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Changes to binding child support agreements

October 12th, 2018

On 1 July 2018, a number of changes came into effect in relation to binding child support agreements.  Before highlighting the important elements of these changes and their significance, it is useful to look at what exactly a binding child support agreement is.

What is a child support agreement?

A child support agreement is an agreement made between the parents of a child or children as to the way child support will be paid, and in some cases, how much child support will be provided.

Child support agreements in Australia fall into one of two categories:

  1. limited child support agreements (limited agreement); or
  2. binding child support agreements (binding agreement).

A limited agreement is registered with the Department of Human Services.  There must be a child support assessment in place and the amount of child support paid annually under the agreement must be at least equal to the child support assessment.  The limited agreement can only remain in place for a maximum of three years.

A binding agreement can be entered into without a child support assessment in place.  The parents are responsible for determining all aspects of the agreement.  Both parents must obtain independent legal advice before entering into a binding agreement. The binding agreement will remain in place until it is either terminated by agreement of the parties or court order or, under the new changes, the care arrangements change, as set out below.

The changes

The new changes provide for the termination of binding agreements when the care arrangements for the child/children have significantly changed since the agreement was entered into.

Where the person receiving child support stops having at least 35 per cent of all overnight care of the child/children, the agreement will be suspended.  In this event the person becomes a ‘former carer’, and unless they return to having at least 35 percent care of the child/children within 28 days, or in some circumstances 26 weeks, the binding agreement will be terminated.

The circumstances where the suspension period will be 26 weeks are:

  1. where agreement specifically allows suspension for longer than 28 days;
  2. all parties to the agreement request a longer suspension; or
  3. the registrar finds that there are special circumstances warranting the extension of the suspension period.

Once the suspension period is over, if the Department of Human Services has not been notified that care arrangements have returned to normal, they will contact the parties to inform them that the agreement is terminated from the date the person receiving child support stopped having at least 35 per cent care.

Parties will then need to either enter into a new child support agreement or apply for an assessment of child support through the Department of Human Services.

Key takeaways

So what is the importance of these changes and why should you be concerned?  These changes apply retrospectively which means that if you already have an agreement in place these changes will apply to your agreement.

In light of these changes we recommend that anyone who already has agreements in place seek legal advice to ensure that their agreements and arrangements still comply after the changes to the law.  For those considering entering into an agreement, any agreement made should be made in light of these changes.  Our Cairns family lawyers can review your current agreement and provide you with strategic advice.

Our Cairns family lawyers have extensive experience in dealing with child support agreements and child support. Should you have any questions about this article, child care arrangements or any aspect of family law, please do not hesitate to contact us.

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Construction Law Update

September 27th, 2018

In our last construction law update we informed you that the changes to the Building and Construction Industry Payments Act 2004 (BCIPA) being introduced by BIF (the Building Industry Fairness Act 2017), were to be delayed until December 2018.  A summary of the changes to be introduced was detailed here.

It remains to be seen whether the legislation will commence operation in December in its current form or if it will be ‘tweaked’ once again.  One prospect is that the recommendations of the “Murray Review” will be implemented in new legislation.

Murray Review

Mr John Murray, a lawyer and adjudicator, was tasked by the Commonwealth Government to review the disparate security of payment laws in all states and territories.

The headline recommendation from the Murray review is for an Australia-wide harmonised model for security of payment to be adopted, based on the “East Coast Model”.

Specific recommendations for the harmonised security of payment scheme include:

  1. extending the regime to the residential housing sector to enable a builder to make a progress payment claim against an owner-occupier;
  2. abandoning ‘reference dates’, and simply allowing one claim for every named month, or more frequently if the contract provides;
  3. enabling a builder to make a claim where a contract is terminated, for work carried out up to the date of termination;
  4. requiring a claimant to identify that the claim is made under the Act (an existing requirement in Queensland which will not be required if the BIF reforms take effect in December 2018);
  5. requiring a claimant to include a supporting statement with any payment claim stating that all subcontractors have been paid (and a false or misleading supporting statement constitutes an offence);
  6. giving a payment schedule within 10 business days or as the contract provides (the same as the existing legislation);
  7. a claimant serving a notice of intention to adjudicate if the respondent does not give a payment schedule (the same as the existing legislation, but this second chance step is to be removed if the BIF reforms take effect in December 2018); and
  8. a review mechanism for adjudications where the adjudicated amount is $100,000 or more higher than the scheduled amount, or $100,000 or more lower than the claimed amount.

