Felicio Law Firm, Author at Felicio Law Firm

Aug 14

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 Felicio Law Firm 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.

Aug 04

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

By Felicio Law Firm 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.

Jun 26

How Does the Small Business Restructuring Process Work?

By Felicio Law Firm 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.

Jun 23

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

By Felicio Law Firm 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.

Jun 07

What You Need to Know About Adverse Action by an Employer

By Felicio Law Firm 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.

May 31

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

By Felicio Law Firm 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.

Feb 17

Shareholder and Partnership Disputes that Lead to the Appointment of Liquidators

By Felicio Law Firm Business Law

Most business ventures are entered into in good faith and with hope and expectation for success among the parties involved.

Unfortunately, original intentions are not always realised. Companies and other corporate partnerships such as joint ventures can often turn into acrimonious affairs when the vision for the business is not realised, the people involved wish to go their separate ways or some other dispute arises.

These situations can be avoided if the shareholders or partners in the business enter into a properly drafted agreement at the start of the venture. But where such a document doesn’t exist or is contested, the dispute can become intractable with threats of legal action which can leave all parties to the venture worse off.

One way to avoid such an expensive and lengthy resolution of the issues involved is to appoint a liquidator to assist the parties to exit the business in an orderly fashion. It’s important to note that a company or partnership between companies does not need to be insolvent for it to be placed in the hands of liquidators.

What situations are suitable for the appointment of a liquidator?

There are a number of scenarios where corporate partnerships or shareholders may apply for the appointment of a liquidator:

Where there is a dispute between directors/shareholders or partners that is adversely affecting the company’s business or assets and can’t be resolved through dispute resolution or by agreement;
Where a creditor of the venture has fears that directors or partners are inappropriately dealing with assets or removing them from the company;
Where a shareholder or partner has concerns that other executives may be acting in their own interests and diminishing the venture’s financial position.

In any of the scenarios outlined above, the appointment of a liquidator is designed to protect and preserve the company’s assets until the dispute can be resolved or the venture wound up. An independent arbiter in the form of the liquidator can manage the ongoing affairs of the company, and also protect the interests of the aggrieved party who applied for their appointment.

How does the process work?

Once appointed, usually by agreement of the shareholders or partners and even when the company is solvent, the liquidator’s role becomes to:

realise the company’s assets;
maximise the return on those assets to repay the company’s creditors;
pay any surplus funds to creditors.

The liquidator’s role is to provide parties to the dispute with solutions in order to realise a ‘just and equitable’ outcome. One solution may be to sell the business either privately or via an open market process, using the proceeds to repay creditors and distribute the remainder to shareholders or partners. In other circumstances, a structured wind-down of business operations might be undertaken, with creditors repaid as assets are realised and remaining value in the business distributed to shareholders/partners.

The provisional liquidation option

Applications to the court for the appointment of liquidators can occur on various grounds under sections 459Q and 461 of the Corporations Act 2001.

Court-appointed liquidation – where the Court orders that a company be wound up and a liquidator be appointed – occurs on application by a creditor, director or shareholder of the company, or the Australia Securities and Investments Commission (ASIC). Once this application is made, a further application can be made to the court for a provisional liquidator to be appointed prior to any winding up of the company or joint venture. The provisional liquidator operates in the period between when the liquidation application is made and the winding up application is heard by the Court, and generally happens when there is a dispute between shareholders or partners.

This is appointment will be made by the court on ‘just and equitable’ grounds to the parties involved. Such an application should only be made once all avenues of dispute resolution and mediation are exhausted.

A court may make this appointment if on the evidence available it is satisfied that the business’ assets are at risk of being diminished. The liquidator will be charged with maintaining the status quo of the business or partnership and preserving its assets, meaning it is not empowered to conduct investigations into the venture’s affairs, recover voidable transaction of distribute funds to creditors. The provisional liquidator may also, however, have the power to sell a business and/or its assets.

Meaning of ‘just and equitable’ outcome

Consideration of what is a just and equitable outcome for those involved in the business is complex and the court will only consider liquidation as a last resort where the business is solvent.

