This may mean that steps need to be taken to enforce the orders.

The reason for the other party’s failure to comply with a property order is often due to difficulties with finance. However, in some cases, it may be due to a party’s deliberate unwillingness to cooperate. In either scenario, our family lawyers can advise you about the best options to obtain the desired outcome of enforcing the orders. This may include going back to Court for enforcement or contravention proceedings; pursuing interest for unpaid monies; or seeking that a property be sold or transferred. The Family Courts have the ability compel parties to sign documents to enforce orders and may even dispense with requirements so that a party can take certain steps without the non-complying party’s co-operation.

As family lawyers, we can certainly tell the difference between well drafted orders, those that provide adequate protections and default provisions, and orders that are inadequate or poorly drafted.

If you need advice about enforcing property orders, you should contact our experienced Family Law team.

      

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The Family Law Act sets limitation periods in bringing an application to the Court for a property settlement for both married and de facto couples. It is important to be aware of these time limits, otherwise you could run out of time to make a claim through the court.

Time limits for married couples

For married couples, the time limit for filling an application for a property settlement is one year after a divorce order takes effect. Whilst this time may appear to be short, keep in mind that because you must be separated for a period of 12 months before being eligible to apply for a divorce order. Therefore you effectively have at least 2 years before time runs out and the clock doesn’t start ticking until you are divorced.

Therefore, it is essential to make sure you have your property settlement effectively legally sorted when you are divorced. However, I would advise you to seek legal advice regarding property matters at least as soon as you separate, you can then make informed decision as to when is the best time to pursue a property settlement and make sure the assets are protected in the meantime

Time limits for de facto couples

Alternatively, those in a de facto relationship have a time limit of two years after separation (there is no divorce for de facto couples).

Although the date can be clear cut in some relationships, often it is not. For example, if you separated but continued to live under the one roof or had periods of reconciliation, there is scope for disagreement over when the date of separation actually occurred. (In 10 Things to Know about Divorce I explain further what separation looks like). Again, seeking legal advice early on in the process is preferable, especially if there is some doubt about when the clock starts ticking.

Oops, I missed the deadlines

Ran out of time? Don’t panic just yet.

Under section 44(6) of the Family Law Act, the Court has the power to grant parties leave to file an application to the Court for a property settlement out of time.

To allow this, the Court must be satisfied that hardship would be caused to the party or a child of the relationship if leave is not granted. Hardship is not defined within the Family Law Act, and so the Court considers what constitutes hardship on a case by case basis.

In bringing an application out of time you therefore need to give a reason for your delay in brining proceedings and further demonstrate how hardship is caused or else leave may not be granted. Also keep in mind that the mere loss of the opportunity to bring proceedings is not in of itself hardship and so this reason alone may not be sufficient enough to be granted leave.

These set time limits demonstrate once again why it is so important to seek timely legal advice and discuss your circumstances with a family lawyer. Here at OFRM, there are 5 family lawyers, including 2 family law specialists, available to meet with you to discuss your circumstances and best way forward from here. Call 03 5445 1000 to speak to someone.

      

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"I’m due to receive an inheritance from my great aunt who passed away recently and have spoken to the Executor who refuses to tell me anything about where the Estate is at. While I have a copy of the inventory this doesn’t tell me what’s be paid for, or if all of the assets have been collected. I am not sure how I can find out how the Estate’s money has been spent."

Executors are required to keep proper financial records of a deceased person’s Estate. This includes keeping receipts, details of payments and keeping details of distributions made. If as a beneficiary you feel that the Executor is not keeping you properly informed you are entitled to request that the Supreme Court seek accounts of the administration of the Estate of the deceased.

An Executor has a duty to provide the Court “true and just account” for the administration of an Estate when requested to do so, however, in most Estates it is not necessary for accounts to be filed with the Court.

The Executor will then receive a request from the Court to provide an accounting for the Estate explaining how funds have been spent.

Executors have an obligation to keep beneficiaries informed. If you think you may be in this position I strongly encourage you to speak to one of our Will & Powers of Attorney team by calling 03 5445 1000.

