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How will a family lawyer help me?

June 1st, 2021

Family lawyers assist people considering or experiencing separation in more ways than you might think.

We will advise you on the law as it applies to you; that part is fairly obvious.  But what isn’t is just how many legal issues family lawyers have to consider.  They include:

  • separation and divorce;
  • de facto and matrimonial property settlements;
  • spousal maintenance applications;
  • parenting issues;
  • applications by grandparents and other significant people in children’s lives;
  • child support;
  • child protection;
  • domestic violence,

and the list goes on.

Family lawyers in and out of court

Family lawyers assist separated people both within and outside of the Family Law Court system.  The majority of matters can be resolved by consent without the need to apply to court for orders.  This saves the parties the stress, costs and emotional toll of being involved in court proceedings.

A settlement outside of court is most commonly achieved through lawyers conducting negotiations on your behalf, or if necessary, via mediation or settlement meetings.  Your family lawyer can then take the necessary steps to make the settlement legally binding.

If your matter can’t be settled outside of court, or is urgent, your family lawyer can prepare the court material to commence the court application.  Your lawyer will advise you every step of the way, represent you in dealings with the other party and their lawyer, the Judge and relevant court experts.  Your lawyer will appear for you at court events including court mentions and hearings and court-ordered mediations.

Going to court

There is still a very high chance that even if your matter proceeds to the courts, it will settle along the way.  Only about 5% of matters actually proceed to a trial at which a Judge makes the decision.  This is good news.  Even if you require the court to assist you to resolve your matter, statistics tell us that there is still a very good chance that you and your former partner will, in the end, be able to reach agreement on settlement.

Initially however, the real value in consulting an experienced family lawyer comes from their ability to analyse your particular situation and the applicable law and create a separation plan with you.  For example, if you have children, property investments, insufficient income to support yourself and are in the process of separating, the laws relating to divorce, matrimonial property settlement, spousal maintenance, children’s matters and child support are all relevant to your situation.

Feeling overwhelmed?  You needn’t.  An experienced family lawyer who specialises in the practise of family law can advise you and map out the way forward.  This can usually be achieved during a 1 hour initial consultation.

Our job is to take a complicated situation and make it as SIMPLE as possible.

If you are separating or divorcing or considering it, feel rest assured we are here to help.   Contact me or one of our experienced family lawyers today on 07 4036 9700 to book your no-obligation consultation.

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Are you in a de facto relationship?

April 6th, 2021

The answer to this common question is not as simple as you might expect.  A person will be considered to be in a de facto  relationship if, looking at all 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.

It is important to know that a couple can be living together for less than two years and still be considered to be in a de facto  relationship.  Most commonly, this happens where the couple have a child together, or 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 their partner will automatically be entitled to  a share of their assets.  This is not true.

Even if you are considered to be in a de facto relationship, your partner is not necessarily entitled to a share of 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 family lawyers today.

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Resigning as a Director? Don’t be late or the last

March 4th, 2021

From 18 February 2021 changes to the Australian Law were introduced by the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 meaning that:

  1. if a director’s resignation is not notified to ASIC within 28 days, the resignation will take effect on the date of notification; and
  2. a director’s resignation will be rejected if it leaves the company with no director.

The legislation is one of a raft of measures aimed at preventing illegal phoenixing – stripping a company of assets and starting another in its stead (the phoenix).  Other more substantive reforms are already in place but these recent procedural changes will affect all directors, not just those involved in creditor-defeating restructures.

Company Director Resignation

ASIC must be notified within 28 days of a director’s resignation.  Previously, a failure resulted in a late fee; now the consequence will be that the director’s resignation date will be recorded as the date of notification to ASIC.  ASIC will override the actual date of resignation with the lodgement date.  This change is to prevent improperly ‘backdating’ a resignation to avoid director liability.

Regardless of their actual resignation date, directors will now be deemed to have continued as a director until the notification date, and will be responsible for actions taken by the company during that time.