But it will order the company to be brought to an end through liquidation where the dispute is at a deadlock and can’t be resolved through normal dispute resolution. In some cases, the possibility of winding up the company will change the minds of the disputants and force them to the negotiating table.

The need for expert legal advice

This can be a complicated area of law and legal advice from professionals with experience in corporations law is essential. At Felicio Law Firm we have advised many clients on the advantages and drawbacks of appointing a liquidator to try and end an impasse in the operation of a business, both for shareholder disputes and corporate partnerships. Consult one of our Erina lawyer’s experts in this field if anything in this article applies to your situation.

Feb 09

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

By Felicio Law Firm 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.

Dec 09

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

By Felicio Law Firm 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.

Dec 05

How to Verify Your Identity to Complete a Property Transaction Online

By Felicio Law Firm 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.

Nov 11

Solidify Your De Facto Relationship with a De Facto Prenuptial Agreement

By Felicio Law Firm 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.

Nov 07

How to Protect Your Pets in a Relationship Breakdown

By Felicio Law Firm 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.

Aug 10

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

By Felicio Law Firm 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.

Aug 08

Lilley & Jasper 2019 FamCA 170 [21 March 2019]

By Felicio Law Firm 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.

Facts

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.

Mar 04

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

By Felicio Law Firm 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.

Feb 17

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 Felicio Law Firm 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.

Nov 23

Costs in Family Law Matters Involving a Third Party

By Felicio Law Firm 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.

Nov 17

What to do if Your Business Receives a Bad or Defamatory Google Review

By Felicio Law Firm Business Law

The power of Google, with more than four billion users of the search engine around the world, is now unquestionable.

A bad review of a business posted as a review on its Google listing can be highly damaging to the enterprise’s reputation.

There have now been a number of cases brought in Australia by those adversely impacted by a negative or defamatory Google review by a disgruntled client or vexatious reviewer.

The costs of legal action mean not every business has the funds to bring a defamation action. Additionally, the owner who brings such an action will need to demonstrate actual loss or harm as a result of the negative review.

This article takes a closer look at what options are available to a business the subject of a bad Google review. You should always seek the guidance of experienced central coast family lawyers with specialist knowledge in this area, such as Felicio Law Firm, before embarking on a defamation action over a negative Google review.

How does defamation work in relation to Google reviews?

A business that believes its reputation has been damaged by a negative Google will most commonly take legal action in defamation.

Defamation relies on the accusation that the review in question opened the business to hatred, contempt or ridicule.

It’s important to note not all companies can take action for defamation. Under NSW’s Defamation Act, an action for defamation is only possible by an ‘excluded corporation’. That is one that employs fewer than 10 persons and is not related to another corporation. The corporation must also not be a public body.

There are other causes of action a company can take, such as injurious falsehood, to combat the effects of a Google review, though they are generally more difficult to prove.

It’s open to a director or officer of a company to take personal action for defamation against a reviewer provided they are identified with sufficient certainty in the review that allegedly carried the defamatory imputation.

Significantly, a Google review can still be defamatory even if it does not specifically name a person or business. A reference in the review that is specific enough to allow identification – ‘the men’s hairdresser on Smith Street’, for example – can sustain the defamation action. Similarly, if there is a reference to a class of people such as ‘Everyone working at the fish and chips shop on Smith St’, may also support a claim for defamation.

Some recent case examples

In the recent case of Dean v Puleio [2021] VCC 848, Ms Puleio wrote four Google reviews on the business listing of Dr Dean, a periodontist who owns Kew Periodontics and Dental Implants. Ms Puleio had been a client at the clinic until Dr Dean terminated the relationship due to Ms Puleio’s manner and constant cancelled appointments.

Ms Puleio then posted reviews that levelled accusations at Dr Dean including being unprofessional, overcharging, failing to diagnose illness, and being someone who bullied patients. Another post stated that Kew Periodontics provided ‘unprofessional and undermining service’.

