Updated 19 November 2020
Neighbours do not have to have a dividing fence if each neighbour agrees.  However if one neighbour wants a dividing fence, then both neighbours of the adjoining land are responsible for the cost of building and constructing the fence.
Where a dividing fence is built on the common boundary line of adjoining land, the fence is owned equally by each of the adjoining land owners.  If the fence is not built on the common boundary line, then it is owned by the person whose land it is situated on (despite who contributed to paying for the fence).
As each neighbour owns a dividing fence equally, they each have a responsibility to contribute equally to the cost of building the fence and maintenance.  This rule only applies to a standard dividing fence, if you or your neighbour want a fence which exceeds the general requirements for a dividing fence, then the neighbour who wants the more expensive fence must pay the extra costs.
What constitutes a standard or sufficient fence? Generally a dividing fence must be between 0.5 and 1.8 metres high and made of any of the following materials: wood, chain wire, metal panels, bricks, rendered cement concrete blocks, hedge or other vegetation that creates a barrier or other material which fences are ordinarily constructed from.
Neighbours should not attach to a dividing fence anything (such as a carport, clothesline, shade sail etc) without the permission of the other owner.  If one owner causes damage to the dividing fence, then you may follow the same process in seeking your neighbour to remedy the damage.  Likewise if the fence requires maintenance during its lifetime, the process below can be followed.
Step 1: A notice to contribute
Before constructing or undertaking maintenance work on a dividing fence, you must provide to your neighbour a ‘notice to contribute’.  This notice should outline for a new fence:

the type of fence you propose to construct (including height and material);
how and when you propose to start construction;
its placement on the land (this should generally be on the dividing boundary); and
an estimated cost (including the amount of the neighbours contribution). You must include in this notice at least one quote for the fence.

It is important that you use the correct form which is available here.
For maintenance of a fence you must fill out the same form but with the details of the proposed maintenance work.
Make sure you keep a copy of the notice for your own records and note the date the notice was given to your neighbour.  If your neighbour agrees to your proposal, you should ensure that this agreement is recorded in writing.
If your neighbour does not provide you with written approval then you may not be able to claim from your neighbour their share of the costs and further, your neighbour may be able to apply to have the fence demolished or altered.
What if your neighbour won’t agree to the contribution notice?
You cannot begin construction of the fence until you have obtained your neighbours approval, unless the construction or proposed work is urgent (the legislation specifically defines when work is considered urgent).
If your neighbour has not agreed to the notice to contribute then you should always try to talk through any problems with your neighbour and find out why they are not willing to agree.  If this does not resolve any outstanding issues then you may take the further steps outlined below.  Any agreement that you and your neighbour reach in relation to the payment of costs of fencing should always be in writing.
Step 2: Neighbourhood mediation
Whilst mediation is not a compulsory step, it should be considered seriously by neighbours who cannot resolve a dispute on their own.  The service is offered for free and even if you apply to the Queensland Civil and Administrative Tribunal (“QCAT”) they may make an order requiring the neighbours to attend mediation.
Mediation involves an independent third party who will assist you and your neighbour to reach an agreement. If you cannot agree at mediation then as a last resort you can apply to QCAT.
More information on this service is available on the Queensland Government website.
Step 3: Apply to QCAT
If you cannot reach an agreement with your neighbour within one month after the notice to contribute was given, then you may apply to QCAT after a period of two months since the notice to contribute was given.  This application is made by lodging a ‘dividing fence dispute application’.
The cost of an application to QCAT is estimated to be between $27.45 and $352.00 depending on the nature of the dispute.  At the time of writing:

if the value claimed is less than $500.00 then filing fee is $27.45;
if the value claimed is between $500.00 and $1,000.00 then the filing fee is $70.45;
if the value claimed is between $1,000.00 and $10,000.00 then the filing fee is $125.40; and
if the value claimed is between $10,000.00 and $25,000.00 then the filing fee is $352.00.

The application form to QCAT is available here.
If you require assistance with resolving any dispute we would be happy to assist.  Please contact our office on 07 4036 9700.
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Domestic violence and parenting
It is important that children grow up in a safe environment where they feel secure, loved and protected.  Children who are exposed to domestic violence are far more likely to develop physical and/or mental health problems and, as adults, to become victims or perpetrators of domestic violence themselves.
If you are a parent who is a victim of domestic violence and you have a child who has been exposed to domestic violence, you can make an application for a protection order that not only protects yourself from domestic violence, but also protects your child.  Whilst the terms of domestic violence orders do vary, at a minimum, all protection orders ensure that the parent against whom the order is made, must be of good behaviour towards you and any children named in the order.
When applying for a protection order it is possible to seek additional protections which, for example, restrain the other parent from approaching your residence or place of employment, approaching you in a public place, or at a place associated with your child, such as a day care or school.  What orders will provide the necessary level of protection will depend on your individual situation.  We recommend that advice is sought prior to making an application for a protection order.
Protection orders
Whilst a protection order is made to protect those named in the order from domestic violence, it does not deal with the living arrangements or the authority to make decisions for your child.  Parents must carefully consider the following:

if there is no existing agreement in relation to the living arrangements for a child named in an order, whether or not a meaningful relationship between the child and parent (against whom the order is made) can still be maintained, taking into consideration the need to reduce any risk of harm to the child; and
if there is an existing agreement in place in relation to the living arrangements for a child named in an order, whether these arrangements need to be modified in light of the protection order, for the safety of the parent and child, and to ensure that a continuation of the existing arrangement does not lead to a breach of the protection order.

