Child Custody Law in Australia

The divorce has a direct effect on children. They have to live with either one of them. When the parents are together, they raise their children with combined efforts. And it is for sure that the parents love their children. So, who gets to keep the child or children after divorce? In this article, we will explain to you the working of child custody laws in Australia.

Parental responsibility:

The parental responsibility points to the responsibilities of the parents who have a child, either born or legally adopted. According to the Family law act, 1975 section 61C each parent having a child under 18 years has equal responsibilities for those children. But one of them can be restricted by the court according to section 61D. The separated parents can seek “sole custody” to restrict the access of the other parent.

https://www.legislation.gov.au/Details/C2017C00385

In section 61B, the powers, duties, and responsibilities of the parents related to the child are defined. According to that act the power and responsibilities of the parents are:

• The decision about their education, religion, and environment.
• Take reasonable decisions about the relationship with the child.
• Allow the children to be adopted.
• Apply for a visa or a passport.
• Do legal proceedings for the children

Equal responsibility:

According to the family act the parents share equal responsibilities for their children who are under 18 years of age. So, when giving a parenting order the court presumes that this shared responsibility is in the best of the child. Section 60CC gives the best direction to the court in understanding the best interest of the child.

If the court finds any evidence that the child is being harmed or the behavior of one parent is irresponsible, then according to section 60CG the court can refuse the responsibilities and the powers of that parent.

The term equal shared parenting only relates to allocation. It does not state that both parents will have to spend equal time with the child. The sole custody is given to one parent depending on different aspects. For instance, one parent is given custody of the child if he or she is involved in the education and the religion of the child. But parenting can be shared in other matters.

The parenting orders:

Usually, a separated or divorced couple cannot decide about parenting the child. So, they can seek help from the family court. The parenting orders are given by the court after hearing from the parents. This order is given only after they attend a Family Dispute Resolution where a mediator tries to bring them to an agreement. This parenting order is different from the consent order. It is a written agreement that is submitted to the court.

This will help them to know to parent their child after parenting. Each parent will fulfill their responsibility for each child until the court order is changed. When the court gives any order regarding shared parenting the time that is spent with the child is not fixed.

Sole child custody in Australia:

Before 1995 the parent could ask the court for sole parenting if they did not want their previous partner to meet their child or children. But this is not the case anymore. The family law system has changed. According to the Act, a parent may ask the court for sole parental responsibility which is similar to sole custody. The court will give this order only if they find that shared responsibility will not be in favor of the child.

The responsibility given to one parent by this rule are:

• They will be responsible for some or all the areas of their child’s life. In any decision, they will not have to consult their previous partner.
• The child or children will live only with one parent.
• The other parent will have limited access to the child. He or she will not be allowed to meet the child if the child will be exposed to danger.
• Even if the child is in danger in the presence of a parent, that parent can apply for an order of supervised contact. This order includes grandparents and other family members.

How to get custody of the child?

When making any parenting orders the court must consider that the child should not be exposed to violence. It is mentioned in the Act section 61DA (2-14). According to section 60CF, the child’s best interest is the priority to protect the child from the violence of any of the parents. Any person can also report such violence to the court. The person does not need to be a part of the family.

The court tries to give an order which is in the best interest of the child. It can also change decisions depending on the situation. This order includes the sole parenting responsibility. Which states that one parent has full decision power over the children. The major effect of this order is that the responsible parent does not need to consult the other parent in making any decisions about the children.

If the children are at threat in the presence of the other parent the responsible parent can apply to vary the parenting order appropriately to the court. This can be applied even after the initial parenting order is declared.

If a parent needs to apply for sole parenting or sole custody, he or she will give a complete report to the court which will contain all the matters relevant to the irresponsible behavior of the other parent. It can include the police reports or the statements of different witnesses. Any evidence that shared parenting can create more problems for the child or children. The health of the parent either physically or mentally is also an important factor.

