In the decision of 470 St Kilda Road Pty Ltd v Robinson  FCA 597, the Federal Court of Australia found that a Chief Operating Officer of a building and construction company was personally liable for falsely declaring in a statutory declaration that all subcontractors had been paid.
In October 2010, 470 St Kilda Road Pty Ltd (“the Principal”) engaged Reed Constructions Pty Ltd (“the Builder”) for the redevelopment of an office building at 470 St Kilda Road, Melbourne (“the Contract”). The Contract required the Builder to provide a statutory declaration prior to delivering a payment claim which affirmed all monies owing to subcontractors and suppliers had been paid.
Mr Glenn Robinson (“Mr Robinson”), as the Chief Operating Officer of the Builder, sent to the Principal a statutory declaration (“the Declaration”) confirming all subcontractors and suppliers have been paid in full. The Builder then submitted a payment claim seeking payment.
The Principal relied upon the Declaration and made payment $1,426,641.70 to the Builder.
The Declaration was later discovered to be false after the Builder entered into liquidation owing $132 million to unsecured creditors.
Mr Robinson argued that the Declaration was merely a statement of his mind and one as to the enquires that had been made to inform that state of mind.
The Court held that the Declaration of Mr Robinson was not merely a statement of his state of mind, but rather a solemn promise acknowledging that the contents are true and correct, which, if falsified, amounts to perjury.
Mr Robinson was held to have engaged in misleading and deceptive conduct as he knew the Declaration was untrue and had the Principal known the true position of the Builder, it would not have made payment of the payment claim.
The Court held Mr Robinson personally liable to pay the Principal the sum of $1,426,641.70, being the total of the claim previously submitted by the Builder to the Principal.
The requirement for statutory declarations certifying payment of all outstanding subcontractors and suppliers is commonplace in the construction industry. The practical effect of the decision highlights the importance of ensuring that all reasonable steps are taken to warrant the truth of the statutory declarations at the time it is signed. It also highlights the consequences of failing to take these steps or for signing an untrue statutory declaration.
Additionally, directors need to be aware of the possible implications of this conduct on director’s liability insurance which may limit or void the director’s coverage.
The RCR Construction team are market leaders in construction litigation and dispute resolution. Contact us or visit our dedicated Construction website for more information on your rights and obligations.
The above information is intended only as general information and should not be interpreted or relied upon for legal advice.
Building Industry Fairness (Security of Payment) Act 2017 – Major changes for the Queensland building and construction sector are here
On 10 November 2017, the Building Industry Fairness (Security of Payment) Act 2017 received royal assent.
Although the key provisions of the Act do not come into force until a date to be proclaimed by the Queensland Government, it is anticipated that the major reform to the operations of the Queensland building and construction industry will take effect from early 2018.
The controversial changes were enacted following a six-months consultation with the industry stakeholders and an intensive advertising campaign focusing primarily on the project bank accounts as a mechanism for a ‘fair’ recovery of payments for the tradie subcontractors. 1
The Act consolidates the current Queensland security of payment legislation2 and introduces some important amendments to the Queensland Building and Construction Commission Act 1991, particularly in relation to tougher measures in prosecuting unlicensed building work and targeting insolvency in the building industry. We will be discussing the changes to the QBCC Act in a separate publication, so watch this space.
Project Bank Accounts
The mandatory use of project bank accounts will be gradually phased in over the next two years. From the early 2018, all Queensland Government construction projects of the value between $1 million and $10 million will be covered by the operation of the Act. From 1 January 2019, all of the construction projects above $1 million including the private, 3 commercial and government sector will be required to operate the compulsory project bank accounts. Separate contracts for building work at the adjacent sites for a combined value of over $1 million between the same parties will be taken to be a single contract and thus also covered by the project bank account requirements.
Although a large body of the procedural matters will be addressed by a regulation, which is yet to be drafted, we have summarised the most important provisions with respect to the project bank accounts below.
Despite the flavour of the earlier advertising campaign and the Government’s various press releases, 4 only the head contractors and tier one subcontractors 5 will be covered by the new security of payment regime through the operation of project bank accounts, leaving the end suppliers and subsequent subcontractors out.6 However, these categories of the building industry operators will still be able to recover payments from their employers through the usual channels, like the payment claims and subcontractors’ charges.
