As with many developments in the different ways to approach the resolution of family lawmatters, a new approach to managing post-separation parenting arrangements is emerging from North America. Collaborative law practice emerged in the United States, and now nesting, sometimes also called bird nesting, is a new approach that seems to be taking off in the USA.
Nesting Arrangements
We have discussed this sort of arrangement with clients in the past, and we have once seen it tried, but regrettably, it broke down. Frequently after parents separate, it is the children who switch homes between the parents, with varying degrees of frequency. This means it is the children who are subject to the demands of frequent packing up and moving house in order to spend time with each of their parents. We have in the past reflected that it must feel a little unfair to the children to be subject to this arrangement, which can be very disruptive.
The idea behind nesting turns this on its head, and the children stay in one house and the parents are the ones who move in and out. This seems to place the best interests of the children at the top of the list of priorities, which is in line with the Family Law Act in Australia.
Such an arrangement would not suit everyone, but in America, it seems that some separated parents have been able to make it work. The experience in the USA seems to suggest that there needs to be a high degree of trust and co-operation between the parents, there need to be stable finances – there would need to be at least 2 houses, ideally 3, and there needs to be rock-solid respect for boundaries.
Ex-partners will need to be able to inhabit the same living space – albeit at different times – and will need some private and untouchable space within the shared residence. The experience in the USA has shown that one particular pressure point that needs to be avoided if the arrangement is to work out in the long term is for both parents to avoid “dropping by” when it’s not their time to be living with the children.
At Aylward Game Solicitors we have a wide experience in advising in family law situations where a separation has occurred. Our experience can assist in considering a wide range of solutions, please give us a call today if you are contemplating or dealing with a divorce or separation and you need some practical andsympathetic advice on 1800 217 217.
In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for a certain group 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:
As an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or
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 the 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 My Gov 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 $3 trillion superannuation in the system owned by the Australian members.
On 29 January 2020, the Queensland Government made an order pursuant to section 319 of the Public Health Act 2005 (“Act”) declaring a public health emergency in relation to coronavirus disease (COVID-19). The public emergency area specified in the order is for all of Queensland and its duration has been extended by regulation to 19 May 2020 and may be further extended. But is it lawful?
Following the making of the order, various directions have been made under section 362B of Act to give efficacy to it including directions in relation to home confinement, movement and gathering. The current direction in relation to social distancing is the Home Confinement, Movement and Gathering Direction (“Social Distancing Direction”) given by the Chief Health Officer for Queensland on 2 April 2020. The Social Distancing Direction replaces the following earlier directions:
Home Confinement Direction is given on 29 March 2020;
Mass Gatherings Direction (No 2) given on 21 March 2020;
Restrictions in Private Residences Direction is given on 27 March 2020.
While we are thankful to the police for keeping us safe, this article aims to clarify a few grey areas in the Social Distancing Direction and the police’s enforcement of it.
What does home confinement mean?
A person, who resides in Queensland must not leave their principal place of residence except for, and only to the extent reasonably necessary for the following permitted purposes:
To obtain food or other essential goods or services;
To obtain medical treatment or other health care services;
To engage in physical exercise;
To perform work or volunteering, or carry out or conduct an essential business, activity or undertaking, and the work, business activity or undertaking to be performed is of a nature that cannot reasonably be performed from the person’s principal place of residence;
To visit another person’s residence provided that person (who is an owner, resident, tenant, occupier, temporary occupier or person in control of the residence) only allows up to two visitors who are not ordinarily members of the person’s household;
Education and early childhood workers travelling to and from their home centre over the term 1 break;
To visit a terminally ill relative or to attend a funeral or wedding, subject to any applicable restrictions under other relevant Public Health Directions;
To provide assistance, care or support to an immediate family member;
To attend any court or tribunal of Australia or to comply with or give effect to orders of the court or tribunal of Australia;
To attend a childcare facility, school, university, or other educational institution, to the extent care or instruction cannot reasonably be obtained in the person’s principal place of residence;
To assist with or participate in an investigation or other action by a law enforcement authority, whether voluntarily or not;
For children under 18 years who do not live in the same household as their biological parents or siblings or one of their parents or siblings, continuing existing arrangements for access to, and contact between, parents and children and siblings, but not allowing access or contact with vulnerable groups or persons;
Avoiding injury or illness or to escape the risk of harm; and
To comply with or give effect to the exercise of a power or function of a government agency or entity under the law.