To apply these child custody laws in Australia you should contact a good team of lawyers like Aylward games. They can properly implement this process. Apply for an appointment and understand the child custody laws in a family-friendly environment. Aylward games have the best lawyers about child custody in QLD.

How do you lose custody of a child?

You can lose custody of a child or children depending on many factors. Here are a few of them:

•       Not giving enough care to the child
•       Abusing the child physically
•       Abusing him or her mentally or emotionally
•       Domestic violence also has its effect
•       Stop using alcohol or drugs in from of them
•       Child’s unwillingness to live with you

To keep the child in your custody, try to spend enough time with him or her. Don’t let yourself feel emotionally sick. Loneliness is not good for them.

Conclusion:

Every parent has the right to take good care of their children. But sometimes some of them can lack interest in raising the child. In this case, the other parent should apply for sole parenting. A child should not be raised in the wrong environment. If there is violence or abuse in the environment the shared parenting cannot be a good option. So, the decisions should always be for the best interest of the child or children. Aylward Game is always here to help you. They have the best child custody lawyers. For the best future for your child go and contact Aylward games.

Frequently asked questions:

There are many questions about child custody. To clear the confusion, we have tried to answer the most common of them.

When a child can choose between the parents?

There is not a specific age for this decision. They can choose who they want to live with, or if they want to see the other parent or not. A child is a minor until they turn 18.

Do I have the right to know about the environment of my child?

Each parent has the right to know about the environment of the child. They can also ask if the child is left with babysitters or friends when the other parent is not around. The visiting schedules can be changed with the change in the age of children.

Should I tell the court about family violence?

Yes, you should tell the court about any family violence. You should submit a copy of any family violence orders as it can affect the order of the court.

How to prove to the court that I am a better parent?

You should be physically caring. And you should have a good emotional relationship with the child.

Article Source: Child Custody Laws Australia

SETTLEMENT FIGURES & ADJUSTMENTS – HOW ARE THEY CALCULATED

 

SETTLEMENT FIGURES & ADJUSTMENTS – HOW ARE THEY CALCULATED

Quite often Buyers can become confused when looking at settlement figures leading up to settlement and often question how adjustments and figures are calculated. It is quite common for Buyers to misunderstand settlement figures and are often concerned that they are paying for the Seller’s overdue rates or water notices. Settlement figures and adjustments calculation are often confusing and the subject of inquiry from vendors and purchasers alike. They are tricky to navigate and generally take time to understand.

Settlement Figures – what are they?

Settlement figures are a breakdown of monies to be handed over at settlement. Normally, the seller would pay for any expenses or collect any rent until settlement and the buyer would pay any expenses and is entitled to collect rent paid after settlement.
The standard conditions of a contract will provide for any adjustments that need to be made.
Settlement adjustments allow both the seller and buyer to compensate one another for any expenses that have been paid or are in arrears during the period before and after settlement.

Let’s look at some common adjustments…

Rates, water access charges, and body corporate levies are common outgoings that are adjusted at settlement. For example – a property is due to settle on 1 February. The seller has already paid council rates for the quarter until 31 March 2018. An adjustment would be made so that buyer would pay more at settlement to compensate the seller for the rates they have paid until the end of the quarter. The buyer would be responsible to pay their portion of the rates from the settlement date until the end of the quarter.

Water Consumption calculations are adjusted depending on where the property is located. Some councils include water consumption as part of the rates, whereas other councils use a third party for water consumption charges such as Urban Utilities or Unity Water. The seller is responsible to pay for all water access and consumption charges up to settlement.
The buyer is also required to order a Special Water Meter read which will allow them to calculate the water usage and charges payable by the seller up to settlement. This amount will be deducted from the total amount the buyer is to pay at settlement by way of adjustment.

Seller’s release fee – If a seller has a mortgage on the property, the Land Titles Office will charge a fee for the release of this mortgage, prior to registration of new ownership.
The seller will compensate the buyer for this favor by way of an adjustment at settlement.

Another common question asked by a buyer is what happens to electricity at settlement? Electricity is not adjusted between the parties. The seller is responsible to cancel their account and pay the balance of electricity used and the buyer is responsible for opening a new electricity account. The seller remains liable to pay for any electricity used if the account is unpaid or not canceled by settlement, hence the reason electricity is not adjusted.

For more information on settlement figures and adjustments, for a lawyer for this issue please contact us.

Article Source: unity water settlement

COMMERCIAL & BUSINESS LAW

Buying and Selling Commercial Real Estate

This process takes many forms due to differences and restrictions on the potential use of your commercial property as well as location, and cultural significance. This makes it essential to ensure that your interests are catered for in the contract terms and conditions. (Commercial & Business Law)

Here at Aylward Game Solicitors, we will help you in the preparation of the following documents that are needed in all contracts.

• Standard form REIQ commercial land and building contracts with tailored special conditions to suit your requirements.
• Special purpose property contracts.
• Development contracts for the proposed acquisition of properties for either development or subdivision.
• Off-the-plan contracts for the sale of your future property
• Put & Call Options and Master Put & Call Options
• Contracts where part of the purchase price is funded by an array of vendor finance arrangements.
• Commercial leases that include Retail Shop leases

Commercial leases (for landlords and tenants) including Retail Shop leases

We have the knowledge and experience in leasing transaction requirements hence we will help you in case you are the landlord, tenant, or assignee as well as on your commercial, industrial, and retail properties.

RESIDENTIAL CONVEYANCING

Residential Conveyancing Expertise

We, at Aylward Game Solicitors,  will provide you with the necessary legal advice and services that relate to your residential conveyancing requirements including preparing contracts and contract special conditions.

This is because property conveyancing transactions generate complex rights and obligations that affect the parties involved and have adverse effects if they are not taken into serious consideration. Aylward Game Solicitors will help you in the protection of your rights and obligations.

Legal Experts in Brisbane Conveyancing

Founder Mark Game, Conveyancing expert in Brisbane, experienced in a wide range of conveyancing issues that include selling and buying of existing houses, residential units and townhouses. They also deal with new houses and the purchase of property within a self-managed superannuation fund.

 

They will advise you on the advantages of the self-managed superannuation fund and the penalties associated with non-compliance. They will also ensure that you undertake your transactions correctly so that you can enjoy the advantages of using the funds fully.

Finally, we at Aylward Game Solicitors are obliged to ensure your transactions are documented properly using the right documents before being stamped, and ensure that the ownership of properties is registered to the right entities.

SMSF PROPERTY

Buying Property within a Self Managed Superannuation Fund

There is a marked increase in the number of investment properties being purchased within a Self-Managed Superannuation Fund, and there can be many advantages to utilizing this structure.

However, the penalties for non-compliance with the Superannuation Industry Supervision Act can be very significant. It is vital to ensure that these transactions are undertaken correctly, otherwise, the tax advantages of using this structure may be lost.

Looking to Find A Conveyancer in Brisbane?

We have experience in all areas of Property-Law in Brisbane including Property Contract Termination to ensure that these transactions are properly documented, the right documents are properly stamped and the right entities are registered as owners of the property.

Contractual Arrangements

Dealing with contractual arrangements and agreements

Shareholders, partners, and co-operators may enter into a contract to agree on their needs or wishes before leaving or establishing the business law. They may arrange independent contractor arrangements, consultancy agreements, agreements with customers, service providers, and suppliers or employment contracts. Documenting what has been agreed between you and your business partners is very important to properly secure both of your rights and interests as well as prevent misunderstanding in the future.

Aylward Game Solicitors can provide straight-forward and practical assistance in arranging these basic contracts:

• Partnership agreement for individuals creating a partnership
• Shareholder agreement for a particular company
• Employment agreements between the employer and all salaried staff
• The standard form of Terms of Trade or Supply Agreement between the company and suppliers that provide services and products to them or their customers
• Special purpose contracts entered into by parties due to unusual circumstances.

