When parents seek to formalize their child support matters, it is becoming increasingly common for them to have certainty and security in that regard and for this reason, Binding Child Support Agreements are sometimes considered an agreement of choice.
A Binding Child Support Agreement enables parents to effectively oust the jurisdiction of the Child Support Agency and document their own private arrangement about how much child support is to be paid, and the manner in which it is paid. Payments can be made directly to schools, or activity providers and include apportionment of Private Health Insurance and other medical expenses in lieu of (or in addition to) a cash payment.
Provided it complies with relevant statutory requirements, a Binding Child Support Agreement is most difficult to set aside.  Those requirements are as follows:

It must be in writing, signed by both parents and/or the eligible non-parent care giver
It must include a statement that each party has received independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of the agreement, such advice having to be provided prior to the signing of the agreement.
It must include as an annexure, a certificate of advice from the relevant legal practitioners.

Once prepared and executed correctly, the limited circumstances within which a Binding Child Support Agreement can be set aside by the Court (of course unless the parties agree to set it aside) if the Court is satisfied that there are:

Exceptional circumstances
Which have arisen since the agreement was made
Which would mean a party to the agreement or a relevant child will suffer hardship if it is not set aside.

The current COVID-19 Global Pandemic and its resultant economic effects will undoubtedly be impacting the capacity for many parents to pay Child Support, whether because of a Binding Child Support Agreement or pursuant to an Assessment or a private arrangement.
This exact circumstance brought parties before the Family Court of Australia in June 2020 with a judgment being delivered by Justice McClelland this month.
In the matter of Martyn & Martyn [2020] FamCA 526 the following circumstances were presented to the Family Court:

The parties had entered into a Binding Child Support Agreement which was dated 16 August 2012.
On 13 January 2020 the paying parent, the Father, applied to the Court to set aside the Binding Child Support Agreement pursuant to s136 of the Child Support (Assessment) Act 1989.
The Father owned and operated a business which supplied products to internationally based businesses.
As a result of the COVID-19 pandemic and the effect on international commerce, the Father’s business was functioning at a significantly reduced capacity.
The Father had acquired the business in 2015 with high hopes and dreams.
As early as August 2016 the Father indicated an intention to seek to apply to reduce the amount of Child Support payable.
There were proceedings commenced in the Federal Circuit Court in October 2016 within which various Orders including a stay on collection of payments pursuant to Agreement (provided that the Father pay a reduced amount per month).
By 2019 the Father’s business began to recover, however come May 2020, the Father deposed to the impact of COVID-19 on his business which was 90% based on manufacturing for international businesses. He indicated that all international orders were cancelled effective 27 March 2020 and by April 2020 he could not afford (on his case) any more than $120 per month by way of Child Support.
The arrears recorded by the Child Support Agency (based on the original agreement) was $31,928.22 as at May 2020. The Father sought to have the Court discharge these arrears.

The Court in Martyn explored what is meant by “exceptional circumstances” and “hardship” in determining the application.  His Honour noted that the authorities confirm:

We must construe exceptional as an ordinary adjective, not as a term of art. Out of the ordinary course, unusual, special or uncommon.  It need not be unique, unprecedented or very rare, but it cannot be one that is regularly, our routinely or normally encountered.

And what about “hardship”:

The concept involves a “hardness of fate or circumstance; severe suffering or privation”. Something more burdensome than “any appreciable detriment”.