We recommend that parents obtain expert legal advice on their situation, as allegations of domestic violence, and the making of a protection order, adds an additional layer of complexity to parenting matters and need to be carefully navigated.  Parents should not assume that the making of a protection order enables them to withhold the child from the other parent.  Likewise, parents need to be careful that they do not facilitate any care arrangements that may place their child at risk. Parents who have had an order made against them should seek advice on options available to them to spend time with their child.
Domestic violence – next steps
Our experienced Cairns and Mareeba family lawyers are here to help, you can contact us on (07) 4036 9700 for expert advice on parenting and domestic violence matters.
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Subcontractor late payments Queensland
Working in the building industry with or as a subcontractor?  This year has seen significant changes made to building industry payment laws that may affect you.
In July the Building Industry Fairness (Security of Payment) Act (“BIF Act”) was amended in the hope of improving the process for dealing with late and non-payment of subcontractors in Queensland.  The changes aim to:

introduce new protections for monies in dispute;
simplify trust account frameworks; and
strengthen the regulatory oversight of trust accounts.

So, how is the new BIF Act achieving those goals?

New protections for monies in dispute in business

The new legislation introduces security of payment reforms to better protect monies in dispute.  Now where an adjudicated amount is not paid within the timeframes required by the BIF Act, subcontractors may have recourse to a “payment withholding request”, issued to a party above the respondent in the contractual chain, in order to protect money that may be payable.  If that party does not withhold the adjudicated amount they could be liable for the amount owed to the subcontractor.
The updated BIF Act also enables a head contractor to lodge a statutory charge over the property where construction work occurred, if owned by a BIF respondent who does not pay an adjudicated amount in the required timeframe.

Simplified trust account frameworks

Changes to the BIF Act promise to simplify trust account frameworks in a number of ways.  Prior to the amendments, head contractors were required to open three bank accounts for each eligible contract, including a retention account.  The changes reduce the number of accounts required to one single “project trust account”.  If a retention trust is required, a contractor is now able to hold all retentions across a number of projects in a single account.  The former “disputed funds account” has been abolished in favour of added protections for subcontractors.
The new project trust regime will be rolled out in stages to allow time to adjust to the changes, a plan that has been temporarily affected by COVID-19.  Provisions dealing with project trusts and retention trusts will not commence until “a day to be fixed by proclamation”, wording that provides the government with flexibility to work around the changing pandemic situation.  We do not expect to see full implementation of the project trust regime until at least 2023.

Strengthened oversight of trust accounts

Though responsibility for oversight of project bank accounts previously lay with the principal, they have no oversight role in the new project trust regime.  Instead, the Queensland Building and Construction Commission (“QBCC“) will monitor the trust regime.  To this end, changes to the BIF Act increase the QBCC’s regulatory functions, including audit powers over trust accounts.  QBCC will, among other things, be empowered to “freeze” trust accounts, and request the provision of information about trust accounts in cases of noncompliance.  Retention trust accounts will be subject to regular independent audits.
To further assist QBCC in its monitoring and oversight role, legislative amendments to the QBCC Act have also been proposed to take effect on 1 October 2020.  These changes will introduce new penalties, including for provision to the QBCC of false and misleading information about a licensee’s financial situation, and for failure to provide a supporting statement that states all subcontractors have been paid when requested.
The changes to building industry payment laws, as they are implemented over the next few years, will significantly impact the conduct of disputes involving subcontractors.  If this is you, our experienced legal team is here to help, contact us on 4036 9700.
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Director Identification Numbers – more Than Just A Vehicle For Regulation
Miller Harris Business Legal Services: On 22 June 2020 the Commonwealth Government passed into law new legislation requiring company directors and executive officers of companies to obtain and hold a director identification number (“DIN”).
The DIN scheme is a further step in the Government’s ongoing campaign to reduce illegal phoenix activity, which you can read about further here.
When Will The DIN Scheme Commence?
Although the Act has been passed and assented to, the specific timeframes around commencement are unclear. In an earlier press release, the Government stated that it expected that the scheme would commence in early to mid-2021, however the global pandemic is expected to delay the commencement.
The introduction of the DIN scheme comes alongside the decision to amalgamate a number of business and company registers maintained by the government to reduce the complexity and administrative burden involved in the registers.
The DIN scheme means that all directors and executive officers of companies, both current and aspirational, will need to register for a DIN.
There will be a transition period of 12 months during which existing directors must register for a DIN, although the commencement of that period has yet to be fixed.
DIN Scheme For New Company Directors
For new directors, they will need to register within 28 days of being appointed.
Once the transition period ends, all existing directors will need to hold a DIN, and all new directors will need to acquire one before their appointment.
The largest hurdle to registration will be verification of identity, which again remains ambiguous, although it is suspected that the provision of a tax file number will go a long way towards verifying the officer’s identity.
A person’s DIN will remain with them for their lifetime.
Why You Should Not Ignore This
A person who fails to register in the required time, or attempts to register for multiple DINs, is liable to substantial penalties, including periods of imprisonment.
There are still some concerns with the new scheme, including the availability of information on directors, the security of the register, and the requirements for verification of identity, particularly for those directors residing overseas.
Given the importance the Government has placed on combatting phoenixing activity, it is unlikely that these issues will substantially impede the roll-out of the new scheme, and it may be considerable time before the issues are resolved or addressed, if at all.
These changes represent an ongoing measure in the war against phoenixing activity. With the recent changes to insolvency legislation, particularly surrounding phoenixing activity, it is more important than ever to ensure that you are complying with the legislation and your obligations as a director.
Should your require advice about your obligations as a director, or if you have concerns regarding insolvency and winding up, our professional team at Miller Harris Lawyers can assist you to work through what are inevitably tough times.
If you require any assistance at all, or further information, please contact us on 07 4036 9700
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Updated 20 August 2020
The simple answer to this question is – yes.
Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.
A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.
Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.
The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.
It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.
We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.
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At Miller Harris, we know that local businesses are feeling the impact of COVID-19.  The Commonwealth government previously announced a “code of conduct” to allow business tenants to negotiate rent relief with their landlords during the pandemic.   That code of conduct did not have any legal force, but after a considerable delay, the Queensland government passed regulations to put it into effect.
There are some myths going around about what rights tenants and landlords have in the pandemic.  In particular, there is no automatic right to a 50% rent discount.  Read on to find out how the system works.
If a tenant requests renegotiation of the rent or conditions under the lease, parties must enter into negotiations provided that:

the tenant has an annual turnover of less than $50 million, or is not-for-profit; and
the tenant is eligible for the JobKeeper scheme.

The landlord and tenant must share enough information with each other to enable them to negotiate in a fair and transparent way.  During the negotiations, both the landlord and tenant must cooperate and act reasonably and in good faith. At the end of the negotiations, the landlord is obliged to make an offer to the tenant.  If agreement cannot be reached, or a party does not negotiate, the matter can be referred to the Small Business Ombudsman.
For affected tenants:

Start the renegotiation process.
Do not simply stop paying your rent or expect your landlord to stop charging rent.
Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business.

For affected landlords:

Do not increase the rent payable before 1 October 2020.
Be cautious about taking action against a tenant for failure to pay rent during this period.
Speak with your bank about what options are available if your tenants are unable to pay the full rent.

Finally, make sure that any agreement you reach is recording in writing and that changes to the lease are reflected in formal, enforceable documentation.
If you have any questions or concerns regarding your rights and obligations you should contact our experienced commercial and property law team as soon as possible on 4092 3555, or feel free to see us in our Mareeba office at 222 Byrnes Street, Mareeba.
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Redundancy – Is it genuine?
During these times of economic uncertainty, redundancy could, understandably, be on your mind.  As a business owner, you might be faced with the difficult decision to reduce employee numbers.  If you are an employee at risk of redundancy you may be wondering what your options are.
In either case, it is important to understand whether any redundancy is a “genuine redundancy”, or a termination on other grounds.  If a termination is a case of genuine redundancy, and the proper steps are followed, then the ensuing dismissal will not be unfair.
A genuine redundancy occurs where:

the employer no longer needs the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
the employer has complied with any obligation to consult with the employee about redundancy (if an award or enterprise agreement requires consultation about major workplace change); and
the employee could not be reasonably redeployed in the employer’s enterprise or that of an associated entity.

Changes in redundancy requirements
There are many things that might happen in a business which could be described as a “change in operational requirements”.  It is a very broad concept.  Some examples include:

a downturn in trade that reduces the number of employees required;
technological development;
restructuring a business for the sake of efficiency, which reduces the number of positions available;
closure of the business; or
outsourcing of the employee’s role.

The key question is whether anyone needs to do the employee’s job in the face of the organisational change.  It may be that a particular job is no longer required to be performed even if some of the duties associated with that job are still being performed by other employees or have been outsourced to contractors.
Redundancy consultation
There is usually a requirement in modern Australian awards and enterprise agreements for an employer to consult with affected employees about impending redundancy.
Where an employer has  an obligation to consult, it is very important that the obligation is fulfilled.  Even if all other requirements have been met, a redundancy can still be an unfair dismissal if the proper consultation process is not followed.
Redeployment or redundancy
The final question is, whether it would be reasonable to redeploy a redundant employee into another role, instead of making the employee redundant.  Relevant factors include:

if any other job is available and, if so, the nature of that position;
the qualifications and experience required to perform the job;
the location of the job in relation to the employee’s residence; and
the remuneration which is offered.

If thinking about, or faced with redundancy, make sure that it is a genuine redundancy.  A failure to implement and follow a proper process of evaluation and consultation may raise the prospect of unfair dismissal, and the legal remedies and ramifications that go along with it.  If you have any queries, talk to our experienced team today on 4036 9700.
Please note these comments apply to employees covered by the Fair Work Act redundancy provisions.
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Federal HomeBuilder grant 2020
The Australian Government has recently announced a new “HomeBuilder grant” to boost the Australian economy, particularly the construction industry, in light of the Coronavirus pandemic.
The new HomeBuilder grant provides eligible homeowners and first home buyers with a grant of $25,000.00 to build a new home or significantly renovate an existing home.
HomeBuilder requirements
The following eligibility requirements apply:

you must be an Australian citizen (not resident);
you must have an annual income of $125,000.00 or less or, for couples, your combined income in the last financial year must be $200,000.00 or less;
the building or renovation contract must be entered into and signed between 4 June 2020 and 31 December 2020 and work must commence within three months from the contract date (current projects do not qualify);
for new buildings, the value of the home (including land) must not exceed $750,000.00; and
for renovations:

the renovation must be valued between $150,000.00 to $750,00.00;
the pre-renovation value of the home must not exceed $1.5 million dollars excluding fixtures such as sheds and granny flats; and
some renovations are not covered such as adding a pool or detached garage.

