In this video, OMB Solicitors Partner and Accredited Property Law Specialist Simon Bennett talks about the pitfalls to be aware of when buying a granny flat.
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In this video, OMB Solicitors Partner Tom Robinson talks about the differences between dividing fences, retaining walls and revetment walls.
In this video, OMB Solicitors Partner and Accredited Specialist in Family Law Abbi Golightly walks us through the process of applying for a divorce in Australia.
In this video, OMB Solicitor Calum Ball gives an overview of the process of purchasing or selling a manufactured home.
In this video, OMB Solicitors Partner Juliette Nairn shares a story about a recent case in Western Australia concerning the state’s body corporate and strata law.
In this video, OMB Solicitors Partner Richard Dawson shares his experience dealing with contested estate matters in family settings.
In this video, OMB Solicitors Partner and Accredited Specialist in Family Law Abbi Golightly discusses pets, particularly what might happen after you separate.
In this video, OMB Solicitors Partner and Accredited Property Law Specialist Simon Bennett talks about the complex nature of buying and selling businesses.
What Mistakes In Family Law Proceedings?
Being involved in a Family Law dispute is stressful, emotionally taxing, and expensive. At all times, it is important that you follow the advice of your legal representative, who is best placed to guide you strategically through the minefield of a Family Law matter.
We are often asked, what can I do to make this easier? And often the answer to this is to advise you what NOT to do. Here are some top tips on what mistakes in Family Law are.
Involving your children in your matter
It is unfortunately common for parents to involve their children in a matter unnecessarily. This is a massive mistake. It does not help your child’s emotional development and can in fact be completely disastrous for their long-term emotional health and relationship with you and their other parent.
Undoubtedly it will affect the Judge’s view of you and does not promote your parenting skills.
Involving a child in the dispute, by speaking badly about the other parent or the other parent’s family to the child or telling the child about the areas of dispute between the parents, are an indication of lack of insight into the child’s best interests. IF the Judge thinks you lack insight then they will not consider you to be the kind of parent that a child should live with or spend a lot of time with, which would be the worst-case scenario.
Not being open and transparent about your assets
The long and the short of it is, you must disclose your assets. This disclosure must be full and complete and transparent. Thinking you can hide your assets or transfer them to another person to make sure that your ex cannot claim on them, is engaging in conduct which will leave you open to your entire property settlement agreement being re-opened.
Non-disclosure of financial circumstances can shatter a party’s credibility before the court. It is not only against the law not to disclose your financial circumstances, but failure to disclose often prevents a matter from being resolved early and by agreement. Your ex’s lawyer will advise them against reaching an agreement if you have not been open about your financial circumstances.
The court will assume, if you do not disclose everything, that you have something to hide and therefore that you are dishonest and therefore not a credible witness.
Often, if the Court concludes that you are hiding assets or that you have not been transparent with your disclosure, it will make property settlement Orders which are not in your favour. When in doubt – disclose!
Social Media use and abuse
Facebook is often the biggest source of evidence for Family Lawyers. It seems to be the place that parties go to vent about every aspect of Family Law – from the Court, to their ex, to their lawyers.
Publishing any information about your family law proceedings is a contravention of section 121 of the Family Law Act 1975. This section makes it an offence to publish information which could identify someone involved in a family law matter being determined by the court.
With one click of your phone or computer, and by publishing that rant, not only are you breaching the law, but you are strategically giving your ex great evidence to use against you.
It is advisable to deactivate all social media profiles until after the family law matter is complete in order to avoid this common pitfall.
Expecting your Ex to Change
You cannot make a person change. Simple but true. You cannot force them to agree with you. You cannot force them to be what you consider “reasonable”. It is important to focus on your conduct, your case and your strategy and let them run their own race.
Not formalising your agreement
If you do not formalise your agreement, then you have a ticking time bomb in your pocket. In the absence of a formal agreement for your property settlement or parenting matter, then you run the risk of your ex popping up in years to come asking for a property settlement despite you having divided your assets years ago.
In some cases, the Court will not disturb an informal property settlement, but more often than not, they will not. This means that the assets the Court looks at will be the CURRENT assets, valued at the CURRENT value, not what they were one, two or five years ago.