Franchise Agreements

Aylward Game Solicitors can assist you to prepare a Franchise Agreement, acquire or set up a new or existing franchise business law and understand the consequence of a transaction you’ve just entered into, including:

• The effect of paying the upfront costs to the franchisor
• Ongoing cost and expenses of the franchise and the terms to increase or change them
• Restrictions of the business law operations
• Selling and assigning franchising rights
• Cost and liability of transferring a franchise
• Leasing business premises or getting a license to occupy the franchisor’s premises

Trusts & Corporate

In building and starting your business operation, the impeccable service of Aylward Game Solicitors can help you develop the best structure. They guide clients in carefully thinking and considering their individual circumstances and the means to be used in operating their business.

Article Source: COMMERCIAL & BUSINESS LAW

Early Superannuation Access – How To Exercise Your Rights

In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for certain groups of people and traders. Although the early access prescription appears easy to follow, there can be cases that fall on the eligibility borderline. The scales weigh more on the side of eligibility rather than the ineligibility side of early access for the applicant. The simple consequence of this misinterpretation could risk an eligible applicant becoming an ineligible one.

What did the Government say?

The Government would allow early access to the super funds by those affected by the COVID-19 crisis. Basically, an eligible super funds member can withdraw $10,000.00 this financial year which ends on 30 June 2020, and another $10,000.00 next financial year which starts as of 1 July 2020. This is tax-free the Government said. The measure is designed to address the existing hardship on the eligible individuals and traders to whom this new ruling would apply.

I am currently employed but my wife has been made redundant. Can we both
apply for early access to our super funds?

If you are still working and it is only your wife who has been made redundant after 1 January 2020, then your wife can only exercise her right of early access to her super funds. To become eligible, she needs to show that either:

(a) as an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or

(b) as a sole trader, her business has suffered a 20% or more reduction in her turnover.

I am unemployed but receive a job seeker payment. Can I still apply for early access to my super funds?

Yes, you can.

I receive a youth allowance for job seekers. I have not many funds left in my super. Can I still apply for early access, or do I need to have a minimum available in my super funds?

Yes, you can. So far the Government has not set a benchmark for the available funds in a super account. The Government has however defined the maximum that can be withdrawn from the super funds in this and next financial year.

I currently receive parenting and some other special payments from Centrelink, can I still apply for early access to my super funds?

Providing you meet the individual, or, the sole trader tests above, yes you can.

Having read your article here, I now know that I am eligible to have early access to my super funds, how do I do it?

Applications are to the ATO via the MyGov website. The process is pretty simple. The ATO will verify the applicant, assess the application, record the bank account details, and make a decision. The ATO will then direct the nominated fund to release the requested amount to the bank account specified by the member. It is essential to know is that the member does not need to contact his/her super funds at all in the process.

Just so I could educate myself, what is the total amount that this scheme will
allow to be accessed from the super funds, and how much more will be left in the super after?

According to the Government, it is estimated that around $27 billion funds might be taken out via early release, however, this is less than 1% of a circa $3trillion superannuation in the system owned by the Australian members.

By Abolfazl Moghadam

Article Source: Superannuation Early Access

https://aylwardgame.com.au/superannuation-early-access-how-to-exercise-your-rights/

No Further Stay Waiver Request Is This For Me?

Does your visa have a “No Further Stay” condition attached to it, and if so, what does it actually mean? Below we attempt to clarify this and how it is dealt with:

No further stay

There are many temporary visa holders in Australia who have got their visa conditioned as “no further stay.” The conditions include 8503, 8534, and 8535. This means unless there are specific

circumstances such as protection visa consideration, the holder upon expiry of his/her visa must leave Australia and will not able to apply for another visa.

My visa is attached with 8503 conditions, how can I avoid leaving Australia?

You can request the Department of Home Affairs to waive the condition attached to your visa but it must fall under either of the following categories;

(a) If you are unable to leave Australia due to medical reason;

(b) If there is a natural disaster in your home country;

(c) If there is a death or serious illness within your close family;

(d) There is a war or civil unrest in your home country; and

(e) The school in which you have registered cannot provide the course that you were approved for.

You cannot request the waiver simply because of the occurrence of a marriage or de facto relationship with an Australian citizen or permanent resident. Additionally, you cannot request the waiver simply because of pregnancy, unless your doctor advised you not to travel.

What happens when the condition of my visa is waived?

If and when, a “no further stay” condition of your visa is waived, you may apply for another visa without having to leave Australia. You need to be mindful, however, that there is no guarantee that

another visa is granted to you as it depends on the type of visa you apply for, and you must meet the requirements of that visa.

How long does it take to process my waiver request and how do I lodge my application?

You need to be mindful that the waiver is not automatic and it all depends if you have provided all the required documents. Under normal circumstances, it takes around 28 days to receive an outcome on your waiver request. However, a delay may be experienced if your provided information is deemed incomplete. As far as the form, you need to complete the Form 1447 ‘No Further Stay’ waiver request and provide a certified copy of the bio page of your passport and all documentary evidence in support of your waiver request. The information then should be emailed to NoFurtherStayWaiverRequest@homeaffairs.gov.au

Read More: Immigration Law

What if I request for a waiver of the “No Further Stay” condition after my visa is expired?

If you stay in Australia after your visa expires, you have breached condition 8531 which states: “You must leave before visa expiry.” This means even if your No Further Stay condition is waived and you are granted another visa, your sponsor will be penalized and any security bond lodged in support of that visitor visa or professional development visa application might also be forfeited.

 

What if my request for a waiver of the “No Further Stay” condition is refused? Can I appeal the decision?

No. The Department of Home Affair’s decision in respect to your waiver request is final and the decision cannot be reviewed by the Administrative Appeals Tribunal or by another Department. The
Minister also does not have any power to intervene.

Can you assist me to lodge my waiver request application from A-Z?

Yes, we can. It always pays to seek qualified immigration advice to ensure your application and documents are in order. In addition, you need to be mindful that you want to get your application
right first. We are happy to assist you.

By Abolfazl Moghadam

Article Source: 8503 No Further Stay

Brisbane Town Agent Services |Brisbane Lawyer

TOWN AGENT SERVICES

Aylward Game Solicitors is a Leading Town Agent Service Law Firm in Brisbane.

If you need a prompt, professional, reasonably priced Town Agent Service in Brisbane, then Aylward Game Solicitors are your total solution.

“Aylward Game Solicitors’ single-line commitment is to provide high-quality practical legal advice across a broad-spectrum of legal disciplines.” – Mark Game, Founder

Aylward Game Solicitors are a law firm based in the Brisbane CBD providing professional services not only to current clients but throughout the legal community at large.

We provide these services to firms and individuals located in a variety of locations such as Mackay, Rockhampton, Gold Coast and Sydney.

These services vary from basic attendance at settlement or filing court documents to complex matters in the courts like going to Trial.

For those more complex matters, our Brisbane Town Agency team is only a phone call away on 1800 217 217.

In addition, our Partner Ian Field is one of the most well-respected Accredited Specialist Family Lawyers in Brisbane.

LEGAL PROCESS FEES

Brisbane Town Agent Services Law Process and other fees.

TOWN AGENT SERVICES	FEES
Attending conveyancing settlements (single settlement attendance)	$165.00 incl. GST
Requesting Title searches or images e.g. Plans & Dealings	$22.00 incl. GST (plus individual search costs)
Requesting property searches (2 or more property searches/conveyancing package)	$66.00 incl. GST (plus individual search costs)
Filing court documents (Federal Court, Federal Circuit Court, Family Court,  Magistrates Court, Supreme and District Court)	$165.00 incl. GST (plus relevant filing fees if applicable)
Lodging documents for registration in the Brisbane Titles Office	$165.00 incl. GST (plus relevant registration fees if applicable)
Delivery or collections of documents (starting from $82.50)	Starting From $82.50 inc. GST
Solicitor Court Appearances in All Brisbane State and Federal Courts (excludes legally aided criminal matters)	$ QUOTE – Please contact us for a quote
Registration of Transfer documents	$165 inc GST (plus registration fee)
Online lodgment of Stamping documents	$165 in GST (plus stamp duty fee)
Service of court documents	$82.50 including gst up to 2 locations within the Brisbane CBD area

We provide class-leading Town Agent Services to individuals and other law firms requiring assistance.