What is an example of a vulnerable group or person?
A person over 70 years or a person with a medical condition that makes them vulnerable to COVID-19.
What is an example of escaping a risk of harm?
Escaping a risk of harm related to domestic and family violence.
What are the limits to outdoor gatherings?
A person who leaves their principal place of residence for permitted purposes discussed above may be accompanied by members of their household or, alternatively, by no more than one person who is not a member of their household.
That said, if a person requires physical assistance to leave their principal place of residence or if it is necessary for the safety of the person or the public, and there is no other reasonable way for the permitted purposes discussed above to be achieved, a person may be accompanied by more than one person who is not a member of their household and who is a carer or support worker for that person.
What is the limit to receiving visitors at a residence?
A person who is an owner, resident, tenant, occupier or temporary occupier or person in control of a residence may allow up to two (2) visitors who are not ordinarily members of the person’s household.
What is an example of visitors?
Family members and close friends.
What are the exceptions to receiving visitors at a residence?
Workers or volunteers entering a place of residence, or, people who enter a residence to assist a person with a disability if it is necessary for more than two (2) people to attend the residence to provide services to the person with a disability to meet their support needs. In addition, a residential aged care facility, corrective services facility or detention centre are excluded from the receiving visitor’s limitation.
Are there any other exceptions to the Social Distancing Direction?
Yes, the Queensland Chief Health Officer may grant an exemption to part or all of the Social Distancing Direction on compassionate grounds or for other exceptional circumstances.
What is social distancing?
Remaining at least 1.5 metres away from another person, regular washing of hands and avoiding handshaking, kissing or hugging.
What is a household?
Persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences.
What is the principal place of residence?
For persons:
Who permanently resides in Queensland, the residence where the person ordinarily resides; and
Who temporarily resides in Queensland, the residence where the person ordinarily resides when the person is present in Queensland.
What is gathering?
A gathering of more than two (2) persons in a single undivided outdoor or indoor space at the same time.
What is not a gathering?
A Gathering:
At an airport that is necessary for the normal business of the airport;
For the purposes related to public transportation;
At a medical facility;
For the purposes of emergency services;
At a prison;
At a court or tribunal;
At a workplace;
At Parliament;
At a food market;
At a school;
At a hotel that is necessary for the normal operation of accommodation services;
At a wedding or funeral permitted under the Non-essential business activity and undertaking Closure Direction (No. 4), or its successor, or another Public Health Direction;
At an indoor or outdoor place where persons may be present for the purposes of transiting through the place.
What is an outdoor space?
A space that is not an indoor space.
What if I receive an incorrect infringement notice?
There has not been a lockdown similar to what Queensland is experiencing at the moment. Likewise, there can be some confusion as to what may, or may not, constitute an infringement of the social Distancing Direction. Take an example of a family living in an apartment block with not much space to move around and no proximate outdoor either. If they decide they would need to get some fresh air and possibly have some change in the environment for the purposes related to their health and exercises, how far can they really travel from their principal place of residence is a question that depends on the individual circumstances. If you feel that you have incorrectly or unreasonably been given an infringement notice and cited for not following the Social Distancing Direction, we encourage you to discuss your case with us to see if you have an arguable case to appeal the decision.
What penalties can be imposed for failing to follow, or ignoring the Social Distancing Direction?
A person to whom the Social Distancing Direction applies commits an offence if the person fails, without reasonable excuse, to comply with it. Section 362D of the Act provides as follows:
Failure to comply with public health directions
A person to whom a public health direction applies must comply with the directions unless the person has a reasonable excuse. Maximum penalty—100 penalty units.
How much is the value of one (1) penalty unit in Queensland?
The penalty unit value in Queensland is $133.45 (current from 1 July 2019). Therefore the maximum penalty available is $13,345.00
How to dispute a social distancing infringement notice?