Each of the project bank accounts will be utilised to hold on trust only the following amounts:
- payments by the principal to the head contractor under the building contract;
- payments to a subcontractor from the head contractor under the first-tier subcontract;
- retention monies withheld under the first-tier subcontract; and
- monies the subject of a payment dispute.
This system will necessitate the operation of three separate trust accounts7 for each project, with the head contractor being the trustee and beneficiary of these accounts, while each of the first-tier subcontractors are to have a beneficial interest in the amounts held on trust. The accounts must be operated by a financial institution within Queensland and be generally opened within 20 business days after the head contractor enters into a first-tier subcontract.
There are strict requirements for the operation of the project bank accounts, in particular, deposits and withdrawals only by electronic transfer, withdrawals and transfers between the accounts only by using a payment instruction given to the financial institution.
The head contractor will not be entitled to pay itself unless sufficient funds are held in the trust account to cover payments due to the subcontractors and must cover any short fall in the trust funds, which is unpaid by the principal. If there are insufficient funds in the account the head contractor must pay all of the subcontractors to whom payments are due on a pro rata basis.
There is an express exclusion of the trust account funds from the creditor claims (other than the subcontractor beneficiaries), as well as a prohibition on investment of these funds other than interest earned on each of the accounts. The head contractor is unable to recover the costs of the administration including the bank fees from the funds held in the project bank accounts or from the subcontractor beneficiaries.
The Act establishes a new process for progress payments and associated dispute resolution, which is largely based on the modified provisions of the Building and Construction Industry Payments Act 2004. As opposed to the project bank account provisions, this process is applicable to all suppliers and subcontractors who contribute to a construction contract and the definitions of construction work and the related goods and services for the purposes of the payment claims are very wide.
The new procedure for submission of the payment claims is somewhat more favourable towards the claimants (similar to the old regime prior to the 2014 amendments).
The requirements for the payment claim remain unchanged, although there is currently no express prerequisite for stating that a payment claim is made under the Act (similar to the security of payment legislation in NSW). However, further requirements as to the form and content may be enacted under a regulation for both the payment claim and the payment schedule.
An additional final reference date is added for terminated contracts.
If the construction contract does not provide for a due date of a progress payment, the due date will become the 10 th business day from the date a payment claim is made.
A payment claim must generally be given within 6 months of the carrying out the work or the supply of the related goods and services, unless provided for otherwise in a construction contract. Although only one payment claim is to be made for each reference date, any amounts from previous payment claims may be included in the subsequent claims.
The payment schedule must be provided by no later than 25 business days after the day the payment claim is given or earlier if the shorter period is specified under the relevant construction contract. If the respondent fails to give the payment schedule, as prescribed, the amount in the payment claim becomes payable by the due date for the relevant progress payment, which means that if the contract is silent as to the due date, the respondent is immediately liable for the full amount of the payment claim.
Penalties, as well as disciplinary action under the QBCC Act, now apply for a failure to provide a payment schedule in response to a payment claim.
Dispute Resolution Process
If the respondent does not issue a payment schedule and fails to pay the amount of the payment claim, the claimant may elect to recover the claim as a debt through court action or to apply for adjudication.
There is a further entitlement for the claimant to suspend work with notice upon the conditions specified in the Act.
The claimant may apply for adjudication within the following time frames:
- for a failure to deliver the payment schedule: 30 business days after the later of the due date for the relevant progress claim or the last day when the respondent could give the payment schedule.
- for a failure to pay the amount stated in the payment schedule: 20 business days after the due date for the relevant progress payment; and
- for a dispute with respect to the amount stated in the payment schedule: 30 business days after the claimant receives the payment schedule.
The respondent will be unable to submit an adjudication response if no payment schedule was given with respect to the payment claim. Any adjudication response also may not include any new reasons, which were not included in the payment schedule.
The adjudication response must be given to the adjudicator within the following time frames (‘response date’):
- for a standard claim within the later of 10 business days after receiving a copy of the adjudication application or 7 business days after receiving adjudicator’s notice that the adjudication application was accepted.