Consistent laws throughout Australia would certainly be a welcome change and provide clarity to the area.  It is a significant difficulty for lawyers and clients that decisions made by adjudicators and Courts cannot necessarily be applied outside the state in which they are made, and that there are very few decided cases on particular issues.

Watch this space for further updates on the proposed changes to Queensland’s BCIPA regime; either some or all of the Murray Review recommendations, or the changes intended by the BIF legislation.

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Badgering, Bullying and Bodies Corporate: The Fair Work Anti-Bullying Laws extend further than you might think

September 27th, 2018

Following a recent decision of the Fair Work Commission on bullying in the workplace, you may be surprised to learn just how far the anti-bullying laws extend.  The definition of “worker” under the Fair Work Act is given a much wider meaning than just the traditional employee/employer relationship.  Bodies corporate and strata managers in particular should be aware of this decision.

Application by Ms A [2018] FWC 4147

The application involved a body corporate committee of a residential strata complex in Brisbane and the company engaged by the body corporate under a management agreement. The company provided maintenance, cleaning and other services to the complex and required that the manager live on site.  It was one of the directors of the company, Ms A, who brought the application alleging she was bullied at work by Mr C, the Chairman of the body corporate committee.

The conduct complained of included constant emails from Mr C, up to seven times per day at all hours of the day, as late as 11.00 pm at night.  The emails were about a number of different issues to do with Ms A’s performance of her duties under the management contract.  Some of the items complained of by Mr C included:

  • the prompt performance of the clearing of leaves and other vegetation on a daily basis;
  • attending to garden maintenance including the trimming of trees;
  • pool maintenance;
  • conducting of regular inspections;
  • keeping the common area toilets clean;
  • being contactable and actually living on site; and
  • the enforcement and policing of by-laws.

Mr C argued that his conduct was not bullying, but reasonable management action carried out in a reasonable manner.

The Fair Work Commission found that the issues raised by Mr C were in fact reasonable issues to raise about Ms A’s performance of the services.  However, a “war engaged in by email” was not an appropriate way to raise them.  Particularly, the use of sarcastic and derogatory language in Mr C’s emails to Ms A combined with the excessive amount of emails (sometimes well outside business hours) and the publication of those exchanges to other members of the committee was unreasonable.

The Commissioner pointed out that, as a member of the body corporate committee, Mr C had access to the resources and information to deal with any disputes in the proper manner.  The strata management company engaged by the body corporate could have advised Mr C on the formal dispute resolution process for body corporate matters.

Mr C was ordered to stop bullying Ms A and given direction as to the subject matter, timing and content of future email correspondence.  The orders also required that telephone communication be used in the first instance to assist with the repair of the working relationship between Ms A and Mr C.

The parties in the proceeding were not indentified in order to avoid any impact on other residents of the complex and to facilitate the resumption of a safe working relationship.

What are the Anti-Bullying Laws

At the beginning of 2014, the Fair Work Act was amended to include anti-bullying provisions that allow the Fair Work Commission to make decisions and orders about bullying in the workplace.

The changes allow a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission to make an order to stop the bullying conduct.

A worker will be bullied at work if, while at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.  In this application the Fair Work Commission was satisfied that bullying had occurred.

Who is a worker

In the Fair Work Act anti-bullying provisions, the term “worker” is given a particularly broad meaning.  It includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, apprentice, trainee or volunteer.

As a result the body corporate (and by extension the body corporate committee) have duties to provide a safe working environment to third party contractors.

