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What to Do if You are Arrested by Police in NSW

What to Do if You are Arrested by Police in NSW

By | Criminal Law

Whether you’ve done anything unlawful or not, being arrested by the police is a distressing and often confusing experience, one in which it’s important to be aware of your rights and responsibilities.

There are certain things police can and can’t do when they arrest a person in NSW, which is the subject of this article. Firstly it’s important to acknowledge that should you be arrested by police, it’s crucial to remain calm and cooperative despite your fear of the situation. The next thing to do is make contact with a legal representative with experience in criminal law matters as soon as possible.

What happens when the arrest takes place

Under the Law Enforcement (Powers and Responsibilities) Act 2002 in NSW, police have the power to arrest any person who they reasonably suspect of having committed an offence, or who is about to commit an offence. Police can also arrest a person if there is a warrant for their arrest, if they have breached bail conditions, failed a roadside breath test or if they have breached the peace.

When conducting an arrest, the police officer should make it clear they are, in fact, arresting you and give you instructions on how to comply with the order, such as coming with them to a police station. They should also provide their name and place of work. Police are permitted to use reasonable physical force to conduct the arrest but if you believe the force used was unreasonable, advise your legal representative as soon as possible after the arrest.

A person being arrested is perfectly entitled to ask why they are being arrested and the nature of the offence police believe they have committed.

You do not need to answer any police questions and police are not able to arrest you simply to answer questions as part of an investigation. Ideally you will have a legal representative with you before you answer any police questions. It’s important to note, however, that resisting lawful arrest is a serious offence and so the wisest course of action is to comply with police requests, even if you know you are innocent of the offence they suspect you committed.

What happens after you’ve been arrested

Generally speaking police will take an arrested person to a police station to conduct an interview as part of an investigation. They will ask you for basic details such as your name, address and occupation, and possibly take fingerprints and photographs. A search of your person may also be conducted but it is limited to a search of outer garments and bags and/or scanning by a metal detector. The search must be conducted so as to preserve a person’s dignity and respect.

The station’s custody manager will then inform you of your rights to contact a relative, friend or legal representative. You must also be informed that you will be held for a period of six hours. After being held for that period police must seek a warrant to hold a suspect for an additional eight hours. You may then be subjected to an interview about the alleged offence, where you should have a legal representative present, as is your right. You have the right to not answer any specific questions, unless compelled by a specific law (such as investigations into terrorist activities) to do so. An arrested person also has the right to an interpreter, if required, and medical treatment if needed.

Police must inform you that any answers you give may be used in evidence against you in court, which requires you to be cautious about making any statements without legal advice. A special caution must also be given to those arrested on a serious indictable offence – one punishable by a term of imprisonment of more than five years – indicating that a failure or refusal to mention something that is later relied upon in court may harm the arrested person’s defence. This caution must be given in front of the person’s lawyer.

Police may then charge you with a crime before a Magistrate or release you. A person may not be held for an unreasonable period without being charged.

To protect your rights and gather evidence, it is advisable to document the arrest process as much as possible. This might include taking note of the names and badge numbers of the arresting officers, recording the time and location of the arrest, and collecting contact information from any potential witnesses.

Seek urgent legal advice

As is clear from the information in this article, it is crucial to seek legal representation as soon as possible if you’ve been arrested. At such a stressful time, most people are unaware or forget their rights when faced with allegations of criminal behaviour. At Felicio Law Firm, we have wide experience in criminal law matters and can provide prompt, clear advice on what you should do if arrested by police. If anything raised in this article is relevant to your situation, contact our professional team now.

The Importance of Making Binding Nominations of Beneficiaries in a Self-Managed Superannuation Fund

The Importance of Making Binding Nominations of Beneficiaries in a Self-Managed Superannuation Fund

By | Estate Planning

Self-Managed Superannuation Funds (SMSFs) have become an increasingly popular choice for Australians seeking to take control of their retirement savings, offering flexibility and autonomy about which type of investments they want to make, including property, shares, and other assets.

SMSFs also offer other advantages including tax benefits, lower fees and charges, and more estate planning options when it comes to the transference of wealth from one generation to the next.

An important aspect of that last advantage is the making of binding death benefit nominations (BDBN) of beneficiaries, determining a person’s superannuation benefits are distributed upon their death. A BDBN is particularly important in safeguarding assets when estates are disputed by beneficiaries.

Why binding death benefit nominations are important

A BDBN is a legally binding document that directs the trustee of a person’s SMSF on how to distribute the deceased member’s superannuation benefits. A BDBN can specify who the beneficiaries are and the proportion of benefits each beneficiary is entitled to receive. In the absence of such a nomination, the trustee of the SMSF has discretion on how the funds are distributed, often leading to dispute. In the context of a contested estate, BDBNs provide:

  • Clarity and certainty about how the deceased member’s superannuation benefits will be distributed, ensuring their final wishes are respected as to who receives distributions from the fund.
  • Pre-empting costly and time-consuming legal challenges by specifying the intended beneficiaries and the distribution of assets. When beneficiaries are already defined in the nomination, it becomes more difficult for disgruntled family members to contest the distribution.
  • Protection of vulnerable beneficiaries, such as children or dependent family members. A BDBN safeguards these interests by legally obligating the trustee to follow the member’s instructions. This is particularly crucial when there are concerns about vulnerable beneficiaries being left without support.
  • Tax efficiency for beneficiaries, with the BDBN allowing them to plan for the most tax-effective distribution and help preserve the wealth for their loved ones.
  • Simplicity in estate planning by clearly outlining the distribution of superannuation benefits’, reducing the burden on the executor or trustee and allowing for smoother administration of the rest of the estate.

Things to consider when making a BDBN

In most cases it’s important to specify the BDBN is ‘non-lapsing’, as opposed to lapsing. A lapsing BDBN can expire after three years and, if not updated, means the trustee of the SMSF can choose how and to whom the super benefits are distributed. This is problematic if there is a dispute among beneficiaries with various claims on the fund. For this reason it’s essential to regularly review and update BDBNs to ensure they reflect changing circumstances, such as the birth of new family members or the dissolution of a marriage.

BDBNs must also meet certain legal requirements to be considered valid, which is why consulting experienced estate planning lawyers when making one is highly advisable. Witnesses to a BDBN must be over the age of 18 and not be the designated death benefit nominee. The BDBN is also only valid once received by the trustee. It is also part of Australian superannuation law that only dependants of the deceased – being a de facto partner or spouse of the deceased, a child or anyone in an interdependent relationship with the deceased – is eligible to inherit their superannuation death benefits.

The importance of legal advice

Superannuation can be a complex area, with different rules about how benefits are distributed on the death of the member compared with distributions from their will. By specifying the beneficiaries and distribution of assets through a BDBN, SMSF members can ensure their superannuation benefits go to the beneficiaries they intended.

Seeking the assistance of very experienced estate planners like our team at Felicio Law Firm can help you clarify the issues involved and make a valid BDBN to give you peace of mind about how your important superannuation asset will be dealt with once you die.

What to do When Loss of Mental Capacity Prevents the Making of an Enduring Power of Attorney and Guardianship Appointment?

By | Estate Planning

Australia’s society is aging as medical science and improvements in diet and lifestyle allow Australian to live longer than they ever did before. But this development comes with a range of challenges – to government budgets, policy-making and aged care – to name a few.

At a more personal level, more people are living to an age where their mental capacity diminishes to the point where they can no longer make informed decisions about their personal, financial, or health matters. This is an important reality to acknowledge in areas such as estate planning and the topic addressed in this article, making an enduring power of attorney (EPOA) or guardianship appointment, with a focus on how solicitors and medical professionals determine mental capacity and the role of the NSW Civil and Administrative Tribunal (NCAT).

Understanding and determining mental capacity

Mental capacity refers to an individual’s ability to make decisions and understand the consequences of those decisions. When a person’s mental capacity declines due to factors such as aging, illness, or cognitive impairment, they may no longer be able to manage their affairs effectively.

In cases of suspected loss of mental capacity, medical professionals play a crucial role in assessing an individual’s cognitive abilities. This assessment typically involves a thorough evaluation of the person’s mental and physical health, including cognitive testing and psychological assessments. A medical diagnosis and evaluation is valuable and essential evidence in determining whether an individual still has capacity to make decisions.

Solicitors, too, are often involved in the process of determining mental capacity, especially when it pertains to legal matters like creating an EPOA or guardianship appointment. While no-one expects a solicitor to have expertise in assessing a client’s mental capacity, they can make a ‘legal’ assessment of the person’s capacity through their dealings with the individual to evaluate their understanding of the legal documents and the implications of their decisions.

The Law Society of NSW recommends solicitors can:

  • Make a preliminary assessment of mental capacity – looking for warning signs or ‘red flags’ using basic questioning and observation of the client.
  • If doubts arise, seeking a clinical consultation or formal evaluation of the client’s mental capacity by a clinician with expertise in cognitive capacity assessment.
  • Making a final legal judgment about mental capacity for the particular decision or transaction.

Role of mental capacity in creating an EPOA and guardianship appointment

An EPOA is a legal document that allows an individual (the principal) to appoint someone (the attorney) to manage their financial and legal affairs when they are unable to do so themselves. It is crucial that the principal has the requisite mental capacity when creating this important document to avoid potential later legal repercussions.

A guardianship appointment differs from an EPOA in that it relates to designating a ‘guardian’ who can make decisions regarding an individual’s health and lifestyle when they no longer have capacity to do so. Choices about care accommodation, healthcare, medical procedures and other personal matters become the responsibility of the appointed guardian.