- for a complex claim (over $750,000 excl GST) 15 business days after receiving a copy of the adjudication application or 12 business days after receiving adjudicator’s notice that the adjudication application was accepted. These timeframes may be further extended at the discretion of the adjudicator for up to 15 additional business days upon application (which must be made within a specified time limit).
After the adjudication response date (which will apply as specified above regardless of whether the respondent is entitled to give the adjudication response), the adjudication decision must be made within 10 business days for a standard claim and 15 business days for a complex claim respectively.
As an alternative to the adjudication process, the claimant may give a 5 business days’ warning notice to the respondent of the intention to commence court proceedings to recover the payment claim. Such notice must be given within 20 business days from the due date of the relevant progress payment. The claimant will then be able to apply for judgment provided that the court can be satisfied that the progress payment was not paid by the due date and that the payment schedule was not given (if applicable). The respondent will be unable to bring as counterclaim or any defence with respect to the matters arising out of the relevant construction contract in those proceedings (similar to the old regime prior to the 2014 amendments).
The provisions of the Subcontractors’ Charges Act 1974 appear to have been adopted with little change. The most notable variation however is the inclusion of the mandatory response period to a claim of charge within 10 business days of service of the claim. Further, a charge under Chapter 4 of the Act will not attach to the funds held in the project bank accounts, which means that from early 2018 the subcontractor’s charges are likely to be only effectively utilised by the subcontractors below the first tier under a building contract. If the claim of charge is issued, the claimant will be unable to enforce a progress claim or to initiate proceedings under Chapter 3 of the Act unless the claim of charge is withdrawn.
The Act provides the QBCC with an active role as a watchdog for compliance including, for example, audit of the project bank accounts, registration and administration of the adjudicators and processing of the various hefty fines and penalties under the Act. Strict compliance is anticipated to be enforced, given that imprisonment terms apply to the offences against several provisions of the Act. However, it is yet to be clarified by regulation as to due processes for imposing those penalties.
Curiously, the Act contains a provision for a compulsory review of the reform by the minister to be commenced no later than 1 September 2018, which indicates that the new law is in a live test mode for now.
These changes will affect every stakeholder in the building and construction industry in Queensland. The above information is intended only as a selective overview of the provisions of the Act and should not be interpreted or relied upon for legal advice.
For further information please contact our construction team on (07) 3009 8444.
1 For example, TV commercial from Queensland Department of Housing and Public Works published on Youtube on 1 February 2017.
2 Repeal of the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974.
3 The contract for construction of three or less residential dwellings and associated structures is currently excluded from this requirement.
4 For example, Premier’s and Minister’s statement on 30 November 2016 published by the Queensland Government.
5 The relevant tiers of subcontracts are defined in s 6 of the Act.
6 With the exception of second-tier subcontractors, in the circumstances where the head contractor and the first-tier subcontractor are related entities – Part 2 Division 3 of the Act.
7 To be opened and maintained by the head contractor.
Rostron Carlyle has set its sights on growing its foothold in the Sydney market, with the appointment of James Hatzopoulos to Partner to strengthen the firm’s leadership as it expands its presence in New South Wales.
Mr Hatzopoulos, who has held senior positions with Rostron Carlyle since he joined the firm in 2014 as part of the amalgamation with Maunder & Jeffrey, manages the Corporate, Commercial & Property practice in Sydney.
Rostron Carlyle Partner, Gavin McInnes, said that Mr Hatzopoulos’ elevation to Partner was an important step forward in expanding the firm’s Sydney offering.
“Over recent months, we have been focused on elevating the Rostron Carlyle name across Sydney and the broader NSW legal market. James Hatzopoulos has significant experience across a range of industries as well as the exceptional knowledge of the NSW legal market,” Mr McInnes said.
Mr Hatzopoulos said becoming a Partner was something he has aspired to achieve since he began studying to become a Lawyer.
“It has most definitely been a lifelong goal, and to have reached this goal so soon in my career and now stand alongside the other Partners of Rostron Carlyle Lawyers is truly an honour,” Mr Hatzopoulos said.
