Archive for the ‘Newsletters’ Category

Can I still work from home (remotely)

Have you been working from home during the pandemic and are wondering if you are still able to do so, as people return to the pre pandemic world and go back to the office. The answer will really depend upon your particular workplace and circumstances.

This article provides a general guidance for workers as to when it is practical and reasonable to work from home.

Staying safe at work and home

Workplaces can generally allow their employees to work from home at their discretion. Obviously, a workplace must take into account whether there are any health orders mandating that certain employees work from home.

Work health and safety laws require employers to take all reasonable and practicable steps to ensure the health and safety of their workers from the risk of contracting COVID-19 in the workplace.

Employees also have health and safety obligations to minimise any risks when working from home. This may include:

  • following work procedures about how your work is performed
  • keeping your work equipment in good working order and using the equipment provided by your workplace per employer instructions
  • maintaining a safe work environment, such as having a designated work area
  • adjusting your furniture to ensure comfortable access, providing adequate lighting and ventilation in the area you are working from and repairing any uneven surfaces or removing any hazards
  • continuing to ensure your own in-house safety, such as keeping up maintenance of electrical equipment and smoke alarms
  • notifying your employer of any risks or potential hazards present in your workplace
  • immediately reporting any changes that may affect your health and safety when working from home

When is working from home practical and reasonable?

This will largely depend on your particular workplace and the facilities available to work remotely and safely from home. When deciding whether working from home is appropriate for your particular situation, your employer should consider:

  • your individual role and whether working from home is suitable for your work activities
  • workflows, expectations and your workstation set up
  • the surrounding environment in which you will be working from, such as ventilation, lighting and noise, and your home environment, such as partners, children, vulnerable people and pets
  • any communication requirements such as frequency and type
  • your mental health and emotional wellbeing
  • the type of safe working procedures and training required

Any existing workplace policies will continue to apply when working from home. Employers must also continue to consult with their employees and any elected health and safety representatives on working from home arrangements.

What happens if I test positive for COVID-19 while working from home?

If you test positive for COVID-19 you must follow the health advice provided by your local public health authority and notify your employer as soon as possible.

Your employer should have discussed your leave arrangements with you prior to you working from home. If you are unsure of your leave arrangements, you should contact your employer and confirm same. It is also possible that you may continue to work from home if you have no symptoms, or only minor symptoms.

When can I be required to return to my workplace?

This is dependent on a range of factors, including:

  • any public health requirements
  • the individual circumstances of an employee working from home

All employers must ensure return to work arrangements adhere to relevant Australian and local government advice, legislation and that they also undertake a risk assessment and consult with employees before requiring them to return to the workplace.

Conclusion

Whether you are entitled to continue to work from home now that people are returning to the to the office will mostly depend on your type of work and workplace circumstances.

You will also need to continue to have health and safety obligations in place to help minimise any risks when working from home.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Domestic and Family Violence Protection (QLD)

Domestic and family violence is a serious issue that affects many people across Australia. A Domestic Violence Order (DVO) is a court order in Queensland designed to protect a person from domestic violence. This article contains information about what constitutes domestic violence, how to apply for a DVO, types of orders, and the consequences of breaching domestic violence orders.

What constitutes domestic violence?

When we think of domestic violence, we most frequently think of physical abuse. However, domestic violence is not limited to physical violence. It can also include emotional, verbal, financial, and sexual abuse, as well as stalking and intimidation. Some common examples of domestic violence include:

  • Physical violence, such as hitting, slapping, or punching
  • Verbal abuse, such as yelling, insulting, or belittling
  • Emotional abuse, such as controlling behaviour or isolation from friends and family
  • Sexual abuse, such as forced sexual acts or coercion
  • Financial abuse, such as controlling access to money or refusing to provide for basic needs
  • Stalking or intimidation, such as following or monitoring someone’s activities.

There are also forms of domestic violence that are less difficult to identify. For instance, it is not well understood that threats of suicide and/or self-harm can also constitute domestic violence. If someone is making these types of threats as a means of controlling or manipulating their partner or family member, this can be very distressing and intimidating for the victim.

How do you apply for a DVO?

To apply for a DVO in Queensland, you can visit your local police station or courthouse. You will need to provide details of the domestic violence you have experienced or witnessed, including any evidence you may have, such as photographs or witness statements.