If you disagree with an infringement notice by police, you are encouraged at first instance, to resolve the situation with the agency which issued the original infringement before the due date recorded on the infringement notice. You must dispute a fine within 28 days of the date of the infringement notice or you will face penalties for an overdue fine. Unpaid infringement notices will be sent to the State Penalties Enforcement Registry who may take enforcement action to recover the amount of the fine from you, including additional fees incurred in the course of that enforcement.
This is legal terminology that often strikes the very core of our business world. Demand letters relating to the alleged infringement of intellectual property rights are often referred to as “cease and desist letters”. Be that as it may, let it be clear that the term wrestles with some other non-business matters as well. For the purposes of our discussion, the meaning and the implication of the term is simplified as follows:
Cease and Desist letter made it easy to understand
Our daily lives among many other things are affected by the conduct we are experiencing and the interactions we have with people. We regulate and accept conducts that are aligned with our interests. So, when we see conduct that is unacceptable to our principles/rights, our natural tendency is to see that unacceptable conduct to stopIMMEDIATELY.
This is where the cease and desist letter becomes both meaningful and mechanical. You are basically putting the other party on notice that the type of conduct you are seeing in them ought to be stopped and you really mean it!
Why Cease and Desist letter is my first step?
The law of good faith requires the members of society to exhaust all measures they can to avoid a court battle. The cease and desist letter may be your first step and the cheapest one that you could do through your lawyer when you desire to see unacceptable conduct stop. No matter how much you feel justified, and how absolute you see the other party at fault, you need to do this before even thinking to pick up a fight with someone to safeguard your rights.
What are the areas covered by the Cease and Desist letter?
In general, the scope is pretty wide. It can be used to stop someone from defaming you or someone who you deem breaks the law to the disinterest of your business, or someone who breaches the rules of commerce. So yes, it covers both your personal and business life.
How effective is a cease and desist letter?
It all depends on the circumstances and there are many variables involved that can make a cease and desist letter effective or non-effective at all. But, the good news is that it works in most circumstances, and here is the prime reason; When you demand your rights, you are demanding this with reason and essentially you are telling the other party that stopping the non-acceptable conduct right now is not only for your own good but also for the other party to avoid unnecessary hassles and litigation costs. In other words, you are telling them quite nicely that if they stop now, you may not seek any penalty, but if they don’t, you will do so at their peril.
How could I opt to have this letter issued?
No matter how frustrated and upset you may be, my recommendation is not to panic and stay cool. Anger defeats any rational decision-making process. Take the letter or proof of what you consider an infringement of your rights to your lawyer and let him/her advise you as to how to construct a good cease and desist letter and always stay positive and energized.
Disclaimer (irritating yet important!): The information on this page is general information only and must not be relied on as legal advice.
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
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.
Buying and selling of a residential or an investment property is a great financial transaction that needs to be taken seriously.
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 utilising 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.
To discuss your matter, please contact us at your earliest convenience for a Free Case Review.
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 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.
To ensure you got all your rights and interest covered, they liaise with your accountant and financial advisor during the consideration process.
At Aylward Game Solicitors we are able to assist you to protect and/or defend your legal rights and entitlements in all Queensland Courts (including any tribunals where parties are able or have been granted leave, to be legally represented) and all Federal and Circuit Courts (including the High Court of Australia). We have strong ties with similar firms in Sydney and many parts of Australia.
Our focus at Aylward Game Solicitors is always to take a practical approach to dispute resolution and wherever possible we will endeavor to obtain resolution for you by negotiation or mediation before commencing or pursuing formal legal proceedings or commercial litigation. Litigation, like surgery, is a last resort. It’s a bloodsport, one party wins and the other loses.
What is Commercial Litigation?
There are three tiers of commercial litigation: Top-tier, Mid-tier, and Entry-tier.
Top-tier
On the top tier are the big banks and the top 100 ASX companies paying the mega law firms thousands of dollars per hour to engage in a veritable boxing match. It is highly important litigation as it often ends up before Courts of Appeal, if not the High Court of Australia. The decisions of these Superior Courts form the very heart of Australia’s doctrine of precedent, ‘judge-made’ law.
