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About Family Law

Breaking up is hard to do.

Going through a separation is one of the most stressful events in peoples’ lives. We specialise in commercial and practical outcomes when relationships break down. We try to remove the emotion from the situation as much as possible, as it is easy to get drawn into costly court proceedings for little or no benefit to either side. We bring a cool, experienced head to a difficult situation, negotiating a settlement that is amenable to our clients.

We can assist you with all your family law needs, including:

Financial Agreements including pre and post nuptial agreements

Separation

Custody

Property Disputes

Child Support & Residency

Spouse Maintenance

Same Sex Relationships

Property - including businesses, companies and trust structures

Divorce

De Facto Relationships

Binding Financial Agreements

Learn More: https://slflawyers.com.au/practice-area/family-law/

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Understanding Bankruptcy and Its Impact on the Family Home

Bankruptcy can be a daunting prospect for individuals, especially when it comes to the fate of their family home. Many people wonder if their home is protected from being seized to pay off creditors. This article explains what usually occurs to family homes and what individuals, whether the bankrupt or the non-bankrupt spouse/partner, can expect in such situations.

From the outset, it should be noted a home is not a protected asset under the Bankruptcy Act 1966 (Cth). If there is equity in the property after paying out all mortgage and selling costs, the bankruptcy trustee is obligated to sell the property for the benefit the creditors of the bankrupt estate.

Ownership Dynamics: Joint Tenants vs. Tenants in Common. In cases where the bankrupt individual co-owns the property with a partner or spouse, the situation becomes more complex. If the property is owned as joint tenants, the bankruptcy automatically severs the joint tenancy, and the co-owners hold their interests as tenants in common. This typically means each party owns a 50% interest in the property.

Upon the issuance of a sequestration order, all divisible property of the bankrupt automatically vests with the trustee in bankruptcy.  This includes the bankrupt’s share in the property. The trustee then evaluates the property’s equity, usually through real estate appraisal. If deemed necessary, the trustee initiates transmission, which formally alters the title to the property to reflect the trustee as the registered owner.  This places the trustee in a stronger negotiating position as he or she can execute a contract of sale if required.

Once transmission has taken place (or alternatively a caveat has been placed over the property to prevent its sale without the trustee’s involvement) the trustee in bankruptcy usually follows the below structured approach:

Offering the co-owner the opportunity to buy the estate’s interest in the property; failing which

Inviting the co-owner to collaborate with the trustee on selling the property; failing which

Filing for court appointment of a statutory trustee for sale (and typically at the same time seeking vacant possession).  By obtaining vacant possession orders, a sheriff may later be involved in formal eviction proceedings if the court orders aren’t adhered.

Most homes are mortgaged, and mortgage enforcement can occur during bankruptcy, even if payments are up to date. However, mortgagees often defer to the bankruptcy trustee for property sale, as they will be paid out as a priority from any sale.  Mortgagees also avoid any negative press associated with forcibly selling a family home.

Understanding the implications of bankruptcy on the family home is crucial for individuals facing the same situation. While the home may not be protected, awareness of ownership dynamics, sale procedures, and potential eviction processes can help individuals navigate this challenging situation more effectively. Seeking legal advice early in the bankruptcy process is recommended to explore all available options and mitigate adverse consequences on the family’s housing situation.  At SLF Lawyers we are aware of various legal avenues (resulting or constructive trusts, doctrine of exoneration) which may alter the presumed 50% interest as set out above.  Obtaining this formal advice based on your personal situation may be the difference between keeping your family home or it being sold to pay down the creditors of your partner/spouse’s bankrupt estate.

Article written by Anthony Cocolas of our Brisbane office.

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Motor vehicle accidents: the role of insurance lawyers

As of 2023, 3,171,559 cars were registered in Queensland[1]. While newer motor vehicles are driving on the roads with improved safety features, it is unfortunate to say that with so many vehicles on our roads the likelihood of being in a motor vehicle accident increases.

A motor vehicle accident can have a wide-reaching definition, as it can be any sort of accident that involves a motor vehicle. The more common interpretation is considered to be where two or more vehicles collide (have a collision).