“My vision as a Partner of the Sydney office is to both continue to grow, and find new ways of growing Rostron Carlyle’s current foothold in the Sydney Legal Market. With the upcoming office move into the Aurora Place Building in the Sydney CBD as well as bringing on new members to the legal team, I have no doubt that Rostron Carlyle Sydney will become a force in the legal services sphere with a highly-regarded reputation of ensuring unrivalled service is provided to all clients.”
With a specialisation in the Service Station and Petroleum Industry, Mr Hatzopoulos said the past few years has seen a staggering increase in terms of yield performance and general interest/transaction flow amongst property investors, developers, and retailers and expects that to continue this year.
“Increases in environmental protection standards imposed by the relevant authorities has seen Service Stations become one of the most sought after investment opportunities in recent years, and I believe this will continue to reach new heights in 2017,” Mr Hatzopoulos said.
“I believe 2017 will be another solid year of growth, backed by the ever-growing Sydney property market ensuring confidence remains in the marketplace.”
About Rostron Carlyle
Rostron Carlyle was established in 2001 and employs more than 100 people. With offices throughout Australia, Rostron Carlyle prides itself on its talented and diverse team including accredited specialists in business and family law.
Rostron Carlyle has strengthened its expertise across the Commercial and Property division with the recent merger of Brisbane and Gold Coast based law firm AG Edwards.
Since 2013, AG Edwards has been providing corporate and commercial legal, property and compliance solutions to a range of national and multinational clients.
Rostron Carlyle Commercial and Property Partner, Gavin McInnes, said the merge was a significant step in adding greater depth and experience to his team and the firm.
“AG Edwards brings additional expertise to Rostron Carlyle’s Commercial and Property group, in particular the team’s specialised experience in corporate and commercial, capital markets, banking, finance and financial services sectors,” Mr McInnes said.
“We are continually looking for ways to strengthen our offering to clients. Rostron Carlyle is proud of its focus on establishing long-term relationships with our clients. Strategic merges, such as this one with AG Edwards, means we can continue to evolve and offer a variety of legal advice and services to help support the daily and ongoing operations of their businesses.
Adrian Edwards, Principal of AG Edwards, said the firm’s merge with Rostron Carlyle presented key opportunities for his team’s future growth.
“The AG Edwards team brings more than 20 years of legal, compliance and financial experience to Rostron Carlyle. The merge with Rostron Carlyle will enable the AG Edwards team to continue to develop their knowledge and capabilities with the support of one of Brisbane’s top law firms,” Mr Edwards said.
“We look forward to working with Rostron Carlyle clients and introducing our client base to the additional range of services that are now available directly to them.”
Mr McInnes said the firm was looking forward to welcoming the AG Edward team to the 100-strong national team at Rostron Carlyle.
“We are thrilled to welcome Adrian and his team to Rostron Carlyle and look forward to working together on the extension of services now on offer to both our current and future clients.”
About Rostron Carlyle
Rostron Carlyle was established in 2001 and employs more than 100 people. With offices throughout Australia, Rostron Carlyle prides itself on its talented and diverse team including accredited specialists in business and family law.
Alan Phillips of our office acted for a client that was charged with defrauding people to the amount of $349,754.00. The investigation commenced in 2005 when our client was reported to the Victorian Police major fraud unit in 2005. A police investigation commenced over the next five years involving the Queensland Police Service and the Corporate Crimes Unit.
The allegations were that in early 2004, the co-accused met the complainant through a real estate agency. During the course of their relationship, the co-accused became privy to the fact that the complainant had a son with schizophrenia and spoke with the complainant about a number of investment opportunities. One of which being a ‘brain mapping machine’ that was in the process of being developed.
The co-accused persuaded the complainant to fund the developing technology as it would be a good investment and it could also aid their son. The complainant relied on these representations and invested $48,000, $217,000 and $84,239.00 for the total pecuniary detriment of $349,754.00. Importantly, our client maintained that she had never met nor spoken to the complainant, and that the co-accused was solely responsible.
A basha inquiry was conducted of the co-accused witness by Mr David Keane of Counsel, instructed by Alan Phillips. The co-accused’s evidence raised a defence of honest claim of right under Section 22 of the Criminal Code 1899 (Qld).