Role and process of NCAT in EPOA and guardianship matters

When an individual loses mental capacity and has not previously established an EPOA or guardianship, it can create a challenging situation for family members and caregivers who may disagree about the best way to protect the person’s wellbeing and interests. In such cases, NCAT can step in to address the person’s needs and make decisions on their behalf.

NCAT is a legal authority in NSW that specializes in resolving disputes and making decisions related to guardianship, financial management, and other civil and administrative matters. When mental capacity is lacking, and no prior legal arrangements exist, a family member, friend, or concerned party may apply to NCAT for orders regarding the appointment of a guardian or financial manager for the person who has lost capacity.

NCAT will carefully consider all relevant evidence, including medical assessments and input from family members and healthcare providers, to determine the person’s best interests. If necessary, NCAT may appoint a guardian to make decisions related to the person’s healthcare, accommodation, and lifestyle. Additionally, a financial manager may be appointed to handle their financial affairs. NCAT may also review an existing EPOA or guardianship appointment.

NCAT also has the power to regularly review its decisions to ensure that the appointed guardian or financial manager continues to act in the person’s best interests.

Talk to our expert team

The loss of mental capacity is a challenging and sensitive issue for both the individual and their family, with significant legal and personal implications. It’s crucial to consult with legal professionals with experience in elder law and estate planning where an individual with diminished capacity needs to make an EPOA or guardianship appointment, or an application to NCAT is required.

The process of engaging medical professionals to assess capacity, or navigating the requirements of an NCAT application, can be stressful and time-consuming. Contact our friendly and approachable team today if any of the information in this article raises questions or concerns.

Understanding Apprehended Domestic Violence Orders (ADVOs) – Including How to Defend One

By | Family Law

Apprehended Domestic Violence Orders (ADVOs) are a key legal tool in NSW to protect individuals from domestic violence or the threat of such violence.

Increasingly domestic violence is understood to encompass a wide range of behaviours within a family relationship, from physical, emotional and financial abuse, to harassment, stalking and coercive control. An ADVO aims to provide immediate protection to victims by imposing restrictions on the alleged perpetrator’s behaviour.

This article provides an overview of ADVOs, including the legal grounds for obtaining one, what happens before the matter is dealt with in court, how to seek an ADVO and how to defend against one.

Understanding the legal grounds for obtaining an ADVO

To obtain an ADVO in NSW, an applicant must establish certain legal grounds, including:

  • Fear of violence or harm: The applicant for an ADVO must have a reasonable fear of violence, threats, harassment, or intimidation from the alleged perpetrator. This fear must be based on actual or perceived actions, and it can extend to not only the victim but also any other person whom the victim believes is at risk.
  • Domestic or family relationship: There must be a domestic or familial relationship between the applicant and the alleged perpetrator. This can include current or former spouses or de facto partners, family members, or people living together in a domestic setting.
  • Acts of domestic violence: The applicant must provide evidence of specific acts of domestic violence, such as physical assaults, verbal abuse, stalking, or any other behaviour that causes fear or harm. These acts must be recent or ongoing.
  • Protection and safety: The court will consider whether the ADVO is necessary to protect the safety and wellbeing of the applicant and any other person at risk.

Some of the actions a person is prevented from taking under an ADVO includes assaulting or threatening the protected person; stalking and intimidating; destroying or damaging property; going within a certain distance of the other person; attending the protected person’s house, or contacting them.

An ADVO lasts for 12 months from the date the order it was made unless the court specifies a different time period.

What happens before the matter is dealt with in court

The process begins with the victim (or someone on their behalf) filing an ADVO application with the local police station or the court registry. NSW Police will most commonly apply for an ADVO on the basis of a report of domestic violence, even where the alleged victim thinks that the order is unwarranted or unnecessary.

In cases of immediate danger, the court may grant interim orders to provide protection right away to the applicant. These orders can be issued without the alleged perpetrator being present or informed. The police are responsible for serving the ADVO application and any interim orders to the alleged perpetrator. This serves as notice of the legal proceedings.

A person the subject of an ADVO should consult a legal professional with experience in domestic violence matters as soon as possible after becoming aware of the order to discuss the steps they should take to possibly have the order dropped.

The matter will typically be listed for a first court appearance where both parties are required to attend. During this appearance, the court may make further orders, including extending interim orders or setting a hearing date. Both parties will have an opportunity to gather evidence to support their case. This may include witness statements, photographs, text messages, or medical reports.

In some cases, the court may suggest mediation or dispute resolution services to attempt to resolve the matter without a full hearing.

The person who is the subject of the ADVO can defend the application at the first hearing by attempting to prove, on the balance of probabilities, one of the following to the court:

  • that the complainant or protected person does not fear the defendant;
  • the complainant does not have reasonable grounds to fear a personal violence offence from the defendant;
  • it is inappropriate for the ADVO to be made.

A person the subject of an ADVO may also consent to it without admissions, meaning they do not agree with the grounds on which the order was granted. A legal representative with experience in this area may then be able to negotiate with police and/or the other party to amend the conditions of the order. Legal advice is highly advisable before agreeing to an ADVO in this manner as it has the potential to affect current family law proceedings, particularly in relation to parental rights.

A person subject to an ADVO may also file a cross-application against the protected person, claiming that they fear the other person and have reasonable grounds to do so. In the case of this type of application, the court will generally hear both applications at the same time.

An ADVO may be appealed within 28 days of a final order being made by the court. It’s possible the ADVO may be ‘stayed’ – or has no effect, in other words – once the appeal is filed and until it is decided.

What factors influence acceptance of the application?

The chances of being granted an ADVO by the court in NSW depends on several factors, including:

  • The strength and reliability of the evidence – witness statements, photos, text messages, and medical reports can all play a significant role in supporting the application.
  • Credibility of both parties – in considering an ADVO application, the court will assess the consistency of the statements and any evidence presented by both parties.
  • Testimony of witnesses – first-hand accounts of the alleged domestic violence may strengthen the applicant’s case.
  • Conduct and past incidents – the court may consider any past examples of domestic violence and the alleged perpetrator’s conduct in determining whether an ADVO is warranted.

Other important things to consider

Both parties have the right to legal representation – the presence of a solicitor with experience in ADVO proceedings can be essential to the application being granted.

In some cases, mediation may lead to a resolution that does not require a full ADVO hearing but this depends on the willingness of both parties to engage in the process. In cases where there has been long-term or repeated instances of serious domestic violence, mediation is unlikely to be a suitable suggestion.

The court’s primary concern is the safety and wellbeing of the victim and any other person or persons at risk. If the court determines that an ADVO is necessary to provide protection, it will issue the order, outlining the conditions and restrictions imposed on the alleged perpetrator.

Our expert team can help

Family law matters, including how to approach domestic violence matters, are one of our specialities at Felicio Law Firm. We can advise on ADVO whether you need urgent protection from the violence of a partner or family members, or you are the subject of an ADVO you believe is unwarranted or unnecessary. Call our professional team today for more details on anything raised in this post.

Why you should check whether your strata scheme has complied with the new reporting requirements if you're buying or selling property

Why You Should Check Whether Your Strata Scheme Has Complied with New Reporting Requirements if You’re Buying or Selling Property

By | Property Law

Designed to enhance transparency and accountability in the strata management sector, NSW Fair Trading launched the NSW Strata Hub online portal on April 1, 2023. The portal’s purpose is to streamline reporting obligations for strata management companies and create a more efficient and accessible system for managing strata schemes.

The online portal followed the implementation of the Strata Schemes Management Amendment (Information) Regulation 2021 (‘Information Regulation’), introduced to address long-standing issues in the strata management sector, including inadequate reporting, lack of transparency, and the challenges faced by owners in accessing vital information about their strata schemes.

The hub is also designed to improve monitoring of maintenance and defect management in more than 83,000 strata buildings across NSW.

Under the new regulation, strata management companies were mandated to submit comprehensive reports on their clients’ strata schemes by December 31, 2022. These reports provided crucial financial data, operational details, and other relevant information for the purpose of creating a centralised database of strata scheme information accessible to owners, tenants, and other stakeholders (including local council and emergency services).

These stakeholders plus other authorised individuals are able to log in to the portal to securely view essential information such as financial statements, meeting minutes, maintenance schedules, and insurance details.

Other key information entered on the portal includes:

  • Strata plan number and address;
  • Number of lots;
  • Classification as residential, commercial or mixed use, for example;
  • Contact details for the strata committee, strata managing agent, building manager, etc;
  • Date of most recent annual general meeting;
  • Cash balance held within the capital works fund (updated annually);
  • Due date for annual fire certification; and
  • Insurance replacement value.

Deadline for compliance

NSW Fair Trading set a final deadline of June 30, 2023 for all strata schemes within the state to comply with the regulation. The introduction of this grace period was designed to allow strata schemes extra time to gather and organise their data to make the transition to the NSW Strata Hub effective. Non-compliant schemes face potential penalties and restrictions until they fulfil their reporting obligations – these are not intended to be punitive but to encourage compliance for overall improvement of the strata industry in NSW.

For those buying or selling a property within a strata scheme, it’s important to consider whether the scheme has complied with the regulation. Those schemes that embraced the new reporting system have provided confidence for owners, tenants, and prospective buyers, and easier access to financial records so that owners have sight on how strata levies are employed for greater financial accountability.

An additional claimed benefit is improved communication between strata managers and owners, with prompter responses to queries and concerns on issues such as property maintenance and improvement, and faster dispute resolution.

