Who stays in the family home after separation?

May 22nd, 2018

The family home is often the most significant asset that a person will own.  Couples often disagree about who should remain living in the family home following separation.

Both parties to a separation have a right to occupy the family home, regardless of whose name is on the legal title to the property.  For most couples, continuing to live under the same roof following separation is not an option.

Leaving the family home following separation does not mean that a person is relinquishing their entitlement to the property.  The major disadvantage to leaving the family home is having to find alternate accommodation and the expense involved in setting up and maintaining that residence.

The Court has the power to force a party to leave the family home.  The court will consider various factors, including:

  1. the income and expenses of each party;
  2. the hardship that would be caused to either party or any children if one party was forced to leave the home; and
  3. whether there is domestic violence or safety concerns which justify removing a party.

Every case is decided on its individual circumstance.  Our family law team provides strategic advice for a client’s individual circumstances.  Contact our family law team for advice about your rights and obligations today.


The truth about why you need an Enduring Power of Attorney

May 15th, 2018

“I find that the importance of an enduring power of attorney is often overlooked by many simply because they believe that their spouse or next of kin will be able to look after their affairs if they were to lose capacity.  This is not entirely correct.  The truth is, it would be very difficult, if not impossible, for your spouse or other family members to deal with your affairs if they are not appointed as your attorney.

Let’s use the example of Jane and Tom:

  • Jane and Tom are in their mid‑50’s.
  • Tom works full-time as an engineer and Jane works part-time as a sales assistant.
  • Jane and Tom own their family home jointly, worth about $600,000.00.  There is a mortgage over their property for $250,000.00.
  • Tom is involved in a car accident and suffers serious brain injuries.  As a result, Tom is unable to make complex financial or legal decisions for himself and requires care on a full‑time basis.
  • Jane is physically unable to care for Tom on a full-time basis.  She is also unable to cover the mortgage repayments on her wage, and decides that it is best to move Tom into an aged care facility.
  • In order to pay for the facility, Jane has no other option but to sell their family home.
  • Jane contacts a real estate agent to list the property, however the sale of the property comes to a standstill when Jane encounters a problem; Jane and Tom do not have enduring powers of attorneys in place.
  • As Jane is not appointed as Tom’s power of attorney, she is unable to sign the contract for sale or land title transfer documents on Tom’s behalf to effect the sale of the property.

The consequence of not having an enduring power of attorney in place means that an interested party (i.e. family member or friend) would need to make an application to the Queensland Civil and Administrative Tribunal (“QCAT”) to be appointed as the administrator for financial matters and/or guardian for personal and health matters.  So in the scenario above, Jane would need to make this application to have the power to sell their property.  As you can imagine this process is stressful, especially if an urgent appointment is needed, and can be costly.

If no one is willing to take on this responsibility then the Public Trustee and the Public Guardian will be appointed to take control of your finances and personal and health matters.  There is also the risk of these statutory offices being appointed if there is a dispute between family members about who is the most appropriate person(s) to act.

I understand that the thought of losing capacity is a scary topic that no one likes to discuss.  However the reality is, any person can unforeseeably lose their capacity at any time during their life, either permanently or temporarily.  So wouldn’t you prefer to appoint someone who you choose and trust to look after you and your affairs if this situation were to arise?”

For more information, contact our wills and estates lawyer, Bianca Stafford.


Recent changes to Regional Sponsored Migration Scheme

May 11th, 2018

As part of their transition to the new Temporary Skills Shortage (‘TSS’) visa announced in April 2017, the Government has been progressively rolling out changes to the existing visa schemes.  The first quarter of this year has seen significant changes to the existing visas, and finally, the introduction of the TSS visa to replace the 457 visa.

Part of these changes has been a tightening of eligibility for the Regional Sponsored Migration Scheme (‘RSMS’).  The most recent changes directly affect the ability of Far North Queensland businesses to sponsor employees from overseas under the RSMS.  Given that these changes have now come into effect we thought we would highlight the most significant ones.

Occupation Lists

The eligible occupations for the RSMS will now need to be on either the Medium and Long Term Strategic Skills List or the Regional Occupations List.  The changes in March have not reduced the list in terms of number of eligible occupations, however it remains to be seen if that will continue into the future. The Regional Occupations List is only an interim list and is likely to be revised in July of this year.

Skilling Australia Fund Levy

In addition to changing the available occupations, businesses that wish to sponsor an employee under the RSMS will now be obliged to contribute to the Skilling Australia Fund Levy.

This levy is a one off payment for each employee sponsored. For small businesses it is $3,000 whilst all other businesses must contribute $5,000. A small business is defined as any business with an annual turnover of less than ten million dollars. The levy payment is payable at the time the application to sponsor an employee is made.

Minimum work experience and maximum age requirements

There is a new minimum work experience requirement for workers applying to the RSMS. Workers who wish to obtain a permanent residence visa must be able to show that they have a minimum of 3 years experience relevant to the occupation they are applying for.  This means that businesses are unlikely to be able to sponsor graduates or other students as they previously did.  Further reducing eligibility is the reduction of the maximum age for applicants down to 45 from 50.  Combined, these two factors are likely to cause a significant drop in the number eligible persons.

Minimum and market salary requirements

The last major changes introduced in this wave are the new minimum annual wage requirements.  There are now two measures which help to prescribe the amount that sponsors must pay to sponsored employees.

The first of these is the annual market salary requirement. When making an application to sponsor an employee, the sponsor must prove to the Immigration Department what the annual market salary is for the occupation they are hiring.  To achieve this there are a number of guidelines available but unless there is no available market data, it will simply involve analysing what other people in the same or similar position are paid.

The second requirement is that the salary paid to the employee must be equal to, or greater than, the Temporary Skilled Migration Income Threshold. Upon commencement, this value will be $53,900  exclusive of any non-monetary benefits and is subject to annual review.


On top of the above changes, there remain in place a number of transitional arrangement for people still on 457 visas. The transitional arrangements however are subject to critical cut off dates based mostly on individual circumstances. Given this, and the ongoing rollout of the changes, we recommend that if you have any doubt whatsoever you should contact your legal advisor immediately.

For more information, please contact us.


4 Tips for Buying into a Retirement Village

May 3rd, 2018

Are you considering moving into a retirement village?

At first the numerous facilities and up front prices may seem to be perfect for you but it is important that you are aware of all of costs of retirement living.

The most important piece of advice for those considering selling up and buying a property in a retirement village is that you should not be doing it for a financial investment, what you are buying is a lifestyle.  Retirement village contracts have long-term financial consequences which come in the form of exit fees.

Do your research

There are different structures and services that different retirement villages offer, so it is important to make sure you shop around, that the prices you are looking at are fair and that you are aware of the services that you will receive.

Get advice early on

There are only limited periods in which you can change your mind about entering into a retirement village contract so it is extremely important to get advice early on, so that you do not find yourself locked into a contract that you are not happy with.

Know about the exit fees

There is more than the upfront and ongoing costs to consider when buying into a retirement community.  Exit fees are usually the most significant financial obligation associated with retirement village contracts. This is the business model that retirement communities operate on – residents get a higher standard of  services and lifestyle than what they might otherwise have access to and they pay for it on exit.

Most retirement village contracts include an exit fee which increases over time (up to a cap) and there are huge differences in the fees to be paid between different retirement villages.

What if things change?

Many retirees think that the exit fees will not be much of a concern to them, thinking that they will remain in the village for the rest of their lives.  But you should think about how a change in circumstances might affect this:

  • If you have moved to a retirement community to be close to your family and they move away. What if you want to go with them?
  • What if your children’s circumstances change and they need more assistance from you in the care of your grandchildren?
  • What if your health circumstances change and you need a higher level of care which the retirement village cannot offer?
  • What if you simply do not enjoy retirement community living like you thought you would?
  • What if your financial circumstances change?

Generally, you will not receive back enough capital on exit from a village to pay for an equivalent lifestyle elsewhere.  So, make sure you have a contingency plan in place.

Miller Harris Lawyers can help you traverse the process and enter into retirement living with your eyes wide open to avoid unwanted surprises later on.