Two further reviews stated other accusations about Dr Dean’s ethics and falsely stated the doctor had apologised to Ms Puleio.

Evidence supporting Dr Dean’s defamation application included the number of times the review had been viewed online, including the ‘grapevine effect’ when posts are shared, as well as data on the downturn in the page views on Kew Periodontics’ website and a drop in new patient referrals after the negative posts.

The court accepted the reviews had damaged Dr Dean’s reputation amongst her peers and in the eyes of the broader community, plus had an effect on her wellbeing.

It awarded damages in the amount of $170,000. That figure included aggravated damages because Ms Puleio had published the statements solely to harm Dr Dean’s reputation. She also refused to apologise, take down the reviews, attend mediation or participate in the court process.

Around the same time in February 2020, Melbourne dentist Matthew Kabbabe took Google to the Federal Court in order to force the search engine giant to identify a person who anonymously posted a bad review about his practice on his Google business page. Google had refused to either take down or reveal the identity of the poster, ‘CBsm 23’.

The Federal Court justice made an order compelling Google to turn over any identifying information of the reviewer, including names, phone numbers, IP addresses, location metadata, and any other information about the person’s Google accounts so that Mr Kabbabe could pursue a defamation action against the reviewer.

Can Google itself be liable? The Dylan Voller case

International social media platforms such as Google and Facebook have for many years strenuously resisted the idea that they are ‘publishers’ of reviews hosted on their platforms.

The High Court of Australia’s recent decision in the case of Dylan Voller, a former detainee of the Northern Territory’s juvenile detention system, where it dismissed an appeal from Australian news outlets who claimed they were not responsible for third-party comments on their public Facebook pages, may also have implications for Google reviews.

Voller is seeking to pursue an action for defamation against the news organisations for allowing defamatory material about him to be published in comments on their Facebook pages.

The High Court rejected the appeal, finding instead that by creating a public Facebook page and posting content, the media outlets facilitated, encouraged and assisted the publication of comments from third-party Facebook users. These actions made them, therefore, the publishers of those comments.

Similar reasoning could be applied to Google’s facilitating of business reviews which are defamatory in nature.

In April 2020, Melbourne lawyer George Defteros won $40,000 in damages from Google by arguing it had defamed him as the publisher of Google searches on his name which linked him to Melbourne gangland figures.

Call Felicio Law Firm for further advice

If you believe your business has been harmed by the appearance of a negative review on Google or another social media platform, call Central Coast Family Lawyers today.

In this fast-changing and evolving area of the law, we are always up-to-date on the latest developments to be able to advise clients on the most sensible and practical course of action to combat a negative review.

Contact our Erina Family lawyers friendly team today at (02) 4365 4249.

Sep 22

Erina conveyancing - What You Know About Property Settlement

What You Need to Know About Property Settlements

By Felicio Law Firm Family Law, Property Law

Breaking up is hard to do.

There is the sadness and regret that comes with a failed relationship, but there is also the work that needs to be done to disentangle two lives so both people can move forward.

Negotiating a property settlement of assets from the relationship, covering everything from property to cars, shares, joint accounts, superannuation and even pets, can be a stressful, trying process.

The first step in a property settlement is for the ex-couple, whether married or de facto, to identify and value all property from the relationship or marriage, including debts.

This process can encompass things each party owned before, during or even after the marriage or relationship.

It can be a gruelling and sometimes confrontational process to work out this asset ‘pool’, particularly after the breakdown of a long-term relationship where a couple’s lives were significantly enmeshed.

The advice and guidance of specialists in family law like Central Coast family lawyers at Felicio Law Firm is invaluable in helping clarify the process so that property settlement negotiations can run as smoothly as possible.

How assets from the marriage are assessed

Family law property settlements are governed by the Family Law Act 1975 (‘the Act’).

An ex-couple can come to their own agreement about the division of property from the relationship between them, through mediation or other means, that can be made into a court order which both must abide by. Any informal agreement is not otherwise legally binding.