Now whilst you may think that you can trust their word not to come back for more, it is far better to assume the worst and formalise your agreement. Even if you do not consider yourself to have any assets of significance NOW, you may have in the FUTURE and if you don’t tie things up, then you are leaving yourself open to having to deal with claims against your future assets.
Don’t let your emotional drivers take over
Family Law disputes are inherently emotional. But what is important is that you don’t let your emotional drivers impact upon your capacity to make commercial decisions about resolution of your property matter. Put your business hat on and be commercially sensible.
Obviously parenting disputes are vastly different, but it is important in that space, not to let your hurt over your relationship issues and unresolved feelings of hurt and disappointment, to drive a dispute about your children’s living arrangements.
Resolution and the control that it affords you is worth its weight in gold. Be realistic in your expectations and get advice from a Family Lawyer who will guide you around those expectations. Whilst the advice you receive may not be what you want to hear, it is likely to be what you need to hear.
Not getting advice when you need it
When someone says to you, oh you don’t need a lawyer, they will only make it worse, that should set off alarm bells for you.
It is akin to trying to diagnose your illness via google.
So, unless you have a law degree, then getting advice is simply ensuring that you are proceeding on an informed basis, armed with skills and information that you ordinarily do not have. A good Family Lawyer is not your warrior, they are your shield, protecting you from making decisions which are contrary to your interests and guiding you towards a sensible, safe outcome.
The specialist-led team at OMB Family Law are available to guide you through the Family Law minefield and our family lawyers help you avoid these mistakes and possibly many more. For strategic, sensible and sensitive Family Law advice, contact OMB Family Law on 5555 0000 or via our website or social media including our Partner Abbi Golightly’s Instagram @divorcinglightly
Yes — Bank Statements (not just balances) are required (and more!)
“Please send me your bank statements, tax returns, pay slips, superannuation statements ……” This is one of the most common, but arguably important emails you will get from your Family Lawyer during the conduct of your property settlement matter.
Undoubtedly, financial disclosure is tedious, time-consuming and often feels like an invasion of your privacy. However, it is, undoubtedly, the most important aspect of ensuring your property settlement matter has the best chance of prompt resolution in a way that is safe from challenge down the track.
Financial disclosure is where you provide all information relevant to an issue in your case. The duty you owe to disclose is owed both to the Court and to the other party. The duty begins before Court proceedings are filed and continues until such time as the matter is finalised. The requirement is to provide all documents that you have in your possession (i.e., physical documents), power or control (i.e., you have the capacity to obtain them, such as downloading bank statements or requesting your accountant provide them).
If you are involved in Court proceedings regarding property settlement and you do not provide full and frank financial disclosure, the Court may:
- Refuse to allow you to use information or evidence to support your case
- Suspend or dismiss the case
- Make a costs order against the non-disclosing party
Financial disclosure is daunting. Getting expert family law advice is an important aspect of understanding what is required of you.
The Federal Circuit and Family Court of Australia Rules 2021 sets out specifically some documents that a party is required to provide PRIOR to the first Court event. These are:
- Three most recent tax returns AND assessments;
- Documents showing your superannuation interests
- If you have an ABN, your four last BAS statements
- If there is a partnership, trust, or company (other than public company) in which you have an interest – copies of the three most recent financial statements and last four BAS statements.
Other more general requirements include the obligation to disclose all documents which would establish:
- Your earnings and income
- Any interest in any property
- Any interest in any financial resource (such as a Trust or deceased estate)
- Your liabilities
These more general obligations require disclosure of bank statements, pay slips and the like. It is important that you gather these documents promptly when requested by your lawyer and ideally prior to your first consultation with your Family Lawyer.
The consequences for failing to disclose and your matter being finalised without full and frank financial disclosure can include your agreement being set aside or “voided” by the Court and allowing your former partner to make further claims for property settlement.
Alternatively, if you have not resolved your property settlement matter and the Court considers that you have intentionally withheld relevant information from the other party and the Court when it makes its decision about the division of your assets, the Court may give your ex more of your assets. This is because there is an assumption that you are hiding assets if you do not provide full and frank disclosure.