This led to a strong bargaining position for our client, and negotiations were commenced with the Crown, leading to the Crown amending the schedule of facts to remove reference to the $349,754.00. Our client agreed to plead guilty to fraud – detriment of another, without any quantum. Accordingly the severity of the charge was reduced, and the maximum penalty was reduced from 10 years to 3 years. Our client, having been in custody for a significant period of time, pleaded guilty and was released on that day.
If you are interested in our criminal lawyers acting on your behalf, please call either Alan Phillips on 3009 8469 or 0403 846 238 or Nicholas Crawford on 3009 8467 or 0410 413 107.
Heightened demand for professional debt collection and recovery services has seen Professional Recovery Services move into the Victorian market with a new office opening in Melbourne this month.
Professional Recovery Services, a subsidiary business of national law firm Rostron Carlyle Lawyers, has been successfully operating in the Brisbane and Sydney market for a number of years.
Managing Director, Stewart Wilkinson, said recent demand from clients south of the border has resulted in the opening of a dedicated Victorian office in Bourke Street, Docklands.
“Professional Recovery Services has been providing commercial and private clients with a range of debt recovery services for many years now. With the business continuing to grow, particularly across Victoria we will now have a dedicated team to service our clients out of Melbourne,” Mr Wilkinson said.
“Our senior management have spent several decades working in debt collection agencies and specialist law firms in the debt collection industry. Using this wealth of experience, we have identified the best practice to deliver successful results to our clients.”
“This push into Melbourne will enable our clients to directly access our broad range of services. Our team in Melbourne will be supported by the Professional Recovery Services teams in both Sydney and Brisbane.”
Professional Recovery Services Melbourne office will be headed by Tom Torpy, who has more 30 years’ experience across a number of management roles within the debt recovery industry.
Prior to joining the collection industry, Tom was the Deputy Registrar at the Melbourne Magistrates’ Court based in the Civil Registry. In this role he administrated all civil legal actions including all debt collection matters. Tom’s role at the Magistrates’ Court, combined with his extensive collections experience has given him a practical working knowledge of the civil legal system from both the users and administrators perspectives.
Tom’s hands on approach and extensive experience in all facets of the collection industry, ensures that the Professional Recovery Services team will maximise your recoveries, with the focused objective to affect all recoveries in the shortest possible period.
Tom will be supported in his role by Professional Recovery Services Brisbane and Sydney Managing Director Stewart Wilkinson who has lead the business since 2014.
PRS Queensland and NSW
Stewart is the Director of Professional Recovery Services in Queensland and New South Wales.
Stewart has had a diverse career background in Sydney working in the futures markets, finance industry as well as the NSW Police Force finishing his career in the State Crime Command.
Stewart has worked in the Debt Collection industry for well over a decade and has led two leading national debt recovery firms through unprecedented growth. Although Stewart has worked in many fields of Debt Collection including consumer, finance and debt purchasing, his speciality is the SME market and problematic disputed matters. Stewart is regularly approached to lead complex insolvency appointments where Receivers or Administrators are faced with realising debtors of an insolvent company.
Stewart has also been part of Project Management teams incorporating Law Firms and growing businesses. He understands the specific needs and expectations of clients when leading single complex defended matters or organising a supply chain of high volume litigation teams.
Please feel free to contact Stewart to discuss any small or large recovery matters you have.
Professional Recovery Services goal is to assist its clients in the recovery of bad debts, whilst providing advice and training on how to minimise bad debts in the future.
About Professional Recovery Services
Since 2012 Professional Recovery Services has been providing a range of recovery services to its clients across three divisions including Commercial & Corporate Debt Recovery, Insolvency and Realisation of Debtors Ledgers and Purchased Debt. Professional Recovery Services is a subsidiary business of Rostron Carlyle Lawyers.
About Rostron Carlyle
Rostron Carlyle Lawyers was established in 2001 and employs more than 100 people. With offices in Brisbane and Sydney, Rostron Carlyle prides itself on its talented and diverse team with its focus in the areas of Commercial, Property and Corporate Law, Litigation and Disputes, Insolvency, Construction and Corporate Recovery.
The opening of PRS Victoria is the first step for Rostron Carlyle in securing a permanent presence in the Melbourne market.