      

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In relation to business sales there are a sometimes many conditions which need to be met before completion of a sale. Conditions can include:

• the purchaser obtaining the finance to complete the purchase (a subject to finance clause)
• transfer of liquor licences,
• transfer of special licences required to operate a business,
• transfer of equipment,
• transfer of client details,
• satisfactory council health inspections for food businesses
• agreement on employee entitlements, and
• the landlord agreeing to the transfer of the lease

In the circumstances where these items are required as part of the agreement to ensure settlement, if any requirement cannot be met the purchaser has a right to withdraw from the sale.

While most purchasers will do whatever they can to continue with the sale, in some circumstances due to the necessity of the item to take over the business completion of the sale is not able to take place.

Signing the contract and obtaining a deposit is only the first step. The sale is not done until all items required under the contract are satisfied and finalisation of settlement of your business takes place.

Navigating compliance with these conditions can be tricky, that’s why you need an experienced OFRM lawyer to assist you with buying or selling a business.

      

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The answer depends on the specific circumstances.

If the Will specifically gifts an entire property solely to you, then you will not have to pay stamp duty, as this falls under the “devise in a Will” stamp duty exemption. However, you will still have to pay Title’s Office fees.

Similarly, if you are granted the “residue” of an Estate under a Will, and the “residue” includes a property, then once again there will be no stamp duty payable, just Title’s Office fees.

Alternatively, there are some situations where a gift of property may incur stamp duty.

If two beneficiaries are jointly gifted a property under a Will, however it is decided that the first beneficiary will take the whole property, and the second beneficiary will take cash instead, then stamp duty will be payable on the additional 50% of the property the first beneficiary receives. This is because the Will only envisaged the first beneficiary receiving 50% of the property. As a result, the stamp duty exemption only applies to the transfer of 50% of the property. Title’s Office fees will be still be payable on the full transfer.

If you think you may be gifted a property under a Will, talk to a lawyer at OFRM to confirm what is your likely liability for stamp duty. Alternatively, if you are thinking about including a gift of property in your Will, then talk to a lawyer at OFRM to ensure your Will is structured appropriately. Call 03 5445 1000.

      

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The Family Law Act provides that “any person concerned about the children’s care, welfare and development” can seek Orders in relation to children.

Whilst this seems like it could include a broad range of people, before allowing such parties to seek such Orders, the Family Court places the onus on an Applicant to provide evidence which justifies their need to spend time with the children and evidence that their Application would be in the children’s best interests .

The Full Court of the Family Court in the matter of Mankiewicz and Anor & Swallow and Anor said

Whether or not permission should be given [to a third party to joint proceedings] is a question of fact… to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case.

Case law in the area suggests that the Court will consider evidence such as the role the Applicant had in the lives of the children in the past, the nature of their relationship and their influence on the wellbeing of the child. As always, the Court’s paramount consideration is the best interests of the children.

The Full Court in Mankiewicz and Anor & Swallow and Anor considered an appeal made by maternal great grandparents who had made numerous Applications over the years to obtain parenting orders to allow them to spend time with their great grandchildren. In 2009, at first instance, their Application was unsuccessful with the Court finding that their relationship with their great grandchildren was not of such a nature to warrant their involvement in the proceedings. They did not meet the threshold required to be involved in the parenting arrangements for the children. They were unsuccessful in subsequent appeals, with the Full Court not being persuaded that such an Application was in the children’s best interests.

If you would like further advice about your options to seek parenting orders, including matters where you are not a biological parent to such children, you should contact our experienced family law team.

      

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In an earlier blog, I explained ways in which you can be reassured that there is a great onus on the other party to a Family Law proceeding to tell the truth regarding financial matters.

Overriding those practical considerations is the concept and Family Law Rules regarding a Duty of Disclosure.

What is a Duty of Disclosure?

A Duty of Disclosure requires all parties to a Family Law dispute to provide to the other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with Pre-Action Procedures before the case and continues until the case is finalised.