INDEPENDENT CHILDREN’S LAWYERS

Independent Children’s Lawyers and Town Agent Service in Brisbane

Mr. Ian Field of the Independent Children’s Lawyer Panel and is available as an agent in the Federal Circuit Court and the Family Court in Brisbane.

As per Legal Aid Queensland grant of aid.

Please contact our team on 1800 217 217 for further information about our town agent service or to make a booking for us to attend to any of the above matters on your behalf.

If you require a more specialised town agent service which is not listed above, we invite you to contact us to see how we can tailor our service to you.

Article Source: Town Agent Services

Legal Options for Jointly Owned Property

When purchasing property jointly with another person or entity it is important to consider how the ownership of the property will be held. Multiple parties involved in the purchase of a property can be listed as joint tenants or tenants in common.
 

Joint tenants all have an equal interest in the property with no party having a specific share. The advantage of joint tenants is simplicity. Where one party dies, the whole of the land automatically passes into the ownership of the surviving joint tenant. The surviving tenant does not need probate of a Will to transfer the title. However, there are also potential disadvantages of being a joint tenant. The surviving party may lose an income tax advantage when obtaining the deceased party’s share of the property which they may have been entitled to previously. Additionally, the deceased party has no control over what the surviving party does with the property and is unable to pass on any of their property rights. A property owned as joint tenants does not form part of an estate and is not dealt with by a Will.

Alternatively, parties may own property as tenants in common in equal or unequal shares, depending on the contributions of the respective parties towards the purchase of the property. The main advantage of being tenants in common is that in the event of death a party can pass on their property rights pursuant to their will with respect to the share they hold. Another advantage is co-owners can take out separate loans to cover individual parts of the property, rather than a single mortgage which a co-owner may become solely responsible for if a party dies.

Where parties make unequal contributions to the property as tenants in common, it is a frequent request that a co-ownership agreement be prepared and executed to determine the dealing of the property in the event it is sold, particularly where there is a relationship breakdown. This agreement will not be binding or enforceable in the absence of a Financial Agreement complying with the Family Law Act 1975 (Cth). It is merely an indication of the intent of the parties and the Family Court retains jurisdiction in how the property will be divided if the property is owned by a married or defacto couple.

Generally, it is common for married or de facto couples to own property as joint tenants. A joint tenancy can be easily converted into a tenancy in common if the parties agree to amend their interests for ownership in the property. In cases where there are children from previous relationships, owning property as tenants in common may be more suitable. This is because children may benefit from the property as part of the deceased’s estate.

Announced BCIPA Reforms

The Queensland Government has recently announced reforms to the Building and Construction Industry Payments Act (2004) (‘BICPA’) following a review in 2012. The amendments will come into effect later this year with legislation still being finalised. The announced reforms include:

·         The Queensland Building and Construction Commission will appoint adjudicators to particular cases instead of claimants nominating adjudicators.

·         The time for serving a payment claim will reduce from 12 to six months after the construction work was carried out or the goods and services supplied, unless there is provision in the contract lengthening this time.

·         The time to serve a claim will vary depending on the value of the claim. For claims greater than $750,000 the respondent will have:

o   15 business days (increased from 10) to provide a payment schedule or 30 business days if the claim was served more than 91 days after the reference date of the contract.

o   15 business days to provide an adjudication response which the adjudicator can increase by a further 15 days.

·         For claims under $750,000 the respondent has:

o   10 business days to provide a payment schedule  (increased from 5)

o   10 business days to provide an adjudication response

·         In their adjudication response, respondents will be able to include all relevant reasons for withholding payment and claimants will have a right to reply.