It’s a sad, but unavoidable truth that sometimes, partners cheat. If your spouse has long unexplained absences, continually stays back late for work or purposefully conceals their emails and text messages, they may have something to hide. In cases of infidelity, when trust isn’t enough, a family lawyer may be able to help highlight your options.
As an individual in a de facto or marital relationship you have certain rights. Aside from the right of the innocent party to obtain a divorce, there are other legal ramifications of infidelity. In Australia, for example, affairs of two or more years can be deemed a de facto relationship and may expose the cheater to financial claims in the Family Court on their superannuation savings, income and property. In this case the Court will define where a de facto relationship exists based on when the affair began and ended and the exact nature of the relationship. For example, whether there was any level of financial dependence or support between the parties, any intermingling of finances and the public and private nature of the relationship.
The end result could be competing property claims between the separated spouses and the third party involved in a relationship with the cheating spouse.
Finding out your partner is cheating is never easy. But by understanding your rights and seeking legal guidance, you can begin to move forward. As Brisbane’s family law specialists, Rostron Carlyle can help you in family law matters involving infidelity, divorce or child support. Their dedicated team of family lawyers can answer all your questions and help you on the road towards a resolution.
For more information about your legal options, contact them today on (07) 3009 8444.
Sometimes relationships fail and parents are left to share child rearing responsibilities. As a parent, you have both responsibilities and rights involving decisions related to your child. Although in some situations, joint custody arrangements are reached, in the vast majority of cases, non-custodial fathers are required to pay child support.
So, how does the child support system work and what does a father need to know in order to manage his obligations? This article contains important child support information like laws of child custody and how much child support a father will be required to pay.
If I was never married to the child’s mother, do I still have to pay child support?
Yes. The obligation to support a child is not conditioned by marriage. State laws vary somewhat on the definition of a parent, so if there is some doubt about your parentage, you will want to consult with a family law attorney in your state.
How much child support will I be required to pay?
In Australia, child support agencies calculate the amount of money you are required to pay. This calculation is based on the parents’ income, the care arrangements and the ages of the children. This amount changes every year and parents have the option to come make arrangements of their own.
How long do I have to pay child support?
Australian law generally requires you to make child support payments until your child is no longer a minor or your parental rights are otherwise terminated. You are also no longer required to pay child support if your child is “emancipated”, that is, declared a self-supporting adult earlier by the courts prior to turning 18. There are some exceptions to this rule, like if your child has special needs or joins military on active-duty.
What happens if I don’t make my child support payments as ordered?
Failing to meet your child support obligations is seen as defying an order of the court and could result in legal action. This could result in serious consequences such as jail time, reduction of your tax refund, property seizure or suspension of driver’s license.
What if circumstances affecting my child support payments change?
If you become unemployed or have some other extenuating circumstance, it is important you seek legal advice and have your child support amount modified. Only the court can change a mandated child support payment, so any modification would have to be submitted to a judge. If both spouses agree, it is usually a pretty simple process. Where disagreement arises, the request will need to be submitted to a family law solicitor for review.
Child support is a topic which tends to divide opinions. No separation is easy but by understanding your rights and responsibilities as a farther, paying child support can be. As Brisbane’s family law specialists, Rostron Carlyle can help you understand family law matters such as child support, child custody, visitation and alimony. Their dedicated team of family law solicitors can answer all your questions relating to divorce, custody and child support.
Contact child support lawyers today on (07) 3009 8444.
No matter how close you are, all families argue at one time or another. Sometimes these disagreements can escalate and may require formal mediation to resolve them. Family courts are designed to provide support and legal representation to individuals and families during civil proceedings. However, there are many alternative options and it’s important to explore every avenue for conflict resolution before taking the matter to court.
Negotiation, mediation and arbitration are just a few of the dispute resolution alternatives available. Whether you are involved in a small family dispute or a lawsuit involving thousands of dollars, these methods of dispute resolution can result in a fair and reasonable outcome for both parties. By employing alternative dispute resolution methods, you may reduce the financial and emotional cost of legal proceedings and improve communication with your family member for the future.
The following describe some of the alternative dispute resolution options available:
Negotiation is the most basic means of settling differences. It is back-and-forth communication between parties with the goal of trying to find a solution to the conflict. An individual may wish to negotiate directly with the other person or hire an attorney to negotiate on their behalf. Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. There are no strict procedures to follow but it works best if all parties agree to remain calm and work together.