The Duty of Disclosure is set out in the Family Law Rules and extends to both your direct and indirect financial circumstances. It requires disclosing all sources of earnings, interest, income, property (including property that you actually have and contingent or future interests in property) and other financial resources.

It includes property, financial resources and earnings owned by you directly or by some other person or beneficiary, for example – your child or de facto partner as well as assets held in corporations, Trust companies and other structures.

The Family Law Rules include that you need to disclose any property disposed whether by sale, transfer, assignment or gift in the year immediately prior to separation or since separation.

The Duty of Disclosure continues throughout the Family Law proceedings which mean that there is an onus on a party to continuously disclose and provide information regarding any changes to their financial circumstances. The Family Law Rules provide that if you fail to disclose, the Court may:

• Refuse to allow you to use that information or document as evidence in your case;
• Stay or dismiss all parts of your case;
• Order costs against you;
• Fine you or imprison you on being found guilty of contempt of Court for not disclosing a document.

Honesty really is the best policy. Not only do you need to comply with the Duty of Disclosure but it is really important that you understand it and work with an experienced lawyer, such as the O’Farrell Robertson McMahon Family Lawyers, to ensure that you are complying with the Duty of Disclosure and even more importantly, that everything is done to make sure that the other party is doing so as well.

      

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There is a code which sets out the process for small businesses. If you fit this definition the Small Business Fair Dismissal Codes sets the rules for you to follow when dealing with the termination of employees. It does not make you immune from being pursued for unfair dismissal.

The Code also makes the obligations for small business owners clear when dealing with such employees. The Code was put together in response to a significant lack of small businesses understanding of their obligations for due process when terminating employees.

In addition to the Code the Small Business Fair Dismissal Code Checklist has been developed to make it easier for small businesses to ensure that they are compliant with the Code when dealing with terminations.

In order for an employee of a small business to be eligible for unfair dismissal, the employee must be with the employer for a period of 12 months. Once they have been with you for a period of 12 months you need to ensure that you have followed the Code and Checklist as issues arise.

Many times small business employers have a genuine or valid reason for terminating their employees. It is essential that when a small business is in that situation they follow the correct process and procedure to ensure that any dealings with their employee regarding termination are procedurally fair and not open to dispute. It is the procedural unfairness that appears to be the most significant issue for small businesses in dealing with these issues.

Prior to terminating any employees it is always advisable to seek legal advice to ensure that you have complied with all of your obligations and to give you the best protection possible against claims through the Fair Work Commission.

For advice on this or any other small business matters, call Riley Driscoll on 03 5445 1000.

      

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The report is prepared by a psychologist (sometimes social workers) who reads the court documents, meets with the parties and the children, speaks to other relevant people (schools, doctors etc.) and writes a report with their recommendation of what are the arrangements that will be in the best interests of the children.

Family reports often lead to parties settling because:

• it is powerful to hear recommendations from an expert
• issues are clarified
• people don't want to continue the proceedings
• reports helps people recognise what is in their children's best interests

If a matter doesn't resolve the report writer will attend court and be cross-examined during the hearing of a matter — which is often more of a conversation in the court with the judge testing thoughts about the best orders.

The court employs a small amount of these staff directly and contracts others but the vast majority are private reports where the parties pay the cost associated with the report, which can be significant.

A family report is a useful step in family law proceedings but it is important to understand that process and be well prepared for the report appointments.

      

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Recent OFRM blogs have discussed some of these changes, such as the online settlement platform PEXA and the new State Revenue Office all-in-one online duties form.

Another recent change that has yet to be fully discussed is the requirement for lawyers to have their clients sign a Client Authorisation Form.

What is a Client Authorisation Form?

The Client Authorisation Form makes the online systems work. It is a one page document that once signed by purchasers/vendors, authorises lawyers to do the following on their behalf:

1. Sign necessary documents on behalf of the client;
2. Lodge documents with Land Victoria;
3. Undertake the financial settlement of the property transaction;
4. Anything else necessary to complete the transaction.

When are they required?

