If you are a tenant and live in a unit affected by water ingress from a neighbour’s unit, you may be entitled to compensation from the lessor or the person/entity who leased you the property (eg. property manager).
What can be affected?
When there is a flood of water from the above or adjacent unit into your unit, it can cause damage to your possessions and the situation can adversely affect your occupation of the unit. In a hypothetical scenario, the ingress can affect the following. (Note that the list is not exhaustive)
Your electricity, cooling appliances such as ceiling fan, furniture items such as lounge, and carpeting materials.
What can be compensated for?
Disruption to your ordinary daily life
Loss of full use of kitchen, bedroom, bathroom, and toilet
Inconvenience and distress suffered by a tenant
How do I notify the lessor or property manager about my issue?
Once the above issue arises, you as the tenant are required to issue a notice to remedy the breach and send this to your lessor (if the unit is directly managed by the lessor) or to your property manager as soon as possible.
Is notice to the lessor or property manager necessary?
The short answer is yes, but it also depends. For instance, in Rental Express Pty Ltd v Finch & Sweeney [2015] QCATA 149, it was said a notice to remedy breach was relevant because the tenant who wished to terminate the tenancy was required to issue a notice to remedy the breach. But, in some compensatory claims such as the above, it cannot be said that a claim against a lessor or property manager cannot be brought if a notice to remedy breach has not been issued.
What else do I need to do in case of water ingress to my unit?
Obtain legal advice if you are able to. Making sure that you take photos of all damaged and affected areas including any household item such as a mattress. Also, ensure that before disposing of any damaged item, you document and keep evidence of why and how they were disposed of (eg. If keeping the damaged mattress affected by the ingress of water in the unit will be a health issue for tenants). It is best that you seek legal advice as to whether you are able to dispose of any damaged item, and if so, how to document it.
For advice or assistance with all residential and commercial property matters contact the Property Law Team at Aylward Game Solicitors today at 1800 217 217
By law, there are some defined duties, powers, authority, and responsibilities of parents for their children. These are known as parental responsibility. The responsibilities include the child’s growth, education, and religion. Give them a proper environment and teach them discipline. You will have to take legal proceedings on your child’s behalf. The key responses in regards to the changing nature of parental responsibility initiated by the legal system are the Family Law (Shared Parental Responsibility Australia) Act 2006 (Cth)
You will find different duties of parents in various statutes. For instance, according to 285, 286 Criminal Code Act 1899, the parents must provide the child with all the necessities including medical treatment, lodging, clothing, food, and care. Also, it is stated in 176 Education General Provisions Act 2006 QLD, that it is the duty of parents to enroll the child in a school and ensure attendance. The concept of the changing nature of parental responsibility has seen immense change in responding to recognizing the responsibilities parents possess in regard to aligning decisions with the child’s best interest, as particularly stated in Article 3 of Croc.
Who has parental responsibility?
According to the parental responsibility family law act, original parents or artificial surrogacy parents are authorized for parental responsibility. They do not need a court order for that. The grandparents or the step-parents can get involved in the care of the child. They have the authority to make decisions for the child.
It continues till the child is 18 or the marriage ends. The court wants the parents to share their responsibilities even after divorce. So, the child can have love from both parents. Parental responsibility applies whether the parents were married, or were in a relationship.
Equal shared parental responsibility:
If the child is under 18 and the parents are no longer together, then they can share the responsibilities of the child. It is called equal shared responsibility. None of them can decide the long-term issues of the child. For instance, a child’s school, medical treatments, and religion.
It is applicable until the court gives an order in the best interest of the child. It can remove parental responsibility from one or both parents.
When parents are not together:
When the parents are no longer together, there is a need to make arrangements for the care of the children. The adults and parents can make their own decision. This decision is acceptable until it is in the favour of the safety of the child, or else get help from the court.
If the parents are unable to communicate effectively they can request the court to give a parenting order.
The court will decide that:
With whom the child will live.
How much time can the child spend with each person?
Responsibility of each parent.
If a child under age 18 leaves home, the parents or the state can force him to come back. In the case of a child with an age of more than 18, you cannot force them.
Rights of parents:
The parents also have rights. Parents can raise their children according to their wishes. They can transfer their beliefs and religion to their children. They can also make decisions for their education and medical treatment. You have all those rights unless the child’s life is at risk.
Working parents have the right to access the information of child-care services on payments.
The rights of parents do not include the custody of the child. For instance, after separation, the court makes a decision in the favor of the child’s best interest.
Changing the nature of parental responsibility in Australia:
The time is not always the same. A happy marriage can turn into separation and then may lead to divorce. So, in this case, parental responsibility can change. It is good if both parents share the responsibilities even after this situation. But, if the parents are unable to make a decision they will need help from the court. The court tries to make a decision to give the child a good life. In this scenario, the court can take or give more rights and responsibilities to each parent. If a parent is earning more he or she will have to donate more in the life of the child.