Mediation is a voluntary process in which an objective third party assists communication and facilitates negotiation between parties. A mediator does not make a decision nor force an agreement. Instead, the parties directly participate in negotiating their own settlement or agreement. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable.
Arbitration involves submitting evidence in a disputed matter to an impartial person for resolution. The arbitrator controls the process and will listen to both sides before making a decision. Like in court proceedings, only one side will prevail. If all parties agree to be bound by the decision an arbitrator’s award can be enforceable by law.
The best method of conflict resolution will depend upon your personal needs and the nature of your dispute. You may want to consult with an attorney to help determine which process best serves your particular situation.
Looking for family lawyers in Brisbane? Rostron Carlyle’s highly trained team of family law solicitors can assist you in seeking alternative conflict resolution. For more information, visit their website or call them on (07) 3009 8444 and start working towards a resolution today.
Sometimes family disputes require legal mediation. When it comes to court proceedings, a solicitor specialising in areas of family law may be able to help you explore your legal rights and responsibilities.
Here is one situation involving de facto relationships, where a family lawyer may be valuable:
De Facto Relationships
Carrie and Mr. Big have been in a relationship for six years. They are not married and do not have any children together. In 2008, Carrie and Mr. Big decide to buy a penthouse and live together for the first time. Mr. Big puts a deposit on the property using his savings. The penthouse is in Big’s name, as is the mortgage with the bank. Carrie has no savings, but makes monthly contributions to the mortgage out of her writer’s salary. Three years later, Carrie and Mr. Big break up. Mr. Big tells Carrie that she has no entitlements as they were not married and she did not contribute to the deposit on the penthouse. Heart broken and homeless, Carrie seeks solace in her three best friends – Merinda, Samantha and Charlotte. Upon learning about Carrie’s situation her friend Miranda (who is also a lawyer) assures Carrie that she has a claim to the penthouse under current family law and encourages her to seek legal advice.
While this may simply be adapting a story line out of the popular HBO series, Sex in the City, this type of scenario is surprisingly common. As society continues to shift away from what would be considered the ‘traditional lifestyle choices’ of the past, more and more couples find themselves living in de facto relationships. And just as relationships have evolved, so too have legislation and regulatory processes that govern them.
Many do not even realise they are in a de facto relationship until it comes time to review their legal rights. Sadly, this often occurs during a relationship breakdown. So what is a de facto relationship and what are your legal rights as an individual living in such a relationship?
The Family Law Act defines a “de facto relationship”, as a couple living together on a genuine domestic basis, who are not married to each other and who are not related by family. The Act stipulates that a de facto relationship can exist between a man and a woman and between two persons of the same sex.
Property disputes between people living in de facto relationships also fall within the provisions of the Family Law Act. In order to have a claim on any property, the law requires you to demonstrate that either:
- You have lived in a de facto relationship for two years; or
- You have a child or children together; or
- You have made significant contributions to the relationship
In the case of Carrie and Mr. Big, Carrie was able to make a claim on the penthouse having made financial contributions to the penthouse for the last three years. But Carrie’s entitlements to the penthouse were not solely based on her contributions to the mortgage. The law looks at many different factors in determining the financial entitlements of each party. Some of these include:
- The duration of the relationship
- The nature and extent of a common residence
- Whether a sexual relationship exists
- The degree of financial dependence or interdependence between the couple and any arrangements for financial support between them
- The ownership, acquisition and use of their property
- The degree of mutual commitment to a shared life
- The care and support of children
- Public aspects and reputation of the relationship.
Relationship breakdowns can be psychologically taxing enough without having to deal with the division of property and financial assets. Knowing your rights and responsibilities as a de facto couple is the key to avoiding drawn out (and expensive) legal proceedings. If your de facto relationship has broken down, it is important that you protect your entitlements and seek experienced family law advice.
As Brisbane’s leading Family Law firm, Rostron Carlyle can help you understand you rights and responsibilities as a de facto couple. Their dedicated team of family lawyers can answer all your questions and help you and your partner avoid unnecessary court proceedings. Contact them today on (07) 3009 8444 for more information.