Turning to the Father’s circumstances, the Court also turned its mind to a suspension of the Agreement rather than its termination, which was open to it.
In finding it appropriate to set aside the Agreement, rather than suspend it, the Court determined (at paragraph 72):
I decline to exercise a discretion to suspend rather than set aside the Agreement because there is an understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commerce. In other words, it not possible to determine, on the basis of the evidence before the Court, whether it is likely that the father’s business would recover to the extent that he is capable of satisfying the obligation imposed upon him pursuant to the Agreement after any period of suspension.
In relation to the arrears component, the Court was not minded to discharge those amounts as it would effectively mean the Court would have to find that as at August 2017 (when the reduced payment was ordered by the Federal Circuit Court) there was in existence exceptional circumstances causing hardship.  Having found that the exceptional circumstances pertained to the current COVID-19 pandemic, the Court declined that Application.
It is important to note that the Mother conceded the current financial crisis the business was in as a result of COVID-19 and the hearing was still required in order for the Court to make the Order, particularly with respect to the arrears.
This case will be one of many, in our view, in the near future regarding this and other compliance issues to do with property matters, arising as a result of these unprecedented times.
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In my frequent review of recent Family Law decisions of the Family Law Courts (Federal Circuit Court and Family Court of Australia) I stumbled across a first instance decision of Judge Neville of the Federal Circuit Court of Australia sitting in Canberra. It was interesting more for it’s discussion of three broad issues, rather than its outcome and those issues were:

The critique of the lawyers and counsel for failing to comply with procedural orders, Practice Directions and for failing to perhaps progress the matter towards a resolution rather than “box on” in interim proceedings;
The critique of the parties for their total immersion in effectively seeking to destroy the other; and
The suggestion that the parties progress towards arbitration to resolve their matter.

For the law nerds out there, the link to the judgement is here. The critique of the lawyers carried with it a little more venom in circumstances whereby the Court had vacated the proposed trial dates due to Covid-19 restrictions but allowed the indulgence of the use of one of those dates for an urgent interim hearing, conducted by Video Link.
The matter involved the following issues:

Interim parenting arrangements for two teenage girls in circumstances whereby they were considered to have been enmeshed in the proceedings by the mother and are estranged from the father.
Interim property distribution and spousal maintenance; and
A consideration of the failure of the lawyers to comply with orders and directions and how perhaps the parties can better focus to resolve the matter.

Parenting Matters
Sadly, this case involved two young girls of 13 years and 11 years of age respectively, who were completely embroiled in their parent’s dispute.
His Honour commented of this dispute, describing the parents as continuing “to fight, bicker, vent a range of deeply felt emptions and otherwise remain deeply embroiled in a very bitter and inexorably expensive contest”. And that the children were caught up in the maelstrom.
When pondering why children may continue to be “upset” in these circumstances, His Honour noted that the answer did not require “mystical revelation” and suggested the parents should sacrifice some of their contest in order to resolve matters for the sake of their children and back down from what he described as their “fight to the death” at whatever cost (financial, psychological and emotional) for them and their children.
Urging the parents to hear the “plaintive pleas” from their children and do whatever it takes to resolve matters.
It was apparent from the children and parent’s comments to the Family Report Writer that they were fully aware of the financial issues between the parents and the Mother’s opinion of the Father. The dispute was causing the 10-year-old to self-harm, and not even this could force the parents to put down their weapons and seek to resolve matters. “Mum told us he wanted the expensive furniture”, “Mum told us she tried so hard to keep the marriage together…she tried and he didn’t” “I would worry about her (referring to the Mother) if we saw him because it would be a lot of pressure for her”, are but a few examples of comments of a then 12 year old girl.
She went on to then say she would Kill the Judge if he made us go back there. Conversely the younger sister commented “everyone deserves a second chance” when asked about why she had recently chosen to visit with her dad. When asked about how she saw her parent’s role in her self-harming, the young girl said “I felt I had to choose sides. With all the stuff that was going on.  And so, when the police came that night, it made it easier”.
Summing up the observations of the children, Judge Neville stated:

They know much more than they should.
They were now “driving the parenting bus” rather than the parents; and
In respect of the younger child, she displayed a maturity well beyond her years when she lamented “everyone deserves a second chance”.