HomeBuilder eligibility
Eligible homeowners will be able to apply for the HomeBuilder grant when their relevant State or Territory Government implements the grant.
The HomeBuilder grant is a temporary scheme which applies alongside existing first-home and home‑owner grants.  You can register your interest to receive updates when more information is available on the Australian Government Treasury website.
The existing Queensland First Home Owners’ Grant provides $15,000.00 towards purchasing or building a new house or apartment where the value of the home (including the land) is less than $750,000.00.  These grants have their own eligibility criteria.
First homeowners
First homeowners may also qualify for stamp duty concessions, and the federal government’s first-home loan deposit scheme and first-home super saver scheme.
If you are considering purchasing, building or renovating property and have any questions concerning the grants that may be available to you, please do not hesitate to contact our team of experienced property lawyers on (07) 4036 9700 or [email protected].
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If you have finished (or are well and truly over) ‘Marie Kondo-ing’ your home, now is a good time to ensure that your superannuation and life insurance beneficiary nominations are in place and up to date. What a lot of people don’t realise is that your superannuation and life insurance do not typically form part […]

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One impact of Coronavirus may be that more people find themselves separated from their spouse, but continuing to live together for a period of time.  In family law this is coined “separation under one roof” and there are important consequences to be aware of.
The most important thing about separating under one roof, is determining the actual date of separation.  This is typically the date where one spouse has the intention to separate, and that intention is clearly communicated to the other spouse.  There are many ways in which an intention to separate may be communicated and relevant factors include:

details of any conversation about separating between the spouses;
separating finances, including opening personal accounts and ceasing use of joint accounts;
a change in sleeping arrangements and living arrangements;
communication of separation to friends and family;
living separate social and public lives;
cessation of performing household duties for each other;
cessation of a sexual relationship; and
notifying government departments that you are separated, such as Centrelink.

It is also important to consider whether there has been any reconciliation of the relationship after the date that separation has initially been communicated.  Whether or not reconciliation has occurred can be a grey area requiring specific advice based on your circumstances.
The date of separation is very important as it triggers the following time limits for family law matters:

For married couples: You are only eligible to apply for a divorce 12 months after the date you separated. Once a divorce order is obtained, a further 12 month time limit is triggered for resolving all property division and spousal maintenance matters.
For de facto couples: You have two years after the date of separation to finalise both the division of your property and any spousal maintenance matters.

If property and spousal maintenance issues cannot be agreed to and formalised according to the requirements of the family law legislation, within the above time limits, then it may be necessary to commence court proceedings prior to the time limit expiring to protect your interests.
We recommend that you diarise the date that you have separated, including details of the separation and obtain independent legal advice as soon as possible after separation.
Our experienced family law team is here to help and can be contacted on 07 4036 9700 or [email protected].
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Many business owners carry on business using a registered business name.  Registered names need to be renewed from time to time.  Private company service providers now have access to the business names register information, and some offer “renewal services”.  Unfortunately, some of these service providers are sending business owners “renewal notices” which look very much like official renewal notices or invoices from the registry, and call for payment more than double the fee to renew directly with ASIC.  No doubt they hope that businesses will simply put the “renewal notice” into their payment systems without question.
You do not have to pay for renewal through these service providers.
It is cheaper and just as easy to renew through ASIC.
Renewing your business name through ASIC is cheap, easy and quick.  You can visit their website at asic.gov.au.
ASIC sends a business name renewal notice at least 30 days before your renewal is due.  We recommend that you bin all other renewal notices received from anyone other than the ASIC.
ASIC provides the option of renewing your business name for either:

one year, which costs $36.00; or
three years, which costs $85.00.

Other service providers charge more than double the amount required by ASIC.  Please contact us if you are uncertain whether an invoice from a service provider is legitimate or not.
Do you need a business name?
You are required to register a business name if you are trading under a name that is different from your own name or your company’s name.
It is important to have a business name which is currently registered.  Carrying on business under a name which is not your own name, and not registered as a business name, is an offence.  It is also possible that someone else might register the name which you are using, leading to confusion and disputes.
If you have any questions concerning the operation of your business, please do not hesitate to contact our experienced team on 07 4036 9700.
Wishing you all the success for your business!
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Co-parenting can be difficult at the best of times.  The additional uncertainty and significant changes in response to the global pandemic will see parents face new challenges.
The message from the courts is that where possible parents should continue to comply with existing court orders.  It is not clear at this stage, what the courts will consider a reasonable excuse for not complying with a parenting order in the context of the pandemic.  Parents are being encouraged by the courts to use their common sense and to act reasonably as new challenges present as a result of the pandemic.  Communication will be crucial as parents navigate through the temporary restrictions in place, particularly in relation to travel and quarantine.
If orders cannot be complied with, or parents seek to change arrangements during the pandemic, parents should, in the first instance, try to reach an agreement in writing with the other parent about what is to occur, including consideration of makeup time if time is not proceeding in accordance with orders.  Parents are being reminded by the courts that they should always prioritise the best interests of the children, their health, safety and wellbeing.
If you are in a situation where you believe that you are unable to comply with court orders and the other parent does not agree, and the issue cannot be resolved between you, you should seek legal advice.
Parents should attempt to work through issues reasonably and sensibly to prevent any more distress during this time.  They should keep each other informed about any health issues or concerns as they arise.  If issues arise that cannot be resolved, they may be able to be negotiated through lawyers or through alternative dispute resolution services, such as mediation which continue to be offered remotely.
Travel restrictions
The latest direction from the Queensland Chief Health Officer permits persons to cross the border for the following purposes:

to continue existing arrangements (such as parenting plan arrangements) for children under 18 years to have contract with their parents and siblings who they do not live in the same household with (but contact with vulnerable groups, such as persons over 70 years, is not permitted);
to provide care or support to an immediate family member; and
to attend any court of Australia or to comply with court orders (including parenting orders).

The courts and the government are continually reviewing and updating travel restrictions, so it is always best to obtain advice on the current arrangements that apply to your situation.
Our lawyers are continuing to advise clients on all family law matters.  Please do not hesitate to contact us on 07 4036 9700 if you have any questions or concerns regarding your family law matter during this difficult time.
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Cairns is soon to introduce its newest (and first) land lease community, also known as a manufactured home park.  The Botanica Lifestyle Resort is the first of its kind in Cairns and a new option for those looking to make the transition to retirement living.
There are a number of options for those wanting to move into retirement living including moving into a retirement village (and the various iterations of retirement villages) or a manufactured home park.
What is a manufactured home (or a land lease community) and how is it different from other retirement living options?
One of the main differences between a manufactured home (or land lease community) and regular home ownership is that you do not own the land on which your house is placed, you rent it.
You do however own the home that you reside in, which differs from most retirement villages where you lease or licence the unit or villa that you live in.
Depending on how the home is constructed, one of the features of a manufactured home park is that you can physically move the home to another location if you wish.  That may not be practical however depending upon the characteristics of the house.
What is included?
There are a number of benefits to purchasing a home in a manufactured home park over traditional land ownership, including:

the access to a community of people of a similar age and with similar interests; and
various community facilities including sporting areas, parks, restaurants, pools and event spaces.

Because you actually own the home you will live in, you also have more freedom in how you keep and manage it, subject to the rules of the park.
A manufactured home is also a capital asset that you can sell in the future, and as you will own the home in the park you will be able to leave it as an asset in your will.
What rights do I have?
Manufactured home parks are governed by the Manufactured Homes (Residential Parks) Act 2003, and that act contains numerous protections for those wishing to adopt that style of living.
Among the protections is an indefinite lease period in most cases, meaning that not only can you reside at the property for as long as you want,  you have the flexibility to terminate the arrangement whenever you are ready to move on.
The legislation also requires that the operator of the park allow cooling off periods and provide extensive disclosure to you about the costs involved in living in the park, the facilities that will be provided, and your obligations when living in the park.
What happens when I am ready to move on?
When the wander bug strikes again and it is time to move on, a manufactured home can present more options than a traditional retirement village.
Depending on the construction of the home, you may choose to terminate the rental arrangement with the operator and move your home somewhere else.  You also have the option, and it may be a more  practical one, to sell the property.  Such a sale will need to involve the park operator though as they will need to consent to any new owner.
You are entitled to receive any capital gain on the sale of your property as you own it and unlike exit from a retirement village, there is no exit entitlement or lump sum payment that you need to pay to the operator when you move on.
If you wish to move on but cannot sell the property, and it is not practical to physically move the property to another location, questions may arise as to what may be done with the property.  You should carefully consider the terms of your site agreement with the operator as this will largely determine what your obligations on exit will be.
Entering into an agreement to reside in a home in a manufactured home park is a big decision and there are a number of different factors that you should consider before signing on the dotted line.  Seeking legal advice on the agreement is a must!
Our experienced commercial lawyers are able to assist with any enquiries about manufactured home parks or retirement villages so call us today on 07 4036 9700.
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The Commonwealth Government yesterday announced the mandatory code of conduct for commercial leasing.
The code is intended to alleviate the impact of government implemented measures to combat the COVID-19 pandemic.
To be eligible for the code to apply, an individual, business or company must show:

a 30% reduction in revenue compared to a similar time last year; and
an annual turnover of less than $50 million.

Businesses eligible for the JobKeeper program are automatically eligible for the code of conduct.
The code encourages tenants and landlords to adhere to, and apply as soon as practicable, good faith leasing principles for the duration of the code, which will remain in place as long as the JobKeeper program remains in place.
Among those principles are:

landlords must not terminate leases due to non-payment of rent during the period of the COVID‑19 pandemic and a reasonable subsequent recovery period;
tenants must remain committed to the terms of their lease, and a failure to abide to the terms of the lease may forfeit any protection by the code;
landlords must offer tenants a reduction in rent proportionate to the downturn in the tenant’s business, this is likely to be between 30% and 100% of the rent;
at least half of the reduction must be a waiver of rent, with the remainder able to be a deferral, where the tenant pays it to the landlord over the remaining term of the lease (or a minimum of 24 months);
landlords should also pass on where practicable the effects of any financial assistance received, including alleviation of loan repayments;
landlords should where appropriate seek to waive recovery of other expenses and outgoings against tenants, and can choose to reduce services provided to the tenants;
landlords must not draw on a tenant’s security for the non-payment of rent during the period of the code;
the tenant should be provided with the option to extend the lease for the same period as it was non-trading; and
landlords must freeze rent increases (except for those based on turnover rent) for the period of the pandemic.

If agreement cannot be reached between the landlord and the tenant as to the above arrangements (including as to the amount of any waiver), the matter must be referred to mediation.
The measures prescribed above, and others in the code, seek to ensure that businesses are able to survive and continue trading when the pandemic reaches its end.
The code has an effective date as of 3 April 2020, but will not apply in Queensland until such time as it is enacted by parliament.  There is no prescribed time for this, but it is expected to be as soon as possible.
The code will only cease to apply when the JobKeeper program no longer applies and the pandemic is deemed to be over.
While this announcement will bring welcome relief for tenants, its implications in the long run may be uncertain. If you have any questions or concerns regarding your rights and obligations under the Code, you should contact our experienced commercial and property law team as soon as possible.
 
Checklist for Commercial Tenants

Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business;
Speak to your accountant about the financial impact, and what can be done to minimise it and allow you to recover;
If applicable, register for the Jobkeeper Program;
Consider what you are realistically going to be able to do financially over the next six months or so, and come up with a proposal regarding the lease. Make sure it is fair, and is able to be justified based on your business records.  It may be useful to involve your accountants and lawyers in this process;
Start negotiations with your landlord to try to find an acceptable solution for both of you to get through this difficult period. Bother parties need to be honest and negotiate in good faith.
Do not just stop paying rent or expect your landlord to stop charging rent and outgoings. Doing so will mean that you lose the protection the government is offering.
Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation. Your lawyers should be engaged to do this.

 
Checklist for Commercial Landlords

Be pro-active. Contact your tenants and see how they are impacted.  Starting early might make the situation more manageable rather than waiting until there are few options left.
Speak with your bank about what your options are if the tenants are unable to pay the full rent. Can the bank help with repayment holidays or converting to interest only, or other measures?
Consider your outgoings and other holding costs – are there savings or deferrals which may be available?
If your tenants are adversely impacted, ask them to show you some financial information to show what that impact is, and what sort or relief they may be looking for;
Engage in negotiations with the tenant. Remember that you will both have an obligation to negotiate honestly and in good faith, and that is it likely to be better to have a viable tenant at the end of pandemic period, than be looking for a new tenant in what is likely to still be a difficult market.
Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation.  Your lawyers should be engaged to do this.

The post Commercial Landlords and Tenants: impacts of pandemic lockdowns appeared first on Miller Harris Lawyers.

The importance of an enduring power of attorney is often overlooked because people believe that their spouse or next of kin will be able to look after their affairs if they were to lose capacity. The truth is, it would be very difficult for your loved ones to deal with your affairs if they are not appointed as your attorney.
Let’s use the example of Jane and Tom:
• Jane and Tom are in their mid 50’s.
• Tom works full-time and Jane works part-time.
• Jane and Tom own their family home jointly.  There is a mortgage over their property.
• Tom is involved in a car accident and suffers serious brain injuries. As a result, Tom is unable to make decisions for himself and requires care on a full time basis.
• Jane is unable to care for Tom on a full-time basis and cover the mortgage repayments.  Jane decides to sell the family home and move Tom into a care facility.
• Jane contacts a real estate agent to list the property, however the sale comes to a standstill when Jane encounters a problem; Jane and Tom do not have enduring powers of attorneys.
• As Jane is not appointed as Tom’s attorney, she is unable to sign the contract for sale or transfer documents on Tom’s behalf to effect the sale of the property.
The consequence of not having an enduring power of attorney in place means that an interested party (i.e. family member or friend) would need to make an application to the Queensland Civil and Administrative Tribunal (“QCAT”) to be appointed as the administrator for financial matters and/or guardian for personal and health matters. So in the scenario above, Jane would need to make this application to have the power to sell their property. This process is stressful and can be costly.
If no one is willing to take on this responsibility then the Public Trustee and the Public Guardian may be appointed to take control of your affairs. There is also the risk of these statutory offices being appointed if there is a dispute between family members about who is the most appropriate person(s) to act.
The reality is, any person can unforeseeably lose their capacity at any time during their life. Wouldn’t you prefer to appoint someone who you trust to look after your affairs if this situation were to arise?
If you would like to avoid this problem for relatively little time and money, please do not hesitate to contact us to set up your enduring power of attorney.
Get your affairs sorted today.  Contact our Mareeba wills and estate lawyers on 07 4092 3555.
The post The truth about why you need an enduring power of attorney appeared first on Miller Harris Lawyers.

Building covenants are common features of contracts for the purchase of properties in new residential estates.  Property developers use them to ensure that houses, fences and other improvements to be constructed by the buyer conform with the landscaping and design of the estate.  The intention is that by doing so, the developer maintains control of the product which it is selling, and buyers can buy with confidence that the other houses in the neighbourhood will be of a similar standard.
The content of building covenants varies dramatically from estate to estate.  Some are very basic and some are highly detailed and prescriptive.  Many of them control the design of houses, materials used, colour schemes and the location of solar panels and solar hot water systems.  Generally building covenants are legally binding, however, the Building Act 1975 (the “Act”) contains provisions which were introduced to encourage developers and homeowners to implement sustainable buildings and designs.  Covenants which restrict the use of energy efficient design features, such as solar hot water systems or light coloured roofs, in favour of unsustainable aesthetic designs can be unenforceable under the Act.
The  Court of Appeal recently considered the enforceability of a building covenant relating to solar panels in the case of Bettson Properties Ptd Ltd & Anor v Tyler.
The facts
In Bettson a building covenant required the buyer to obtain the seller’s consent before installing solar panels.  The purpose of this condition was to prevent the installation of visually unpleasing solar panels.
Without the seller’s prior consent, the buyer installed the solar panels on a highly visible portion of the roof.  The seller’s request to relocate the solar panels to a more discrete location was rejected by the buyer, as the alternative location would render the solar panels 20 per cent less efficient.
The seller consequently sought to enforce the building covenant in the court.
Section 246S(2) of the Act provides that where a building covenant requires a person to obtain consent before installing solar panels on a building, consent cannot be withheld if doing so would prevent the person installing the solar panels.
The question in this case was whether the seller’s restriction on the location of the solar panels prevented the buyer from installing the solar panels within the meaning of section 246S.  This question relied heavily upon the meaning of “prevent”.
At first, the buyer succeeded, with the lower court deciding that “prevent” meant ‘hinder’ or ‘impedes’ and consequently the seller’s requirement to relocate the solar panels to a less energy efficient location prevented the buyer from installing the panels.
However the Court of Appeal did not agree with the lower court and held that ‘prevent’ has the traditional meaning of ‘to stop from happening’.  Section 246S was held to only apply where withholding consent makes it ‘impossible’ or ‘impractical’ to install the solar panels, which was not the case here.
Consequently, the buyer was ordered to relocate the solar panels as required by the seller.
Implications
The decision of the Court of Appeal means that developers can impose building covenants which prevent a buyer from installing solar panels in the most efficient location on the roof.  Arguably, this is not consistent with the policy behind the housing sustainability measures in the Act, which generally prefer energy efficiency over aesthetics.  It may be that the government will change the Act in this regard.
If you are considering buying a property in a new residential estate, it is wise to ask the seller for a copy of any building covenants before you make a decision to commit to the purchase.  You should consult with your building designer or builder about the building covenant requirements to ensure that they can be met in a way which you are happy with.  Failure to consider the building covenants before you sign a contact can mean that you will be unable to build the house the you want, with the features you want after you have bought the land.
Please feel free to contact our property law department on 07 4036 9700 if you have any queries in relation to building covenants.
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You have separated, and are yet to agree on a property settlement, but you need access to money.
When a couple separate, it places an enormous strain on their finances.  Where previously the family income was only required to support one household, the same income is usually then required to support two separate households.  For the spouse who earns less or has been out of the workforce, this can be particularly challenging.
Often clients will tell us that they simply cannot afford to obtain legal advice or seek to settle their property matters after separation.  This in turn creates further problems associated with delaying a property settlement, including a continuation of financial strain on both parties.
If you are struggling to financially support yourself following separation then there are options available to you.  One of those options is spousal maintenance.
Spousal maintenance can be in the form of a lump sum payment or periodic payments for a period of time (for example weekly or fortnightly payments).  Spousal maintenance is financial support paid to the spouse who is in a weaker financial position and needs financial assistance, by the spouse in the stronger financial position who can afford to assist the other person, for a period of time to enable that spouse to recover from the separation.
The most common form of spousal maintenance, is an interim agreement for periodic payments until a property settlement can be reached.  Spousal maintenance may also continue for a period of time after a settlement is reached in some circumstances.
To be eligible for spousal maintenance, you need to be able to establish that your income is insufficient to adequately support yourself.  This will require an examination of your income and reasonable and ordinary expenses.  If you can establish that you have a need for spousal maintenance, the next step is to consider if the other spouse has the capacity to pay spousal maintenance, taking into consideration their income and own reasonable living expenses.
If you would like further information on spousal maintenance following separation, or other options to relieve financial stress, contact our Cairns and Mareeba Family Lawyers today on 07 4036 9700.
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Communicate and plan ahead

After separation parents often put in place a routine for their children.  In some situations the children’s routine will not initially include arrangements for school holidays and special occasions such as Christmas Day.  If you fall into this category, then it is time to start thinking about the upcoming holidays.
Christmas is for many people a very special time, to be shared and celebrated with family.  Christmas is often a challenging time for separated families.  The first Christmas after separation can be particularly difficult due to changing family traditions.
The key to reducing stress and the impact of separation on your children is early and respectful communication.  Give careful consideration as to what annual arrangements, particularly for Christmas Day will suit your family, and enable your children to celebrate with both parents and extended family members.
One of the most common arrangements for Christmas, is for the children to spend Christmas Eve and Christmas morning with one parent and Christmas evening and Boxing Day with the other parent, and alternate these arrangements each year, this ensures the children get to see both parents on Christmas Day.  However, this might not be suitable for every family, for example, families that have traditionally travelled away from home to spend Christmas with family.
Once you have considered what arrangements you think are in your children’s best interests, discuss with the other parent as early as possible and try to reach an agreement.
If you do agree on what the arrangements will be each year, or each alternative year, then it will reduce the need for you to discuss the topic annually.  Consider whether you should formalise your agreement by either a parenting plan or consent order.
If you are considering taking time off work and travelling or camping with your children over the holidays, these plans should also be discussed with the other parent beforehand, and as early as possible.  You should also make sure the other parent is aware of any festivities that your children may be involved in, for example school concerts and plays.
Planning ahead will enable your children to have the best day possible and will reduce the risk that your children will feel ‘caught in the middle’ this festive season.
If you cannot reach an agreement, you should consider inviting the other parent to a mediation so that you can more carefully discuss and focus on putting in place arrangements for the holidays, with the assistance of a mediator.  Mediation is difficult to arrange on short notice, so the earlier you start discussing the holidays, the better.

Gift giving

Consider coordinating your gift giving with the other parent.  It is not uncommon that during the relationship one parent will take responsibility for Christmas shopping.  Now that you have separated it is likely that you are both out hunting for the perfect present for your children.  Consider discussing with the other parent what you are thinking of buying before hitting the stores, to avoid duplication.
If your child brings along with them a gift that they have received from the other parent, be positive and encouraging.  Remember Christmas is about the children. It is also a good idea to ensure your child returns with the gift the next time they see the other parent.
Remember what the Christmas spirit is all about.  Whilst you may envisage gifting your former spouse a lump of coal this year, consider how assisting your children to pick out a small present for the other parent, may help and support them to adjust and feel more comfortable with the changing family dynamic.

Celebrate Christmas Day

After separation, Christmas Day will not feel the same for anyone in your family.  That doesn’t mean that you cannot enjoy Christmas (you may just need to adjust your expectations and make some changes).
For many separated parents, Christmas Day can feel very lonely.  Especially if you find yourself waking up alone Christmas morning or you are not putting the kids to bed Christmas night.  This can be particularly hard where you are used to certain family traditions.
Surrounding yourself with loved ones and family can reduce some of the feeling of emptiness.  Consider making arrangements to stay with loved ones and continue to celebrate and enjoy your traditions.  You may also consider creating new traditions based around the time the children will be spending with you.
If you would like to discuss your parenting arrangements with one of our Cairns and Mareeba family lawyers, contact us today on 4036 9700.
The post 3 tips for separated parents to make the most out of the Christmas holidays appeared first on Miller Harris Lawyers.

It is a privilege to hold a drivers’ licence, not a right.
In Queensland, there are laws that you must obey when issued with a driver’s licence. These laws have been implemented to ensure your safety and others on the road and include road rules. If you do not comply with these laws and are “caught in the act” by law enforcement, you may be charged with a traffic offence.
There may be serious consequences when charged with a traffic offence, even if it is a minor offence.  Penalties can range from monetary fines, loss of demerit points, disqualification of licence, a probation order or at worst, a jail sentence. If you are convicted, this can also affect your chances of obtaining a job, travelling overseas and your ability to obtain a visa.
The penalty imposed depends on the type of offence you have been charged with, your traffic history, your age, character and intellectual capacity, and other mitigating factors such as whether you have pleaded guilty and cooperated with law enforcement agencies.
Generally, there is a maximum penalty for most traffic offences. However, it is within the discretion of the court which decides what penalty to impose, and if a lesser penalty should apply.
At Miller Harris Lawyers, we can help you with a range of traffic related offences, including:
• drink and drug driving
• speeding offences
• unlicensed driving
• driving without due care and attention
• dangerous operation of a vehicle
• dangerous driving causing grievous bodily harm and death
• work licence applications
• special hardship orders
• other traffic related offences
Do yourself a favour and get the right legal advice today. Contact our Mareeba criminal and traffic offence lawyers on 4092 3555.
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Drug and alcohol use is a rising social issue both in Australia and worldwide.  The National Drug Strategy Household Survey[1], conducted in 2016, produced the following alarming statistics:

1 million Australians, aged 14 years and older, had used illicit drugs in the 12 months prior to the survey, which equates to roughly 16 per cent of the population at the time;
1 in 5 Australians who reported meth/amphetamine use, also reported using the drug at least weekly;
4 out of 10 Australians either smoked daily, drank alcohol in risky quantities or used an illicit drug in the 12 months prior to the survey;
10 per cent of drinkers drove while under the influence of alcohol in 2016;
1 in 20 had misused pharmaceuticals in the 12 months prior to the survey; and
1 in 10 Australians aged 14 years and older had been a victim of an illicit drug-related incident in the previous 12 months.

These statistics will shock many.  As a family lawyer it is not uncommon for parents to raise concerns regarding the other parent’s use of illicit substances, alcohol intake or dependence on pharmaceuticals.
In parenting disputes, the paramount consideration is “what is in the child’s best interests”.  In determining what is in the child’s best interests, there are two primary considerations:

“the benefit to the child of having a meaningful relationship with both of the child’s parents; and
“the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.”

Substance use is directly relevant to the court’s responsibility to protect a child from harm.  Substance use will typically have a significant impact on the parenting orders that a court will make.
Where allegations are raised, it is common for the parent who is the subject of the allegation to undergo drug testing.  If the parent wishes to defend the allegation, they may submit to drug testing willingly.  If the parent does agree to undertake drug testing, then the court has the power to require that parent to undergo testing.
When making orders for drug testing, the court must consider, among other things, the type of testing, the frequency and process for requesting a test, the timeframe in which a test is to be undertaken, chain of custody issues, the process for obtaining a sample and the consequences of a negative test result.  As a result, the drafting of drug testing orders has become very technical.
The different types of drug tests
When an allegation of illicit substance use, misuse of prescription medication or pharmaceuticals or alcohol dependency is raised, consideration needs to be given as to what type of testing is appropriate and will most likely capture use.  Different tests will be more suitable depending on the frequency, duration, quantity and timing of usage.
The most common types of testing include the following:

Urine analysis: which can detect prescription and illegal drugs as well as alcohol. This testing, is limited in that it can usually only detect use a few days prior to the test and the accuracy of detection depends on the individual being tested and level of usage;
CDT testing: (for alcohol) which can detect high alcohol usage for a period of up to two weeks. The reliability of detection will vary depending on the individual and the quantity and frequency of use during the detection period;
EtG testing: is a type of hair follicle testing which can test alcohol use for up to three months; and
Hair follicle testing: which can detect a variety of illegal and prescription drug use for up to three to six months depending on the length of the hair sample.

Which test, or combination of tests is appropriate, will depend on the alleged substance used, the timing of the use and the pattern of consumption.
If you require assistance with your family law parenting matter, or have concerns regarding your children or the other parent that you wish to discuss, please do not hesitate to contact one of our Cairns and Mareeba family lawyers today on 07 4036 9700.
[1] https://www.aihw.gov.au/reports-data/behaviours-risk-factors/illicit-use-of-drugs/overview
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