When a motor vehicle accident takes place, usually both vehicles will have a form of insurance. Sometimes there is confusion as to what level of insurance each party holds and what that might mean for the at-fault or not at-fault driver.

There are three forms of insurance road users will know about:

Compulsory Third Party

Third Party

Comprehensive

In Queensland, Compulsory Third Party (CTP) is part of all vehicle registration, which is a legislated scheme to ensure that all road users have access to personal injury cover. As this article focuses on property damage, there is no need for a further discussion on CTP.

Third party (TP) insurance means that you have insurance to cover the costs of damage caused to another person’s vehicle, but will not cover your own. Sometimes TP insurance is confused with CTP, however it is important to remember that TP insurance relates only to property damage and is cover for damage you cause to another person’s vehicle.

Comprehensive insurance provides insurance cover for damage to another person’s vehicle and covers your vehicle for any damage as a result. Considered the ‘gold standard’ or ‘fully insured,’ comprehensive cover means that should you be in an accident that is either your fault or not, you can claim with your own insurer.

Please observe the following example:

Vehicle A and B both have comprehensive insurance.

Vehicle A is stationary and Vehicle B is travelling behind Vehicle A.

Vehicle B does not brake in time and nudges (collides) with the back of Vehicle A causing a dent.

In this very simple scenario, the owner of Vehicle A has 2 general options before them: they can make a claim with their own insurer or they are able to claim under Vehicle B’s policy.

For the simplicity of this scenario you may wonder why insurance lawyers would need to be involved, as it would be clear to anyone that Vehicle B is at-fault.

To add further context to the example:

Vehicle A is an older European model vehicle.

The back of Vehicle A is also painted in a special red colour.

Insurance companies will communicate with one another after a collision and determine first liability (who was at fault) and will then determine the quantum (amount of damages).

For this example the insurer of Vehicle A sends a bill to the insurer of Vehicle B for $5,000.00 for repairs. But the insurer of Vehicle B has assessed the repairs and believes that the cost should be $2,000.00.

Unfortunately both insurers are unable to come to an agreement and they instruct their lawyers to get involved.

Lawyer A will file a claim for the $5,000.00 and Lawyer B will file a defence to the claim.

The roles of these two lawyers now are to advocate for not only their respective insurer clients but also the owners/drivers of Vehicle A and Vehicle B.

These lawyers will carry the burden of evaluating all the evidence on hand and considering the viable options for each of their clients to reach a fair and just resolution.

For the purposes of our example, both lawyers negotiate and come to a resolution that $4,000.00 was an acceptable amount and the matter resolves.

The role of insurance lawyers, even in what appears to be such a simple scenario is crucial: they play a critical part to the evaluation and analysis of the issues at hand and work together to negotiate a reasonable outcome.

These lawyers are all covered by the insurance policy of the respective vehicles to do this.

If we take the example and say that both vehicles are uninsured then for Vehicle A to exercise their legal right to the amount they have paid for their repairs they would need to engage a lawyer, and vehicle B would need to engage a lawyer if they disputed the amount sought by vehicle A.

SLF Lawyers has a team of expert insurance lawyers who act for insurance companies and everyday people, assisting in matters just like both those examples.

We recommend that if you have been involved in a motor vehicle collision you contact your insurer first, we may already be involved helping you out.

Article written by Alex Odman of our Brisbane office.

[1] Department of Transport and Main Roads, specifically ‘cars’.

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Italy’s Nomad Visa: A Dream Come True for Remote Workers

Italy, known for its rich history, art, architecture, and breathtaking landscapes, has recently introduced the “Italian Nomad Visa,” a groundbreaking opportunity for remote workers and digital nomads. The Minister Decree 29 February 2024 has granted the regulation to make this Visa effective in Italy. Accordingly, the Nomad Visa has been published in the National Gazette on 04 April 2024 and effective since.

This visa allows non-EU citizens to live and work in Italy, enjoying a unique blend of la dolce vita and productivity.