If only her parents took a similar view.
When commenting on why a “let them choose” arrangement simply could not work, the Family Report writer noted that it was likely to result in the most minimal and poor-quality contact.  Why? Because the children were not free to exercise this choice outside of their mother’s pervasive influence, their need to protect her emotionally and their own internalized and distorted cognitions about their father (at paragraph 89).
The Court determined that it was “imperative” for the children to spend regular and consistent time with the Father (paragraph 112(f)) and put in place as best it could, a methodology for that to occur.
If ever there was a case to share with parties about how their behaviour could impact children of the ages these girls were, this would be one of the best in recent times, in all of its tragic glory.
Critique of the parties, lawyers, and Counsel for the manner in which they conducted the proceedings
On an interim basis, there exists a practice direction which details the number of affidavits that can be relied upon, their length and the limit on annexures.
Breach of that practice direction is at the practitioner’s risk (and the parties but more the practitioners). If leave is not granted to rely upon an affidavit in breach of this Practice Direction, then parties are required to strike out offending parts and they and their lawyers face costs Orders.
Often the Court will make directions for the filing of material and supporting submissions prior to an interim hearing. In this matter, the parties were limited to a two-page written outline addressing the issues to be determined.
The Father’s was just over two pages and leave was given for that extension.  The Mother, via her Senior Counsel filed submissions that ran to just on 7 pages. When raised with Senior Counsel, the response was that they had to be filed that way or he would have to do oral submissions on the matters. This response was described (at paragraph 20) as inappropriate, almost defiant, and presumptuous. The court noted that this conduct treated the Orders as suggestions or guidelines, which they were not. Suggestions as to how it could have been better handed by the Mother and her Counsel were made, and they are useful to take note of when reading the judgment.
Each of the parties filed affidavits in breach of the Practice Direction. Given that the listing was considered “quite an indulgence” the treatment of the Court by the parties (more directed towards the lawyers, whose responsibility it is to comply with the Practice Direction) was described as:

An affront
Poor
Uncontrite
Presumptuous

The long and the short message to parties and lawyers is simple. Comply with Orders and Practice Directions or it is at your peril.
Turning to the nature of the material filed, His Honour noted that (at paragraph 24):
There is more than an indication that neither of them can contain nor otherwise restrain detailed, voluble expression of their grief, frustration and much else besides, towards the other party.  Such feelings and all else are ventilated freely.  The consequence? A cycle of (a) accusation, response, reply and more, (b) the forwarding of these messages to the lawyers, who in turn print them out and attachment to affidavits, and (c) the parties get charged for their inability to control their pent up hostilities and other emotions.
The above may assist us all in reflecting on how matters are conducted in some circumstances.
How did the Court suggest this and other such similar matters be resolved?
The Court lamented at paragraph 129, about how much had been sent in every sense in the proceedings to date and commented that Family Law is effectively about problem solving. Even in dire circumstances committed parties and lawyers are able to craft solutions to the most “intransigent, seemingly intractable and delicate difficulties”. To do so simply needs willingness and wherewithal.
He posed the question, as I do regularly with clients “what would it be like to be free of the contest and the Court system”. It is a question that we all must put to our clients in an effort to be resolution focused.
More in the property space than the parenting matter, the Court referred the parties (and presumably their advisors) to the Australian Solicitors Conduct Rules (Rule 7) which provides that we must advise our client about alternatives to fully contested adjudication of the case which are reasonably available to a client.
His Honour made the suggestion of arbitration and when looking at when that might occur (namely prior to Christmas 2020) suggested that would be a most wonderful Christmas present to the parties and their children (having the matters resolved that is).
Arbitration is however a voluntary process and whilst it is one that OMB Family Law fully advocates it must involve two willing parties and lawyers who have the capacity to decide how to resolve their matter.
Thanks for reading what turned into somewhat of an essay I did not plan to write today.  This judgment just rang so many bells for me in a time where high conflict seems the way to go, when, as Judge Neville commented, resolution requires only the will and wherewithal to be channeled into it.
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In this video, Partner & Accredited Property Law Specialist, Simon Bennett discusses what you need to know before purchasing a duplex.