For settlements that take place online, all documents get prepared and signed online by the lawyer, and therefore a Client Authorisation Form is obviously required in these matters. However, even for those settlements that are still occurring in the old paper format, a Client Authorisation Form is now required as lawyers must sign Transfers of Land of behalf of their clients. Therefore, Client Authorisation Forms are required for all Conveyancing matters.

Signing a Client Authorisation Form at the beginning of your property transaction will save you additional trips into the office throughout the settlement period, allowing you more time to focus on moving out or moving in to your new home! Our Conveyancing team are always available to answer any questions our clients have on 03 5445 1000.

      

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What people fail to sometimes realise is that while they believe they own particular property and they are able to dispose of it as they choose, on further discussion it turns out they do not own the property the way they think they own it and in some circumstances actually are not considered the owner at all. It can come as quite a shock.

There are a number of ways that people own property:

• Solely in their own name
• Through a Trust
• As part of a Company
• In a partnership
• Jointly or with a number of people

Any misunderstandings around ownership can create significant issues for estate planning and after death because the person to receive a gift ultimately misses out. Let’s look at each of these examples in turn.

Trust property is not owned by an individual and cannot be gifted in your Will, only those that are listed as beneficiaries are entitled to property owned by a Trust.

This is also the case for property owned by a company. A company is separate legal identity and owns property in its own right. The only property that you can give away in connection to a Company through a Will is individual shares, provided they are owned in your sole name.

In regard to property that is owned by more than one person (especially in relation to real estate) you need to be particularly careful about the characterisation of the ownership. Real estate that is owned jointly is not considered property which forms part of your Estate and the property will automatically be transferred to the other joint owner on your death. If, however, the property is owned as tenants in common, you are able to gift your share in your Will.

For any person estate planning is important but for those who have more complicated ownership structures it is essential to make sure that you have sought specific advice regarding your options. You need to know what you own, what you don’t own and what can be put in place to ensure that your loved ones are left the gifts and legacies that you choose to leave them. The Will & Powers of Attorney team at OFRM will be happy to assist you. Call 03 5445 1000 for an appointment.

      

The best way of avoiding this is making sure people in a relationship have full exchange of information during the good and tough times of the relationship regarding their financial situation. A couple who lives like this if they decide to go their separate ways will clearly know what is each other’s financial position. I guess that’s an added benefit of those finance date nights that the Barefoot Investor spruiks!

In reality most couples don’t run their lives like that. Sometimes life gets busy and before you know it you have lost track of where all of the finances are. Sometimes things go wrong and people are too embarrassed to show even to their own partner something that has gone wrong with their finances – whether that’s the finances to a business deteriorating, a bit of a gambling habit that has developed or perhaps just a little bit too much online shopping (not speaking from personal experience there!).

When a relationship is deteriorating there is usually significant breakdown of communication and having an understanding of your separate and joint finances is often something that suffers early. Therefore by the time people have separated and commence trying to work together for a property settlement, they have usually lost track of exactly what are the joint assets. Of course there are also people who naively think that they can hide things in a Family Law process and will start shifting assets around opening up extra accounts and so on.

So how can it be that when you and your lawyer are working through a property settlement that you can be sure that you have the whole picture?

The reassurance is that it is extremely rare that someone is able to hide assets.

The Family Law process requires that there is a process called “pre-action procedures” where each party is obliged to exchange all of the relevant financial information which includes the historical bank statements. Reconciling bank statements to things like records of property transactions, tax returns and so on will usually reveal if there are any movements of assets or money that has not been disclosed. For example, going through a bank account might reveal that there are transfers to an account that hasn’t been disclosed.

If a party is not co-operatively disclosing information then there are powerful ways in which the Court can ensure that this occurs including issuing subpoenas, making Costs Orders if people don’t comply with Court Orders regarding disclosure or ultimately drawing conclusions in the Court Orders or striking out a response and hearing the matter on an undefended basis.

