you have a pet read this

A myriad of scientific studies indicate that people may improve their likelihood of experiencing better general health by owning a pet. Some studies even suggest people can decrease their stress levels and blood pressure just by owning a pet.

But what if you own a mischievous pet – will these health benefits also ensue?

There is an inherent risk owning a mischievous pet, for example a savage dog. If the dog bites, the owner may be at risk of a negligence claim if the owner was aware that the dog’s behaviour was inclined to be vicious. It appears unlikely that such a risk would improve your health – so how can you minimise the stress of owning a mischievous dog?

You can decrease the likelihood of your dog attacking by keeping your dog within the fencing confines of your property. However, if your dog does bite a person within the confines of your property, this will not necessarily prevent the injured person from bringing a negligence claim. Therefore, you need to take extra care if you have visitors to your residence, especially children or people unfamiliar with the nature of the dog. In addition to securely enclosing your pet on your property, you should also consider the following measures to minimise the risk of your mischievous pet:

  1. erect adequate and visible warning signs showing that a savage dog resides at your premises;
  2. verbally warn entrants to your premises of the nature of your dog’s temperament;
  3. ensure children are adequately supervised on your property;
  4. for young children, ensure access from your house to the dog’s enclosure is blocked (for example, lock doors).

Walking your dog may help your fitness and hence your general health, but a mischievous dog on an outing outside your property is a risk. To minimise the risk, keep your dog on a leash, avoid crowded places and if necessary, you may consider a muzzle.

Please note, that if your dog has been declared dangerous, menacing or restricted in Queensland by your local government authority, then the management of your dog will be regulated by the Animal Management (Cats and Dogs) Act 2008.

It is recommended you check your public liability insurance to ensure your policy will adequately cover animal liability. Otherwise, you risk being sued personally for any negligence claim involving your dog.

Keep your mischievous pet under sufficient control and ensure you have adequate public liability insurance – so you will be on the way to enjoying the health benefits of owning your pet.

What is an Office Syndicate

office syndicate
Many workplaces have the traditional office syndicate where everyone chips in a few dollars every week to buy a Gold Lotto entry.  No one expects to win but shock horror you actually win a substantial prize.  This is where things can turn ugly and there are lessons to be learned.
We were recently involved in such a case.  8 staff were in an office syndicate for Gold Lotto.  They won $250,000 however one member was on holidays at the time and hadn’t paid their money.  The “leader” of the syndicate and a few others then argued that the holidaying employee wasn’t entitled to a share of the prize because she wasn’t paid up.
Don’t think it could happen at your workplace? Well think again.  Where money is involved, especially a substantial sum, people have a habit of reacting in an unusual and sometimes nasty manner.  So my advice is:
1. Have some clear cut rules as to membership and eligibility of the syndicate.
2. Make sure someone is responsible for running the book on who has paid and who hasn’t and what the rules are around payment and more importantly non-payment of dues.
3. Post your rules on the noticeboard or on the fridge in the staff kitchen or some other prominent place at work where everyone has access to them.
4. Register a syndicate with Golden Casket.

Property Settlement

property settlement

 

Today I wish to discuss property division and what things the Court takes into consideration when making its decision.

The first thing to ascertain is the asset pool. In other words, one needs to identify all the assets (and their value) of both parties. Generally, all assets must be taken into account, whether they were obtained before or during the marriage, or even after separation.

The definition of “property” is very wide and includes everything that you and your spouse own either jointly or separately. For example, any real estate, shares, motor vehicles, jewellery, savings and household contents/furniture whether registered in your name solely or in both names.

It is also necessary to take into account ‘financial resources’ such as superannuation entitlements, interests in any trusts, long service leave entitlements, personal injuries claims etc.

The Court also looks at each parties contribution towards acquiring, increasing, maintain or improving any asset. Both financial and non-financial contributions are considered. For example, if one party has been running and looking after the household and caring for the children whilst the other spouse has been working fulltime and earning income, the non-working spouse is deemed to have made a contribution as a homemaker and parent and their non-financial contribution is taken into account. Initial contributions towards the marriage such as who brought what assets into the marriage as well as gifts and inheritances are also relevant.

In deciding who gets what, the Court also has regard to the future needs of both parties taking into account a wide range of things such as each parties age, health, income earning capacity, if they have the care of any children etc etc.

The law governing the division of assets is very complex and therefore, you should obtain legal advice before making any agreement with your spouse.

Book a consultation at McLaughlin & Associate Lawyers to ensure you receive Brisbane’s best legal services.

Civil Partnerships, Different From Marriage?

Civil Partnership

A lot has been said and written about the new Civil Partnerships Act but what is it really all about?

Basically the Civil Partnerships Act allows all de facto couples (whether heterosexual or same sex) to formalise their commitment to each other and this union will be registered at the Births Deaths and Marriages Registry, just like a traditional marriage.

The first of these ceremonies was held on 5th March 2012.

And, just like a marriage, if the parties want to terminate their Civil Partnership, they will need to apply to the Court to dissolve the union.  However unlike married couples, an Order made by the Court takes effect on the day the Order is made, so there is no waiting 30 days for the Order to become absolute.

So what does this new Act mean for couples?

Well, for separating heterosexual de facto couples, there is really no change. Heterosexual de facto couples will continue to enjoy the same rights for property settlement that they presently do, which are the same rights as for married couples. However, by formalising the relationship it takes away any argument as to whether a de facto relationship exists.   This will provide more certainty to the parties that their relationship will be governed by Family Law.

In the case of same sex couples it means the public and government’s formal recognition of their relationship.  It takes away any argument as to whether a couple are in fact in a de facto relationship.

One of the biggest impacts will be on a person’s Will and Power of Attorney. Presently a Will or Power of Attorney is only revoked upon the marriage of the person however, should a person now enter into a Civil Partnership, that union will also automatically revoke a person’s Will and Power of Attorney unless there is a contrary intention shown in the document.

Therefore it is important for a person entering into a Civil Partnership to make sure that they have a valid and enforceable Will and Power of Attorney.