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In this video, Senior Associate, Tom Robinson discusses 5 Things You Should Know About Bodies Corporate.

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In this video, Partner & Accredited Family Law Specialist, Abbi Golightly discusses what should you do next if an agreement is reached in your Family Law matter.

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In this video, Partner & Accredited Property Law Specialist, Simon Bennett explains what is an off-the-plan contract.

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When you and the other parent of your child or children, cannot reach an agreement on the living arrangements for your children after separation, and you have exhausted all avenues of dispute resolution, as a place of last resort, litigation can be commenced.
How though, when a Court is faced with two parents, with different views on what is best for their child or children and different perspectives on the history of their parenting relationship, is a Judge to sift through these different perspectives and make a decision in the best interests of the children?
A Judge does not meet your child.  They know them only as a name and as they are described by their parents.  This is where a Family Report comes into play.
Arguably the Family Report Writer is the second most powerful person in your parenting proceedings after the Judge.  Why is this so?

They are typically the only person who will meet both the parents and the child or children outside of the court room. They have the opportunity to interact with the children and observe them with their parents and significant others.  The observation aspect of the Family Report is more often than not more impactful than the interviews.
They are independent. Whilst appointed by a Court or the parties (if they are funding a private Family Report), they are independent in so far as they have no vested interest in your outcome.
They are experts in social sciences including psychology or psychiatry in some cases. They apply different knowledge bases and influences to assist the Court, rather than the lawyers speaking of things through a legal prism.

Family Reports can be undertaken prior to any litigation processes, as a further step along the way to resolving matters by agreement.  Even though not Court appointed in that event, the report will still hold significant weight by the Judge.
So, what is this seemingly all-powerful document called a Family Report?
It is a report prepared after interviews and observations which comments on the child’s views, wishes, experiences and family dynamics.  It then ties all of those matters together and makes recommendations.  Relevant family dynamics that may be explored include:

Parenting capacity or incapacity.
Domestic and family violence.
Drug or alcohol use or abuse.
Mental health or emotional health functioning and irregularities.
The child’s views and wishes (subject to their age and maturity level).
Special needs of the child or children.
The extended family dynamics including grandparents, aunts and uncles, new partners, siblings, stepsiblings, or half-siblings; and
Relevant cultural considerations for families of indigenous origins or other foreign cultures.

Whilst very important, it is oft quoted in the Family Law Courts, “Family Report Writer’s don’t make Orders, I make Orders” or such other variation of that decree.  They are simply a piece of evidence that is assessed along with all other evidence that is accepted by the Court.
Given the significance of a Family Report, it is important to prepare for your interviews appropriately.  Some things to remember:

You will be assumed to be on your best behaviour, so you don’t have to put on any more of a front than you are.
Dress respectfully and speak with the Family Report Writer respectfully and professionally. They are just doing their job.  Remember that anything you say can be reported verbatim to the Court.  A memorable quote from a Family Report that I saw some years ago, which made its way into the final judgement “You can tell Judge X that I don’t care what he says he is (insert many expletives here), I am doing what I want for Child X”.  Needless to say, that litigant was not viewed in a particularly favourable light.
Be mindful that it is not just what is said during your direct interview that can be included in the report. Your interactions in waiting rooms with the staff of the Writer, with your ex and their new partner or family and with your children are all likely to be being observed and form part of the Writer’s assessment of you.
Do not use the interview process as an opportunity to dig a thousand knives into your ex. Behaviour such as domestic violence, drug use or poor decisions are likely to be raised by the Family Report Writer and you will have an opportunity to address those concerns at that time.
Be positive about the other parent. It astounds me the number of litigants who think that it is important to say all the bad stuff in order to “win”.  It is quite the converse.  Showing that you can see the good in the other parent and speak of them with kindness when it comes to their role in your children’s lives and how that is a positive for your children will produce a fair more accurate report.  The reality is the cases that a parent has NOTHING to offer to a child are extremely rare indeed.
Do not be someone you are not. Be honest and candid.  Accept when you may have done things wrong, you are human and there are no perfect parents.
You do not have to present them with “evidence” to support your case. It is likely that they will have or will eventually, read the court documents but as noted above, it is likely their observations and interactions with you and with your children will be more important to a social scientist.
Do not coach your children about what to do and say during the interviews. There are age appropriate resources available via the Family Court Website to assist in what to say to children and how to say it.  Coaching will be patently obvious to an experienced Family Report Writer.