In addition, in any Court documents including documents seeking that the Court make Orders by the agreement of the parties, a party must sign either an Affidavit or a Statement of Truth. If it is later found out that a party did not tell the truth or was hiding assets then not only is there the risk that the Orders will be set aside and the Court will make a new settlement, but also there is the potential that criminal charges regarding making false statements could follow. Therefore there is an extremely strong onus on people to tell the truth because:

1. Experienced family lawyers and Judges are able to easily pick up where things don’t add up and trace the missing information.
2. The risk of not telling the truth and that being found out later is so significant it is not worth doing.

On a really practical level though the open exchange of information early in your Family Law negotiations is the best way of making sure that you minimise both the time and cost of sorting out your Family Law property matters.

At O’Farrell Robertson McMahon we work hard with our clients to make sure that we have that disclosure happening early so that things happen as smoothly and quickly as possible for our clients.

      

We call this “contesting a will” and there is a fixed category of people who can do so. You can make a claim to contest a will if:

• You are the spouse or the domestic partner of a person at the time of their death
• You are a child or a step-child of a person who has died
• You are someone who believes for a substantial period of a deceased person’s life that they were the child of the deceased person and that they were treated by the deceased as a natural child
• A former spouse or domestic partner in circumstances where a property settlement was not reached with the deceased following separation
• A registered caring partner of the deceased person
• A grandchild of the deceased
• A spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death)
• A member of the household in which the deceased was or had been in the past and would likely be in the near future also a member

Now while you may fall into one of the categories of those who can make a claim does not mean that you will automatically be eligible, it really is only a starting point.

Whether or not you can make a claim against an Estate depends on a deceased person’s personal circumstances. The days of being able to contest a great uncle’s Estate because he was a multi-millionaire are well and truly over and you will need to speak with your lawyer or a member of our Will & Powers of Attorney team about what approach you can make in this area. Call us on 03 5445 1000.

      

One part that surprises some is that there are still many documents that have to be signed in person — you can’t just say they are OK or sign them online. Wills, affidavits, court applications and our cost agreements are some of the documents that must be signed in person.

Even more mind-blowing to lots of clients is that there are some documents, like court affidavit where you have to swear an oath or make an affirmation that the contents are true and correct.

An affidavit may be made under Victorian law for Victorian court proceedings or under Commonwealth law for Commonwealth proceedings, like Family Law proceedings.

The swearing or oath must be done in the presence of an authorised witness, who signs that they have witnessed the oath or affirmation.

Oaths are frequently made while holding the bible, the New Testament or the Old Testament or another relevant religious text, although it is not necessary that a religious text be used in taking an oath. In fact, if the oath was properly made and taken, the fact that the person to whom the oath was administered had no religious beliefs at that time does not affect the validity of the oath.

To swear an affidavit by oath the person making the affidavit (the deponent) has to say “I swear by Almighty God (or the name of a god recognised by his or her religion) that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”. It can be quite a mouthful, it's also a rite of passage for a new lawyer to learn this off by heart.

“I swear by Almighty God (or the name of a god recognised by his or her religion) that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”

When you are swearing a document, you have the choice to take an oath or to make an affirmation. The wording of the affirmation is “I solemnly and sincerely declare and affirm that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”.

“I solemnly and sincerely declare and affirm that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”

Different courts have different requirements as to whether you have to sign the affidavit on each page, the family courts do, others don’t.

For the document to be effectively sworn the witness must be authorised to take affdiavits (like a lawyer) and the jurat (certification of swearing) must be completed by the witness marking the date it was sworn and recording by their stamp or writing their name, address and qualifications to take an affidavit. Each exhibit must be marked and signed by the witness as well.

Affidavits are important statements of truth in court proceedings, so such specific steps are warranted. It shall be interesting to see if a process that relies more on technology is used in the future &msash; these days having to click a box that you understand you are telling the truth is probably taken more seriously by most people.

      

When a married couple separate, the whole event is often described as a divorce.

However, divorce has a very specific meaning under Australian law. It is not a property settlement, it is not a separation, it is not sorting out the arrangements for children. A divorce is a court order ending a marriage. It is like the official tearing up of your marriage certificate. There are a lot of myths and misunderstandings around divorce, so here’s 10 key things to know about divorce.