Eligibility

The Italian Nomad Visa is designed for non-EU citizens who work remotely or own a business outside of Italy. To be eligible, applicants must meet the following requirements:

– Be a non-EU citizen

– Have a valid passport

– Be self-employed or work remotely for a company outside of Italy

– Have a minimum annual income of €26,500 (plus €5,000 for each dependent)

– Have health insurance that covers you in Italy

– Pass a background check

The most important aspect is that it is not required the formal approval (named, Nulla Osta) from the relevant Authorities in order to be admitted in Italy as a worker.

Benefits

The Italian Nomad Visa offers numerous benefits, including:

– The right to live and work in Italy for up to one year (renewable for an additional two years)

– Access to Italy’s public healthcare system

– The ability to bring family members (spouse, children, and dependent parents)

– A unique opportunity to experience Italian culture and lifestyle

Application Process

To apply for the Italian Nomad Visa, follow these steps:

Gather required documents:

– Passport

– Proof of income (contract, invoices, or bank statements)

– Proof of health insurance

– Criminal record check

– Marriage certificate (if applicable)

– Birth certificate (if applicable)

Submit your application:

– Apply through the Italian Consulate Office of your residency

– Application fee (Approx. €100)

Wait for processing:

– Applications are typically processed within 30-60 days

Attend an interview (if required):

– In some cases, applicants may be required to attend an interview at the Italian embassy or consulate

Receive your visa:

– If approved, your visa will be issued, and you can enter Italy

Once in Italy and within 8 days from your entrance, you need to lodge the application for the “Permesso di Soggiorno” (Authority to Stay) through the local Questura Office (Police Office – Department of Immigration).

Conclusion

The Italian Nomad Visa is an exciting opportunity for remote workers and digital nomads to experience la dolce vita while maintaining their career. This is a inimitable opportunity for those seeking a unique blend of work and play. In addition, it can be the first gate to develop business in Italy, buy a property and possibly apply for an Elective Residence Visa (Permanent). Don’t miss out on this chance to make Italy your home!

If you are up to go deeper in this matter, please, contact our Italian Lawyer, Fabrizio Fiorino to explore your option to move to Italy.

Fabrizio FIORINO – Special Counsel | Italian Registered Lawyer | MARN 1795302

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https://slflawyers.com.au/practice-area/franchising-licencing/

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Overseas travel after separation

With COVID-19 lockdowns and overseas travel restrictions lifted, many of separated parents wish to travel overseas with their children after being prevented from doing so for a number of years.

If there are Parenting Orders that provide for the children to travel overseas, the parent wishing to travel with the children must comply with those Orders. This will likely include providing the other parent with proposed dates, locations, itinerary details and flight details of the holiday by a specific date prior to the proposed travel.

If there are no Parenting Orders in place and the parents share parental responsibility of the children, consent must be obtained from the other parent for the children to leave the Country.  The Family Law Act 1975 defines parental responsibility as all duties, powers, responsibilities and authority parents have in relation to children‘.  In the absence of Court Orders, there is a presumption that both parents have shared parental responsibility pursuant to the Family Law Act 1975.

When the other parent does not agree to the proposed travel or will not facilitate the execution of the passport application, parents should first attend Family Dispute Resolution Conference with a qualified facilitator.  If an agreement cannot be reached at the Family Dispute Resolution, then the travelling party will be left with no option than to issue proceedings in the Federal Circuit and Family Court of Australia.  When determining an application to travel with children overseas, the Court will consider the following factors:

The reason and length of the travel;

Current living arrangements for the children and their circumstances;

Whether the travel is to a country which is a signatory to the Hague Convention;

If any travel warnings been issued with respect to the country the children will be travelling to; and

The likelihood that the travelling parent will bring the children back to Australia.

If the Court grants the application, restrictions and requirements on the travelling parent such as “bond” may be implemented.

Alternatively, if you are concerned about your child being taken overseas without your consent, you may apply for your child to be put on the Airport Watchlist.  For your child to be added to the Watchlist, you must complete the Watchlist request form and then file an application with the Court.

If you need any help or further information on overseas travel, please reach out to our Family Law Team at SLF Lawyers.

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https://slflawyers.com.au/practice-area/commercial-litigation/

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Navigating Insolvency in Australia: How Can SLF Lawyers Assist?