Where time permits, it is important to prepare for your Family Report interviews.  An experienced and expert Family Lawyer will be able to speak with you openly and honestly about their concerns for how you may present during the interviews and how to best combat any worrisome behaviour.
 
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In this video, OMB Partner & Accredited Family Law Specialist, Abbi Golightly discusses some useful things to consider prior to your first appointment with your family lawyer.
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How being involved in extreme social media campaigns can affect the Court’s perception of a parent’s insight and child focus.
Judge Neville of the Federal Circuit Court of Australia in Caddell & Taggard [2020] FCCA 872 (published 1 June 2020) coined a number of colloquial phrases from popular culture and history in a recent judgement regarding the living arrangements for a three-year-old girl.  From Sherlock Holmes to Chief Justice Gleeson of the High Court of Australia to describing the Father as a “sitting duck”, Judge Neville sought to assist a self-represented litigant to understand how his conduct, perceived by him as genuine and non-aggressive, was actually damaging and harmful to his relationship with his daughter.
The Father’s “zeal” in the presentation of his evidence was considered so alarming by Judge Neville that he cautioned the Father that he was considering proceeding with the matter on a “show cause basis” meaning that the Father would need to show very good reason why the Court ought not make the Orders sought by the Mother. Not shielding the Mother and her legal representatives, nor the ICL from scrutiny, the Court identified that it could have been more assisted by the ICL undertaking a more careful examination of the mother’s evidence and adopting a “less is more” approach to the cross examination of the Father.  The Court noted that when it came to the Father’s cross examination, when a nail has been “hammered into the floor, it serves little purpose other than to inflict needless damage to drive it through the floor”.
The Father was described as a self-represented litigant who was flailing and raging against an array of forces, he perceived to be marshalled against him (it was all a conspiracy according to the Father).  That is what everyone “saw” according to Judge Neville.  But he suggested that the legal representatives ought to have “observed” that there were many other forces at work, including the Father not being able to seek how significant and damaging his conduct was.  The persistent and unrelenting cross examination of the Mother’s advocate was sought to be put to an end by the Court wherein the advocate indicated she had a right to put her client’s case forward in the time that was allocated.  This was considered not appropriate by His Honour.  Confirming what most experienced family law advocates know, His Honour indicated that when he tells an advocate that the utility of proceeding with cross-examination is unnecessary or unhelpful, it was clear guidance that nothing further was required to assist their client’s case.
The Father urged the Court to consider his conduct arising because he was “frustrated” and “annoyed” but not “angry”. The Court did not find favour with this distinction, finding often that the Father was not only angry, but “infuriated”.
The Father could not see that the prolific messages to the Mother (38 on one occasion alone to ask for more time) were more than “extreme” to the Mother. When further incidents of concerning behaviors were put to the Father, he repeated his mantra that he was not “angry” just “frustrated”.
It was the Father’s social media that were his own undoing.  His posts were very candid and public including on various Father’s Rights group pages and the Father’s Rights group he, himself ran.
Judge Neville stated specifically “Lest it not be clear, I regard the Father’s social medial posts to be extremely concerning in every relevant respect”. The Court considered that his social media posts to various “Fathers Groups” clearly presented the Father as he “unashamedly” saw himself, a “crusader” for the rights of oppressed Fathers, that he was their “champion” and someone who would go to any length to ensure that his rights as a Father were not stopped or thwarted by the Mother or anyone else.
After making Orders for the Mother to have sole parental responsibility for the child and a graduated time regime, the Court implored the Father to genuinely seek assistance about how to curb his impulsive and obsessive behaviour, curb his social media posts and to seek advice from experienced lawyers not online in the forums of “aggrieved personalities”
In a Court of impression, how you conduct yourself both inside and more importantly outside of the Court building is of utmost importance.  Guidance from experienced Family Law practitioners, who can speak about who a particular course of action may be perceived is invaluable to achieving an outcome which is in the best interests of your children. Before you post remember – Is it necessary? And when in doubt do not post!
Contact OMB Family Law on 55550000 to have a free and confidential discussion about your parenting matter or any family law dispute, we pull no punches and will give you honest and strategic advice.
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BREAKING NEWS: New Regulation Just Released
The Queensland Government has released the regulations to accompany the Legislation which was enacted on 23 April 2020 dealing with retail and other commercial leases and the Covid-19 pandemic.
Unfortunately, the entire process has taken some considerable time from when the Prime Minister and the National Cabinet initially announced the mandatory code. Then came the Covid-19 Emergency Response Act 2020 on 23 April 2020 and finally, The Retail Shop Leases and other Commercial Leases (Covid-19 Emergency Response) Regulation 2020 on 28 May 2020.
Finally, the regulation provides certainty and clarity as to many of the details surrounding the relationship between commercial Landlords and Tenants in what has turned out to be one of the most contentious areas for businesses and investors alike during the Covid-19 pandemic.
What are those details:

To be eligible you must either have a Retail Shop Lease or a Lease of a premises which is wholly or predominantly used for carrying on a business.

You must be a small to medium enterprise – generally a business with an annual turnover of less than $50,000,000.00.

The Lessee must be an entity that is responsible for employing staff and is eligible for the Job Keeper Scheme.

In those circumstances the regulations apply, and a Landlord is not entitled to take any of the prescribed actions. Those include, taking recovery of possession, terminating the lease, eviction the Lessee, exercising rights to re-enter the premises, seizure of property, forfeiture, damages, seeking payment of interest or a fee related to unpaid rent, claiming on a Bank Guarantee or security deposit, seeking performance under a Guarantee or exercising a right under the lease relating to the lease premises.  These actions are prohibited where a Tenant has failed to pay rent, outgoings or is not open for business during the “response period”.
The “response period” is defined as commencing on 29 March 2020 and ending 30 September 2020. There had previously been some discussion if the legislation would apply retrospectively or would only apply from 23 April 2020.
In circumstances where there is a genuine attempt by a Landlord to negotiate rent, but the Lessee substantially fails to comply with their obligations under the lease or the grounds under which the Landlord takes action are not related to the effects of Covid-19 the Landlord will not be prevented from taking these courses of action.
The parties are required to negotiate rent and other conditions in good faith. The lessee will usually request a reduction in writing from the Landlord to begin those negotiations. This should include true and accurate information to enable the parties to negotiate a fair settlement. This includes provision of accurate financial information or statements about the turnover of the Lessees business.
Within 30 days of receiving such a request the Lessor must offer a reduction in rental in accordance with the regulations, this will include at least 50% of the rental reduction to be in the form of a Rental Waiver.
The reduction in rental and conditions relating to any reduction can be given effect by way of either a Variation of Lease or another agreement between the parties. The regulations provide for a further rent negotiation provision where one party may ask the other to renegotiate if there is a material change of the grounds upon which the agreement between the parties was based.
In relation to any portion of the reduction given by way of deferred rental, that deferred rental will be repayable using a method agreed between the parties over a period of at least 2 years but no longer than 3 years. The Landlord can continue to hold any security deposit until that deferred rental has been repaid.
Specific provision has been made for extending a lease and a Lessor must offer a Tenant an extension (on the same terms and conditions) for the period of the rental waiver or deferral. For example, if a rental waiver or deferral lasted for 6 months then the Landlord must offer to extend the Lease of the Tenant for a period of 6 months on the same terms and conditions, subject to the remaining clauses of the regulations.
This is only a brief outline of the regulations which are quite detailed, and we recommend you contact OMB’s Property Law Team to assist with all leasing matters.
 

The post Breaking News: Retail Shop Leases and Other Commercial Leases (COVID-19) Regulation appeared first on OMB Solicitors.

In this video, Tom Robinson discusses the recent amendments to the health directions which confirms the reopening of communal facilities, including our bodies corporate common property facilities.
 

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In this video, Associate, Elisha Hodgson discusses the impact of the Justice and Other Legislation (COVID-19 Emergency Response) Amendment Bill which gives bodies corporate some financial relief options.

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In this video, OMB Solicitors Senior Associate Cameron Marshall, explains how COVID-19 affects debt recovery in Queensland.

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In this video, our Tom Robinson talks about how bodies corporate can comply with the AGM (Annual General Meeting) Requirements in light of the strict COVID-19 restrictions put in place.

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In this video, OMB Solicitors Associate, Elisha Hodgson will be discussing three matters in relation to your bodies corporate that you need to know.

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In this video, our Richard Dawson talks about how you can take your estate planning documents during COVID-19.

The post Taking Care of Your Will and Other Important Documents During COVID-19 appeared first on OMB Solicitors.

Can the body corporate change the levies?
While a committee is responsible for day-to-day management of the body corporate (within its expenditure limits), the legislation does not allow a committee to change the budgets set by lot owners at an annual general meeting.
Can we adjust the budgets?
A body corporate can approve the adjustment of its budgets for the administrative and sinking funds at a general meeting. The committee is responsible for preparing the draft budget and will need to act reasonably in considering the nature and extent of any budget adjustments.
What does the body corporate need to consider?
If lot owners are struggling to pay their levies in accordance with the contribution notice issued by the Body Corporate, then the Committee can address the specific concerns of the individual lot owner on a case by case basis.
It is also important to consider the specific needs of your own body corporate (ie, does it have a small or large number of lots; does it have a paid caretaker; does it a high rise or a town house complex ect).
One size does not fit all!
Some bodies corporate have entered into long-term maintenance and service agreements prior to the COVID-19 crisis that requires them to pay a fixed amount each month for a caretaker or service provider to look after all the common property. That includes areas that are not restricted from use, like foyers, lifts, gardens and grounds.
Committees should work with their body corporate managers and other strata industry professionals to appropriately identify and weigh up the extent of any costs which may be variable or possible to renegotiate before committing to any change to their budgets.
There can be serious adverse legal consequences for bodies corporate if they breach these agreements.
What if lot owners cannot pay their levies?
If lot owners do not pay levies, they may lose discounts given to those who make timely payments. They may be liable for penalty interest of up to 2.5% per calendar month (30% per annum) and reasonably incurred recovery costs, which can include administration and legal costs. These additional costs and interest can seriously exacerbate the financial impact of unpaid levies on lot owners.
A body corporate committee may (without calling the general meeting) decide on a case by case basis to reinstate lost discounts, waive penalty interest and/or agree to a payment plan with a lot owner.
What can a lot owner do?

A lot owner should inform the body corporate committee early if they are having financial hardship in trying to pay levies – rather than letting your levies fall into arrears, incurring interest and recovery costs.
Speak to your bank, loan institution, accountant, lawyer or other advisor to help you pay your levies.