1. For a divorce order to be made, your marriage must be broken down irretrievably.

That is, you will not resume married life. You’ve made up your mind and it is final.

2. You do not need to provide the court for a reason for your divorce.

The Family Law Act 1975 established the principle of no-fault divorce in Australia. Therefore, the court does not need to hear or judge the reason why the marriage has irretrievably broken down, that can stay between the two of you.

3. You must have been living ‘separate and apart’ for at least 12 months.

This is easiest to prove when one of you has moved out of the former matrimonial home and you have been separated ever since. It is common for people to been separated but have lived separately under the one roof for all or some of the 12 months of separation. To prove you were separated during this time, you must show there was a change in the way you related to each other after separation in comparison to beforehand. This could include:

• Sleeping in separate bedrooms;
• No sexual relations or intimacy;
• Not helping each other out with household chores such as cooking each other dinner or doing the other persons laundry;
• Having separate finances ;
• Not attending social functions or events together;
• Not socialising together.

Periods of Reconciliation

It is also common for people to attempt reconciliation after they have separated.

If the reconciliation lasts for a period of less than 3 months, you may add the periods before and after the reconciliation together to obtain the necessary 12 months.

However if the reconciliation lasts for a period longer than 3 months, the clock starts again for the 12 month period at the end of the reconciliation period.

4. You must demonstrate to the court that there have been reasonable arrangements made for the care and welfare of any children under the age of 18.

This involves explaining the arrangements made for the child in line with their:

• Living needs
• Schooling needs
• Health needs

5. If you are applying for a divorce within two years of when you got married, you will need to prove that you have attended counselling.

Visit the Family Relationship Centre website for a list of court certified counsellors that can give you a certificate demonstrating to the court you and your spouse have attended counselling.

6. You must have a jurisdictional connection to Australia in order to apply for a divorce here.

Either you or your to be ex-spouse must either:

• Regard Australia as their home and intend to live here indefinitely after the divorce; or
• Be an Australian citizen by birth, descent or by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

As long as one of the above criteria is satisfied the Court will be able to hear your Divorce Application, regardless of where you were married or where you previously lived.

7. The Court will only focus on your divorce application.

Many people come to us thinking a divorce application also encompasses a property settlement, spousal maintenance, child support and interim orders. Although this may be the case on US TV shows, it doesn’t work that way in Australia. The court will only consider whether or not it should grant a divorce. The court does not have to have any regard for if both parties of the marriage want to get a divorce or if only one party does.

Property and children’s matters are separate court applications.

8. A divorce is not obtained overnight.

When the application is filed the Court will list it in court for a hearing. The date of the hearing will most likely be a couple of months away.

Provided that the court is satisfied that you have met all of the requirements a Divorce Order will be made but it does not take effect until one month and one day after the hearing.

9. Until your divorce is final, neither of you are able to get married to anyone else.

If you do, you will be committing bigamy which is a criminal offence in Australia. Perhaps just put a few more months into the wedding planning and wait for after the divorce has taken effect.

10. The Will you made during your marriage will now be invalid.

If you have a Will at the time the divorce is obtained certain clauses will be revoked because of the divorce. These clauses include any provision you have made for your former spouse, any grant of power you have given them or if you appointed them as an executor of your will.

Any clauses that appoint your former spouse as a trustee of a trust in which the beneficiaries of the trust include children of your former spouse will not be revoked. This means your former spouse will have control over money or property you have your children.

If you separate from your spouse and do not have a Will, your former spouse may still inherit if you die before a Divorce Order is issued by the Court. If you have never made a Will, only a Divorce Order will ensure that your former spouse will not be able to inherit your assets.

Rather than leave these matters to chance it is best to be on the safe side and make a new Will after your divorce to ensure your intentions concerning your former spouse are crystal clear.

      

However, your legal business structure is an incredibly important consideration for your business and should be given serious and careful thought from the outset. The structure you select needs to meet your current needs and be capable of evolving as your business grows. Each change can have legal implications that need to be taken into account.