Administration and enforcement of the new portal is funded through a lodgement fee of $3 per lot (GST exclusive) with the strata scheme’s annual report, inclusive of parking and other utility lots if they are deemed to be separate lots for levy contributions. The fee will need to be included in the scheme’s annual budget as an ongoing compliance cost.

Seek expert advice if unsure

At Felicio Law Firm, helping both buyers and sellers with the complexities of strata schemes is one of our specialities. If you have questions or concerns about a strata scheme’s compliance with the requirements of the NSW Fair Trading’s Strata Hub online portal, contact us today for a discussion about how we can help.

What is the Difference Between Buying a Business Through a Franchise or a Licence Agreement

What is the Difference Between Buying a Business Through a Franchise or a Licence Agreement?

By | Business Law

Two popular ways to get into running a business are through franchise and license agreements, both offering the benefit of allowing an entrepreneur to realise their goals through an established business model. Both types of agreements have different requirements in an operational and legal sense, which we’ll try and address in this article.

What are the basics of each type of agreement?

Franchise agreements: A franchise agreement is a legally binding contract between the franchisor (the established business owner) and the franchisee (the buyer), granting the franchisee the right to operate a business using the franchisor’s brand, products, and systems. In return, the franchisee pays initial fees and ongoing royalties to the franchisor.

The franchise agreement should cover matters such as the key terms of the business, training and support, non-compete clauses, how long the franchise relationship will last, royalty payments, renewal and sale rights, dispute resolution and a termination clause.

License agreement: A contractual arrangement between the licensor (the business owner) and the licensee (the buyer). The license agreement grants the licensee permission to use the licensor’s intellectual property, such as trademarks, patents, or proprietary technology, to operate their business. Unlike a franchise agreement, licensees usually have more independence in operating the business under license.

Typically the license agreement should cover the scope of the property being licensed, the agreed purpose for using the property, confidentiality clauses, exclusivity, payments or royalties, and any rights to transfer the license.

One of the key distinctions between a franchise and license agreement lies in the level of control and support provided by the original business owner. Franchises typically offer a higher level of support, as generally speaking the franchisor will provide comprehensive training, ongoing assistance, and a proven business model. In return the franchisee is also expected to adhere to specific guidelines and standards set by the franchisor, maintaining uniformity across all franchise locations in terms of factors such as business appearance, staff policies, and more.

License agreements, by contrast, tend to grant the licensee more autonomy in operating their business. While they gain access to the licensor’s intellectual property, the licensee will often receive limited other support and guidance. The licensee has the freedom to implement their own business strategies and practices as long as they stay within the terms of the license agreement.

Other key differences between franchising and licensing

When buying a business through a franchise agreement, the franchisee benefits from the established brand recognition and reputation of the franchisor. Customers are more likely to trust and frequent a business with a well-known brand, potentially leading to a faster return on investment.

License agreements, on the other hand, may not offer the same level of brand recognition, as the focus is primarily on accessing specific intellectual property. The success of the business largely depends on the licensee’s ability to market the product or service effectively under their own brand identity.

Franchise agreements will generally involve higher upfront costs than license agreements. In addition to an initial franchise fee, the franchisee is required to pay ongoing royalties to the franchisor, usually based on a percentage of their sales. These ongoing fees contribute to the support and resources provided by the franchisor.

License agreements often come with lower upfront costs, as they typically require a one-time licensing fee. The licensee may also negotiate a share of their revenue with the licensor, but this is usually less than the ongoing royalties associated with franchises.

Legal and regulatory requirements

Franchise agreements are subject to more stringent legal regulations compared with license agreements. In Australia, franchises are governed by the Franchising Code of Conduct, a mandatory regime that forms part of the Australian Consumer Law and which demands specific disclosure requirements, dispute resolution processes, and cooling-off periods for potential franchisees. This ensures transparency and protects the interests of both parties.

License agreements are generally less regulated, offering greater flexibility in their contractual terms. However, businesses should still seek legal advice to ensure that their licensing arrangement complies with relevant laws and regulations.

The importance of expert legal advice

Choosing between a franchise and a license agreement when buying a business requires careful consideration of various factors, including the level of support, brand recognition, costs, and legal requirements. Franchise agreements offer a turnkey solution with established support and a recognisable brand, but they come with higher costs and stricter regulations. License agreements, on the other hand, provide more independence and lower upfront expenses but may require the licensee to take on greater responsibilities for the business’s success.

Ultimately, prospective buyers must assess each agreement based on their individual preferences, circumstances, resources, and long-term business objectives to make an informed decision. At Felicio Law Firm our professional team regularly provide expert advice on the benefits and drawbacks of both franchising and license agreements, and can help clarify the issues involved for you, so contact us today.

How Does the Small Business Restructuring Process Work

How Does the Small Business Restructuring Process Work?

By | Business Law

The small business sector is one of the engine rooms of the Australian economy, driving economic growth and employment for millions of people. But running a small business can also be highly challenging in an environment where bigger picture events such as Covid-19 and rising inflation can present a threat to the sector’s growth and survival.

In response, the Australian government introduced the Small Business Restructuring (SBR) process in 2021, aimed at providing a simplified and efficient framework for debt restructuring. SBR allows a small business to create and propose a plan to its creditors to restructure its debts while the directors remain in control of the business and still trading.

In this article we’ll look in more detail at the SBR debt restructuring process and how it empowers entrepreneurs to regain control of their financial future.

Understanding the Small Business Restructuring process

The SBR reform introduced as part of the Australian government’s insolvency reforms allows eligible small businesses with debts up to $1 million to reorganise their financial affairs and operations while continuing to trade. The primary objective of the SBR process is to provide struggling small businesses with a chance to turn around their operations and avoid insolvency, thereby preserving jobs and fostering economic stability.

To qualify for the SBR process, small businesses must meet specific eligibility criteria, including:

  • being incorporated in Australia;
  • having liabilities of $1 million or less (exclusive of employee entitlements)
  • being insolvent or likely to become insolvent;
  • with none of its directors having been a director of another company that has gone through another Small Business Restructuring or a Simplified Liquidation process within the last seven years;
  • and, the company is up to date with its tax lodgements and all employee entitlements..

Upon meeting the eligibility requirements, the small business appoints a registered restructuring practitioner to assist in formulating and implementing the restructuring plan. The ASIC website maintains a list of Registered Liquidators, including those who can only take the work of a small business restructuring practitioner.

Developing a restructuring plan: The appointed restructuring practitioner works closely with the small business to develop a restructuring plan tailored to its unique circumstances. The design of the plan should propose strategies and actions to address the company’s financial challenges and give insight into how it can secure future sustainability.

The plan may detail the need for the directors to negotiate with creditors for extended payment terms, debt forgiveness, or partial debt repayment. Under the SBR process, the restructuring plan must be presented to the creditors within 20 business days of the appointment of the restructuring practitioner.

Voting and approval by creditors: Once the plan is presented, the creditors hold a meeting to vote on approving its terms within 15 days. To be accepted, the plan must receive support from a majority in both value and number of the creditors. If the plan is approved, it binds all unsecured creditors, and the small business can proceed with its implementation.

If creditors accept the plan, the company pays what is agreed in the document then is free of the balance of the debt. SBR has quickly become a popular alternative to negotiating a payment arrangement with the Australian Tax Office.

If creditors don’t accept the plan, the company can proceed to choose its preferred course of action, such as another company liquidation process, voluntary administration or other actions.

Effects and benefits of the SBR process: The SBR process provides several advantages for small businesses facing financial distress. Firstly, it offers a cost-effective alternative to traditional insolvency processes, reducing the financial burden on the business. Secondly, it allows business owners to retain control and continue operating, preserving jobs and maintaining relationships with suppliers and customers. Furthermore, SBR facilitates open communication between the small business and its creditors, fostering collaborative solutions and better outcomes for all parties involved.

Seek expert legal advice for more detail on the SBR process

The SBR process in Australia provides a vital lifeline for struggling small businesses, offering a simplified and efficient debt restructuring framework. In uncertain times where the economy is still shakily emerging from the shock of the Covid-19 pandemic, SBR provides a cost-effective and time-saving way for a business owner to try and regain control of their finances and get the enterprise back on its feet.

If you need some expert guidance on utilising the SBR process, contact our friendly team at Felicio Law Firm. We have the skills and experience to offer you the right advice on restructuring debt for your small business.

Disputes When a Parent Gives Money to a Child to Buy a Property: Explaining the Presumption of Advancement

Disputes When a Parent Gives Money to a Child to Buy a Property: Explaining the Presumption of Advancement

By | Estate Planning

A recent case in the New South Wales Court of Appeal, Koprivnjak v Koprivnjak 2023 NSWCA 2, dealt with the presumption of advancement and the application of this equitable doctrine to a property transaction between a father and a daughter.

The case revolved around a payment of $75,000 made by the father to his daughter for the purchase of a real estate property. To understand the dispute, in which the father said the money given to his daughter was a loan, while she claimed it was a gift, it is first necessary to briefly explain the presumption of advancement doctrine.

The legal concept dates back to 17th century England and presumes that transfers of assets from husbands to wives, male fiancés to female fiancés and from parents to children are gifts, in the absence of any evidence to the contrary. In relation to parents and children, as the Koprivnjak case deals with, the presumption is based on society’s expectation that parents naturally intend to advance their children’s interests and promote their financial wellbeing.

The presumption, however, can be rebutted if sufficient evidence is presented to prove that the transfer was intended as a loan or an investment rather than a gift. In this case, a resulting trust may be presumed where the legal title of the property – in this case in the name of the daughter – does not reflect the contributions to the purchase price, so that the person with legal title holds the property on trust for the person who made the contribution.

The details of the Koprivnjak case

In the case of Koprivnjak, the daughter purchased a rental property in Shoal Bay, NSW for $300,000 in 2011. Her father provided $75,000 to his daughter to assist her in purchasing the property, comprising $15,000 for the deposit and a further $60,000 towards the purchase price. The property was later sold and the proceeds placed in a trust account until the dispute between the estranged family members was resolved.

The father argued that the payment was a loan that gave him a beneficial interest in the property, while the daughter claimed it was a gift. The primary issue before the court was whether the presumption of advancement applied, and if so, whether the father had successfully rebutted it.

The court heard evidence from both parties to determine the true nature of the transaction and considered factors such as the relationship between the father and daughter, the financial circumstances of both parties, and the intention behind the transfer. The court noted that the presumption of advancement applies when a parent provides financial assistance to a child, particularly in cases involving property transactions.

The findings of the court

In the first instance the court rejected the father’s claim the property was held on trust for him by his daughter, finding he failed to discharge his onus of establishing a trust to rebut the presumption of advancement. His loan claim, however, was accepted and an order made that the loan and interest be paid to the father from the sale proceeds, with the remainder to be paid to his daughter.

The father appealed the judgement in relation to the trust argument. His appeal was dismissed with costs, the court of appeal finding in the father’s evidence that he could not prove the intention was for the property to be held on resulting trust, determined at the time of purchasing the property.

Instead, the evidence suggested that the father had intended the payment as a gift, supporting the daughter’s claim. The court emphasised that the presumption of advancement can only be rebutted through clear and compelling evidence that demonstrates a different intention.

The judgement cited the High Court case of Bosanac v Commissioner of Taxation [2022] HCA 34 (‘Bosanac’), whereby the court must look at the objective facts and enquire into the parties’ words or conduct at the time of the transaction (or immediately after the transaction) to determine the parties’ objective intention as to who has beneficial ownership of the property.

Lessons from the case and the need for good legal advice

While the presumption of advancement has been described as ‘anomalous, anachronistic, and discriminatory’ by the Australian Taxation Office (in Bosanac), the ruling in the Koprivnjak case reinforces the significance of the doctrine in property transactions between parents and children. Where parents make substantial financial contributions to their children, these transfers are generally presumed to be gifts. The burden of proving otherwise generally requires strong documentary evidence the parent/s intended the money as a loan giving them a beneficial interest in the property.

If you’re still uncertain about how this legal principle operates and are in a family situation where you’re lending money to a child, or receiving funds from a parent for a property purchase, contact our friendly, professional team at Felicio Law Firm before doing so to avoid any later disputes.

What You Need to Know About Adverse Action by an Employer

What You Need to Know About Adverse Action by an Employer

By | Employment

In Australia an employee is protected from ‘adverse action’ by an employer under the Fair Work Act 2009 (‘the Act’). This means that an employer cannot take certain actions against a worker because:

  • the employee exercises a workplace right – such as expressing an entitlement, benefit, role or responsibility that is provided by a workplace law or instrument, or an order made by an industrial body; initiating or participating in a process/proceeding under a workplace law or instrument; or making a complaint or inquiry to an industrial body or person under law or in relation to employment;
  • the employee partakes in industrial action against the employer;
  • of a protected characteristic of the employee, such as their race, gender, sexuality, pregnancy, age, disability, etc.

A worker who believes they have been the subject of adverse action by their employer may bring a general protections application in the Fair Work Commission for compensation for both economic and non-economic loss. In this article, we’ll provide more detail on what constitutes adverse action and the process for making a compensation claim.

It should be noted that an employee may also take adverse action against an employer if the worker threatens or takes action by:

  • ceasing work in the service of the employer, or;
  • taking industrial action against the employer.

Examples of adverse action by an employer

Section 342 of the Act provides examples of adverse action, including where an employer:

  • Dismisses an employee;
  • Injures the employee in their employment (injury meaning an action or behaviour which can harm a person, such as demoting them or treating them differently);
  • Alter the position of the employee to their prejudice, or;
  • Discriminate between the employee and other employees.

These actions may also include an employer’s decision not to hire someone, or where a potential employee is offered different (unfair) terms and conditions compared to other employees, or where an employer ends or refuses to enter into, or alters, a contract with an independent contractor.

Deciphering the language of the Act with examples, employers must be cautious about taking action against an employee who takes leave to care for a sick relative, or who raised a health and safety concern about the workplace.

Conversely, not all actions by an employer will fit the adverse definition. Offering a worker a lower salary because they lack experience, or refusing to employ a job applicant because they do not meet all the criteria for the position (such as possessing a driver’s licence, for instance), or a supportable decision to make a person’s role redundant, are examples of management decisions that may not be described as adverse action.

Other protections in the Act guard against coercion, undue influence or pressure, misrepresentation or inducement in a range of matters, including a person’s characteristics. The only exception to these protections is where the action is permitted by discrimination legislation or is taken because of the inherent requirements of the position.

What is the process of an adverse action claim?

In a ‘general protections’ complaint, an employee claims adverse action against them based on their expression of a workplace right, involvement in an industrial activity, or on grounds of discrimination. If the employee was dismissed, their application may be for unfair dismissal.

The onus is on the employer to show that the reason for their action against the employer was lawful and not in breach of the general protections. To this end they will generally need to prepare a formal response setting out their defence to the claim. Mediation will then ensue to see if employer and employee can negotiate a resolution to the dispute but if not, will proceed to the Federal Circuit Court, the Federal Court or in some cases, a formal arbitration in the Fair Work Commission.

Remedies for a person who brings an adverse action claim include compensation for non-economic loss and the financial impact of the employer’s action. The Federal Court has unlimited jurisdiction to award damages.

Case example

The High Court of Australia provided guidance on adverse action claims in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32. In this case, Mr Barclay, a TAFE team leader who was also a union official, sent an email to union members at his workplace warning of producing ‘false and fraudulent documents’ as part of the Institute’s process of applying for re-accreditation. He was subsequently suspended from his role and brought an adverse action claim.

The trial judge found Mr Barclay was not suspended because of his email but because he had not reported the allegation of fraud to the CEO. The full federal Court overturned this decision on appeal, finding the decision was based on Mr Barclay’s role as a union official. In restoring the trial judge’s verdict, the High Court found among a number of reasons that:

  • The fact a person claims a protected attribute, such as union membership or activism, does not make them immune from adverse action;
  • An employer’s reasons need to be ‘substantial’ and ‘operative’ in the decision-making process;
  • The employer’s reasons for the action need to considered against all the facts and circumstances, including the evidence of the decision making.

The High Court’s decision confirmed that the subjective reasons of the employer are significant and important in working out whether adverse action was taken for a prohibited reason. In conjunction with the decision in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, the High Court has confirmed that a distinction exists between the impact and the exercise of a workplace right by an employee.

Contact our expert employment law professionals

If you’re an employee who believes your employer has taken an adverse action against you, or an employer who has this type of claim brought against you, set up a meeting with one of our employment law experts at Felicio Law Firm. An adverse action claim can be complex, is subject to time limits and require strong supporting evidence to succeed. Our professional team will explain the issues we’ve raised in this article in greater depth to help assess your case.

More Changes to Stamp Duty in NSW As New Government Takes Power

More Changes to Stamp Duty in NSW as New Government Takes Power

By | Conveyancing

Paying stamp duty on a property transaction in NSW is an area of government policy currently undergoing rapid change. We’ll look at these changes in a series of articles, beginning with the current state of play.

First Home Buyer Choice scheme – introduced but soon to be abolished

In November 2022 the former Perrottet government introduced the First Home Buyer Choice scheme (FHBC), allowing those getting into the property market to choose between either paying stamp duty in a lump sum, or paying an annual property tax on the property. The scheme’s aim was to reduce the initial cost of purchasing a property for a first home buyer by paying a tax calculated on the land value and paid each year of ownership, instead of the lager lump sum amount required by an upfront stamp duty payment.

Under the scheme first home buyers in NSW could choose to pay $400 plus 0.3 per cent of their property’s land value if they reside in the property (or $1,500 plus 1.1 per cent of land value for investment properties). The property tax option applied to properties up to the value of $1.5 million. Stamp duty exemptions remained, comprising a full exemption for homes valued up to $650,000, and a partial exemption for homes valued up to $800,000.

But with the election of the new Minns Labor government in March, further changes to stamp duty in NSW were announced. Crticising the FHBC as ‘a lifetime tax’ on the family home, the new government said it would instead rely on expanding stamp duty concessions to help first home buyers. From June 30 this year the new government proposes to abolish the FHBC. Instead, first home buyers will receive a full concession on properties up to $800,000 and a concessional rate for homes valued up to $1 million (believed to be about 50 per cent). The NSW Parliamentary Budget Office has estimated up to 95 per cent of all first home buyers will save money on stamp duty under the new rates.

Implications for home buyers

Those who have already opted in to the FHBC will have a grace period in which their arrangements remain the same. It’s also expected a window will remain open before the scheme is phased out in which new buyers can still make a choice between land tax and stamp duty. If not, those looking to buy a property up to $1.5million who had chosen the land tax option will not be required to pay the full stamp duty amount.

While the FHBC made it easier for first-home buyers to get into the market by reducing the overall amount needed for a deposit, it was also critiqued for potentially inflating property prices by artificially encouraging demand at a time of limited housing supply. The scheme also only applied to first home buyers and not other segments of the market such as existing homeowners and empty nesters.

Unsure? Speak with our property experts

In this period of transition between governments in NSW, where earlier schemes may be abolished and new rates of stamp duty on property transactions come into effect, the guidance of our property and conveyancing specialists at Felicio Law Firm can be vital. We can help clarify the issues involved, particularly if you have already opted in to the FHBC or want to choose to pay land tax before the scheme expires at the end of June. Contact us today for more detail on any of the issues raised in this post.

Contesting a Will for Failure to Make Adequate Provision for a Spouse

Contesting a Will for Failure to Make Adequate Provision for a Spouse

By | Estate Planning

It’s a sad fact of modern life that two-thirds of marriages in Australia will end in divorce. But that statistic does not necessarily deter people from saying ‘I do’ again with a new partner. In 2016, 12 per cent of marriages in Australia were between couples where both people had previously been married, while a further 16 per cent of marriages involved one spouse who was entering into their second marriage.

The implications of multiple marriages for estate and succession planning are significant. Particularly where a person had children from an earlier marriage (or marriages), ideally that person’s will should be written so as to anticipate a claim on the estate from an ex-spouse.

This article looks at what happens when an ex-spouse makes a family provision application (FPA), which is a claim to the court contesting the terms of their ex-partner’s will because they do not feel adequate provision was made for them from the estate.

What happens to a person’s will when they separate from their partner?

In NSW the legal process for dealing with a dispute about a will is covered in the Succession Act 2006 (‘the Act’). Under section 12 of the Act, when a person gets married their existing will is revoked. Similarly, when a person officially divorces, any bequest to their former spouse in the will is also revoked, as is the appointment of the ex-spouse as an executor, guardian or trustee of the will. The only situation in which this is not the case is when the will-maker includes a statement expressly preserving the bequest to the former spouse, regardless of the divorce.

The eligible people who can contest a deceased person’s will through an FPA is limited – usually their spouse and their children – but in NSW, significantly, this class of persons also includes a testator’s former spouse or de facto partner under section 57. Where a person has been married two or more times, the potential for complex, drawn-out and expensive claims on the will becomes apparent.

How is an ex-spouse’s claim assessed by the court?

FPAs are heard by the Supreme Court of NSW. A number of factors are taken into account to determine whether an ex-spouse or spouses should be adequately provided for from the estate. These considerations include:

  • the nature and duration of the relationship between the ex-spouse and the deceased (including whether they maintained an ongoing relationship after the marriage ended);
  • the obligations and responsibilities owed by the deceased to the ex-spouse;
  • the ex-spouse’s financial resources and needs (for example, whether any other person is legally obligated to support the ex-partner);
  • whether the deceased and the ex-spouse had any children together (and the children’s age and needs);
  • the ex-spouse’s physical, intellectual, or mental capacity;
  • the ex-spouse’s contribution to the deceased’s estate, or their welfare;
  • any benefit the ex-spouse has received from the deceased’s estate during their lifetime; and/or
  • any orders and/or agreements made in family law proceedings.

These factors are considered to determine whether there is any moral claim by the ex-spouse that needs to be provided for.

An ex-spouse’s claim may also be looked on more favourably in the case where the parties failed to come to a property settlement when the relationship ended. In the 2009 NSW case of Scott v Scott, the FPA claimant was entitled to adequate provision from the estate, the court found, because there was no final property settlement when the parties divorced.

By contrast, where a divorcing couple reach a property settlement and then go on to maintain separate financial arrangements in post-married life, the court is less likely to find in favour of an ex-spouse contesting a will based on continuing financial dependence.

In the 2019 case of Stockwell v Beaumont; O’Donnell v Beaumont, an ex-spouse was granted half the estate when she contested the will of her former husband by proving their finances were never fully separated despite the end of the relationship, arguing that she remained financially dependent on the deceased.

Writing a will in blended family situations

In situations where a person has remarried but has children with former partners, the terms of a will are all-important to try and prevent costly court action among family members once the testator has passed.

While a person’s estate will generally be inherited by the testator’s surviving partner and then, when the partner dies, surviving children (including from the earlier marriages), this is not always appropriate for blended families. The children from the earlier relationship/s may not wish to wait until the step-parent dies to inherit from the estate, while the new partner may decide to change their will to benefit others, including favouring only the children from the new relationship. The assets from the estate may also be significantly reduced by the surviving partner, preventing the testator’s children from an inheritance.

Will-makers should consider whether it is better to provide immediate gifts to children from former relationships on the event of their death, or create a testamentary trust, to avoid the possibility of an FPA against the estate. Legal advice should be sought from expert succession lawyers such as Felicio Law Firm.

Time limits and expert advice

An ex-spouse who wishes to make an FPA must do so promptly when their ex-partner passes away – the deadline to file is 12 months after the death.

If you need advice about writing a will to deal with the situation of multiple ex-partners, or need guidance on making an FPA to contest an ex-spouse’s will for provision from the estate, speak with our Erina wills & estates planning lawyers at Felicio Law Firm. We have many years’ experience in helping people makes the right decisions when it comes to their succession plans.

Important Things to Know about Changes in NSW for First Home Buyers

Important Things to Know about Changes in NSW for First Home Buyers

By | Conveyancing

Property ownership in Australia has become a major political issue as younger people aspiring to own their own home have mostly been priced out of the market.

Government schemes to support first home buyers to achieve home ownership were introduced a number of years ago and continue to evolve. In NSW, new legislation was passed in November 2022, known as First Home Buyer Choice (FHBC). It allows first-home buyers to pay an annual property tax instead of stamp duty, which prevents many young people from entering the market. The initiative is designed to lower the upfront costs of purchasing a home in NSW and speed up the time in which new buyers can save in order to enter the market. The annual tax option allows a first home buyer to pay $400 plus 0.3 per cent of their property’s land value if they reside in the property (or $1,500 plus 1.1 per cent of land value for investment properties).

The new property tax option will be available for properties up to the value of $1.5 million. The NSW government expects the measure to assist 97 per cent of all first home buyers, or about 57,000 people per year. Existing stamp duty concessions for first home buyers are available for purchases of up to $800,000, and these concessions will continue.

How can someone find out more about FHBC?

The government body responsible for rolling out the new annual tax option for first home buyers is Revenue NSW. It is currently developing new systems, forms and educational materials primarily directed at industry and conveyancing professionals who will be responsible for advising prospective first home buyers about the new scheme.

To this end, Revenue NSW has provided more detailed information about FHBC on its website, while webinars will be offered for relevant parties. A professionals guide is currently being developed and should be available at Revenue NSW’s Resource Centre for Professionals from early December 2022, while the FHBC application form and lodgement guide will also available from mid-December.

The application process

As of January 16, 2023 a new document will be available by which ‘First Home Buyer Assistance’ and ‘First Home Buyer Choice’ applications can be processed.

FHBC applications will be processed as a duties assessment through an electronic duties return (EDR).

For new home buyers currently in the process of settling on a new house, the following information may be relevant ahead of the processing of applications from January 16.

Where a contract is entered into from November 11, 2022 and settlement is occurring before January 16, 2023, duty will need to be paid at settlement through an Electronic Lodgement Network Operator (ELNO).

Any first-home buyer who makes a purchase from November 11 until January 15, 2022 is entitled to apply for a refund of their stamp duty and choose to opt into the tax instead. Refund requests can be applied through Revenue NSW from January 16.

Professionals can lodge relevant forms and supporting evidence through Revenue NSW’s eDuties system on behalf of the purchaser, or purchasers will also be able to lodge relevant forms and supporting evidence directly with Revenue NSW through a portal.

For contracts entered into from November 11, 2022 where settlement occurs on or after January 16, 2023, professionals acting on behalf of a purchaser can process the FHBC transaction through EDR using the new ‘First Home Buyer’ document type from January 16, 2023.

Contracts for off-the-plan purchases signed on or after November 11, 2021 which settle on or after that date may be eligible to opt in to Property Tax, however these transactions cannot be processed through EDR and must be lodged through the eDuties system.

It should be noted that if a property that becomes subject to the property tax because of the first home buyer’s choice is sold, a subsequent owner is not subject to the tax.

More advice on the changes for first home buyers

If you have purchased your first home on or since the announcement of the new ‘choice’ policy in November 2022, or are about to make a purchase and need more information on how the FHBC scheme works, contact our Erina conveyancing professionals at Felicio Law Firm. It’s our job to be across important government policy changes such as this – we can help explain the advantages and disadvantages of choosing the annual property tax option over stamp duty, as well as how the new application process works.

Contact us today if this article raises any questions or concerns.

How to Verify Your Identity to Complete a Property Transaction Online

How to Verify Your Identity to Complete a Property Transaction Online

By | Conveyancing

As many basic legal processes move online, issues around security and verification of identity become ever more important. One of the most common legal processes people deal with is conveyancing of property.

PEXA is Australia’s national system for online settlement and lodgement of property transactions. Verification of identity (VOI) is a crucial step in the process, to guard against the possibility of fraudulent property transactions and ensure the person named in the Register of Land is actually the registered proprietor. Settlements of land through PEXA became particularly popular during the Covid-19 pandemic, to avoid the need for face-to-face property transactions.

Only registered subscribers are able to use PEXA. Persons, partnerships or bodies corporate who meet the eligibility criteria, as well as solicitors and financial institutions, are eligible to become subscribers in PEXA. In some Australian jurisdictions, licensed conveyancers may also become subscribers.