The Australian business landscape has undergone significant changes in recent years, with economic conditions creating new challenges for companies of all sizes. One area that has been particularly affected is insolvency, with an increasing number of businesses facing financial difficulties.

One of the key factors contributing to the rise in insolvency in Australia is the challenging economic conditions brought on by the global pandemic, which has resulted in a decline in some industries for consumer spending and business activity.

This has put pressure on some companies, particularly those in sectors such as retail, hospitality, and tourism.  Of course, there are other industries that are facing unique challenges which previously had not been envisaged.

In such times, the legal expertise of one of our lawyers is critical in evaluating the company’s financial and legal situation, providing guidance on legal options available and also in negotiations with creditors, investors or potential buyers.

Moreover, when a company is facing financial difficulties, we can also assist in the negotiation of terms with creditors and investors. We can help in drafting agreements, understanding the implications of any agreement made, and also assist in negotiations to ensure the best possible outcome for the company and its stakeholders.

In addition to the above, we can also assist in advising on and the implementation of formal insolvency procedures such as Voluntary Administration, Receivership, or Liquidation. In short, these are legal processes that are generally used as a last resort when a company is unable to pay its debts as and when they fall due and the directors (or creditors) decide that it is unlikely the company will be able to trade out of its difficulties.

We can assist in helping you understand the legal obligations of various stakeholders ensuring your interests are best protected.

The current insolvency landscape in Australia is challenging, but by seeking the help of one of our lawyers at an early juncture, companies can navigate the challenges and position themselves for future success.

Seeking our assistance early is beneficial for companies facing financial difficulties for several reasons:

We can provide guidance on the legal options available to a company in financial difficulty, including debt restructuring, asset sales, and business closures. By seeking legal assistance early, companies can make informed decisions about the best course of action to take.

Development of a restructuring plan: We can assist in the development of a restructuring plan that maximises the chances of the business surviving and minimises the impact on the business’s stakeholders such as employees, creditors and shareholders. By seeking legal assistance early, companies can develop a plan before the situation becomes critical.

Negotiations with creditors and investors: We can assist in negotiations with creditors and investors, helping to secure more favourable terms for the company and its stakeholders. We can assist in drafting agreements and advising the implications of any agreement made.

Implementation of formal insolvency procedures: If a company is unable to pay its debts and the directors decide that it is unlikely the company will be able to trade out of its difficulties, we can guide the company through formal insolvency procedures such as Voluntary Administration, Receivership, or Liquidation.

Protection of the company and stakeholders: By seeking legal assistance early, companies can ensure that their legal rights and obligations are protected. We can help identify potential risks and put in place strategies to mitigate them before they become a problem. This can help to minimise the impact on the company and its stakeholders.

Time and cost saving: Getting legal help early on, can save time and cost. Solving an issue early before it becomes critical, is less time-consuming and expensive than when it has escalated.

If you are concerned about the challenges the current economic climate is having on the operation of your business, or the content of this article has raised an alarm bell, do not hesitate to call SLF Lawyers on one of the following numbers depending on the state you are located:

Brisbane: +61 7 3839 8011

Gold Coast: +61 7 5582 1600

Sydney: +61 2 9264 4833

Melbourne: +61 3 9600 2450

Perth: +61 8 6444 1960

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Navigating Insolvency in Australia: How Can SLF Lawyers Assist?

The Australian business landscape has undergone significant changes in recent years, with economic conditions creating new challenges for companies of all sizes. One area that has been particularly affected is insolvency, with an increasing number of businesses facing financial difficulties.

One of the key factors contributing to the rise in insolvency in Australia is the challenging economic conditions brought on by the global pandemic, which has resulted in a decline in some industries for consumer spending and business activity.

This has put pressure on some companies, particularly those in sectors such as retail, hospitality, and tourism.  Of course, there are other industries that are facing unique challenges which previously had not been envisaged.

In such times, the legal expertise of one of our lawyers is critical in evaluating the company’s financial and legal situation, providing guidance on legal options available and also in negotiations with creditors, investors or potential buyers.

Moreover, when a company is facing financial difficulties, we can also assist in the negotiation of terms with creditors and investors. We can help in drafting agreements, understanding the implications of any agreement made, and also assist in negotiations to ensure the best possible outcome for the company and its stakeholders.

