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By Pamela Wardle, Legal Practitioner Director
It is very common for people to say that they have “paid off their mortgage” for their home or land when what they really mean to say is that they have paid out their loan. A Loan Agreement and a Mortgage are two separate documents which have two distinct functions. A Loan Agreement records the promises made by each party to the loan, ie the lender promises to loan an amount of money to the borrower and the borrower promises to repay that money. The Loan Agreement also specifies the terms of those promises such as interest rates, repayment amounts, repayment due dates and the period during which the loan must be repaid. A mortgage, however, “secures” repayment of the loan by linking the loan to the borrower’s real property. The mortgage records the borrower’s agreement that if the borrower does not satisfy its obligations under the Loan Agreement, the lender may use or sell the borrower’s property to recoup its money. A mortgage over a home or land will usually be registered on the title for the land. It is important to be aware that if you have repaid your loan, the mortgage which is registered over your home or land is not automatically removed or released. If you wish to have the mortgage released you will need to sign a Discharge Authority with your financial institution and arrange for a Release of Mortgage. The financial institution will usually send the Release of Mortgage to you to register in the Department of Natural Resources and Mines. Both the request to have the mortgage released and the registration of the Release of Mortgage usually incur fees which are in addition to your final repayment under your Loan Agreement. If you have repaid your loan, talk to your financial institution about whether or not you should arrange for the Mortgage to be released form your home or land.
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As of 12 January 2015 a mandatory Notice of Risk must be filed with all initiating applications and responses seeking parenting orders in the Federal Circuit Court of Australia. The Notice of Risk requires the applicant and respondent to advise the Court of child abuse and/or family violence, or risk of same, as defined by the Family Law Act 1975 (Cth) (“Act”). The parties to a proceeding must file the mandatory notice even in matters where abuse and/or family violence, or risk of same, are not present to their knowledge.
Abuse and family violence in relation to a child are defined under section 4 of the Act. Abuse includes assault, sexual assault, causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence. Abuse also includes serious neglect of the child. Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (adult or child), or causes the family member to be fearful. If a party informs the Court that a child has been abused and/or is at risk of abuse then the Registry is required to report this information to a child welfare authority as provided for by the Act. The mandatory application of the rule meets the object of the Act concerning children’s matters and promotes the paramount principle, namely to provide for the best interests of children and that proceedings be conducted in a manner which will: a) safeguard children concerned from being subjected or exposed to abuse, neglect or family violence, and b) safeguard parties to proceedings against family violence. By Pamela Wardle, Legal Practitioner Director
Have you just signed a contract? If so, who is actually entering into the transaction? Individuals, companies, trusts and superannuation funds are all separate and individual entities at law even though the controlling person may be the same person (eg an individual may be the director of the company or the trustee of the trust or superannuation fund). If the wrong entity is noted on a contract: 1. correcting the error may be costly or cause significant delays (which may cause you to breach the contract by not performing your obligations when due); 2. the entity on the contract may not have the legal authority to deal with the property. For example, if a property is owned by ABC Pty Ltd as trustee for the XYZ Family Trust, neither the company nor the individual directors have the legal authority to sell the property in their own right (ie to have their names on the contract); and 3. the Office of State Revenue may view the arrangement as two separate transactions (eg the incorrect name purchases the property under the contract and then transfers the property to the correct name under the transfer) and you may need to pay double stamp duty. So to avoid confusion, delay and expense, be sure that your contract reflects the correct name before you sign. If you are unsure about who should be the correct entity to the transaction contact your accountant or our office for advice specific to your circumstances. By Lindsay Nicholson, Solicitor
The Family Law Act 1975 (Cth) requires parties who wish to resolve parental disputes concerning children to satisfy pre-action procedures prior to filing an application for parenting orders. Exceptions apply to matters involving urgency, child abuse or risk of same, family violence or risk of same, and genuinely intractable disputes. Pre-action procedure involves parties engaging in Family Dispute Resolution (“FDR”) in an attempt to mediate a parenting plan or a parenting order. A parenting plan is not legally enforceable but may be desirable for parents who maintain an amicable relationship in matters of parenting. A parenting plan may also be used in later court proceedings as evidence of earlier parental intentions concerning their children. Participation in FDR further allows parties to obtain the necessary section 60I Certificate required for filing with an initiating application when parenting orders are sought from a court of competent jurisdiction (the “Court”). During FDR the parties may also agree to file a Consent Order and accompanying Application for Consent Orders (“parenting orders”). Upon parenting orders being sealed by the Court the orders are legally binding on the parties. This may be a preferable option to parties who require orders which are variously enforceable through an Application Contravention or an Application in a Case. Our next article will discuss in more detail section 60I certificates and potential consequences of failing to participate or failing to genuinely participate in FDR pre-action procedure prior to filing an application for parenting orders with the Court. By Pamela Wardle, Senior Solicitor
Many of us believe that we may distribute our assets as we wish upon our death. This is true but only to a limited extent. There are various occasions when we must consider carefully as to whom and how we distribute our assets. For example, if we choose to omit as a beneficiary under our Will a spouse, child or dependent, the omitted person may make a claim for further and better provision from our estate (called a testator’s family maintenance claim). The term spouse may include anyone to whom we are still married and not divorced (even though we may have been separated for a number of years) and de facto partners. Children include biological and adopted children but may also include step-children in certain circumstances. Even leaving a person a small amount under our Will is unlikely to be sufficient to avoid a testator’s family maintenance claim in most circumstances. The way we hold our assets may also influence to whom they are transferred upon our death. For example, if we hold anything as a joint tenant, the asset will go to the person with whom we hold the asset despite anything to the contrary in our Will. We have also previously written about superannuation entitlements and the necessity for being careful that we have a nomination for our entitlements which binds our superannuation fund. It is important to consider how and with whom we hold our assets and to whom we may have obligations after we die so we may ensure our assets can be distributed as we wish upon our death as much as is possible under the law. By Lindsay Nicholson, Solicitor
The Family Law Court in deciding whether to make a particular parenting order in relation to a child, must regard the best interests of the child as the paramount consideration (the “Principle”). To this end the Court aims to uphold the Part VII objects, principles and rules of the Family Law Act 1975 (Cth), which is concerned with Children. The Court’s jurisdiction is child-focused, not parent focused, with parents, carers and guardians weighing into the paramount consideration to the extent that they advance the physical and mental health and well-being of children. As a starting point, the Principle promotes the legislative aim of children having a meaningful relationship with both parents, extended family, and other significant figures in their lives; that is, to the extent that such relationships are consistent with the Principle. The Principle requires children to be protected from family violence, neglect, abuse and exposure to same, and this important goal is furthered in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. In short, children matter in children’s matters, and this is reflected in the Principle, which underpins domestic and international legislation aimed at protecting and improving the mental and physical health and well-being of children through fostering meaningful relationships. By Pamela Wardle, Senior Solicitor
Superannuation entitlements, particularly death benefits, (Entitlements) may constitute one of the largest assets you have upon your death. Therefore, it is important to understand how the trustee of your superannuation fund (Trustee) is likely to pay your Entitlements. The Trustee may pay your Entitlements to a spouse, a child, a financial dependent, a person with whom you have an interdependent relationship or your estate. You may notify the Trustee of your intentions for your Entitlements by submitting a written nomination but you must satisfy specific criteria for your nomination to be binding on the Trustee. For example, you must nominate specific people or groups of people and, for most funds, you must update the nomination every three years. If your nomination is binding, the Trustee must pay your Entitlements to the person or people you nominate. However, if you fail to satisfy the criteria, the Trustee may consider your nomination but may pay your Entitlements where it determines is most appropriate. Unfortunately, this payment is not often paid where you want or intend it to be paid. Contact your superannuation fund to obtain the specific requirements for your binding nomination or contact us for further information on your options regarding your Entitlements. By Pamela Wardle, Senior Solicitor
Be careful! Different laws apply to leases for commercial or industrial premises, retail shops and residences. If you rent commercial or industrial premises, the enforceability of terms in a lease is governed by the broad provisions of the Property Law Act 1974 and the common law. However, renting a retail shop or residence is also regulated by specific legislation. For retail shops, the Retail Shop Leases Act 1994:
For residences, the Residential Tenancies and Rooming Accommodation Act 2008: 1. restricts certain payments; 2. provides strict termination periods; and 3. also provides specific mechanisms to resolve disputes. It is important to know which laws apply to your lease to ensure the terms of your lease are enforceable against the other party. |
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