Once you have applied for a DVO, a court will consider your application and decide whether to issue an order. If the court is satisfied that domestic violence has occurred or is likely to occur in the future, it will make a DVO. A DVO can impose conditions such as prohibiting the offender from contacting you, attending your home or workplace, or possessing firearms. If the offender breaches the DVO, they can face criminal charges and penalties.

In Queensland, a police officer may apply for a DVO on behalf of a victim. To apply for a DVO, a police officer must have reasonable grounds to suspect that domestic violence has occurred or is likely to occur in the future. The application should include details of the alleged domestic violence, and any evidence or witness statements to support the application.

Types of orders

There are a range of different types of domestic violence orders that the courts can issue. These include:

  • Orders which prohibit the perpetrator from committing further acts of domestic violence against the victim.
  • Protection orders, which are issued to protect victims from harm or to prevent the perpetrator from accessing a shared residence or workplace.
  • Ouster orders, which require the perpetrator to vacate a shared residence or workplace. This type of order can be an important safety measure for victims of domestic violence who may feel threatened or unsafe in the presence of their abuser.

Breaching a Domestic Violence Order

It is important for perpetrators of domestic violence to take DVOs seriously and to comply with the conditions set out in the order. A DVO is a civil order and does not result in a criminal record. However, breaching the terms of a DVO is a criminal offence that can result in criminal charges and penalties. Someone who breaches a DVO can expect to be arrested and charged.

The penalties for breaching a DVO vary depending on the severity of the breach and whether the offender has a history of domestic violence, it can result in fines, imprisonment, or both. If you feel that you may be at risk of breaching a DVO, it is important to seek legal advice and support to help you comply with the terms of the order.

An order is breached if any of the conditions listed in the order are contravened. Some examples of breaches of DVOs in Queensland include:

  1. Contacting the victim: If the DVO prohibits the offender from contacting the victim, any attempt to contact the victim, whether by phone, text, email, or social media, is a breach of the order.
  2. Physical proximity: If the DVO prohibits the offender from being within a certain distance of the victim, entering their home, or attending their workplace or other specified locations, any attempt to approach the victim or attend those locations is a breach of the order.
  3. Possession of weapons: If the DVO prohibits the offender from possessing firearms or other weapons, any attempt to possess or use these weapons is a breach of the order.
  4. Indirect contact: If the DVO prohibits the offender from indirectly contacting the victim through a third party, such as a friend or family member, any attempt to do so is a breach of the order.
  5. Failure to attend court: If the offender has been ordered to appear in court for breaching the DVO or attending a court-ordered program, failure to do so is a breach of the order.
  6. Threats of self-harm: A DVO may prohibit someone from making threats of suicide or self-harm. Although such threats may arouse sympathy for the perpetrator, it is important to understand that these actions can be the continuation of the domestic violence.

This information is for general purposes only and we recommend you obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Are you a victim of harassment or discrimination in the workplace

All workers have the right to carry out their employment without being harassed or discriminated against. If you find yourself in this position, you may feel alone and powerless. However, it is important to remember that you have legal protections and rights when it comes to harassment and discrimination.

The discussion below provides guidance for workers on what steps to take if they find themselves being discriminated against or harassed in their workplace.

What is “harassment”?  

Under federal legislation, it is unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age.

Below are some examples of behaviour that may amount to harassment;

  • telling insulting jokes about specific racial groups
  • sending sexually explicit or suggestive emails or texts
  • displaying racially offensive or pornographic material
  • making derogatory comments or jokes about a worker’s disability
  • asking intrusive questions about a worker’s personal life, including their sex life

Some examples of bullying include:

  • physically or verbally abusing another worker
  • yelling, screaming or using offensive language towards another worker
  • purposefully excluding or isolating a worker
  • psychological harassment or intimidation of another worker

What is “discrimination in the workplace?”

Discrimination occurs where an employer takes adverse action against a worker or prospective worker because of a “protected attribute.” Protected attributes include:

  • race, colour, religion, social origin or national extraction
  • sex or sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • political opinion

“Adverse action” is defined as either doing, threatening or organising any of the following:

  • firing a worker
  • contributing to a worker’s injury as a result of not allowing them legal entitlements such as pay or leave
  • making changes to a worker’s job to their disadvantage
  • treating a worker differently to their colleagues
  • not hiring a potential worker

An example of a recent discrimination case occurred where a labour hire company was found to have discriminated against a worker when they refused to hire the qualified 70 year old due to his age.

What can I do if I’m being harassed or discriminated against?

There are a few options available to you. Initially, you can approach your workplace health and safety or human resources officer or union representative. These people should be able to provide you with helpful advice. You can also report harassment or discrimination to your supervisor or manager.

You can also refer to your workplace policies and procedures which should provide a guide on how your workplace deals with discrimination and harassment, and what prevention strategies are in place.

If your type of employment comes under the jurisdiction of Fair Work Australia, you may also apply to the Fair Work Commission (FWC) for an injunction to stop the harassment or discriminatory behavior. The FWC can also make an order for compensation or reinstatement.

Negotiating with an employer can become overwhelming as there may be a power imbalance. We recommend seeking legal advice from an experienced employment lawyer to ensure you receive the best outcome possible.

Seek legal advice

If you feel that you have been harassed or discriminated against, an experienced lawyer can provide legal advice and options of realistic solutions for your particular situation.

A lawyer can also advocate to protect your current and future earnings and professional reputation by helping you claim compensation for lost income, distress and pain and suffering.

Who else can help me?

The Australian Human Rights Commission (AHRC) has the power to deal with complaints of workplace harassment or discrimination if the harassment or bullying has breached federal legislation. The AHRC resolves complaints through a conciliation process.

Conclusion

Workers who are dealing with harassment and discrimination in their workplace can often feel isolated and overwhelmed. However, it is important to understand the law provides workers with the right to carry out their work, free from discrimination and harassment.

This area of law can become complex and overwhelming, so we recommend you seek advice from an experienced lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Options to renew in commercial leases – don’t get caught out!

An option clause is a term in a commercial lease that allows a tenant to renew their lease at the end of the original lease period, if they meet certain conditions.

Landlords are not obliged to offer a renewal option. However, it is often in the interests of both parties if they are interested in a long-term commercial relationship.

It is important that you understand the steps you need to take if you want to exercise the option to renew your lease.

How option renewal periods work

Most commercial leases require the tenant to notify the landlord if they wish to exercise an option to renew their lease. For example, if your original commercial lease has a fixed term from 1 July 2022 to 30 June 2025 (3 years), then a 3-year option would cover 1 July 2025 to 30 June 2028.

If you wish to exercise your option to renew correctly, ensure you have notified your landlord:

  • clearly in writing and in accordance with the lease agreement; and
  • within the timeframe specified in your lease (which is referred to as the ‘option exercise window’).

Once you have completed the above steps, your landlord should acknowledge receipt of your decision in writing and start preparing the new lease agreement. They can do this through a new lease with the same terms or by a deed of renewal of lease.

To ensure that the terms of the new lease agreement have not changed to your disadvantage, we recommend you seek legal advice.

The importance of diarising the option renewal period

There will almost always be a time limit on when a tenant can exercise an option to renew which is usually expressed in the commercial lease as a specific date or time period. The usual trend is to allow the tenant to exercise the option to renew from three to nine months before the end of the lease term.

It is important for the tenant not to miss the opportunity to exercise the renewal option as the landlord is under no obligation to renew the lease if the tenant fails to exercise the option.

Courts generally construe option renewal periods strictly

Recent cases show that courts will interpret the timeframe to exercise the option to renew the lease strictly. The Supreme Court has jurisdiction to override the option to renew a lease in the manner required by the lease agreement, however, this is rare. In any event, court proceedings can be very costly.

Provide correct notice – refer to lease agreement and comply with formalities to exercise option

As mentioned above, it is critical to understand the deadline for exercising the option to renew.

Failure to exercise the option in the manner required by the lease agreement, means the tenant will have forfeited their right to exercise the option.

For a tenant to validly exercise their option to renew, they must ensure that the notice is:

  • in the correct format;
  • addressed to the landlord;
  • given and correctly executed by the tenant as named in the lease agreement;
  • served on the landlord within the required timeframe and in accordance with the terms of the lease.

Although providing the correct notice and complying with formalities to exercise an option may seem straightforward, it can become complex. This is why we recommend you seek legal advice from an experienced lawyer.

Conclusion

Exercising an option to renew a commercial lease may seem simple and straightforward. However, this is not always the case. Tenants need to ensure they clearly understand and comply with formalities when exercising their option to renew. Failure to do so can result in a tenant forfeiting their right to exercise the option.

Tenants also need to ensure that the new lease they sign reflects their current lease.

This information is for general purposes only and it is important to obtain professional advice relevant to your circumstances. To ensure you understand your rights and responsibilities regarding exercising an option to renew, we recommend you speak to one of our experienced lawyers.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Gender Dysphoria and the Family Court

Gender dysphoria can be described as medically diagnosed significant distress or impairment, related to a strong desire to be another gender or change primary or secondary sex characteristics.

A decision by the Family Court in the Kelvin case has set an important and welcomed precedent for children wanting to undergo hormone therapy to bring about puberty in the gender the child identifies with.

Currently, where a child, their parents and doctors are all in agreement that hormone therapy should begin, there will be no need to apply to the Court for approval.

The Kelvin decision has been welcomed as this means less stress and anxiety is placed on a child wanting to start hormone therapy for gender reassignment.

What is Gender Dysphoria?

As mentioned above gender dysphoria is the discomfort a person feels with how their body is perceived and may occur when a person feels their biological or physical sex does not match the sense of their own gender. It’s important to note that not all transgender or gender diverse people experience gender dysphoria.

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

Stage 1 treatment involves the child taking “puberty blockers” which prevent the child from going through puberty in their biological sex and therefore time to develop emotionally and cognitively where they are able to give informed consent to the next stage of treatment.

Stage 2 treatment consists of the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Hormone therapy has some irreversible effects so it can only commence when the child has the maturity to provide informed consent.

Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery, phalloplasty and hysterectomy.

The role of the Family Court in the treatment of Gender Dysphoria

In Australia, the Family Law Act 1975 gives the Court authority to make orders relating to the best interests of the child relating to non urgent medical intervention. Before 2017, Australia was the only country where transgender adolescents had to seek permission from the Court to start stage 2 treatment for gender dysphoria.

Stage 2 treatment was only available to transgender adolescents, who the Court believed had reached a ‘Gillick’ level of competency. The Gillick test is used to determine whether a child is legally capable of consenting to medical treatment, without their parents’ knowledge or consent. In 2017, however, the case of Kelvin brought about change to this status quo.

The Kelvin case

As mentioned above, the case of Kelvin set a new precedent for the commencement of stage 2 treatment. Kelvin was born female but diagnosed with gender dysphoria at age nine after identifying as male. Kelvin’s father filed an application to the Court containing evidence from an endocrinologist, psychiatrist and a psychologist that supported Kelvin commencing stage 2 treatment. The court decided that there was no requirement to satisfy the Gillick competence test in Kelvin’s case as all parties, including the parents and treating doctors, agreed that Kelvin should proceed to the next stage of their treatment. Therefore, it was not necessary to make an order approving commencement of stage 2 treatment.

The court also declared that previous case law was decided based on potential health repercussions of new medical treatments. By the time Kelvin’s case was heard in the Court, there was a clearer understanding of gender dysphoria and treatment options.

If you or your child’s treating physicians are unsure if your child is ready to start stage 2 treatment, and would like further legal advice on moving forward, we recommend you speak to one of our experienced family lawyers.

Conclusion

The decision in Kelvin is a triumph for gender and family law as it aligns Australian law with contemporary attitudes held by the medical community at large.

It has also been welcomed by children dealing with gender dysphoria, especially where the child consents and wants to proceed with stage 2 treatment and the child’s parents and treating medical practitioners have no objections to the child commencing treatment.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Financial Agreements as an Estate Planning tool

A Financial Agreement is an effective tool for couples in managing their estate planning. Financial Agreements allow couples to pre-determine what they quantify as a fair distribution of their finances and assets, in the event of a relationship breakdown, death of one party, or mental illness.

What is a Financial Agreement?

As mentioned above, a Financial Agreement is an effective tool that helps couples determine ownership of assets and/or liabilities of their marriage or de facto relationship. Financial Agreements can also help ensure your affairs are in order for the remainder of your lifetime and after your death, so as to minimise tax burden, maximise the protection of your assets and ensure that ultimately the right people benefit from your wealth.

Are all Financial Agreements binding?

A Financial Agreement must satisfy certain requirements to be binding;

  • both parties must sign a Financial Agreement;
  • each party must obtain independent legal advice before signing;
  • your individual family lawyer must sign a statement confirming they gave you independent legal advice and provide a copy of this to your partner and their solicitor;
  • it must be clear that the Financial Agreement has not been terminated by any of the parties and has not been set aside by the court.

To ensure your Financial Agreement is legally binding, we recommend you speak to one of our experienced family lawyers.

Why is a Financial Agreement beneficial?

Financial Agreements are generally beneficial for anyone, especially for:

  • Couples who are bringing assets to a new relationship, especially where this is a subsequent marriage/de facto relationship. If one of the parties has children from a previous relationship, a term can be included in the Financial Agreement stating that assets are to be divided upon one of the parties’ death as if they were separate. This should also be reflected in your Will.
  • Children who are likely to receive a significant inheritance upon their parents’ passing. A Financial Agreement will help parents preserve this inheritance for their child, in the event of their child’s relationship with their spouse or de facto partner ending.
  • ‘Generational wealth transfer’ – this occurs where parents are preparing to retire and hand over the family business to their child and their child’s partner. The Financial Agreement in this case is designed to protect the family business that has been in the family for many years.

A Financial Agreement is generally more cost-effective than attempting to negotiate a property settlement and possible court proceedings post-separation. A Financial Agreement will continue to operate despite the death of a party and will operate in favour of, and be binding on, the legal representative of that party.

For further information on the advantages and disadvantages of a Financial Agreement, we recommend you speak to one of our experienced family lawyers.

How does a Financial Agreement affect your estate?

A Financial Agreement predetermines the financial outcome of a relationship when it breaks down, and consequently removes the discretion of the Court to divide a couple’s assets. This means that parties can enter into a relationship secure in the knowledge that if they separate, each party will preserve and protect what they brought into the relationship. Financial Agreements should also be mirrored in the parties’ respective Wills.

A Financial Agreement binds the estates of married and de facto couples, meaning that if you lose mental capacity or die, your estate is still bound to honour the terms of your Financial Agreement for division of your finances and assets.

Conclusion

A Financial Agreement can serve as a safety net and is an effective tool for estate planning. If you do not end up needing to use it, you have lost nothing, however it will give you peace of mind about you and your loved ones’ future.

There are various requirements that must be met for a Financial Agreement to be legally binding and the area of law regarding Financial Agreements can be complex, this is why we always recommend obtaining legal advice from an experienced family lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The dos and don’ts of motor vehicle accident claims

If you have sustained an injury as a result of a motor vehicle accident (MVA) and are thinking of making a claim for your injuries, it is important to know the “Dos and don’ts” of trying to claim compensation.

Many people think claiming compensation for MVA injuries is an easy process, however it can leave you exposed to insurance companies who have plenty of experience in defending compensation claims.

You have one shot at obtaining the best compensation outcome, so we strongly recommend you obtain legal advice from our personal injury lawyers before proceeding with your claim.

Below is a list of the dos and don’ts when it comes to claiming compensation for MVA injuries.

DON’T go it alone – seek advice from a specialist MVA injury claims lawyer

As mentioned above, insurance companies and specialist insurance investigators have extensive experience when defending MVA compensation claims. It is in their best interests to pay out as little compensation as possible for your injuries. Obtaining legal advice from an experienced lawyer who specialises in MVA compensation claims is vital so the insurer does not have the upper hand with your claim.

People are sometimes tempted to choose a lawyer solely based on price and location. It is important to choose a lawyer based on their track record and experience. When searching for a lawyer, you should ask if they have experience dealing with personal injury claims. You can usually find this information on their website or via the Law Society.

Most lawyers these days are flexible and will represent clients regardless of their location. Most lawyers are also happy to have remote meetings with their clients so don’t be put off by a lawyer that is not local to you.

It is vital to choose the correct lawyer so that you receive the maximum amount of compensation you’re entitled to.