For the majority of Australians, who use a solicitor to conduct a property transaction, the law firm and conveyancers must verify the identity of clients in order to complete e-conveyancing transactions.

Under the PEXA rules, a solicitor or other qualified witness must take reasonable steps to verify the identity of the individual, and the right of the individual to deal with the property if e-conveyancing is being used.

What is the VOI process to use PEXA?

There are a number of ways for a person to provide VOI when using a conveyancer. The easiest way is through a face-to-face appointment between the client and the firm conveying the property. Another method is the uploading of scans of key ID documents to a secure digital platform, along with a picture and video verifying the person’s identity. Such services generally require a fee. Finally, Australia Post’s Identity Verifier service allows a person to visit a participating post office to verify their identity. Again, this service attracts a fee but makes VOI easier for those located remotely.

What documents are required to verify identity?

The documents required for the VOI process are similar to the ‘100 points’ system commonly required for a person to open, for example, a bank account. A variety of categories and combinations of documents can be provided to prove your identity for the purposes of PEXA, outlined below.

Category 1: Australian passport OR foreign passport and an Australian Visa Grant Notice evidencing an Australian Resident Visa PLUS an Australian driver’s licence or photo card. A Change of Name or Marriage Certificate is also required, if a person’s name as displayed on their passport or licence has since changed.

Category 2: Australian passport OR foreign passport and an Australian Visa Grant Notice evidencing an Australian resident visa PLUS full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card. Change of Name or Marriage Certificate, if necessary.

Category 3: Australian driver’s licence or photo card PLUS full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary.

Category 4: (a) Australian passport OR foreign passport PLUS another form of government issued photographic identity document PLUS Change of Name or Marriage Certificate, if necessary, or (b) Australian passport OR foreign passport PLUS full birth certificate PLUS another form of government issued identity document PLUS Change of Name or Marriage Certificate, if necessary.

Category 5: (a) Identifier Declaration plus full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary, or (b) Identifier Declaration by a person specified in Verification of Identity PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary.

Once completed a lawyer can rely on a completed VOI for a person to conduct online transactions within a period of two years.

Ask our property experts

Erina Conveyancing is one of our core specialities at Felicio Law Firm. If you have questions about how to verify your identity to enable us to complete your property transaction online, or what combination of documents are needed in order to do so, please get in touch to allow us to assist you and ensure your purchase or sale is conducted smoothly and without interruption.

Solidify Your De Facto Relationship With a De Facto Prenuptial Agreement

Solidify Your De Facto Relationship with a De Facto Prenuptial Agreement

By | Family Law

They may have been made famous by celebrity relationship break-ups but that should not diminish the fact pre-nuptial agreements – or binding financial agreements as they are known in Australia – can be a wise choice for both parties to a relationship to protect themselves in the sad event the union ends.

Such agreements, which popular culture likes to refer to as ‘pre-nups’, are commonly associated with marriage and divorce but they are also becoming more important for de facto relationships. A binding financial agreement (BFA) between de facto partners can provide both parties peace of mind about their respective financial assets if the relationship comes to an end.

In recent years the status of de facto relationships – including same sex ones – under Australia’s family laws is almost identical to that of marriage. That is in recognition of society’s maturity in understanding de facto relationships are not only more common, but are just as loving and significant as the act of marriage. Part VIIIAB of the Family Law Act 1975 deals with financial agreements made by couples in a de facto relationship.

These agreements can be made before, during or even after a relationship breaks down. In this article, we’ll look at why a BFA can be important in clarifying the financial and other commitments of de facto couples if the relationship comes to an end.

What does a binding financial agreement cover?

A BFA primarily protects each party’s financial position after a relationship breakdown or separation. A financial agreement can cover:

  • The maintenance of one or both people in the relationship;
  • how assets and money from the relationship are divided;
  • other issues.

If written co-operatively between both parties to the relationship, these agreements can be flexible enough to deal with a range of issues that arise when a couple separates.

Particularly where there are children from the relationship, the existence of an agreement can prevent adversarial court proceedings which can create further antagonism or conflict between the parents and provide security for how the children will be provided for into the future. Similarly, a BFA can deal with issues such as who will look after a pet or pets acquired during the relationship in the event of a break-up.

The agreement can also address future property that one half of the couple may expect, such as an inheritance from a parent or other relative, ensuring it does not become part of a property settlement order.

A BFA can also cover the often difficult issue of spousal maintenance after the relationship ends, allowing the parties to ‘contract out’ the right to seek support from each other. This issue arises where one party to the relationship – the party who is not working and typically in the role of ‘homemaker’ – has a need of ongoing financial support and the other party (the ‘breadwinner’, usually) has the ability to pay support. The agreement can deal with this issue provided one party was not on an income-tested pension at the time it came into effect.

The ‘binding’ part of financial agreements in de facto relationships

For financial agreements in de facto relationships to be ‘binding’, that is, legally enforceable, a number of steps must be followed in making one.

  • The agreement must be signed by all parties;
  • each party to the agreement must have received independent legal advice about both the advantages and disadvantages to their rights of the BFA;
  • each party can provide a statement from a legal practitioner that such advice was given, either before or after the making of the agreement;
  • a copy of the statement from the lawyer is also provided to the other party; and
  • the agreement has not been terminated or set aside by a court.

Once signed, BFAs can only be cancelled or changed if there is evidence of fraud or dishonesty in its making; the agreement is impractical to put into effect; there is a significant change in the care and welfare of the children from the relationship, or; one party acted in an unconscionable way in the making of the BFA.

How specialist legal advice can help

As detailed above, a person in a de facto relationship who wishes to make a financial agreement with their partner to give them both certainty about what happens if they break up first needs independent legal advice.

Consulting with experienced family lawyers such as Felicio Law Firm can help you clarify the issues involved to ensure your rights and interests are reflected in any BFA entered into. Because these agreements become legally enforceable, it’s important to get the terms of the agreement right at the outset. Contact us at our central cost family lawyers today for an initial obligation-free consultation.

How to Protect Your Pets in a Relationship Breakdown

How to Protect Your Pets in a Relationship Breakdown

By | Family Law

‘Let’s get a dog!’

It’s a commonly heard exclamation in a relationship between two people, a sign of commitment to each other. Sometimes, getting a ‘fur baby’ is almost considered a trial run for having children.

But what happens to the much-loved dog, cat or budgie if the relationship unexpectedly breaks down? Under Australia’s Family Law Act, a pet is considered an item of property that cannot be shared in the way children from the relationship are, spending time with each parent.

For that reason, pets will be considered much as other items of property such as cars are in any decision by a court about where the animal will live – unless the matter is dealt with a binding agreement between the couple.

Dealing with pets in a binding financial agreement

A binding financial agreement (BFA) between a couple protects each party’s financial position after a relationship breakdown or separation but can also deal with what happens to pets. These agreements can be made before, during or even after a relationship breaks down.

Rather than have a family law court decide where the pet will live, a BFA can provide mutually agreed details on a sharing arrangement after separation, as well how costs of grooming, training, vet bills and insurance, for example, will be met.

By discussing these issues to include in an agreement, both parties can answer difficult questions about whether the pet should live with one half of the couple, be cared for jointly or not at all (rehomed, for example).

In order for this type of agreement to be ‘binding’, that is, legally enforceable between the parties, a number of steps must be followed in making one:

  • The agreement must be signed by all parties;
  • each party to the agreement must have received independent legal advice about both the advantages and disadvantages on their rights of the BFA;
  • each party can provide a statement from a legal practitioner that such advice was given, either before or after the making of the agreement;
  • a copy of the statement from the lawyer is also provided to the other party; and
  • the agreement has not been terminated or set aside by a court.

What happens if you can’t agree?

There is no ‘one-size-fits-all’ rule when it comes to how courts will deal with pets in relationship break-ups. A number of factors need to be considered in determining where the pet should live, including who purchased the animal, whose name it is registered in and who pays insurance and other costs for it; and who primarily cares for it (feeding, grooming, etc).

If there are children from the union, their relationship with the pet may also be relevant as to where it should live in the event of the relationship ending. Ongoing financial commitments for the animal as well as the practicality of owning a pet in new living arrangements are other factors to consider.

Speak with expert family lawyers

The requirement to seek legal advice before entering a BFA means a person should consult with an experienced Central Cost Erina family lawyer so that they are clear about how to protect their rights and interests.

Issues that can be addressed in a BFA, including financial support of one half of the ex-couple by the other and how property – including pets – is dealt with in the agreement, can be clarified in a chat with one of the expert family lawyers at Felicio Law Firm.

Call us for an initial meeting today if you want to protect your pets in a relationship split.


How the Family Court Decides on How Much Time a Child Will Spend with Each Parent – the Case of Jasper & Lilley

By | Family Law

One of the most challenging times during a family break-up is always the decision about where a child or children from the relationship will live and how much time they will spend with each parent under the new arrangements.

In deciding this difficult but crucial question, the court is guided by the ‘best interests of the child as set out in the Family Law Act 1975. One of the primary considerations for determining a child’s best interests is ‘the benefit to the child of having a meaningful relationship with both of the child’s parents.

How the court deals with the consideration has been explored in numerous Federal Circuit and Family Court of Australia (FCFCOA) cases, including one case in which Felicio Law Firm acted in: Jasper & Lilley in 2018.

A look at the facts, in this case, is illustrative of some of the difficult issues to resolve when trying to work out arrangements for the raising of a child from a broken relationship.