This is the first time the Fair Work Commission has applied the anti-bullying provisions to a situation outside of the traditional employment relationship.  The decision demonstrates that the anti-bullying laws will extend to all contractors who are performing services or work.

There is also no requirement that a contractor be an individual person.  In this case the ‘contractor’ was a company and it was the director of the company, Ms A, who brought the application under the anti‑bullying rules.

Key points to take away from this decision

The key points to take away from this decision for bodies corporate and strata managers are:

  • The Fair Work Commission found that it had jurisdiction where the resident manager was a company (not just an individual person providing the services). This means that the scope of the anti-bullying laws apply to third party contractors as individuals but also to the employees or directors of third party contractor companies.  Due to the constitutional limits of Commonwealth legislation, the commission may not have jurisdiction if no corporations are involved.
  • It also found that the manager and its employees were “workers” who were owed duties by the body corporate. The anti-bullying legislation applies to workers as defined by the Fair Work Act and this goes well beyond a standard employment relationship.
  • While the chairperson of the body corporate committee was found to be justified in raising many of the issues which he had with the management, it was the manner in which they were raised which was inappropriate.
  • Civility, courtesy and reasonableness in interactions with contractors will not only improve working relationships, but also protect the body corporate from potential liability.

If you would like any further information about this decision, the roles and responsibilities of bodies corporate generally or advice on the resolution of disputes in a strata complex, please contact Lauren Doktor in our property law team on 07 4036 9700.

 

 

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Do you need to attend mediation or Family Dispute Resolution prior to going to court in relation to parenting matters?

September 25th, 2018

The Family Law Act facilitates what is known as compulsory family dispute resolution.  This requires parents to attempt to mediate their parenting dispute with a family dispute resolution practitioner (“FDRP“), prior to commencing proceedings in court.

If parties attend family dispute resolution and they are unable to resolve the issues in dispute, the FDRP will issue a section 60I certificate, which must be filed with any application made by a parent who asks the court to make orders about parenting arrangements for a child.

There are some exemptions to the requirement to file a section 60I certificate with an application for parenting orders.   Some of these exceptions include:

  1. where the matter is urgent; for example, the child has been relocated or abducted without the consent of the other party;
  2. if the court is satisfied that there are reasonable grounds to believe that the child would be at risk of abuse if proceedings were delayed, where there has been child abuse and/or family violence or if there is a risk of family violence;
  3. if one of the parents or parties is unable to participate in family dispute resolution because of some incapacity; and
  4. if the application is in relation to a contravention of an existing parenting order.

If a party is filing an application without a section 60I certificate, they must file with that application an affidavit non-filing of family dispute resolution certificate.

Depending on the circumstances, prior to filing an application for parenting orders without a section 60I certificate, based on the family violence exemption, it may necessary to discuss the potential to attend family dispute resolution with a FDRP.

In some circumstances, a FDRP will issue a section 60I certificate without the need to attend family dispute resolution, if they deem mediation is not appropriate due to family violence considerations.

If you would like further information on the requirement of obtaining a section 60I certificate or attending family dispute resolution, contact our Cairns family lawyers today.

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A Strategic Alliance

August 31st, 2018

We are pleased to announce an exciting new strategic alliance between Miller Harris Lawyers of Cairns, and the Brisbane Family Law Centre.

As you know we, at Miller Harris Lawyers, have worked with North Queensland businesses and individuals for over 25 years in a range of legal service areas including commercial, business and property law, insolvency, employment law, environment law, native title and cultural heritage law, tax law, wills and estate matters, conveyancing and retirement living.

Our partnership team consists of senior lawyers with decades of experience in their chosen fields, including Accredited Specialists in Business Law and Property Law.

It is in the area of family law that our firm has recognised an opportunity to form a strategic alliance.

Brisbane Family Law Centre (BFLC)  is a boutique family law firm practising only in family law matters.  The firm focuses on providing their clients with a holistic approach through collaborative law, mediation and out of Court dispute resolution.  It is a multi-disciplinary practice offering clients access to counselling and financial professionals in addition to legal services, ensuring holistic solutions during relationship breakdowns.