Mid-tier
On the next tier are the David and Goliath struggles. Again, the protagonists are often big banks and the top 100 ASX companies. The dramatis personae could also include the Australian Tax Office (ATO) or the Australian Competition & Consumer Commission (ACCC)). Poor old Mr. Widget or Widget Pty Ltd really face the prospect of going to the wall. The mega law firms, for client Goliath, are ranged against much smaller firms, for the smaller client.
Surely the Goliath’s will do a cost/benefit analysis of funding each step of the litigation? Wrong. Disabuse yourself of this notion immediately. The Goliath’s have very deep pockets and implicitly understand that the contrary applies to Mr. Widget or Widget Pty Ltd. Put simply, it is a war of financial attrition. They go for broke – literally. To use a sporting analogy: who would you back in a Rugby international between the Springboks and Japan? (Well there was that 2015 Rugby World Cup upset).
You will lose unless your lawyer can skillfully extricate you through alternative dispute resolution.
Entry-tier
This is Mr. Widget or Widget Pty Ltd verse Mr. Gadget or Gadget Pty Ltd in all levels of Courts but particularly inferior Courts of record such as Magistrates Courts, the District Court and tribunal such as QCAT.
Can Aylward Game Help?
Top-tier? No;
Mid-tier? Yes.
In recent times Aylward Game has been on the record in litigation in Superior Courts in matters as diverse as:
Assignment of proprietary interests in commercial litigation;
Contentious discovery and disclosure issues in fiduciary relationships;
Unfair preferential dividends in corporate insolvencies;
Unconscionable conduct in trade or commerce;
Entry-tier and mid-tier is no problem.
COMMERCIAL LITIGATION SERVICES
Debt collections, Corporate and Personal Insolvencies are our bread & butter.
We can assist you with breaking leases, body corporate disputes, breach of trust disputes and estate litigation.
Engage in Alternative Dispute Resolution (ADR) – Do not hide from your creditors: talk with them.
A vital part of commercial litigation is the negotiation /mediation /Alternative Dispute Resolution mosaic.
At the end of the day most litigation boils down to cold hard cash (or lack thereof).
Many a creditors petition for bankruptcy has been withdrawn on the basis of successful negotiations to pay a lesser (but still fair) sum in dispute. For example, many creditors would prefer to accept 50% of debt than proceed to bankruptcy.
On a more formalized level a bankruptcy may be avoided by what is known as a Part 9 or Part 10 agreement. (Similar agreements apply in corporate insolvencies). Be forewarned – litigation like surgery is a last resort!!
Franchise Agreements
There are not enough entrepreneurs in Australia. Get out and have a go.Allied commercial /business law issues
Also, attendant to having your own business is diverse issues (and for each of these issues are legal issues that fit like a hand into a glove) for instance:
Franchising / Licence agreements;
Premises: negotiating a lease;
Insurance;
Cash flow, Rent, wages and utilities go out each and every week. Do funds come in at the same frequency;
Do you sell your invoices to factoring agents?
Contractual relationships with suppliers and customers;
Intellectual property: do you or your staff on this?
Hiring / Firing staff;
Staff embezzlement investigations;
Taxation;
Protecting your personal assets if your business fails. Would you be better off being a sole trader, such as Mr. Widget, or a company Widget Pty Ltd;
If your business fails, how do you extricate yourself from the fallout;
Succession plans for your business. What happens if you become seriously ill or worse? Do you entrust your business to your buffoon son, or a trusted business adviser?
BUSINESS MEDIATION
Because of the impact of business disputes, they can be time sensitive. This makes it crucial to receive precise and immediate advice on all issues in relation to the legal dispute, including possible outcomes. Disputes are a part of business, and having a lawyer to call when these disputes happen is important to the survival and prosperity of your business. At Aylward Game we regularly deal with these issues on both a Transactional Basis and/or Litigation basis.
Aylward Game Solicitors, keeping you ahead of the game.
What did the Government say?