An application may be made to ASIC or the court to fix a different resignation date.  This is discretionary and there are time limits for the application.

Resigning directors should make sure that their company lodges notice of resignation on their behalf, or lodge directly themselves to make sure their tenure is accurately recorded.

Last Man (or Woman) Standing

A director’s resignation will now be rejected by ASIC if, at the end of the day on which a director resigns, there will be no other directors of the company.  This measure is designed to prevent directors resigning to avoid the consequences of company insolvency.

Directors should be mindful of this where there is an internal dispute or financial difficulty.

For more information or legal advice about your role as a company director, please contact Miller Harris.

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How does domestic violence impact parenting arrangements?

October 15th, 2020

Domestic violence and parenting

It is important that children grow up in a safe environment where they feel secure, loved and protected.  Children who are exposed to domestic violence are far more likely to develop physical and/or mental health problems and, as adults, to become victims or perpetrators of domestic violence themselves.

If you are a parent who is a victim of domestic violence and you have a child who has been exposed to domestic violence, you can make an application for a protection order that not only protects yourself from domestic violence, but also protects your child.  Whilst the terms of domestic violence orders do vary, at a minimum, all protection orders ensure that the parent against whom the order is made, must be of good behaviour towards you and any children named in the order.

When applying for a protection order it is possible to seek additional protections which, for example, restrain the other parent from approaching your residence or place of employment, approaching you in a public place, or at a place associated with your child, such as a day care or school.  What orders will provide the necessary level of protection will depend on your individual situation.  We recommend that advice is sought prior to making an application for a protection order.

Protection orders

Whilst a protection order is made to protect those named in the order from domestic violence, it does not deal with the living arrangements or the authority to make decisions for your child.  Parents must carefully consider the following:

  1. if there is no existing agreement in relation to the living arrangements for a child named in an order, whether or not a meaningful relationship between the child and parent (against whom the order is made) can still be maintained, taking into consideration the need to reduce any risk of harm to the child; and
  2. if there is an existing agreement in place in relation to the living arrangements for a child named in an order, whether these arrangements need to be modified in light of the protection order, for the safety of the parent and child, and to ensure that a continuation of the existing arrangement does not lead to a breach of the protection order.

We recommend that parents obtain expert legal advice on their situation, as allegations of domestic violence, and the making of a protection order, adds an additional layer of complexity to parenting matters and need to be carefully navigated.  Parents should not assume that the making of a protection order enables them to withhold the child from the other parent.  Likewise, parents need to be careful that they do not facilitate any care arrangements that may place their child at risk. Parents who have had an order made against them should seek advice on options available to them to spend time with their child.

Domestic violence – next steps

Our experienced Cairns and Mareeba family lawyers are here to help, you can contact us on (07) 4036 9700 for expert advice on parenting and domestic violence matters.

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Corporate Law Update

September 9th, 2020

Director Identification Numbers – more Than Just A Vehicle For Regulation

Miller Harris Business Legal Services: On 22 June 2020 the Commonwealth Government passed into law new legislation requiring company directors and executive officers of companies to obtain and hold a director identification number (“DIN”).

The DIN scheme is a further step in the Government’s ongoing campaign to reduce illegal phoenix activity, which you can read about further here.

When Will The DIN Scheme Commence?

Although the Act has been passed and assented to, the specific timeframes around commencement are unclear. In an earlier press release, the Government stated that it expected that the scheme would commence in early to mid-2021, however the global pandemic is expected to delay the commencement.

The introduction of the DIN scheme comes alongside the decision to amalgamate a number of business and company registers maintained by the government to reduce the complexity and administrative burden involved in the registers.

The DIN scheme means that all directors and executive officers of companies, both current and aspirational, will need to register for a DIN.

There will be a transition period of 12 months during which existing directors must register for a DIN, although the commencement of that period has yet to be fixed.

