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What you need to know about the new Federal HomeBuilder grant

June 16th, 2020

Federal HomeBuilder grant 2020

The Australian Government has recently announced a new “HomeBuilder grant” to boost the Australian economy, particularly the construction industry, in light of the Coronavirus pandemic.

The new HomeBuilder grant provides eligible homeowners and first home buyers with a grant of $25,000.00 to build a new home or significantly renovate an existing home.

HomeBuilder requirements

The following eligibility requirements apply:

  1. you must be an Australian citizen (not resident);
  2. you must have an annual income of $125,000.00 or less or, for couples, your combined income in the last financial year must be $200,000.00 or less;
  3. the building or renovation contract must be entered into and signed between 4 June 2020 and 31 December 2020 and work must commence within three months from the contract date (current projects do not qualify);
  4. for new buildings, the value of the home (including land) must not exceed $750,000.00; and
  5. for renovations:
    • the renovation must be valued between $150,000.00 to $750,00.00;
    • the pre-renovation value of the home must not exceed $1.5 million dollars excluding fixtures such as sheds and granny flats; and
    • some renovations are not covered such as adding a pool or detached garage.

HomeBuilder eligibility

Eligible homeowners will be able to apply for the HomeBuilder grant when their relevant State or Territory Government implements the grant.

The HomeBuilder grant is a temporary scheme which applies alongside existing first-home and home‑owner grants.  You can register your interest to receive updates when more information is available on the Australian Government Treasury website.

The existing Queensland First Home Owners’ Grant provides $15,000.00 towards purchasing or building a new house or apartment where the value of the home (including the land) is less than $750,000.00.  These grants have their own eligibility criteria.

First homeowners

First homeowners may also qualify for stamp duty concessions, and the federal government’s first-home loan deposit scheme and first-home super saver scheme.

If you are considering purchasing, building or renovating property and have any questions concerning the grants that may be available to you, please do not hesitate to contact our team of experienced property lawyers on (07) 4036 9700 or enquiries@millerharris.com.au.

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Separated but living under one roof? Here is what you need to know

May 26th, 2020

One impact of Coronavirus may be that more people find themselves separated from their spouse, but continuing to live together for a period of time.  In family law this is coined “separation under one roof” and there are important consequences to be aware of.

The most important thing about separating under one roof, is determining the actual date of separation.  This is typically the date where one spouse has the intention to separate, and that intention is clearly communicated to the other spouse.  There are many ways in which an intention to separate may be communicated and relevant factors include:

  • details of any conversation about separating between the spouses;
  • separating finances, including opening personal accounts and ceasing use of joint accounts;
  • a change in sleeping arrangements and living arrangements;
  • communication of separation to friends and family;
  • living separate social and public lives;
  • cessation of performing household duties for each other;
  • cessation of a sexual relationship; and
  • notifying government departments that you are separated, such as Centrelink.

It is also important to consider whether there has been any reconciliation of the relationship after the date that separation has initially been communicated.  Whether or not reconciliation has occurred can be a grey area requiring specific advice based on your circumstances.

The date of separation is very important as it triggers the following time limits for family law matters:

  • For married couples: You are only eligible to apply for a divorce 12 months after the date you separated. Once a divorce order is obtained, a further 12 month time limit is triggered for resolving all property division and spousal maintenance matters.
  • For de facto couples: You have two years after the date of separation to finalise both the division of your property and any spousal maintenance matters.

If property and spousal maintenance issues cannot be agreed to and formalised according to the requirements of the family law legislation, within the above time limits, then it may be necessary to commence court proceedings prior to the time limit expiring to protect your interests.

We recommend that you diarise the date that you have separated, including details of the separation and obtain independent legal advice as soon as possible after separation.

Our experienced family law team is here to help and can be contacted on 07 4036 9700 or enquiries@millerharris.com.au.

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Are your super and life insurance beneficiary nominations up to date?

May 5th, 2020

If you have finished (or are well and truly over) ‘Marie Kondo-ing’ your home, now is a good time to ensure that your superannuation and life insurance beneficiary nominations are in place and up to date.

What a lot of people don’t realise is that your superannuation and life insurance do not typically form part of your estate in the first instance to flow through your will.

In order to direct who your superannuation and life insurance is to go to, you should have beneficiary nominations in place with your superannuation funds and life insurance companies.

If you do not have a binding death benefit nomination in place (or your nomination has expired), the trustees of your superannuation fund have discretion to determine who they pay your superannuation death benefit to and in what amount, which may or may not be in accordance with your wishes.  Also, these nominations usually lapse every 3 years.

It is important that you read the beneficiary nominations carefully when completing as, while they may appear to be simple forms, they are still legal documents that require certain elements to be met in order to be binding and effective.

If you have any questions or would like assistance preparing your superannuation and life insurance beneficiary nominations, please do not hesitate to call our office on 4036 9700.

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COVID-19: The impacts of Coronavirus on family law and parenting

April 28th, 2020

Co-parenting can be difficult at the best of times.  The additional uncertainty and significant changes in response to the global pandemic will see parents face new challenges.

The message from the courts is that where possible parents should continue to comply with existing court orders.  It is not clear at this stage, what the courts will consider a reasonable excuse for not complying with a parenting order in the context of the pandemic.  Parents are being encouraged by the courts to use their common sense and to act reasonably as new challenges present as a result of the pandemic.  Communication will be crucial as parents navigate through the temporary restrictions in place, particularly in relation to travel and quarantine.

If orders cannot be complied with, or parents seek to change arrangements during the pandemic, parents should, in the first instance, try to reach an agreement in writing with the other parent about what is to occur, including consideration of makeup time if time is not proceeding in accordance with orders.  Parents are being reminded by the courts that they should always prioritise the best interests of the children, their health, safety and wellbeing.

If you are in a situation where you believe that you are unable to comply with court orders and the other parent does not agree, and the issue cannot be resolved between you, you should seek legal advice.

Parents should attempt to work through issues reasonably and sensibly to prevent any more distress during this time.  They should keep each other informed about any health issues or concerns as they arise.  If issues arise that cannot be resolved, they may be able to be negotiated through lawyers or through alternative dispute resolution services, such as mediation which continue to be offered remotely.

Travel restrictions

The latest direction from the Queensland Chief Health Officer permits persons to cross the border for the following purposes:

  • to continue existing arrangements (such as parenting plan arrangements) for children under 18 years to have contract with their parents and siblings who they do not live in the same household with (but contact with vulnerable groups, such as persons over 70 years, is not permitted);
  • to provide care or support to an immediate family member; and
  • to attend any court of Australia or to comply with court orders (including parenting orders).

The courts and the government are continually reviewing and updating travel restrictions, so it is always best to obtain advice on the current arrangements that apply to your situation.

Our lawyers are continuing to advise clients on all family law matters.  Please do not hesitate to contact us on 07 4036 9700 if you have any questions or concerns regarding your family law matter during this difficult time.

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Making the transition to retirement living – 4 questions you might have about manufactured home parks

April 23rd, 2020

Cairns is soon to introduce its newest (and first) land lease community, also known as a manufactured home park.  The Botanica Lifestyle Resort is the first of its kind in Cairns and a new option for those looking to make the transition to retirement living.

There are a number of options for those wanting to move into retirement living including moving into a retirement village (and the various iterations of retirement villages) or a manufactured home park.

What is a manufactured home (or a land lease community) and how is it different from other retirement living options?

One of the main differences between a manufactured home (or land lease community) and regular home ownership is that you do not own the land on which your house is placed, you rent it.

You do however own the home that you reside in, which differs from most retirement villages where you lease or licence the unit or villa that you live in.

Depending on how the home is constructed, one of the features of a manufactured home park is that you can physically move the home to another location if you wish.  That may not be practical however depending upon the characteristics of the house.

What is included?

There are a number of benefits to purchasing a home in a manufactured home park over traditional land ownership, including:

  1. the access to a community of people of a similar age and with similar interests; and
  2. various community facilities including sporting areas, parks, restaurants, pools and event spaces.

Because you actually own the home you will live in, you also have more freedom in how you keep and manage it, subject to the rules of the park.

A manufactured home is also a capital asset that you can sell in the future, and as you will own the home in the park you will be able to leave it as an asset in your will.

What rights do I have?

Manufactured home parks are governed by the Manufactured Homes (Residential Parks) Act 2003, and that act contains numerous protections for those wishing to adopt that style of living.

Among the protections is an indefinite lease period in most cases, meaning that not only can you reside at the property for as long as you want,  you have the flexibility to terminate the arrangement whenever you are ready to move on.

The legislation also requires that the operator of the park allow cooling off periods and provide extensive disclosure to you about the costs involved in living in the park, the facilities that will be provided, and your obligations when living in the park.

What happens when I am ready to move on?

When the wander bug strikes again and it is time to move on, a manufactured home can present more options than a traditional retirement village.

Depending on the construction of the home, you may choose to terminate the rental arrangement with the operator and move your home somewhere else.  You also have the option, and it may be a more  practical one, to sell the property.  Such a sale will need to involve the park operator though as they will need to consent to any new owner.

You are entitled to receive any capital gain on the sale of your property as you own it and unlike exit from a retirement village, there is no exit entitlement or lump sum payment that you need to pay to the operator when you move on.

If you wish to move on but cannot sell the property, and it is not practical to physically move the property to another location, questions may arise as to what may be done with the property.  You should carefully consider the terms of your site agreement with the operator as this will largely determine what your obligations on exit will be.

Entering into an agreement to reside in a home in a manufactured home park is a big decision and there are a number of different factors that you should consider before signing on the dotted line.  Seeking legal advice on the agreement is a must!

Our experienced commercial lawyers are able to assist with any enquiries about manufactured home parks or retirement villages so call us today on 07 4036 9700.

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Am I in a de facto relationship?

March 17th, 2020

As a family lawyer, I am regularly asked the question – am I in a de facto relationship?

The answer to this question is not as simple as you might expect.  A person will be considered to be in a de facto relationship if, having regard to all of the circumstances of the relationship, they have a relationship as a couple and are living together on a genuine domestic basis.

The most well-known test for determining whether two people are in a de facto relationship, is whether they have been living together as a couple for more than two years.  However, a couple can be living together for less than two years and still be considered to be in a de facto relationship.  Other factors that need to be considered include:

  1. the duration or length of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence, interdependence or financial support between them;
  5. ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship was registered;
  8. the care and support of children; and
  9. the reputation and public aspects of the relationship.

The most common situations in which people may be found to be in a de facto relationship, despite not living together as a couple for more than two years are where:

  1. the couple have a child together; or
  2. the couple have intermingled their finances, such as by purchasing a property together.

A lot of people want to avoid being in a de facto relationship because they believe that this will automatically entitle their partner to a share of their assets.  It is important to note that even if you are considered to be in a de facto relationship, this does not necessarily mean that your partner is entitled to a share in your property or assets.  The court must first determine whether or not an adjustment of property between the spouses is necessary to do justice between them, based on their respective contributions to the relationship and their future needs.  In some circumstances the court will not intervene if the property interests as they stand are just and equitable.

If you would like to discuss your relationship, property settlement or obtain advice on your family law matter, contact one of our Cairns and Mareeba family lawyers today.

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The truth about why you need an enduring power of attorney

February 25th, 2020

The importance of an enduring power of attorney is often overlooked because people believe that their spouse or next of kin will be able to look after their affairs if they were to lose capacity. The truth is, it would be very difficult for your loved ones 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 and Jane works part-time.
• Jane and Tom own their family home jointly.  There is a mortgage over their property.
• Tom is involved in a car accident and suffers serious brain injuries. As a result, Tom is unable to make decisions for himself and requires care on a full time basis.
• Jane is unable to care for Tom on a full-time basis and cover the mortgage repayments.  Jane decides to sell the family home and move Tom into a care facility.
• Jane contacts a real estate agent to list the property, however the sale comes to a standstill when Jane encounters a problem; Jane and Tom do not have enduring powers of attorneys.
• As Jane is not appointed as Tom’s attorney, she is unable to sign the contract for sale or 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. This process is stressful and can be costly.

If no one is willing to take on this responsibility then the Public Trustee and the Public Guardian may be appointed to take control of your affairs. 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.

The reality is, any person can unforeseeably lose their capacity at any time during their life. Wouldn’t you prefer to appoint someone who you trust to look after your affairs if this situation were to arise?

If you would like to avoid this problem for relatively little time and money, please do not hesitate to contact us to set up your enduring power of attorney.

Get your affairs sorted today.  Contact our Mareeba wills and estate lawyers on 07 4092 3555.

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Building covenants and solar panels – are there restrictions on maximising energy efficiency?

January 17th, 2020

Building covenants are common features of contracts for the purchase of properties in new residential estates.  Property developers use them to ensure that houses, fences and other improvements to be constructed by the buyer conform with the landscaping and design of the estate.  The intention is that by doing so, the developer maintains control of the product which it is selling, and buyers can buy with confidence that the other houses in the neighbourhood will be of a similar standard.

The content of building covenants varies dramatically from estate to estate.  Some are very basic and some are highly detailed and prescriptive.  Many of them control the design of houses, materials used, colour schemes and the location of solar panels and solar hot water systems.  Generally building covenants are legally binding, however, the Building Act 1975 (the “Act”) contains provisions which were introduced to encourage developers and homeowners to implement sustainable buildings and designs.  Covenants which restrict the use of energy efficient design features, such as solar hot water systems or light coloured roofs, in favour of unsustainable aesthetic designs can be unenforceable under the Act.

The  Court of Appeal recently considered the enforceability of a building covenant relating to solar panels in the case of Bettson Properties Ptd Ltd & Anor v Tyler.

The facts

In Bettson a building covenant required the buyer to obtain the seller’s consent before installing solar panels.  The purpose of this condition was to prevent the installation of visually unpleasing solar panels.

Without the seller’s prior consent, the buyer installed the solar panels on a highly visible portion of the roof.  The seller’s request to relocate the solar panels to a more discrete location was rejected by the buyer, as the alternative location would render the solar panels 20 per cent less efficient.

The seller consequently sought to enforce the building covenant in the court.

Section 246S(2) of the Act provides that where a building covenant requires a person to obtain consent before installing solar panels on a building, consent cannot be withheld if doing so would prevent the person installing the solar panels.

The question in this case was whether the seller’s restriction on the location of the solar panels prevented the buyer from installing the solar panels within the meaning of section 246S.  This question relied heavily upon the meaning of “prevent”.

At first, the buyer succeeded, with the lower court deciding that “prevent” meant ‘hinder’ or ‘impedes’ and consequently the seller’s requirement to relocate the solar panels to a less energy efficient location prevented the buyer from installing the panels.

However the Court of Appeal did not agree with the lower court and held that ‘prevent’ has the traditional meaning of ‘to stop from happening’.  Section 246S was held to only apply where withholding consent makes it ‘impossible’ or ‘impractical’ to install the solar panels, which was not the case here.

Consequently, the buyer was ordered to relocate the solar panels as required by the seller.

Implications

The decision of the Court of Appeal means that developers can impose building covenants which prevent a buyer from installing solar panels in the most efficient location on the roof.  Arguably, this is not consistent with the policy behind the housing sustainability measures in the Act, which generally prefer energy efficiency over aesthetics.  It may be that the government will change the Act in this regard.

If you are considering buying a property in a new residential estate, it is wise to ask the seller for a copy of any building covenants before you make a decision to commit to the purchase.  You should consult with your building designer or builder about the building covenant requirements to ensure that they can be met in a way which you are happy with.  Failure to consider the building covenants before you sign a contact can mean that you will be unable to build the house the you want, with the features you want after you have bought the land.

Please feel free to contact our property law department on 07 4036 9700 if you have any queries in relation to building covenants.

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What you need to know about spousal maintenance after separation

January 13th, 2020

You have separated, and are yet to agree on a property settlement, but you need access to money.

When a couple separate, it places an enormous strain on their finances.  Where previously the family income was only required to support one household, the same income is usually then required to support two separate households.  For the spouse who earns less or has been out of the workforce, this can be particularly challenging.

Often clients will tell us that they simply cannot afford to obtain legal advice or seek to settle their property matters after separation.  This in turn creates further problems associated with delaying a property settlement, including a continuation of financial strain on both parties.

If you are struggling to financially support yourself following separation then there are options available to you.  One of those options is spousal maintenance.

Spousal maintenance can be in the form of a lump sum payment or periodic payments for a period of time (for example weekly or fortnightly payments).  Spousal maintenance is financial support paid to the spouse who is in a weaker financial position and needs financial assistance, by the spouse in the stronger financial position who can afford to assist the other person, for a period of time to enable that spouse to recover from the separation.