In addition to the above, we can also assist in advising on and the implementation of formal insolvency procedures such as Voluntary Administration, Receivership, or Liquidation. In short, these are legal processes that are generally used as a last resort when a company is unable to pay its debts as and when they fall due and the directors (or creditors) decide that it is unlikely the company will be able to trade out of its difficulties.

We can assist in helping you understand the legal obligations of various stakeholders ensuring your interests are best protected.

The current insolvency landscape in Australia is challenging, but by seeking the help of one of our lawyers at an early juncture, companies can navigate the challenges and position themselves for future success.

Seeking our assistance early is beneficial for companies facing financial difficulties for several reasons:

We can provide guidance on the legal options available to a company in financial difficulty, including debt restructuring, asset sales, and business closures. By seeking legal assistance early, companies can make informed decisions about the best course of action to take.

Development of a restructuring plan: We can assist in the development of a restructuring plan that maximises the chances of the business surviving and minimises the impact on the business’s stakeholders such as employees, creditors and shareholders. By seeking legal assistance early, companies can develop a plan before the situation becomes critical.

Negotiations with creditors and investors: We can assist in negotiations with creditors and investors, helping to secure more favourable terms for the company and its stakeholders. We can assist in drafting agreements and advising the implications of any agreement made.

Implementation of formal insolvency procedures: If a company is unable to pay its debts and the directors decide that it is unlikely the company will be able to trade out of its difficulties, we can guide the company through formal insolvency procedures such as Voluntary Administration, Receivership, or Liquidation.

Protection of the company and stakeholders: By seeking legal assistance early, companies can ensure that their legal rights and obligations are protected. We can help identify potential risks and put in place strategies to mitigate them before they become a problem. This can help to minimise the impact on the company and its stakeholders.

Time and cost saving: Getting legal help early on, can save time and cost. Solving an issue early before it becomes critical, is less time-consuming and expensive than when it has escalated.

If you are concerned about the challenges the current economic climate is having on the operation of your business, or the content of this article has raised an alarm bell, do not hesitate to call SLF Lawyers on one of the following numbers depending on the state you are located:

Brisbane: +61 7 3839 8011

Gold Coast: +61 7 5582 1600

Sydney: +61 2 9264 4833

Melbourne: +61 3 9600 2450

Perth: +61 8 6444 1960

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Foreign people must consider FIRB requirements before inheriting immovable assets

If you are a foreign person who stands to inherit residential property under a will, your acquisition may fall subject to Australia’s Foreign Investment Review framework. Previously, a foreign person was not required to notify the Treasurer if their acquisition, if their legal or beneficial interest in Australian land was transferred under a will. This exemption has now been abrogated by the Foreign Investment Review Board. Since 1 January 2021 those who fail to seek approval will be subject to civil or criminal penalties issued by the Board for non-compliance.

Under the amended Foreign Acquisitions and Takeovers Act 1975, any foreign person proposing to take a ‘notifiable action’ is required to inform the Treasurer before the action is taken. All acquisitions relating to an interest in Australian land is a notifiable action, whether the land be residential, agricultural or to be used for commercial purposes. In circumstances where a beneficiary does not know of their legal or beneficial interest in residential land until after administration of the will, they can notify the Treasurer within 30 days of acquiring the interest. In some situations, applying for approval will be unnecessary, if the acquisition falls under an existing exemption from the legal requirements. However, foreign persons should treat the known existence of a will as an indicative sign to notify.

For a legal or beneficial interest acquired by devolution or operation of law, foreign beneficiaries will not be required to seek approval from the Treasurer. For this exception to apply, the acquisition must be a legal consequence flowing from an involuntary act. An intestate estate where land was distributed according to Australia’s laws of succession is an example of how this exception can apply. The acquisition in question must not require any voluntary act on part of the beneficiary who stands to inherit the land. If a settlement or agreement is necessary for the interest to be acquired, the result is no longer an automatic consequence of law and not exempt from the legal requirements.

The purpose of applying for foreign investment approval is to receive a ‘no objection notification’ from the Treasurer. This will effectively prevent the Treasurer from, being able to issue a disposal order in relation to the acquisition at a later date.