The Queensland government has proposed that contracts entered into before September 1^st 2014 will remain unaffected by the changes, while contracts entered into post September 1^st will be subject to the reforms. 

Due to the changes in time frames and implications for contracts, industry participants will need to consider what changes should be made to their contracts in conjunction with legal advice.

The reforms remain the subject of parliamentary debate with a possibility of further changes.

Instalment Contracts - Applying for the First Home Owner Grant

 

At Aylward Game Solicitors we offer experienced advice and tailored document preparation in relation to Instalment Contracts and various types of Option Agreements.

Unlike standard REIQ contracts for the sale of residential houses, units or land where settlement generally occurs within a short period of time and occupation is taken on completion of the contract, Instalment Contracts generally run for an extended period of time and occupation is taken at the start of the contract with an agreed amount of instalments made to the owner over the life of the contract to pay the balance of the purchase price.

Once an Instalment Contract has been signed and been in existence for approximately one year, many sellers and buyers start to ask the common question:  Can I receive the First Home Owner Grant (“FHOG”) yet and how do I apply for it?

There is no standard answer to this question as the time when a buyer can apply for and receive the FHOG varies and is different with each Instalment Contract. The public OSR ruling for claiming the FHOG under Instalment Contracts sets out the requirements which a buyer must meet in order to be eligible to apply for (and subsequently receive) the grant prior to completion of the contract. An extract we have taken from that OSR ruling sets out the following:-

“  a.    The contract has been in existence for at least one year.

b.    The purchaser is not in default under the contract so that the vendor has no right to cancel the contract.

c.    The purchaser has occupied the home as their principal place of residence under the contract.

d.    The purchaser has paid to the vendor an amount of not less than the amount of the grant or an amount which is equal to at least 10% of the purchase price, whichever is the greater. In calculating the amount paid to the vendor, any of the following can be taken into account:

                       i.       any deposit paid by the purchaser to the vendor

                      ii.       any interest paid by the purchaser to the vendor

                     iii.       any other amounts which have been paid and deducted from the balance of the purchase price”.

Furthermore, the public OSR ruling sets out that a grant paid prior to completion of an Instalment Contract will be paid subject to certain conditions being met.  An extract of those conditions of payment are as follows:-

“  a.    The contract will be completed and will not be cancelled or terminated.

b.      Following payment of the grant, the purchaser will meet the residence conditions:

                       i.       For contracts entered into before 1 January 2004, the residence condition is that the purchaser will remain in possession of the home as their principal place of residence and will continue in possession following completion of the contract.⁷

                      ii.       For contracts entered into on or after 1 January 2004, the residence conditions are that the purchaser will remain in possession of the home as their principal place of residence and will continue in possession following completion of the contract for a continuous period of at least 6 months.⁸

c.      Within 14 days of non-compliance with conditions (a) or (b), the purchaser will notify the Commissioner of non-compliance and will repay the grant”.

Once a buyer has satisfied all requirements set by the Commissioner they will either apply for the FHOG themselves or have their solicitor assist in the application, then once successful in receiving the grant funds it will be paid to the relevant party/s in accordance with the terms of their respective Instalment Contract.

There are many factors and conditions which apply to claiming the FHOG under an Instalment Contract, and we advise not all of those conditions are covered in this Article. Determining an individual’s eligibility to receive the FHOG requires a full review and assessment of each individual contract document together with assessment of the supporting evidence (as applicable) and ultimately the Commissioner will make a final assessment as to whether or not an application is approved. Full details of OSR’s public ruling can be found on the Office of State Revenue website (for convenience we include the following direct link):

http://www.osr.qld.gov.au/legislation-rulings/public-rulings/fhog/fhoga019-1.shtml

If you wish to discuss or require assistance in applying for a First Home Owners Grant, then please contact our conveyancing manager Libby Dessaix or our Solicitor Mark Game on (07) 3236 0001.

This information contained in this article is correct as at publication date 13 March 2014. The information is a guide only and is not to be taken as legal advice and at all times we recommend you seek independent legal advice regarding your own individual circumstances from your legal representative.