Although located in Brisbane, the firm has been servicing clients nationally for quite some time and BFLC’s Director, Clarissa Rayward, welcomed the opportunity to increase their service offering by creating an alliance with us.

As a firm, we are always looking for improvements and better ways to conduct our practice, particularly in the context of sensitive areas involving families.  To increase the depth of legal expertise available to our clients, we have formed a strategic alliance with a speciality family law practice in Brisbane.

We see this alliance is in keeping with the spirit of change that is being embraced by pockets of the legal profession.  Both Miller Harris Lawyers and BFLC are breaking down traditional professional boundaries, sharing knowledge and collaborating for the benefit of their customers and teams.

We have seen significant shifts in the way lawyers and law firms offer solutions to their clients.  The future of law will require us to focus carefully on the needs of our clients in a holistic way and by necessity ‘think outside of the traditional law box’.  In the current business environment, it does not matter whether you are a firm in Brisbane or Cairns, what matters is the ability to provide seamless, tailored solutions to our clients wherever they are.

This alliance is just that- a sharing of knowledge and resources between two firms that might be separated by distance but are aligned through their core values and a desire to offer meaningful legal solutions to their clients, wherever they are located.

 

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Reforms to combat illegal phoenix activity

August 30th, 2018

Illegal phoenix activity is a means by which unscrupulous company directors seek to avoid payment of a company’s creditors.  It typically involves the transfer of a business (or assets) from one company shell to another, without properly recognising the value of the assets transferred.  It leaves company creditors, often including employees, with claims which cannot be satisfied from company assets.

In the 2018/2019 budget, the Commonwealth Government announced a package of reforms to the corporations and tax law to combat illegal phoenix activity.  The government has now released an exposure draft of proposed legislation.  The proposed reforms include:

1.  introducing new phoenix offences which target both those who conduct and advisors who facilitate the illegal phoenix transactions including:

1.1.  making it an offence for company directors to engage in creditor defeating transfers of company assets;

1.2.  making pre-insolvency advisors and other facilitators of illegal phoenix activities liable to both civil and criminal penalties; and

1.3.  extending and enhancing the existing liquidator “callback” powers;

2.  preventing directors from resigning in some situations;

3.  extending Director Penalty Notice provisions to include GST and related liabilities; and

4.  restricting the voting rights of related creditors at meetings considering the appointment or removal of an external administrator.

An exposure draft of the proposed legislation has been released for public consultation.  The final text of the reforms is yet to be revealed.  The draft legislation can be accessed here.

For more information, please contact partner Tim McGrath.

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The new GST withholding obligations for buyers

June 28th, 2018

From 1 July 2018, purchasers of new residential property across Australia will need to withhold the GST component of the purchase price of their property and remit it directly to the ATO as part of the settlement process.

The changes introduce fairly onerous obligations on buyers of new property and new residential land to ensure that even if they are not notified, if there is GST payable on a purchase, they provide it to the ATO.

There are also very large penalties for failure to comply.

The changes have been introduced to capture GST payments from property developers directly as part of the sale process.

What do sellers need to do?

Sellers of all residential property will be required to provide a notice to prospective buyers telling them whether they will be purchasing new residential property, and whether or not they will need to withhold an amount for GST at settlement.  This means that not only property developers will be affected by the changes, but all sellers of residential property.

A failure to provide this notice can attract a penalty for the seller of up to $21,000.00 per occurrence, and failing to provide an accurate notice can attract the same penalty.

There are some obvious flow on effects for sellers that will have their GST withheld at settlement.  Cash flow will be impacted and where a mortgagee is involved, they will have to take less than the full purchase price at settlement.

What do buyers need to do?

What is onerous for buyers is that their obligation to withhold GST is not in any way effected if the seller fails to give a notice about the GST withholding obligation.