A court – or consent – order – will only be made if the agreement is ‘just and equitable’ to both sides.

When two parties can’t agree on how property from the relationship should be divided, they apply to the court for property orders which will decide how the assets should be split.

All assets arising from the relationship constitute the total property pool, including assets held by both parties, as well as those held in either party’s name.

The property considered party of the pool is that held at the time the couple separates unless one of these assets was also used to create a new asset after separation.

Typical assets assessed during property settlement as a result of separation and divorce include the home the ex-couple lived in, any investment properties either or both owned, cars, furniture, jewellery, share portfolios or other investments, savings accounts, insurance accounts, inheritances, debts and superannuation.

Real estate: Both parties may decide to sell the house they shared during the relationship to pay off the mortgage or pay off other debts from the relationship. The proceeds of any sale become part of the pool to be divided in a property settlement.

This process will require the parties to obtain valuations of the property, either by a financial institution, a licenced valuer or a real estate agent, to work out a median value.

In other relationships, one party may ‘get’ the house (or the mortgage on it) and be ordered by the court to pay to the other party their share of the asset.

Superannuation: In situations where one party to the relationship paid contributions into a superannuation fund, that person may be allowed to retain that benefit but the amount the ex-spouse would have been entitled to in a split of the fund is reflected in the court awarding the partner an increased share of other assets (such as proceeds from the sale of the former couple’s home).

One party’s super fund may also be split so that its value is divided between the ex-partners at an agreed percentage, or a ‘flagging order’ where the non-member spouse can access a share of the fund once eligible.

Trusts: Assets held by one half of the couple within a family trust may be included in the property pool if the court so decides. Its discretion to include is exercised based on the level of control one party has over distributions from the trust. Evidence of whether either party received a loan, salary or expenses from the trust, as well as the trust’s other historical transactions, may be required to work out its significance to the overall property pool.

Inheritances: It’s a common occurrence that one half of the former relationship inherits money or other assets as a beneficiary from an estate. The timing of the inheritance is an important factor as to whether it will be considered property within the divisible pool. An inheritance received during the relationship, for example, and used for a purpose such as renovations of the marital home will likely be regarded as a contribution to the marriage.

An inheritance received during or after separation, however, may not be considered a part of the property pool. It may still be accounted for, however, in working out the future needs of each party because it is a financial resource available to the beneficiary of the inheritance.

Cars, pets, benefits, other assets: We’ve discussed some of the more significant assets in a property settlement above – what about less significant (in terms of value) property, such as vehicles, household items and pets that were co-owned by the ex-couple.

Cars, jewellery, household items and collectibles will all need to be ‘market’ valued for inclusion in the divisible pool of assets.

In general, courts prefer the estranged parties work out between them which one of them will take and care for pets from the relationship. Unless the pet carries a substantial monetary value (such as a pedigree dog), or are income-generating (such as cattle), it will generally not be considered part of a property pol. Where one party has expended significant funds on the care of the animal, however, a property settlement may be adjusted to reflect future costs and maintenance of the pet by that party.

As with a house, car or other assets, the Court may order the animal to be sold if appropriate.

Sources of income such as Centrelink payments may be considered as part of each party’s financial contributions to the relationship, affecting the assessment of that person’s share of the property pool.

The test used for dividing the property pool

Under the Act, the Court determines what is fair and equitable to both parties given all of the circumstances.

The value of the property pool, minus any liabilities, is figured out before the Court employs a four-stage test which considers:

The direct financial contributions each party made to the marriage, such as wages and government benefits;
any indirect financial contributions by each party, such as gifts and inheritances;
the non-financial contributions to the marriage, such as caring for children, homemaking, house renovating, and;
future requirements in light of each party’s age, health, financial resources, care of children and ability to earn (including the effect of a property settlement order on each party’s earning capacity).

In a property settlement, each party to the former relationship must fully disclose their financial circumstances to the other party. This may require them to furnish the other side with a bank and super statements, tax returns, income statements and more.

The duty to disclose continues from the moment property settlement negotiations are initiated until the matter is settled.