DO report the accident to the police

You must report the MVA to the police as soon as possible from the date of the MVA. This is very important as it assists in proving that your claim is genuine and not exaggerated. Once you have reported the MVA to the police you will be provided with an Event Number. The insurer will require this to open an MVA compensation claim on your behalf. If police did not attend the scene of the MVA, you should call them as soon as possible and report the MVA.

If you have not reported the MVA within the specified time frame of the incident occurring, we strongly recommend you speak with one of our specialist lawyers who will be able to assist you.

DO keep records, especially photographs

It is vital to take photos or video of the location of the accident, all of the vehicles involved (and especially their registration plates) and the drivers and their licences.

It is very important to keep documentation of any damages and injuries sustained from the MVA. This will assist in proving the extent of your injuries. It is also important to document any receipts for medical expenses incurred from receiving treatment for your MVA injuries. We recommend you keep a folder containing these images.

DON’T settle too soon

As mentioned previously, insurance companies will try and settle your matter as quickly as possible by offering you a compensation amount upfront.

We do not recommend you accept an insurer’s first offer as our experience shows that when a person appoints a lawyer to assist with their MVA claim, they can receive a much better financial settlement.

This is another reason why it is so important to seek advice from a personal injury lawyer.

DON’T delay claiming and seeking legal advice.

MVAs need to be reported to police as soon as possible. If you don’t report the MVA because you believe your injury is insignificant and not worth making a claim for compensation, you should still seek legal advice as to your entitlements. There have been instances where injuries have worsened over time leaving the injured person with significant loss. We recommend you speak with one of our personal injury lawyers as soon as possible to prevent this from happening to you.

Conclusion

MVA injuries are common and many people receive injuries as a result. Many of these people also attempt to resolve their MVA claims on their own without the advice or support of a lawyer. Making a claim for compensation for an injury sustained as a result of an MVA can be confusing, complex and overwhelming, not to mention dealing with insurance companies who do not have your best interests at heart. This is why we strongly recommend seeking legal advice for anyone wishing to make an MVA compensation claim.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Tips for getting ready for Family Court

Settling your family law matter in the court system can be stressful, expensive, and most likely, a lengthy process. Understanding the timeline of court directions and procedure will help you prepare for the process.

This article provides the most important tips to help make the court process as smooth and productive as possible.

It is important to remember that court proceedings should be relied on as a last resort after all attempts made to negotiate a settlement.

We strongly recommend that you seek legal advice from an experienced family lawyer before commencing a court application.

Understanding the timeline for court hearings

Family law matters proceed through the Federal Circuit and Family Court of Australia. There are four types of hearings that usually take place during family law proceedings in the court, these include:

  • Direction Hearings or Mentions;
  • Interim Hearings;
  • Call overs; and
  • Final Hearings.

Learning about proceedings in the FCFCA

They say knowledge is power, so we recommend you invest some time educating yourself about procedural issues and the law. If you have a family lawyer managing your matter, ask them to explain the process to you in simple language.

If your proceedings involve a property settlement, you should have a thorough understanding of the likely outcomes and property division. If your proceedings involve the care of children, you should ensure you understand the possible outcomes for orders and arrangements for your children.

If you are unable to pay for a lawyer to represent you, you can request an appointment for representation from a Legal Aid lawyer, or at the very least, seek legal advice in relation to hearings.

Identify the issues in dispute

It is imperative that you work out the legal issues you and your ex-partner cannot agree on.  Clarify what you want to achieve from the hearing, and understand the other party’s wants.

When the differences between each party are clear, make a list of the strengths and weaknesses of your case. Plan how you will respond to any arguments made by the other party in relation to weaknesses in your matter.

Ensure that you:

  • have relevant documents ready to hand to the Judge or in your sworn affidavit;
  • have prepared written submissions to be handed up to the Judge;
  • include a chronology of events, if appropriate;
  • write out the orders you are seeking.

Doing the above, even if you have legal representation, will assist your lawyer preparing your case and may even save you costs in legal fees.

Evidence

The court can only consider evidence that is relevant to your matter and ‘admissible’ (i.e., able to be used in court). Evidence is usually admissible if it supports a party’s argument, or helps to weaken the other party’s argument.

Be objective about the evidence required. The evidence must be directly linked to your argument.

Don’t use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.

Sometimes evidence that might seem relevant can’t be used in court.

The rules surrounding evidence can be complex so we strongly recommend you seek legal advice in relation to the evidence you will be relying on.

During the hearing

The general dress code for court is business attire, you should ensure you look neat and tidy. When entering and leaving the court room, it is etiquette to bow to the Judge and always stand when the Judge speaks to you. Ensure that your mobile phone is switched off. Following good court etiquette gives the Judge an indication of your character.

Remaining calm and reasonable in court, regardless of how heated arguments become, is very important as it shows the Judge that you are generally a calm and reasonable person.

When the Judge asks you a question, ensure you directly answer that specific question. Courts are under pressure from time constraints and appreciate direct and straightforward answers to questions.

Video conferencing

The court conducts hearings both in person and electronically via video link and telephone. This is referred to as ‘video conferencing’. The court will advise if your matter is listed for a remote hearing.

Electronic hearings are conducted as proper and formal court hearings which means the usual Rules of Court, court procedures and etiquette are expected to be complied with.

You can request your hearing be conducted electronically (using the relevant form which can be found on the court website). The court may also direct that the hearing be held via video link or telephone.

How do I find out where and how my hearing will take place?

You can usually find the above information by checking court orders, if your hearing was listed when the judge or registrar made the orders, or in emails or letters about your matter from the court.  If your hearing is listed to be heard electronically, the court will send you or your lawyer an email with instructions on how to join the hearing and what documents you will need to provide the court before the hearing date.

  Conclusion

Preparing for a family court hearing involves a lot of work and is time consuming. Ensuring that you have all documentation required and a thorough understanding of court procedures is vital for a successful outcome.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

A Guide to Buying Commercial Premises

Buying a commercial property (such as a warehouse, office building or retail space) is more complicated than buying a residential property. There are complex contract terms, detailed planning information and additional legal and commercial implications if the premises are leased.

In this article we set out some of the key issues in relation to buying a commercial property.

Contract for sale

The contract will typically be prepared by the seller’s lawyer and will set out the terms and conditions for the sale of the property. Essential terms will include, for example, a description of the property, the purchase price, a list of any fixtures or fittings that are included in the sale and the settlement date.

The contract will also include detailed special conditions which relate specifically to the property and the terms on which the seller is offering the property for sale. These special conditions need to be examined and explained to the purchaser by a lawyer who is experienced in the purchase and sale of commercial properties.

The sale of each commercial property is a unique transaction and general terms in the contract will usually be negotiated and varied by the parties.

Name of the purchasing party

In commercial sales, it is important to ensure that the contract correctly identifies the entity buying the property. There are a number of different entities which can purchase commercial property including individuals, individuals in partnership, companies, trustees of discretionary trusts, superannuation funds or a combination of entities.

If you are thinking about buying a commercial property you should speak with your accountant or lawyer prior to the purchase about the buying entity which best suits your tax or asset protection needs.

If the sale is completed and you decide that someone else should own the property (for example, a trustee of a trust) then this could require a transfer of the property and payment of additional stamp duty and capital gains tax.

Goods and services tax

The sale of commercial premises will often attract GST. Whether or not you are required to pay GST on the sale price of the property can make a significant difference to your cash flow.

GST is generally imposed where a seller is registered or required to be registered for GST and is conducting an “enterprise”. If you are the buyer and registered for GST, you can claim the GST component in your next business activity statement, however, you will need to pay the money upfront to the seller.

There are some exemptions to the application of GST. For example, a seller does not need to apply GST if the property is part of a “going concern”. This might apply if the property is a business premises or a tenanted building. A seller may also be able to use the margin scheme to work out the GST that applies to the sale of the property. This should be detailed in the contract.

When it comes to GST in commercial property it is important to seek advice as it can affect the amount required to be paid at settlement and the stamp duty which is assessed as payable.

Existing leases

A buyer is bound by any leases disclosed in the contract of sale. If you are buying premises subject to a lease you should have the lease reviewed by an experienced lawyer. That is because the specific terms of the lease can have an impact on the commercial viability of the purchase. A lease to a poor tenant, paying under market rent, for a lengthy lease term is a vastly different commercial proposition to a lease to a quality tenant paying market rent.

Due diligence

There are a number of searches and enquiries, including legal, physical and technical, which should be carried out when purchasing a commercial property. These include rates and water search, title search, company search (if the seller is a company), a search of the contaminated land register and land tax search.