If you are involved in a property settlement matter and you are not sure of what is required of you, contact the team at Gold Coast Lawyers who will guide you through your obligations and assist in getting you a prompt and safe resolution of your property settlement. Contact Family Lawyers us on this 5555 0000, via our website or through our social media.
Recently, Olivia Wilde was in a midst of a press conference when suddenly, on stage, someone appeared with an envelope. They approached her and handed her documents. And with an instant, that person highlighted exactly the wrong way to go about serving your former partner with notice of upcoming Court proceedings. Now whether Jason Sudeikis knew that this was about to occur or not is the subject of much internet debate, however, what is clear, is that Olivia was properly served.
When you commence proceedings in Family Law matter, it is necessary to ensure that the other party is aware of the requirement to appear in Court on the listed return date. The process of ensuring they are aware is called “serving” them with the documents. In accordance with the Federal Circuit and Family Court of Australia Rules 2021, in the case of an Initiating Application, service is required to be “personal”. This means the documents must physically be handed to the named Respondent. Personal service often requires the appointment of a professional person, known as a Process Server, to attend at the Respondent’s place of work or home and seek to locate and identify the Respondent and hand them the necessary documents.
If the Respondent has a Solicitor appointed, that Solicitor can accept the documents on their client’s behalf, which is a far more efficient and cost-effective way of serving Court materials.
However, what do you do when you don’t know where your former partner lives or works? What if it has been many, many years since you have had any contact with them? The Court will not allow a matter to continue and possibly be resolved in the absence of the Respondent unless it is completely certain that all steps have been taken to locate and serve the Respondent and that they have chosen not to participate in the legal proceedings.
In these circumstances, it is necessary to make an Application for Substituted Service or for the requirement to serve the documents to be dispensed with.
Other ways that service can be properly affected on a Respondent to an Initiating Application, or an Application for Divorce can include:
- Service by registered post to their last known address – a search of the electoral roll is often required to establish this.
- Service by email.
- Service by Facebook messenger (very rarely ordered, but can occur); and
- Service by way of provision of the documents to a family member or new partner, with the expectation that they will bring the documents to the named Respondent’s attention.
The court will require good evidence that you have taken all steps necessary to locate the Respondent before allowing Substituted Service and in this regard, it is necessary to ensure that your Application for Substituted Service and supporting material is completed correctly and appropriately detailed.
If you are considering commencing proceedings for parenting orders, property settlement or divorce, and you are having concerns about locating and serving your former spouse or partner, then the expert Gold Coast Family lawyer team at OMB solicitors can assist you– contact us on 5555 0000 or via our website or social media.
The Bane of a Body Corporate
When driving up and down the Gold Coast Highway, you would be remiss to overlook the many towering high-rise buildings that sprawl the coastline. What may be less discernible, however, is the balconies that extend from these buildings – and which provide a vantage point for owners and occupiers to marvel at the seashore.
However, the responsibility for maintaining balconies and the balustrades that enclose a balcony is a contentious issue in community titles scheme living. The (significant) costs which may be involved in the repair and maintenance of balconies and balustrades only add to the issue.
Is a lot owner responsible, at their cost, for undertaking repairs to a balcony, given they enjoy its use? Or is it the body corporate’s responsibility to complete these repairs?
Format Plan Maintenance
The responsibility for maintaining balconies and balustrades is largely dependent on the type of survey plan with which a body corporate is registered, being either a:
- building format plan (“BFP”); or
- standard format plan (“SFP”).
This is because the survey plan will define the boundaries of a lot, which in turn, determines the responsibilities for maintenance within a lot.
Building Format Plan
For lots registered under a BFP, lot boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. In the event a lot is separated from another lot or the common property by a floor, wall, or ceiling, the boundary is the centre of the floor, wall, or ceiling.
Similarly, a balcony area is defined by floors/ceilings, walls and balustrades. Where there is a railing or balustrade, the boundary of the lot will be the outer face of the railing or balustrade.
In the case of a balcony with no upper structural element (i.e. there is ‘open’ airspace above the balcony), the upper boundary will be defined by the extension of the ceiling of the adjoining structure on that lot.
The regulation modules provide that a body corporate is responsible for maintaining, in a structurally sound condition:
- foundation structures;
- roofing structures providing protection; and
- essential supporting framework, including load-bearing walls.