But the parents should remember that their decision must not affect the life of the child. They have to try and give equal love to their children. This love will not just make them happy but also they’ll have confidence in them. So, don’t fight in front of your children.
Frequently asked questions:
Let’s discuss some of the most commonly asked questions about parental responsibility.
What is the sole parental responsibility in Australia?
Insole parental responsibility in Australia only one parent has complete rights to make major decisions for the child. It is just the opposite of parental responsibility, where both parents have equal rights in making crucial decisions.
How to get sole custody of a child in Australia?
If you want sole custody then you will have to apply to court. Also, you will have to provide a full report which explains all the matters against the other parent. If you can prove to the court that the other parent is not eligible for parenting responsibility then you will get sole custody.
When can a child make decisions?
By law, a child cannot make a decision until he or she turns 18 years.
When a parent is unfit in the eyes of the child?
There are certain conditions when a parent is unfit in the eyes of the court. For instance, abusing, or failing to provide the child with necessities. In these situations, the court can reconsider its order.
Is it legal for my husband to take my child away from me?
Sometimes it is illegal to take the child away from the parent. But if you are married and you don’t have a court order then it is legal for the other parent to take the child away. Also, if your partner has sole custody it is legal for him or her to take the child.
For more information on your specific matter, please contact one of our experienced Brisbane lawyers at Aylward Game Solicitors.
We regularly get asked by clients when their child can decide where they will live and who they will live with. There is no set age at which the Court will allow children to make this decision.
The Court’s paramount consideration when deciding where a child should live is based on the child’s best interests. There are many factors that the Court needs to consider to determine what the best interests of the child are. The Court’s primary considerations are that the child have the benefit of a meaningful relationship with both of the child’s parents and the need to protection the child from physical or psychological harm.
The Court also has additional considerations when determining what is in the best interest of the child. Some examples include: each parent’s ability to look after the child’s needs, the attitude of each parent, the effect of any change in circumstances may have on the child, the relationship the child has with each parent, and so on. These considerations will be weighed together with the views of where the child wishes to live.
When deciding how much weight to give a child’s view of where he/she wants to live, the Court will consider factors such as:
a) The age of the child – generally the older the child gets the more weight their views will have (e.g the views of a child who is 15 have more weight than a 5-year-old child);
b) The child’s maturity and understanding – maturity levels can vary significantly for children of the same age (e.g you can have two children the same age and have one very mature child who understands the impacts of their view and another child who lacks the insight)
c) Whether the child has been influenced by another parent; and
d) The views of other siblings.
There can also be instances where the Court however considers the child’s views and the other considerations and will still Order that an older and more mature child should spend time with a parent with who they have said they do not want to spend time with. Unfortunately, it is in not a simple answer.
Children are not required to give evidence to the Court. The way the Court can understand the child’s views is through a Family Report being prepared. A Family Report is a report prepared by either a social worker or a psychologist who reviews the Court material and interviews the parents and the child/ren. In these interviews, the parents and children can express their views and the Family Report Writer will release a report that sets out the parents and child/ren’s views, an evaluation of the information provided by them, and how much weight should be placed on these views and they will make recommendations to assist the Court, for example: where the child/ren should live and how much time they spend with the other parent.
As you can see, there is no set age that a child can decide where they wish to live. Generally, the older and more mature they are, the more weight will be given to their views however it is important to remember that the Court’s primary consideration will be the benefit of the child having a meaningful relationship with each parent and the need to protect the child from harm.
At Aylward Game Solicitors we have experienced Solicitors who will be able to assist you in navigating these aspects of your Family Law Matter. If you wish to discuss your parenting arrangements, please contact our office on 1800 217 217
Grandparents have a great love for their grandchildren. They want to spend more time with them. But sometimes the parents don’t want their parents to see their children. It is not good for them. But this is an unusual situation but what happens if the parent’s divorce? In this scenario the laws are different, let’s learn a little about the grandparents rights in Australia.
Grandparent’s rights in Family law:
In Australia, the Family Law Act 1975 applies in cases of separation, division, property division, and custody of children. Grandparents have the right to apply in Family court and ask for the time to spend with their grandchildren. They can also ask for their custody in case of divorce or separation.
The Family Act Law clearly states that grandparents can apply to the court for the best interest of their grandchildren. But it does not give them an automatic right to have a relationship with the children.
Custody of children after custody of parents:
In most cases, parents can easily decide who will keep the children. Also, they don’t face any difficulty in making decisions for other aspects of their child’s life. They can put these decisions into a written agreement which is known as a parenting plan. Parents can make these arrangements more formal by writing consent orders and registering the document in the Family Court.