A buyer can consider inserting a clause in the contract that the purchase of the property is subject to the buyer being satisfied with its due diligence inquiries, to be undertaken within a specified time.

Conclusion

Purchasing a commercial property is an important investment decision with significant financial implications. A good lawyer can help you negotiate the sale contract and ensure that your interests are protected during the purchasing process.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Getting interim orders in the Family Court

Separated couples unable to resolve matters regarding parenting and finances through mutual agreement can apply for interim orders in the Federal Circuit Court (or Family Court for some more serious and complex cases).

Interim orders are “temporary orders” and usually made as a matter of urgency to determine parenting and financial matters until the final hearing.

Although interim orders are temporary, it is important to ensure you understand your rights and entitlements regarding parenting and property arrangements as a status quo is sometimes set by interim orders.

What are interim orders?

Parties have the option to apply for interim orders as there is a general waiting period of up to 12 months or longer for a final hearing where final orders are made. As such, interim orders are “temporary” orders that are required for urgent matters, mainly regarding the care of children.

For most property matters, there is no need for interim orders, unless there are urgent issues needing to be addressed, for example, which party will remain occupying the former home where the couple resided.

We strongly recommend you speak with one of our family lawyers who can provide you with advice tailored to your situation.

How do I get interim orders?

Before making an application for parenting proceedings, parties must first attempt Family Dispute Resolution (FDR) with a mediator, unless there is history of family violence or child abuse. If no agreement regarding parenting is reached during FDR, or if one of the parties does not participate, the parties will need to apply for interim orders.

When applying for interim orders regarding a parenting application, an Affidavit and a Notice of Risk is required to be filed with your application. You must also file a 60i Certificate with your application for interim parenting orders.

If you are making an application for financial interim orders, you must submit an Affidavit and a Financial Statement with your application.

A fee will need to be paid at the time an application for interim orders is lodged.

Interim hearings usually take place between 2-3 months after an Initiating Application is filed.

Even if the other party has filed an application for an interim order first, you may still file your own application through a Response. Once your Response has been submitted, you will be in the same position as the other party.

An interim hearing may also be used to obtain the following types of Orders:

  • Drug testing;
  • Recovery Order;
  • Restraints on certain behaviours;
  • Appointment of an Independent Children’s Lawyer.

There is a lot of work involved in preparing an application for interim orders. To ensure you have included all necessary documents and information for your application and that you have drafted your affidavit correctly, we strongly advise you speak with one of our experienced family lawyers.

What happens during an interim hearing?

In interim hearings, courts do not make rulings on disputed facts because the evidence presented cannot be tested by cross examination. Courts make interim orders based on respective applications, affidavits, relevant reports and/or submissions made by both parties. Interim hearings are generally heard in less than two hours unless there are special circumstances which can cause the hearing to go over 2 hours.

An interim order for parenting may include the following;

  • who the children of the relationship will reside with;
  • the amount of time the children will spend with each parent and other people, such as grandparents;
  • details of parental responsibility;
  • how children will communicate with the parent they do not live with (including other people);
  • any other factors related to the care, welfare or development of children.

When determining the above, the court will consider what is in the “best interests of the children.”

An interim property settlement (also referred to as “part property settlement”) can generally be described as an “advance” on what a party is likely to receive in a final property settlement. Interim property orders usually provide for funds to be used by one of the parties after separation. These funds may be used for whatever purpose the party seeking the interim order chooses, such as purchasing a property, car, paying legal expenses or for day to day living expenses. It is important to keep in mind that the funds allocated in the interim property order will be treated as part of what that party will receive in the final property settlement, i.e. these funds will be deducted from the final property settlement.

Conclusion

Interim orders are made as a temporary, urgent solution to a separated couples’ parenting and financial situation. At the final hearing, the court will examine all evidence, listen to cross-examination of the parties, and will then make final orders.

If a party wishes to apply for parenting orders, they must attempt ADR before doing so.

Considering the lengthy delays experienced in the Family Law Court, interim orders often remain in place for a long time. This means they can sometimes have an impact upon the final orders that may be made by the court, so it is crucial to seek advice from an experienced family lawyer who can ensure that proper time, care and effort has gone into preparing and presenting your case at the interim hearing.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.