This means that if a notice is not given by the seller, buyers will need to make their own determination about whether the property is new residential property, and whether withholding is required.  A failure to withhold could result in a penalty of an amount equal to what the buyer was required to withhold (10% of the purchase price).

If a notice from the seller is provided about GST withholding, the buyer is entitled to rely on that notice, provided it is reasonable to do so (i.e. the buyer is not aware of any circumstances that might indicate they are required to withhold when the seller has told them they do not have to).

It also may not be easy to determine whether residential property is new or not: what if it has been rented for a number of years?  Is it an independent living unit in a retirement village?

New standard contracts will be issued prior to the changes coming into effect, so Real Estate Agents and sellers should be very aware of the new changes when entered into or negotiating contracts closer to 1 July.

Make sure you don’t get caught out!

If you have any questions about the changes, or would like assistance with your conveyance please contact Lauren Doktor at Miller Harris Lawyers.

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World Elder Abuse Awareness Day – 15 June

June 15th, 2018

Today is World Elder Abuse Awareness Day.

Elder abuse is a global issue which affects the well-being and human rights of our older generations.  It is an issue that deserves worldwide attention.

Elder abuse is any act that that causes harm or distress to an older person by someone they know and trust.  Elder abuse can take various forms such as physical, psychological, financial, emotional or sexual abuse. It can also be the result of intentional or unintentional neglect.

Elder abuse is not always easy and obvious to detect.  Behaviours a person may exhibit when experiencing elder abuse include:

  • withdrawing from normal activities;
  • making roundabout statements or excuses, for example “My son does not like me going out on my own”;
  • being unable to talk on the phone or only being able to talk on the phone when someone is present;
  • suddenly moving away;
  • avoiding eye contact; or
  • becoming irritable or easily upset.

Elder abuse is everyone’s business and I strongly believe that community awareness is the key to reducing elder abuse.  I urge you to engage in discussion with your family and friends and continue the dialogue.  Look out for the elderly members of our community and don’t be afraid speak up if you suspect abuse is occurring.

If you or someone you know is experiencing elder abuse, please contact the Elder Abuse Prevention Helpline on 1300 651 192.

For more information on elder abuse, please contact our Associate, Bianca Stafford on 4036 9732.

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Reduction in first home owner’s grant

June 14th, 2018

Attention first home buyers!

 

The government has recently announced that on 1 July this year the first home owner’s grant will be reduced from $20,000 down to $15,000.  Any contracts entered into after 30 June will only be eligible for the reduced amount.

In order to be eligible for the grant you must meet the following criteria:

  • you must be at least 18 years of age;
  • you must be an Australian citizen or permanent resident;
  • you or your spouse must not have previously owned property in Australia that you lived in;
  • you must be buying or building a brand new home;
  • the value of the home, including land, must be less than $750,000; and
  • you must move into and live in the home within 1 year, and stay there continuously for at least 6 months.

If you meet the above criteria, in order to take full advantage of the first home buyer’s grant you should strive to enter into a contract before 1 July.

If you have any questions about eligibility for the grant, or conveyancing questions in general, please feel free to contact us on 07 4036 9700.

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Major changes to the BCIPA and QBCC Act remain on hold

June 12th, 2018

Major changes to the Building and Construction Industry Payments Act 2004 and QBCC Act which were expected to commence as early as July this year remain on hold.

Minister for Housing and Public Works, Mick de Brenni, has made a media release today announcing further amendments to the Building Industry Fairness (Security of Payment) (BIF) Act which are expected to commence operation from 17 December 2018.   A discussion paper will be released for industry consultation in coming weeks.

The Minister has also announced the appointment of four professionals to the panel assessing and evaluating the implementation of the new legislation: Ms Bronwyn Weir, Ms Jennifer Robertson; Mr Troy Lewis and Ms Fiona Aitchison Reid.

For more information on the Building and Construction Industry Payments Act, please contact our Senior Associate, Rowan Wilson of the Building and Construction team on (07) 40 36 9725 .

 

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