If you feel that your relationship with the children will not be the same after the separation of their parents, you can ask their parents to include you in the parenting plan or the consent orders. It is not wise to leave the child’s best interest while making such documents.
What are the child’s best interests?
When the parents are separating the court looks at:
Is the child comfortable around both parents?
Protection of the child.
The Court also considers:
How the child feels about his/her parents.
Relationship of the child with parents, grandparents, and other relations.
The willingness of each parent to support the relationship of the child with the other parent.
Effect of separation on the child.
The capacity of each parent to support the needs of the child.
The lifestyle and background of the child and parents.
Each parent’s love for the child and role in parenting.
Any violence in the family.
Any other point the Court thinks is relevant to the case.
Are you not allowed to see your Grandchildren?
Sometimes grandparents are not allowed to see their grandchildren. It happens due to the breakdown of relationships with your child. Also, if the parents are divorced then the other parent may stop you from seeing the child.
Unfortunately, the grandparents do not have the primary right to have custody of the child. But, any person who can show enough care and love for the child may apply to the court for parenting orders. If you have a parenting order then you can spend time with the child.
Parental rights vs Grandparents rights in Australia:
There is not a big difference between parents’ rights against grandparents rights in Australia. But they are not the official guardians of the child until they have a parenting order from the court. If the grandparents feel that their grandchildren are not getting proper parenting, they can apply to the court for custody of the child. If the parents make an agreement for the child after separation, the grandparents can ask the parents to add their rights also in the agreement. But still, if the court can order to stop grandparents from seeing the child according to the child’s best interest.
How to see Grandchild?
The grandparents have the right to see grandchildren in QLD and all around Australia. But if you are having problems with their parents you can follow the given procedure to see your child.
Get legal advice: Each situation is unique, so you should get legal advice.
Dispute resolution: Before going to court try to make an agreement with parents to save time and money.
Going to Court: If unfortunately, dispute resolution fails, you can contact the Court to get an order to spend time with your grandchild.
This is a simple and effective procedure. If you have any queries you can contact us to get legal advice.
Frequently asked questions:
If my daughter has named me as the guardian of her children will they live with me and not their father when she dies?
Even if you are named as the guardian of the child you don’t have the legal right to force the child to live with you. You can ask the court for custody of the child. If the other parent agrees that the children will live with you, you will still need Court orders. If you don’t have a court order you will have difficulty dealing with schools, doctors, or government departments.
Do grandparents get financial assistance?
If you are responsible for at least 35% care of your grandchild you may receive child support. The child support agency calculates care according to the number of nights that the child is expected to spend with you in a year that is 12 months.
Can I take custody of the child from my daughter?
Sometimes the child’s parents may not be the best of parents. They may have a mental illness or addiction which can affect the life of a child. If you find the child’s life at risk you should contact Child Safety Services. If you think that the child is safe with you you can ask the Court to take custody of the child.
This article aims to briefly discuss some of the points that a would-be building owner needs to consider prior to engaging a building contractor and signing a contract. The list is not meant to be exhaustive and the building owner is strongly recommended to seek legal advice.
Is My Building Contractor Licensed?
It is not unusual that a building owner may be given a few names, or introduced to a few contractors who are said to be builders with qualifications. There is nothing wrong to spend a little money or time to conduct your due diligence to confirm the veracity of the information you receive. This is not to suggest that the information provided is unhelpful or untrue. It simply pays to verify and ensure that any information you receive is current, valid, and qualified for the purpose it is sought. In Queensland, you are able to conduct a search through Queensland Building and Construction Commission or QBCC. The search section in their website called QBCC license search is to be used to search the builder and the company they may be associated with. This is to ensure that the builder you are about to engage is qualified and licensed by QBCC.
My building contractor is licensed, what is next?
Now that you have verified that the building contractor is licensed, the next thing to ensure is to learn what the company’s status is. This is to learn, among other things, when the company was established, who the current directors are, and whether any of the directors named in the company is or was insolvent or disqualified to hold the director position in the current or former company(s). You are able to do this search through the website of the Australian Securities & Investment Commission, commonly known as ASIC. A search of the company’s current extract will show who the current directors of that company are.
How Can I Ensure That The Builder Is Solvent?
You could only do so much at a time to find out if the builder is solvent when you are about to sign a contract with the builder or its company. Let’s call this stage one of the builder’s solvency fact-finding. The ASIC search referred to above will show if the company is officially insolvent (i.e. a liquidator or administrator is or has been appointed). As this only shows the official position, once a company has officially been declared insolvent, it does not give any information regarding potential insolvency. You should research the building company to see if there are any reports or indications that it might be in financial difficulties. However, you are strongly recommended to seek legal advice to find out how you may be able to reasonably protect your interest.