The details of the case

Felicio Law Firm acted for the father in this case, which involved a mother who suffered from mental illness and seeking additional time with her seven-year-old daughter to stay overnight with her in the face of objections from the father, who the child lived with.

The mother and father had separated while the child was still an infant and the girl at first lived with the mother. But after a year, the mother was admitted to a mental health facility and the father sought an order that the child lives with him, which she had done ever since.

The mother would spend some time with her daughter under the supervision of her parents. She was admitted to a hospital on a number of separate days during this period until, in early 2018, the mother applied for overnight time with her daughter. The orders sought included the mother having the child with her each Saturday from 9 am to 5 pm for a period of six weeks and thereafter, every second weekend from 5 pm on Friday until 5 pm on Sunday. The mother also sought extended periods of time during school holiday periods.

The father sought for this application to be dismissed. While there was no dispute that it was important for the child to maintain a strong relationship with her mother, the father was concerned about how the child could be kept safe in the event of the mother experiencing another mental health episode.

How the case was resolved

The decision in the Family Law Court agreed with the father that the time sought by the mother was too extensive, but disagreed with him that the child spending four hours supervised per fortnight with the mother was sufficient time.

‘I am confident that the supervision by the mother’s parents, or other adults acceptable to the father, is sufficient to ensure the child’s safety and welfare during the periods which she spends with her mother,’ the judge stated.

The order was that the child spends time with her mother each Saturday from 9 am to 5 pm for a period of six weeks and, commencing on the seventh week, each alternate weekend from 9 am on Saturday until 5 pm on Sunday.

The importance of specialist legal advice

Under section 65AA of the Family Law Act, the best interests of the child are paramount when the court makes a parenting order. Under the Act’s presumption of equal shared responsibility, the court must consider whether those interests are best met by the child spending equal time, or ‘substantial and significant time with each parent.

A parent’s mental health, as well as other factors such as family violence, become relevant factors in the court’s consideration of whether it is reasonably practicable for a child to spend periods of time with a parent, including overnight stays as in Jasper and Lilley.

If anything in this article raises issues of concern, contact Central Coast family lawyers today for a compassionate hearing of your issue. We have many years of experience in difficult and complex family law matters. 

mr lilley and ms jasper

Lilley & Jasper 2019 FamCA 170 [21 March 2019]

By | Family Law

Lilley & Jasper was a 2019 case heard in the Family Court of Australia in which we successfully acted for a father in a custody and parenting matter. This article will provide a summary of the facts and outcomes of the case.


Child B was born in 2011 to Mr Lilley and Ms Jasper. Ms Jasper suffered from a postpartum psychiatric illness and was admitted to the hospital following B’s birth. In 2013, B was diagnosed with a medical condition.

Mr Lilley and Ms Jasper separated in 2013, when B was two years old, following which Mr Lilley commenced proceedings in the Federal Circuit Court of Australia. Over the next few years, Ms Jasper continued to suffer from mental illness and was admitted to the hospital multiple times. From May 2014 onwards, B lived with her father. Mr Lilley remarried, and he and his present wife had two children.

Between 2014-2018, contact between B and her mother was initially supervised at a contact centre. By February 2018, the mother’s time with B was supervised by the maternal grandmother or grandfather on alternate Saturdays and, after six weeks, alternate weekends.

In July 2018, Mr Lilley and Ms Jasper reached an agreement that B would live with the father and spend alternate weekends from Friday after school until Sunday evening with the mother.

Application for Adjournment

Ms Jasper applied for the case to be adjourned because she had dispensed with her legal representatives.

In rejecting this application, Justice Rees referenced the fact that it was in the child’s interest for the drawn out proceedings to be concluded, and for there to be certainty and stability in her life. Her Honour also noted that Ms Jasper had not suggested that she was unable to conduct the proceedings herself. Due to these factors, and the fact that three days of hearing time had been allocated to this matter and there was not sufficient time to bring on another matter to avoid those days being wasted, Justice Rees denied the application for adjournment.

The Hearing

Mr Lilley and Ms Jasper reached an agreement on the first day of the hearing that B would continue to live with her father and that she would spend alternate weekends from Friday after school until Sunday evening with her mother. They also agreed to phase out strict supervision by the maternal grandparents, and equally shared parental responsibilities.

On the second day of the hearing, both parents were cross-examined.

On the third day of the hearing, four issues were left to be considered:

  • Whether Mr Lilley should have sole parental responsibility regarding B’s medical treatment
  • Whether Ms Jasper’s weekend time with B should be extended to from 5 pm Sunday to 8 pm Sunday when B is 12 years old
  • Whether Sunday afternoon changeover should take place at a halfway point
  • Overseas and interstate travel

Parental Responsibility

Mr Lilley sought sole parental responsibility regarding B’s medical treatment.

Justice Rees ruled that both parents have B’s welfare at heart and that parental responsibility regarding B’s medical treatment should be shared. It was ordered that Ms Jasper be able to attend appointments with specialists and receive copies of all specialist reports that Mr Lilley may take B to.

Weekend Time

Ms Jasper proposed that when B turns 12, she stay with her until 8 pm on Sundays instead of the current 5 pm. This would enable Ms Jasper to have dinner with B on Sundays. Justice Rees rejected the father’s argument that B goes to bed at 7 pm and an 8 pm drop-off is too late, stating that by the time she is 12, her bedtime will no doubt be later. Further, as B would have had dinner by the time she got back to her father’s at 8 pm, Her Honour said that 8 pm would not be too late for her to rest before school the next day, and found in favour of Ms Jasper’s proposal.

Sunday Afternoon Changeover

The parents lived one hour and 15 minutes from each other. Ms Jasper proposed that the changeover should take place halfway between the two homes. Mr Lilley opposed this, as he worked rotating shifts and could not be available every Sunday to pick up B from the halfway point by 5 pm.

As the parties had experienced difficulties in the past when they attempted changeovers in accordance with the father’s roster, Justice Rees ruled that there was no alternative but for Ms Jasper to return B to Mr Lilley’s home

Overseas and Interstate Travel

Ms Jasper sought to restrain B’s father from travelling overseas with B until she is 10 years old, as she needed time to settle into the new parenting arrangements. Justice Rees rejected this claim, as the weekend arrangements had been in place since 2018 and thus no adjustment was necessary.

Ms Jasper also asked that, in the event that the father travels with B within Australia, he should provide her with an itinerary and contact details due to a fear he may travel with B to Queensland and not return. Justice Rees ruled that this claim had no basis in logic, and imposed no such requirement.

Family law matters can be stressful and upsetting. At Felicio Law Firm, we provide a compassionate and practical legal approach and will assist you with any challenges you may face with your family law matter. 

Contact the central coast family lawyers, if you require specialised legal advice and representation.

Erina & Central Coast Family Lawyers

Property Disputes Under the New Family Law Court (Now Federal Circuit and Family Law Court)

By | Family Law

A significant change in Australia’s family law system occurred in September 2021 when the Federal Circuit Court and the Family Court of Australia were joined to become the Federal Circuit and Family Court of Australia (FCFCOA).

The new structure was introduced by the Federal government to try and reduce the bottlenecks in the family law process, resolving property and parenting disputes in a quicker, more efficient manner and encouraging dispute resolution before the need for a court trial at every opportunity.

To this end, a new case management pathway and harmonised procedural rules have been introduced as of September 2021, some of which we provide more detail on in this post about how the new court will handle property disputes between couples whose relationship has come to an end.

As in parenting matters, in an ideal world, a separating married or de facto couple save time, money and stress by coming to their own agreement on dividing property and debts from the relationship. When they can’t agree, the Court is called on to resolve the issue.

Within the new Court structure, the key change in property disputes is around disclosure of financial details between the parties prior to reaching the trial stage.

How the new case management pathway applies to property disputes

Applying to the Court for financial orders on the division of property and payment of spouse or de facto partner maintenance can occur 12 months after a divorce is finalised for married couples and within two years of the breakdown of a de facto relationship.

Under the new Court’s revised rules, the parties will be asked at their first court appearance whether they have undertaken a number of ‘genuine steps’, including undertaking dispute resolution and complying with ‘pre-action procedures’.

Further detail on these steps in applying for property orders includes:

  • The requirement that all ‘pre-action procedures’ are exhausted prior to a party filing proceedings. These procedures include the applicant for the orders providing a written notice of intention to the other party to start a proceeding. The respondent is then required to respond.
  • Once the parties are aware of the dispute, they must exchange relevant disclosure documents as soon as possible. This is a significant, time-saving change to the former procedure in the Federal Circuit Court, where the duty of disclosure did not start until after the parties had made a first appearance in Court.
  • The parties’ legal representatives will be expected to promptly and thoroughly comply with pre-action procedures. The Court can make an order for legal costs against one party where a lawyer fails to comply with these procedures.

In property/financial cases, disclosure before any court proceeding includes each party providing to the other:

  • a schedule of assets, income and liabilities;
  • a list of documents in each parties` possession or control that are relevant to the dispute, such as tax returns, bank statements, property or motor vehicle valuation appraisals, inheritance or gift details, and company and trust financial statements; and
  • a copy of any document required by the other party.

The other key requirement as part of case management is that the parties undertake at least one form of dispute resolution, such as mediation, before appearing in court.

This stage of the process may occur through private mediation, a conciliation conference or arbitration in property settlement cases.

The requirement for dispute resolution is not new in either property or parenting matters but will be more strictly enforced in the new Court structure, signified by the need for a party filing an application to start a proceeding, or a response to the application, to file a ‘Genuine Steps Certificate’.

The certificate outlines each party’s compliance with pre-action procedures and confirms their participation in dispute resolution.

Other changes in the new structure

People bringing a property dispute to the new FCFCOA will find that their initial interaction with the court will more often be with registrars and senior registrars.

The change is designed to help judges within the court more quickly and efficiently resolve matters that require priority.

On the announcement of the new court, it was suggested that after an application for orders the first court event will occur within 6-8 weeks, with mediation or dispute resolution to take place within six months of filing.

If the matter proceeds to trial, the aim is for it to proceed within 12 months of the initial application.

Is legal advice necessary?

When applying to the court for property orders – or for consent orders where the parties are asking the court to formalise a property agreement made between them – the parties do not necessarily need to be represented by a lawyer.

But family law is a complex area, particularly property matters where the Court considers an extensive range of factors before determining whether it should alter the division of property between the ex-couple. Valuations of property, the place of non-financial contributions to the relationship and the weight to be given to contributions as a homemaker or parent are all important aspects that benefit from the advice of a specialist family lawyer.

At Felicio Law Firm we have many years of experience in family law matters and can help you understand your rights and responsibilities, whether you wish to initiate an application for property orders, or are responding to one.

We will also help explain the new arrangements under the new Federal Circuit and Family Law Court and what they mean for an application for property settlement.

Contact us Central Coast family lawyers today.

Erina Family Lawyers - Parenting Disputes in New Family Law Court

Parenting Disputes Under the New Family Law Court (now Federal Circuit and Family Law Court)

By | Family Law

As of September 2021 significant changes to Australia’s family law system have been in effect, designed to simplify and speed up the process of the Court deciding on parenting orders.

‘The overlapping family law jurisdiction between the previous Family Court and Federal Circuit Court of Australia (FCC) led to significant inefficiencies, confusion, delays, additional costs and unequal experiences for many families,’ the Federal Attorney-General’s department said of the change.

The ‘merger’ of the Federal Circuit Court and the Family Court of Australia into the Federal Circuit and Family Court of Australia (FCFCOA) brought with it some new rules and procedures in an attempt to streamline the process when parents cannot agree on arrangements for the care and upbringing of children.

A key change in the new structure is a new case management pathway, designed to prevent bottlenecks and unnecessary delays in having parenting matters (and also property and financial cases) resolved by the court.

We’ll provide more details on these changes in this post. If you need more information about applying to the court to decide on matters relating to children after separation, contact us at Central Coast Family Lawyers at Felicio Law Firm where family law is one of our specialties.

The new case management pathway

A significant change to the way parenting disputes are handled in the FCFCOA relates to the stages before legal proceedings begin, referred to as ‘pre-action procedures.

The court has indicated there will be a greater focus on legal representatives of the parties complying with these procedures.

Prior to proceedings, a person applying for parenting orders must provide to the other party written notice of intention to start a proceeding. The respondent must then respond to the notice.

When applying for parenting orders, there is also a new requirement for the parties to file a parenting questionnaire with the initiating application, or the response, which summarises the current and proposed future arrangements for the children.

The document is designed to help the court registrar or judge gain a greater understanding of what each party is seeking, and the needs of the children, when the parties first appear in court.

Identifying the risk and safety of children at the beginning of each case is the motivation for the change.

The court’s practice directions provide more detail on what a parent needs to provide in an initiating application for parenting orders:

  • a certificate given to the applicant by a family dispute resolution practitioner;
  • a ‘Genuine Steps Certificate’ that confirms the applicant’s compliance with the pre-action procedures;
  • a Notice of Child Abuse, Family Violence or Risk, if relevant;
  • the parenting questionnaire;
  • an undertaking as to disclosure;
  • a copy of any family violence order affecting the child or a member of the child’s family;
  • if the application seeks interlocutory (interim) orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.

The applicant must also pay the filing fee unless an exemption applies.

The parties will be encouraged to try and resolve areas of disagreement through dispute resolution at multiple stages prior to proceedings, either through private mediation, a conciliation conference, arbitration, a legal aid conference or court-based family dispute resolution.

This was always the case in parenting cases but will be more strictly enforced in the new Court setup.

Where matters cannot be resolved by this means, the new structure seeks to list trials earlier than in the previous system.

Other changes in the new structure

People bringing a parenting dispute to the new FCFCOA will find that their initial interaction with the court will more often be with registrars, senior registrars, and family consultants.

The change is designed to help judges within the court more quickly and efficiently resolve matters that require priority.

In parenting cases, a registrar or judge may order a Child Impact Report at an early stage of court proceedings to provide information about the experiences and needs of children as they are relevant to the dispute.

On the announcement of the new court, it was suggested that after an application for parenting orders the first court event will occur within 6-8 weeks, with mediation or dispute resolution to take place within six months of filing.

If the matter proceeds to trial, the aim is for it to proceed within 12 months of the initial application.

Is legal advice necessary?

People applying to the court for parenting orders – or for consent orders where two parents are asking the court to formalise a parenting agreement made between them – do not necessarily need to be represented by a lawyer.

But family law is a complex area, particularly where parents hold significantly different views on how their children should be raised.

It’s important to seek legal advice from specialists in this area of the law before you make an application so as to fully understand your rights and responsibilities.

At Felicio Law Firm we have many years of experience in family law matters. Whether you need advice on making a parenting plan, seeking consent orders from the court, or applying for parenting orders when you can’t agree, we will help guide you through the process and explain the new arrangements under the new Federal Circuit and Family Law Court.

Contact us Central Coast family lawyers today.

Erina & Central Coast Family Lawyers

Costs in Family Law Matters Involving a Third Party

By | Family Law

A couple seeking a property settlement once their relationship breaks down to divide up the assets accrued during their time together will often have the matter complicated by the existence of a third party interest.

The third-party could be a close family member or another relative, a business partner of one half of the couple, a creditor of one party, or someone else who has a property interest or financial relationship with one or both parties.

A common example is a parent who lends money to an adult child to help their son or daughter buy a house with their partner.

Changes made to Australia’s Family Law Act (‘the Act’) in 2004 give those courts charged with interpreting the Act wide-ranging powers in relation to third party interests in property settlements.

Specifically, under Part VIIIAA of the Act, the court may alter the rights, liabilities and property interests of third parties in relation to the couple’s property settlement proceedings, including for former de facto couples.

This means the court may issue orders which direct a third party to do something in relation to the property of a party to the marriage or, alter the rights, liabilities or property interests of a third party in relation to that marriage.

The court may order, for example, a creditor of one party to a marriage to substitute the other party, or both parties to the marriage for that party in relation to a debt. It could also order a company to register a transfer of shares from one party to the marriage to the other party.

The question arises as to who is responsible for the costs of legal action involving a third party, which we’ll address in this post.

How are third parties joined to property settlement proceedings?

A party to a property settlement proceeding after a relationship break-up can join a third party to the proceeding in their Initiating Application to the court.

A third party can also ask to be joined to the proceedings. This will usually happen if there is a significant asset legally owned by one half of the ex-couple in the proceedings that the third party considers to be theirs, or where the third party’s rights will be affected by the orders being sought by one of the parties to the property settlement.

A third party may apply to the court to strike out the application joining them to proceedings. By joining as a party, the third party is subject to disclosure obligations, legal costs and potentially becoming the reluctant subject of a court order.

The third-party can ask the court to exercise its discretion not to make orders affecting its rights.

It should be noted that a third party can still be asked to disclose financial information in the property proceedings under a subpoena, even if they do not join as a party to the legal action. If one spouse had a role with a third party entity, for example, documents relevant to that financial asset or property may be relevant under the usual disclosure obligations in the proceedings.

The issue of costs

Before joining a third party to property settlement proceedings, careful consideration should be given to the legal costs the third party is likely to incur.

A cost-benefit exercise needs to be conducted to work out whether the possible financial benefit to the person who joins the third party is significantly greater than the third party’s potential legal costs.

Under section 117 of the Act, costs in property settlement proceedings state that ‘each party to the proceedings under the Act shall bear his or her own costs’.

Other clauses in that section, however, allow the court to make other costs orders for one party to pay the other’s legal costs. The court takes into account the financial circumstances of each of the parties, the conduct of the parties, and whether the proceedings were necessary because one party failed to observe earlier court orders, among other reasons.

Importantly for this topic, section 117 of the Act does not make express distinction between the parties to the proceedings, such as a former husband and wife, and a third party. This means a third party can make an application to the court for its legal costs to be covered by a party or parties to the proceedings.

It should be remembered that costs order are not designed to be punitive but are simply made to compensate a party for the costs incurred in becoming part of the litigation.

Nevertheless, depending on the extent of the third party’s involvement in the property settlement proceedings, that party could obtain an oppressive order against the applicant to pay legal costs and expenses if the latter is unsuccessful after including the third party.

In this situation, if the court decides the third party did not need to be joined to the proceedings, the party who did so may have to pay the third party from their share of the asset pool.

Speak with experienced family lawyers

The decision to join third parties in property settlement proceedings between ex-spouses is one that needs careful consideration and the advice of expert Erina family lawyers.

Felicio Law Firm counts on many years’ experience advising parties to family law proceedings, whether they are a primary partner such as a husband or wife, or a third party.

We will help you decide on the wisdom of third party participation in property proceedings so you are aware of both the benefits and the risks.

If anything raised in this post applies to your situation, call us Erina & Central Coast Family Lawyers for an initial discussion of your case today.