DIN Scheme For New Company Directors

For new directors, they will need to register within 28 days of being appointed.

Once the transition period ends, all existing directors will need to hold a DIN, and all new directors will need to acquire one before their appointment.

The largest hurdle to registration will be verification of identity, which again remains ambiguous, although it is suspected that the provision of a tax file number will go a long way towards verifying the officer’s identity.

A person’s DIN will remain with them for their lifetime.

Why You Should Not Ignore This

A person who fails to register in the required time, or attempts to register for multiple DINs, is liable to substantial penalties, including periods of imprisonment.

There are still some concerns with the new scheme, including the availability of information on directors, the security of the register, and the requirements for verification of identity, particularly for those directors residing overseas.

Given the importance the Government has placed on combatting phoenixing activity, it is unlikely that these issues will substantially impede the roll-out of the new scheme, and it may be considerable time before the issues are resolved or addressed, if at all.

These changes represent an ongoing measure in the war against phoenixing activity. With the recent changes to insolvency legislation, particularly surrounding phoenixing activity, it is more important than ever to ensure that you are complying with the legislation and your obligations as a director.

Should your require advice about your obligations as a director, or if you have concerns regarding insolvency and winding up, our professional team at Miller Harris Lawyers can assist you to work through what are inevitably tough times.

If you require any assistance at all, or further information, please contact us on 07 4036 9700

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Is your ex entitled to property that you acquire after separation?

August 20th, 2020

Updated 20 August 2020

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

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Important legal information about redundancy

July 14th, 2020

Redundancy – Is it genuine?

During these times of economic uncertainty, redundancy could, understandably, be on your mind.  As a business owner, you might be faced with the difficult decision to reduce employee numbers.  If you are an employee at risk of redundancy you may be wondering what your options are.

In either case, it is important to understand whether any redundancy is a “genuine redundancy”, or a termination on other grounds.  If a termination is a case of genuine redundancy, and the proper steps are followed, then the ensuing dismissal will not be unfair.

A genuine redundancy occurs where:

  • the employer no longer needs the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
  • the employer has complied with any obligation to consult with the employee about redundancy (if an award or enterprise agreement requires consultation about major workplace change); and
  • the employee could not be reasonably redeployed in the employer’s enterprise or that of an associated entity.

Changes in redundancy requirements

There are many things that might happen in a business which could be described as a “change in operational requirements”.  It is a very broad concept.  Some examples include:

  • a downturn in trade that reduces the number of employees required;
  • technological development;
  • restructuring a business for the sake of efficiency, which reduces the number of positions available;
  • closure of the business; or
  • outsourcing of the employee’s role.

The key question is whether anyone needs to do the employee’s job in the face of the organisational change.  It may be that a particular job is no longer required to be performed even if some of the duties associated with that job are still being performed by other employees or have been outsourced to contractors.

Redundancy consultation

There is usually a requirement in modern Australian awards and enterprise agreements for an employer to consult with affected employees about impending redundancy.

Where an employer has  an obligation to consult, it is very important that the obligation is fulfilled.  Even if all other requirements have been met, a redundancy can still be an unfair dismissal if the proper consultation process is not followed.

Redeployment or redundancy

The final question is, whether it would be reasonable to redeploy a redundant employee into another role, instead of making the employee redundant.  Relevant factors include:

  • if any other job is available and, if so, the nature of that position;
  • the qualifications and experience required to perform the job;
  • the location of the job in relation to the employee’s residence; and
  • the remuneration which is offered.

If thinking about, or faced with redundancy, make sure that it is a genuine redundancy.  A failure to implement and follow a proper process of evaluation and consultation may raise the prospect of unfair dismissal, and the legal remedies and ramifications that go along with it.  If you have any queries, talk to our experienced team today on 4036 9700.

Please note these comments apply to employees covered by the Fair Work Act redundancy provisions.

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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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