One party may also seek an injunction against the other where they believe their former partner is selling or disposing of assets that rightfully should be part of the property pool for settlement. The party seeking the injunction needs to show the court that the ‘dissipation’ of assets is imminent or possible.

The need for good legal advice

Once a divorce is finalised the parties have 12 months in which to seek an order from the court regarding property settlement, otherwise, they must seek the court’s permission to bring an out-of-time application.

The stages we’ve discussed above can take time and painstaking attention to detail. For people who are working, raising children and dealing with the emotional fall-out from a relationship break-up, this can be a very testing thing to do.

Entrusting your side of the property settlement to experienced, understanding family law specialists like Felicio Law Firm will reduce the stress and worry on you. We look after all the details.

Property settlement provides closure on an old relationship, allowing you to move on with your life, but it’s important to get it right so call us Erina & Central Coast family lawyers today for an initial consultation.

Sep 17

Estate Planning Lawyers Erina & Central Coast

What to do if Someone Close to You Dies?

By Felicio Law Firm Estate Planning

Grief, when someone close to you dies, can take a long time to deal with, and leave most people feeling like they need a break from the normal demands of life for a while.

But when someone close to you dies, there can be a lot to do in order to properly farewell them and finalise their affairs.

From arranging the funeral to fulfilling any wishes in relation to your loved one’s will, the checklist of matters to be attended to can become quite lengthy.

The advice and guidance of legal professionals experienced in what needs to happen after a person dies can be essential in helping you at a time when you may still be grieving, and supporting others who are as well.

What are the main things you need to do after someone close to you dies?

There are a number of priorities to attend to when someone close to you dies.

The most important priority in the first hours and days after your loved one has passed is to contact their doctor, if they died at home, as well as close family and friends, the funeral director (if known), and the executor/s of the will.

Locating your loved one’s personal documents is an important thing to check off soon after the death because they may or may not have left extensive instructions on what they wanted to happen in the event of their death.

These plans might include a pre-paid funeral plan, for example, but it’s also important to locate documents such as birth and marriage certificates, property deeds, life insurance or superannuation policies, bank account details and a will if one was made.

If a funeral director has been nominated by the deceased or arranged by the family, it is their role to officially register the death with the authorities and apply for a death certificate. This will generally need to be completed within 14 days of the death.

If the person had a will, the executor of the will is generally responsible for making funeral arrangements. If the person did not have a will, the responsibility falls to the next of kin, relatives or close friends.

Accounts with banks and utilities such as electricity and water, social security payments such as pensions, memberships of clubs and other organisations, direct debit payments, social media accounts and more need to be cancelled or closed.

Outstanding financial matters, including debts and liabilities, may require loved ones to consult the deceased’s financial adviser if they had one.

Settling the will

Where the deceased made a will, the role of the executor of the will is particularly important.

Among many other responsibilities, an executor has time limits to observe in executing the will, so that beneficiaries have a clear picture of what they might receive from the estate of the deceased.

In the situation where persons or organisations hold assets that are part of your loved one’s estate but will not release them, such as banks or retirement villages, for example, the executor applies to the Supreme Court for probate.

A grant of probate is the legal document that authorises the executor to manage the deceased’s estate according to the provisions of the will. It is the Court’s recognition that the will is legally valid and that you are the person authorised to deal with the estate.

Where your loved one’s will was valid and you are applying to administer its terms but are not the executor, you will have to apply for a grant of letters of administration of the will.

In cases where a person failed to make a will, a loved one may need to apply for a grant of letters of administration on intestacy.

How Felicio Law Firm can help

The services of expert legal professionals with years of experience in wills and estates can make the process of sorting through the affairs of a recently deceased loved one a lot easier and stress-free.

Felicio Law Firm brings a compassionate and understanding approach to helping clients through a trying time when a loved one dies.

We can help you check off the necessary things to do at this difficult time and understand the most important priorities.

Call us Wills & Estate Planning Lawyers Central Coast today for an appointment.

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