There have been adjudicator orders (see Portside Noosa Waters [2019] QBCCMCmr 623) which have confirmed that a balcony that extends over an area of common property or lot property is considered a “roofing structure that provides protection”.
The effect of this is that a body corporate is generally responsible for maintaining, at its cost, the balcony structures for lots registered under a BFP where they provide “roofing protection” to lower level lots.
However, a lot owner is responsible for maintaining all fixtures and fittings within the lot boundary, including the balcony area, which comprises part of the lot property. This may include any balcony tiles and lights.
In terms of maintaining balustrades, the regulation modules provide that a body corporate is responsible for (among other things) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property.
Where lots are enclosed (i.e. there is a railing or balustrade which encloses or provides a barrier to a balcony area), the boundary of the lot will be the outer face of the railing or balustrade, as confirmed by the Registrar of Titles Directions.
As a result, a body corporate is generally responsible for (among other things):
- maintaining the foundation structures of a balcony, this may include the concrete slabs and balcony columns;
- the waterproofing cavity underneath a balustrade; and
- replacement of the railings, balustrades and parapets which are situated precisely on the boundary of a lot and the common property.
Standard Format Plan
For lots registered under an SFP, land is defined horizontally using marks on the ground or a structural element of a building. The boundaries of these lots will be defined by the measurements shown on the survey plan. The effect of this is that a lot owner is generally, responsible for maintaining (among other things):
- the inside of the lot, including all fixtures and fittings;
- the outside of the building within the lot boundary, including exterior walls, doors, windows and roof; and
- balcony and balustrades, if contained within the surveyed lot boundary.
The first step in determining whether a body corporate or a lot owner is responsible for maintaining a balcony or balustrade is therefore to identify the survey plan with which that lot is registered.
OMB – Specialist Strata Professionals
OMB Solicitors’ specialist body corporate lawyers team has recently seen a number of committees seek advice on the responsibilities for maintaining balconies and balustrades within community titles scheme living.
To ensure bodies corporate understand their statutory obligations and take appropriate action in maintaining the common property in good condition, including any balconies and balustrades which are the responsibility of a body corporate, strata managers and committees should consult with Gold Coast lawyers at OMB solicitors.
While Queensland Summers are synonymous with beach cricket and barbeques, the warmer weather also brings with it one of the less attractive features of living in a tropical climate… fires.
Before COVID-19 changed the meaning of “hot spots”, the Queensland Government amended the Fire and Emergency Services Act 1990 (Qld) by introducing additional obligations on property owners and managers with regard to the installation and maintenance of fire and smoke alarms in domestic dwellings.
Dwellings refer to any houses, townhouses and units.
What has changed?
Currently, fire and smoke alarms in existing dwellings must:
- be photoelectric (i.e., detect visible particles of fire combustion);
- not be more than ten (10) years old;
- operate when tested;
- be installed on each storey and in every bedroom; and
- be interconnected with every other smoke alarm in the dwelling.
However, from 1 January 2022, these requirements will apply to dwellings being sold, leased or where an existing lease is being renewed. The new legislation will have the effect of making Queensland properties the safest in Australia with regard to fire safety.
How does this affect bodies corporate?
The Queensland Fire and Safety Services (QFES) is empowered to enforce compliance with the new fire and smoke safety standards. The QFES does not differentiate between lot owners in a community titles scheme. This means that a body corporate, as a separate legal entity, is responsible for ensuring the scheme, including all dwellings, complies with the fire and smoke alarm regulations.
There are significant financial costs, which may be issued to the body corporate by the QFES if the scheme does not comply with the appropriate fire safety standards. These fines are often not covered by insurance, including office bearers’ liability.
If not budgeted for, a body corporate may be required to charge an additional levy to strata owners to cover any fines.
In addition, a failure to comply with the fire and smoke alarm requirements also presents potential issues for bodies corporate negotiating competitive insurance premiums.
OMB – Specialist Strata Professionals
OMB Solicitors’ specialist strata practitioners have recently seen a number of bodies corporate enquire as to the effect of the new smoke and fire alarm legislation and how a community titles scheme can ensure it is compliant.
Given the significant penalties which apply for non-compliance, it is important that body corporate managers understand the new requirements and the strict timeframes that apply.