There are four main types of business structure.

1. Sole Trader
2. Partnership
3. Trust
4. Company

Sole traders

Sole Traders are the simplest and easiest structure to establish. They have very few reporting obligations and do not require any specialist documentation to be provided to ASIC during their operation on a year- to-year to basis. However, as a sole trader your legal liability is personal. This means that if there is ever an issue you could potentially lose some or all of your personal assets including your home, cars and other personal property.

Partnerships

The second kind of structure is a partnership. This is where you have one, two or sometimes more people engaged in a business together. Similarly to sole traders the structure is relatively easy with the only documentation really used being a partnership agreement to establish the relationship and as with sole traders no significant reporting obligations to ASIC on a year to year basis. A good partnership agreement will outline how decisions are made, profits distributed and what steps to take in a dispute, including how to dissolve the partnership. With a partnership, you again risk personal legal liability.

What makes this business structure even more difficult is that you are also responsible to acts committed by other partners.

Effectively this means that you will be held responsible your partner’s behaviour or actions.

Trusts

The third type of business structure is a trust. Trusts are a separate legal structure. Legal liability for acts taken by the trust are generally speaking limited to the Trust and not you personally. However, trust structures are more cumbersome, more expensive to establish and have particular intricate issues with regard to ownership of property, decision making and succession planning.

Companies

The fourth structure is a company. A company is a separate legal entity therefore legal liability in most circumstances is limited to the Company and not you personally.

Again this is a more expensive structure to establish, has significant reporting obligations on a yearly basis to ASIC and for owners there is less control as while you may be a shareholder or a director you do not actually own the assets of the company. There are also significant directors’ obligations to consider.

Making the choice

As the complexity of your needs increases so does the complexity of the structure you need to support you. Whilst initially more expensive, the latter options, when set up correctly provide the protection that you need.

It is important that prior to commencing a business that you have not only spoken to your accountant about the taxation and other financial issues related to any business structure but that you have also sought advice from a legal practitioner in regard to the best structure for you. To speak to one of our lawyers with experience in this area call 03 5445 1000.

      

The answer is yes, but only in some circumstances and one of these three ways:

1. Apply to the Supreme Court for an order under section 84 of the Property Law Act 1958
2. Amend the planning scheme under Part 3 of the Planning and Environment Act 1987
3. Apply for a planning permit under Part 4 of the Planning and Environment Act 1987

I won’t spend much time on option 2 because this option is rarely appropriate as planning scheme amendments usually affect a large area and require a range of strategic matters to be considered. Accordingly this method isn’t usually used to remove covenants on individual lots at the request of the owner, unless other changes to the planning scheme (such as a rezoning of the land) are also proposed.

The first step for options 1 & 3 is to work out who the beneficiaries of the covenants are. The beneficiaries are the people who are protected or benefited by the restrictive covenants; the beneficiaries can range from just your next door neighbour through to all people in the 100-lot subdivision you are in, from there you need to look at the tests and process for each option and determine the best one for you.

As an interesting aside, local councils are not responsible for enforcing covenants, it is the beneficiaries that must take enforcement actions. The impact of a restrictive covenant on councils is to restrain them granting a permit which would breach it.

The simplest example of this is the further subdivision of a block. You need a permit to subdivide the block, the covenants state that there can be no further subdivision of the block and accordingly your local council cannot grant that permit until the covenants are varied or removed to allow further subdivision of that block. So you, with the assistance of your lawyer, need to decide which option to use to seek a variation or removal of the covenant.

For option 1, there are three circumstances in which the court may vary or remove a restrictive covenant which I have simplified as follows;

1. That the character of the property or neighbourhood or some other material change has occurred that means the restrictive covenant is obsolete or impedes the use of the property without obtaining a benefit for the beneficiary; or
2. That all adults beneficiaries with capacity have agreed to the restrictive covenant being removed or varied, this can be positive, such as written agreement, or by act or omission, for example not taking action to prevent continual breaches of the covenant; or finally
3. That the proposed removal or variation will not be to the substantial detriment of any beneficiary, including loss of value or amenity.