The most common form of spousal maintenance, is an interim agreement for periodic payments until a property settlement can be reached.  Spousal maintenance may also continue for a period of time after a settlement is reached in some circumstances.

To be eligible for spousal maintenance, you need to be able to establish that your income is insufficient to adequately support yourself.  This will require an examination of your income and reasonable and ordinary expenses.  If you can establish that you have a need for spousal maintenance, the next step is to consider if the other spouse has the capacity to pay spousal maintenance, taking into consideration their income and own reasonable living expenses.

If you would like further information on spousal maintenance following separation, or other options to relieve financial stress, contact our Cairns and Mareeba Family Lawyers today on 07 4036 9700.

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3 tips for separated parents to make the most out of the Christmas holidays

December 10th, 2019

  1. Communicate and plan ahead

After separation parents often put in place a routine for their children.  In some situations the children’s routine will not initially include arrangements for school holidays and special occasions such as Christmas Day.  If you fall into this category, then it is time to start thinking about the upcoming holidays.

Christmas is for many people a very special time, to be shared and celebrated with family.  Christmas is often a challenging time for separated families.  The first Christmas after separation can be particularly difficult due to changing family traditions.

The key to reducing stress and the impact of separation on your children is early and respectful communication.  Give careful consideration as to what annual arrangements, particularly for Christmas Day will suit your family, and enable your children to celebrate with both parents and extended family members.

One of the most common arrangements for Christmas, is for the children to spend Christmas Eve and Christmas morning with one parent and Christmas evening and Boxing Day with the other parent, and alternate these arrangements each year, this ensures the children get to see both parents on Christmas Day.  However, this might not be suitable for every family, for example, families that have traditionally travelled away from home to spend Christmas with family.

Once you have considered what arrangements you think are in your children’s best interests, discuss with the other parent as early as possible and try to reach an agreement.

If you do agree on what the arrangements will be each year, or each alternative year, then it will reduce the need for you to discuss the topic annually.  Consider whether you should formalise your agreement by either a parenting plan or consent order.

If you are considering taking time off work and travelling or camping with your children over the holidays, these plans should also be discussed with the other parent beforehand, and as early as possible.  You should also make sure the other parent is aware of any festivities that your children may be involved in, for example school concerts and plays.

Planning ahead will enable your children to have the best day possible and will reduce the risk that your children will feel ‘caught in the middle’ this festive season.

If you cannot reach an agreement, you should consider inviting the other parent to a mediation so that you can more carefully discuss and focus on putting in place arrangements for the holidays, with the assistance of a mediator.  Mediation is difficult to arrange on short notice, so the earlier you start discussing the holidays, the better.

  1. Gift giving

Consider coordinating your gift giving with the other parent.  It is not uncommon that during the relationship one parent will take responsibility for Christmas shopping.  Now that you have separated it is likely that you are both out hunting for the perfect present for your children.  Consider discussing with the other parent what you are thinking of buying before hitting the stores, to avoid duplication.

If your child brings along with them a gift that they have received from the other parent, be positive and encouraging.  Remember Christmas is about the children. It is also a good idea to ensure your child returns with the gift the next time they see the other parent.

Remember what the Christmas spirit is all about.  Whilst you may envisage gifting your former spouse a lump of coal this year, consider how assisting your children to pick out a small present for the other parent, may help and support them to adjust and feel more comfortable with the changing family dynamic.

  1. Celebrate Christmas Day

After separation, Christmas Day will not feel the same for anyone in your family.  That doesn’t mean that you cannot enjoy Christmas (you may just need to adjust your expectations and make some changes).

For many separated parents, Christmas Day can feel very lonely.  Especially if you find yourself waking up alone Christmas morning or you are not putting the kids to bed Christmas night.  This can be particularly hard where you are used to certain family traditions.

Surrounding yourself with loved ones and family can reduce some of the feeling of emptiness.  Consider making arrangements to stay with loved ones and continue to celebrate and enjoy your traditions.  You may also consider creating new traditions based around the time the children will be spending with you.

If you would like to discuss your parenting arrangements with one of our Cairns and Mareeba family lawyers, contact us today on 4036 9700.

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