To ensure bodies corporate understand and take appropriate action in complying with the new fire and smoke alarm regulations which come into effect from 1 January 2022, body corporate managers should consult with OMB Solicitors.
Things are changing for employers starting July 2022. The minimum wages under the National Minimum Wage and under most awards have increased.
In this video, OMB Solicitor Rebecca Purcell talks about the options you have if you purchased a property and discovered that it has building defects.
In this video, OMB Solicitors Partner Richard Dawson shares his experience handling difficult contested estate matters and what usually happens when you leave someone out of a Will.
In this video, OMB Solicitors Partner and Accredited Specialist in Family Law Abbi Golightly talks about the next steps to take after reaching an agreement in relation to the division of your assets after the end of your relationship.
Transcript
Hi, I’m Abbi Golightly, partner at OMB Solicitors and an accredited specialist in family law. So you’ve reached an agreement in relation to the division of your assets after the end of your relationship. The next question you may ask is how you document that agreement.
When it comes to documenting your agreement as to the division of your assets, there are two options available to you, there is a binding financial agreement and a consent order. Each of the options have pros and cons and advantages and disadvantages to you.
In relation to consent orders, you complete and file an application for consent orders with the family law courts. You attach to them the terms of the agreement reached between you and your former partner.
The application requires completion of a number of financial details for you and your former partner, such that the court has information as to your current financial circumstances. The court uses that information to make a decision as to whether the terms of the agreement reached are just inequitable or fair and reasonable.
If the court is satisfied that the terms are fair and reasonable, they will make the orders and they are binding upon you and your former partner as if they were an order made by a judge after a contested hearing. A binding financial agreement is a private agreement between the parties.
It sets out the terms of the agreement reached in relation to the division of your assets. You are required by the Family Law Act to obtain independent legal advice in terms of the binding financial agreement before you sign it.
That advice must be in relation to specific issues, which are the advantages and disadvantages to you of signing the agreement and the impact of the agreement upon your rights and entitlements. If you do not receive independent legal advice, then the binding financial agreement is not valid and enforceable.
The benefits of a binding financial agreement is that it enables you to be a little more creative with the terms of the agreement reached and enable you, for example, to take a longer period of time to pay your former partner a cash entitlement before a transfer of a property or be creative with respect to superannuation splitting.
A binding financial agreement is not approved by the family law courts, and that is why it is mandatory to obtain independent legal advice. If you are unsure as to which option is best for your circumstances in relation to formalising your property settlement, contact us here at OMB Solicitors.
In this video, OMB Solicitors Partner and Accredited Specialist in Family Law Abbi Golightly discusses the next steps to take after reaching an agreement in relation to living arrangements for your children.
Transcript
Hi, I’m Abbi Golightly, partner at OMB Solicitors and an accredited specialist in family law. So you’ve reached an agreement in relation to the living arrangements for your children. The next step is how you document that agreement.
When it comes to the arrangements for your children, there are two options for you in relation to documenting that agreement. There is a parenting plan or there are consent orders. There are differences, pros and cons between each way of formalisation.
In relation to parenting plans, they are a more informal type of agreement, they are able to be simply modified by you and the other parent by entering into another parenting plan.
By definition, a parenting plan is simply a written agreement between the parents as to the living arrangements for their child or children, and as such, they carry with them less formality than a consent order. A consent order, by its name, is an order of the court.
It is made after the parents apply to the court via an application for consent orders asking the court to approve the arrangements they have agreed upon for their children. As an order, it carries with it enforceability and significant consequences if there are breaches of it.
Whilst a parenting plan is not enforceable as an order of the court, if there are breaches of it and an application is made to the court, the court will consider the terms of the parenting plan when making a decision as to what is in the best interests of the child or the children.
So what type of agreement is best for you? That is really dependent on your circumstances and the relationship between you and your children’s other parent. If you would like some advice in relation to the best option for you to formalise your parenting arrangements, please contact us here at OMB Solicitors.
In this video, OMB Solicitor Samuel Layani talks about a few matters about debt recovery in a post-COVID climate.
In this video, OMB Solicitors Partner Cameron Marshall discusses building contracts and why getting legal advice is crucial to avoid conflicts in your contract.