Applications for a No Objection Notification do attract an application fee, and are submitted through the Australian Tax Office website. Foreign persons a required to pay a fee for each application made, which are generally payable at the time of lodgment. The application fees vary according to the value of the acquisition in question, and the type of land which approval is being sought for. In the event a person submits an application, and the review board considers that person was not required to do so, they are entitled to a refund of their application fee.

If you require legal advice regarding your inheritance, we encourage you to contact our office on (07) 3839 8011 to schedule a meeting with our lawyers Fabrizio Fiorino and Fabio Orlando.

Article written by Jenna Behr of our Brisbane office.

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Alternative Dispute Resolution

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Transferring real property ownership to family members in Victoria

Very often we have clients who want to transfer their real property to their partners, children or siblings. Whilst these transfers may frequently be deemed gifts (i.e. no consideration or money) is being exchanged, these transfers may be dutiable transactions.

As a general rule, in a property transfer, stamp duty is payable on:

The market value of the property; or

The consideration paid for the transfer,

whichever is the greater.

Gifts

The Duties Act 2000 VIC (‘the Act’) defines ‘Dutiable property’ as a wide range of real property, security interests, goods and livestock (s 10).  Circumstances where ‘related parties’ transfer dutiable property to one another, can trigger evidentiary requirements in relation to the market value of the real property.

For example, although you have ‘gifted’ your real property to a family member, the State Revenue Office of Victoria (“SRO”) may still require stamp duty payable on the market value of the proportion of the real property you are acquiring and request evidence of the market value of the property to determine the duty payable. The SRO advises that acceptable evidence of market value is:

A letter of appraisal from a licensed real estate agent and a copy of the rate notice.

A valuation from a certified practising valuer who is a member of the Australian Property Institute (API) or by a member of the Real Estate Institute Victoria (REIV) with sworn valuer accreditation.

A letter of appraisal, commissioned by or for a financial institution for security purposes, providing the valuation is by a certified practising valuer who is a member of the API or by a member of the REIV with sworn valuer accreditation. The letter of appraisal or valuation should be:

In the case of a related party transfer for full or fractional interest (without a contract or that is a gift) – within six months of the date of the transfer.

In the case of a sale under a contract between related parties – within six months of the date of the contract.

By way of further example, if a parent transferred half their interest in real property to their child and the market value of the whole of the real property was $1 million, the child would be required to pay stamp duty on $500,000 (less any concessions or exemptions that may apply), even though the transfer was a gift.

Payment of consideration

However even when consideration is paid, if the child in the same circumstances described above had paid the parent $300,000 for their half share in the property (even though the property was worth $500,000), notwithstanding that consideration was paid, the child would still be required to pay stamp duty on the market value of $500,000.

Exemptions

Exemptions to the stamp duty requirement on transfers of dutiable property to family members are limited.

A person can transfer their interest, or part interest of real property to their spouse or domestic partner without the payment of duty in circumstances where:

The property being transferred is residential property;

The property will be the principal place of residence (PPR) for at least one person of the relationship – one of the parties to the transfer must live in it for a continuous period of 12 months within 12 months of the transfer occurring; and

There is no consideration paid for the acquisition of the property.

Similarly an exemption is available in situations where there is a breakdown of a marriage or domestic relationship and the transfer is made only because of the breakdown. These exemptions are subject to evidentiary requirements and s 44 of the Act and may, subject to the provisions of section 44 apply to persons who are:

parties to the relationship;

dependents of the parties; and

certain corporations.

Other duties and taxes

Stamp duty is not the only payment that must be taken into account upon transfer of property ownership to a family member. Depending on a person’s or corporation’s individual circumstances and situation, the payment of Capital Gains Tax (CGT) and Goods and Services Tax (GST) may be payable by the Transferor (the person transferring over their interest of the property).

It is therefore imperative that prior to undertaking any transfer of property you speak to your accountant and/or financial planner, alongside your legal team, to understand the financial consequences of ‘gifts’ when transferring real property ownership to family members in Victoria.

If you have any queries, please contact Theresa Elhage on (03) 9600 2450.