The process for Option 3 is very similar to any other application for a planning permit from the local council but with special requirements to be taken into account by the council. Those requirements are determined by the age of the Covenants themselves and are simplified as follows;

1. For covenants registered on or after 25 June 1991, you must satisfy the council that any beneficiary will be unlikely to suffer material detriment, including financial loss or loss of amenity if the covenant is varied or removed before they will grant the permit; and
2. For covenants registered before 25 June 1991, council cannot grant the permit if any beneficiary objects or may suffer any detriment of any kind even if they didn’t object, this is a very stringent test as it will be difficult to satisfy the council that there would be absolutely no detriment.

As you can see the option which is best in your circumstances will be affected by a number of factors including the variation sought, the age of the covenants and the number of beneficiaries and it is essential that you seek advice early in the process to determine the best option. Plus, you never know, some covenants have a lapse date after which you are no longer bound by them. If you have any concerns regarding restrictive covenants and your proposed use or development of your property please make an appointment to come in and see me by calling 03 5445 1000.

      

Some examples of restrictive covenants include:

• A covenant that limits the development of the land to a single dwelling
• Covenants that control the type of building materials that can be used for buildings and fences on the property
• A covenant can even restrict the number of pets you can have on the property

When looking at the Title search contained in the Section 32 Statement it will be evident whether or not there are any restrictive covenants registered on the Certificate of Title. The covenants themselves however will either be stated on the Plan or on a separate document which should also be included in the Section 32 Statement.

Restrictive covenants are commonly applied when developers subdivide land and wish to apply some restrictions on the use and development of the land. In these cases, the restrictive covenants that are to be registered on the new Titles will be contained in the special conditions of the Contract of Sale.

When you meet with your lawyer to sign the Contract of Sale, your lawyer will carefully examine the Contract and Section 32 Statement to determine whether the property you are purchasing is affected by restrictive covenants.

This is the first of two articles on restrictive covenants. The second is on removing restricted covenants.

      

Most times I manage to bite my tongue and not reply, “you should never have changed it in the first place”.

Changing your name back is relatively easy, mainly because when you originally changed it was simply a change of name by convention rather than law (in contrast to that time that Geelong footballer Garry Hocking changed his name “by deed poll” to Whiskas). Now, you don’t have to change your name at the registry; instead it is the reverse of what happened when you initially changed your name. You changed to your married name by simply showing your original identification documents and your marriage certificate. To change back to your previous family name you need your birth certificate and your marriage certificate, effectively showing the chain of names you have used.

There is no central way for this name change to happen, rather you need to approach each organisation — banks, Vicroads, etc., with the relevant identification. These days with our digital footprint everywhere, there can be quite a few places to make the change.

You don’t need to be divorced to change your name nor does your settlement have to be finalised. Sometimes though it is easier to wait until those formalities have occurred.

However, if you legally changed your name overseas or were married overseas you may need to make the changes through the registry of births, deaths and marriages.

Changing your children’s names is more complex and something that can only occur with the agreement in writing of both parents or a court order. So, be prepared that by changing your name you are going to have to explain on many phone calls the difference in names between you and your children — but you do get used to it!

      

Currently, in proceedings in the Family Court and Federal Circuit Court, alleged victims of family violence can be cross-examined by the alleged perpetrator of the violence. Due to cut-backs to Legal Aid, the number of self-represented litigants in Court continues to rise. Without a lawyer, the parties conduct their own representation which includes cross-examination of the parties. The Attorney-General’s Department has suggested in their report that being cross-examined by an alleged perpetrator “potentially exposes victims to re-traumatisation and can affect their ability to give clear evidence.”

The proposed method of addressing the issue is to have an examining party, not a party to the proceedings stand in the place of the alleged perpetrator to cross-examine the alleged victim. The intermediary will be appointed by the Court.

Is this the right way to go? Will it be enough? There is no doubt that change needs to occur but faces a huge challenge of the necessary legislative changes being made and the government providing adequate resources to the Court to make such a change effective.