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Confusion, concern and worry about your Family Law issues in these Covid-19 pandemic times is understandable.  Abbi Golightly an accredited specialist in Family Law and partner at OMB Solicitors offers some guidance with her COVID Q & A.
Are the Court’s still open?
Yes, however procedures have been put in place conducting hearings mostly by telephone or video conferencing. 
Will my court date still go ahead?
Yes, in the majority they will proceed although some matters which are considered “not urgent” will be adjourned to a future date, to allow urgent matters to be dealt with. 
What do I do if I feel concerned for my safety?
If you are in immediate danger, call 000.  The Court is prioritising urgent matters concerning the safety of children, dealing with them via telephone or video conference. 
I am isolating – do I have to physically go to Court?
Generally speaking, no. The Court has implemented a new “Face-to-face in-court Protocol” to ensure that social distancing requirements are strictly followed.  Contact a Family Lawyer to discuss the specifics of these protocols. 
My matter had an appointment for an interview to get a report, how will this work?
The Court will contact you to make arrangements.  Adults will be contacted by phone or video.  If children need to be interviewed, an assessment will happen about how that will occur.  If those interviews have to occur face-to-face, then the interviews will follow the required protocol. 
How might COVID-19 impact my parenting arrangements?
The court is aware that strict compliance with parenting orders may not be possible and in fact may be impossible.  The best option is to try to reach an agreement with the other parent and failing that contact a specialist family lawyer for advice.  In the highly unusual circumstances, which Australian families now face, there may be situations that make compliance very difficult.  The Court expects parents to continue to act in the best interests of the children and act reasonably.
How can I change my parenting agreement or order?
Communicate with the other parent and if agreed, it should be documented in writing, even by text message. Get help to reach an agreement.  Contact a Family Relationships Centre, or your family lawyer who can help you by phone, video call or other contactless means. 
If you need any further information, please do not hesitate to contact Abbi Golightly for a free, initial consultation.
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In this video, OMB Partner, Juliette Nairn discusses ways in which a committee can protect its body corporate community from COVID-19.
In the event that you require further information, please do not hesitate to reach out to our team on (07) 5555 0000.

The post How Does a Committee Protect its Body Corporate Community from the COVID-19 Virus? appeared first on OMB Solicitors.

As promised, here is the latest update on the evolving situation with Landlord and Tenants on Commercial, Industrial and Retail Premises. The Prime Minister has announced this afternoon that the National Cabinet has met and has made some decisions around this space, which we have all been waiting for.
Most importantly, it has been announced that the National Cabinet have introduced a Mandatory Code which will be legislated in each State. Landlords and Tenants are required to comply with the terms of this Mandatory Code.
The code will require Landlords and Tenants to negotiate in good faith. Landlords aren’t going to be able to terminate a Lease and Tenants are going to have to comply with the remaining terms of the lease.
The Code will apply where the business of either the Landlord or the Tenant has suffered as a result of the Covid-19 Pandemic, so that either business is an eligible business under the governments recently announced Commonwealth JobKeeper program and has a turnover of less than $50 Million.
The parties are then going to have to reach an agreement whereby the proportionate amount of reduction in a Lease rental will apply in cases where the Job Keeper Program already applies to that business. The reference to the Proportionate amount is the amount of reduced turnover of the Business suffered as a result of the  Covid-19 Pandemic.
In that circumstance and if those provisions apply, then the rental will be required to be reduced proportionate to the reduction in the business (for example if a business’s turnover has reduced by 50%, that business will see a 50% reduction in the rental for the period of the Pandemic). This rent reduction can be made up of “rental waiver” and “rent deferral”.
In respect of those proportions the  “rent free” proportion must make up at least 50% of the rental relief. The “rent deferral” component can be deferred and paid back over a period of not less than 12 months, but usually will be paid back over the remaining term of the lease (for example if the remaining term of the lease is longer than 12 months it would be paid back over the entire term, however if the lease term is shorter than 12 months that tenant will still have 12 months to repay those rent monies).
Rental increases under a lease will be frozen and penalties and interest charges will not be able to be charged, nor can guarantees or bonds be called upon.
These are important changes as the landscape is constantly changing and as things arise further, I will continue to keep you updated. Please remember though any agreements reached between Landlords and Tenants must be documented as the potential disputes in the future will be greater than the problem itself.
Please keep safe and if you have any queries whatsoever please do not hesitate to contact me.
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