What To Do With A Dispute Over The Quality Of Builder’s Work?
There is something in common law called “duty of care”. In essence, the person who owes this duty to another, whether morally or legally, is obliged to ensure that he/she takes into account the well-being and interest of that other person to whom the duty is owed to. Likewise in this context, the builder owes a duty of care to a building owner or the person who contracted the builder to perform building works, to perform such works to the standard of a reasonably competent builder. What is reasonable is a question of fact and turns on its own merit. The duty raised here will be breached if the builder fails to ensure that the building or repair works carried out were not performed in a workmanlike and competent manner. The question that needs to be answered when the quality of works performed is in dispute is to identify first whether the defective work is structural or non-structural.
Any time limits to bring in structural or non-structural defect claims?
In Queensland, the QBCC provides that a structural claim must be made within 6 years and 6 months from the date (whichever is earlier) of paying the insurance premium on a property, entering into a contract, or work starting. Non-structural defects claim must be made when you become aware of the defect within 6 months after the day the work is completed in which case you need to lodge the claim within 7 months of the day the work is completed.
Can My Builder Vary The Contract That We Already Agreed?
This question is better answered if we consider whether the variations have been agreed between the builder and the building owner in writing and whether the variations to the contract complies with section 40 of Schedule 1B of the Queensland Building and Construction Commission Act (the Act). The gist of the section is that the building contractor must give the building owner a copy of the variation in writing before the first of the following happens; (a) 5 days elapse from the day the building contractor and the building owner agree to the variation; and (b) any domestic building work the subject of the variation starts. Section 40(5) of Schedule 1B to the Act also states that, the building contractor must not start to carry out any domestic building work the subject of the variation before the building owner agrees to the variation in writing.
For advice or assistance with all building contract disputes, contact the Litigation Law Team at Aylward Game Solicitors today on 1800 217 217
This article aims to briefly examine the cyberbullying issue in Australia and what can be done to minimize or eliminate its interference with the daily life. The recommendation(s) are not meant to be exhaustive, nor intended to be a substitute for any form of protection or safety. If you are subject to any form of cyberbullying, it is highly recommended to immediately seek professional help/advice as may be appropriate to your circumstances.
What is cyberbullying and how do I know if I am being bullied online?
Cyberbullying occurs when someone uses the internet to be mean, or hostile to a child, young person, or even adult person. The initial aim of the person who commits the cyberbullying is to hurt the person who is the subject of the bullying. Sometimes the bully uses the online platform to send and share with third parties hurtful or embarrassing photos or videos that is related to the person who is subject to the bullying. Other forms include using a fake account in the name of the person who is subject to the bullying and sending messages pretending to be from the person who suffers from the bullying act.
What in general does a cyberbully want to achieve?
The likely objective(s) of a person or persons who commits cyberbullying is to get your attention and lure you into engaging with them, however short, so they can either inflict harm upon the person’s interest, hurt him/her in some way, or deceive/defraud the person in order to illegally enrich themselves.
Who is most affected by cyberbullying in Australia?
Research conducted into the digital lives of Aussie teens has reported that as at 2021, 44% of Australian young people reported having a negative online experience in the 6 months to September 2020. The research was based on a survey of 627 teens aged 12 to 17 in September 2020.
How does cyberbullying impact some Aussie teens?
The above research further indicated that 30% of young persons were being contacted by someone they did not know, 20% received inappropriate or unwanted content and 16% were deliberately excluded from events or social groups.
What are some examples of cyberbullying?
Imagine you are online and someone either known or unknown to you, uses some sort of threat to harm you. This form of threat, sometimes not always, involves some sort of blackmailing. For instance, someone might threaten you that if you tell the truth about a common subject that you are both aware of, he/she, in retaliation, will post a photo of you, or share it with a stranger or someone you may know, a private moment of your life, that you do not want to be shared online or with any third party.
There are other forms of online intimidation whereas you are asked to withdraw from a group, team, or association because you are deemed by the bully to be the cause of their loss. That said, humiliating you online using derogatory terms or harmful adjectives to describe your personality, or your action is another form of cyberbullying.
How did Australia address the cyberbullying issue?
In 2015, Australia established eSafety Commissioner (eSafety). The eSafety is Australia’s national independent regulator for online safety. The eSafety drives its powers from the Online Safety Act 2021 which took effect in January 2022. The aim of the eSafety is to help protect all Australians from the most serious forms of online harm.
Is cyberbullying a criminal act?
The short answer is yes. Section 474.17 of the Criminal Code Act 1995 (Cth) stipulates using a carriage service in a menacing, harassing, or offensive way is against the law and thus a crime.
For further information about the eSafety, you may access the information using the following link:
