Law Advisor Research Team

Hi there. If a marriage or de facto relationship has broken down, the parties will usually need to decide how their shared property and finances (including superannuation) are to be divided. There are three ways this can be done.

1. Financial agreement

If you and your former partner can agree on the division of property (including superannuation), you can put these terms into a formal written agreement (called a ‘financial agreement’). For a financial agreement to be legally enforceable, you must each obtain independent legal advice about the contents of the document. A lawyer must sign a certificate confirming that independent legal advice has been given.

2. Consent orders

If you and your former partner can agree on the division of property (including superannuation), you can seek consent orders from the court. To obtain these orders: (a) you must complete a Superannuation Information Kit, which guides you through obtaining a valuation of your superannuation; (b) you must file an Initiating Application together with a Financial Statement and Affidavit; and (c) your former partner must file a Response to Initiating Application plus their own Financial Statement and Affidavit. These documents are available from the Family Court website (www.familycourt.gov.au). Although consent orders are available without obtaining legal advice, it is strongly recommended that you speak to a lawyer to ensure you understand the implications of splitting your superannuation or other property.

3. Court orders

If you and your former partner cannot reach an agreement on the division of property (including superannuation), you can apply to court for a determination on how your property is to be divided. The court requires parties to first undergo a dispute resolution process, in an attempt to resolve the matter without ending up in court. If the parties still cannot reach an agreement, one party may file an Initiating Application with the court to obtain orders for the division of property.

Suggested way forward

Your options for splitting property (including superannuation) are set out above. Although independent legal advice is only required in relation to the preparation of a 'financial agreement', speaking to a lawyer about your situation and the best way to protect your interests is strongly advisable in all cases. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If someone is forging your signature to make a personal gain, they may be committing one or more criminal offences. In Queensland, it is a criminal offence to forge a document or impersonate someone with the intention to defraud another person. It is also an offence to commit fraud. There are different types of fraud, but it most commonly arises where a person dishonestly obtains a benefit or advantage for themselves (e.g. monetary gain), often at the expense of someone else. These offences are very serious crimes carrying penalties that range from 3 to 20 years’ imprisonment.

If you believe someone is forging or signature to make a personal gain, you should immediately report the matter to the police. You can report fraud to the Queensland Police Service via their website (www.police.qld.gov.au/programs/cscp/fraud/complaints.htm). Alternatively, you can contact your local police station in person or by phone. Depending on the information you provide, the police may investigate the matter and, if appropriate, prosecute the offender.

If you have other concerns about the behaviour of your landlord, you may want to contact Tenants Queensland – a community advocacy group representing the interests of tenants (www.tenantsqld.org.au). Tenants Queensland can advise you of your rights as a tenant and the legal options available.

Suggested way forward

If you suspect someone is forging your signature, you should report the matter to the police (www.police.qld.gov.au). You may also want to consider speaking to a lawyer who can assess your situation and advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you currently hold a Temporary Work (Skilled) visa (subclass 457) – commonly known as a ‘457 visa’ – there are several ways in which you can apply for permanent residency in Australia.

1. Employer-sponsored pathway

You can apply for permanent residency via an Employer Nomination Scheme visa (ENS 186 visa) or Regional Sponsored Migration Scheme visa (RSMS 187 visa), either through the temporary transition scheme or the direct entry scheme.

The temporary transition scheme is an appropriate pathway if you hold a 457 visa and have been working for your sponsoring employer for at least 2 years (or at least 3 years if you lodged your 457 visa application after 18 April 2017). English language, health, character and age criteria must also be satisfied.

The direct entry scheme is available if you have worked for your sponsoring employer for less than 2 years. Your occupation must be listed as an eligible skilled occupation, you must have at least 3 years’ relevant work experience, and you must have a positive skills assessment in your nominated occupation. English language, health, character and age criteria also apply.

2. General skilled migration

Another pathway to permanent residency is by obtaining a permanent skilled migration visa. The most common type of visa in this category is a Skilled-Independent visa (subclass 189). This is a points-tested option that is available to skilled workers who are not sponsored by an employer or family member, and not nominated by a state or territory government. To apply, your occupation must be listed as an eligible skilled occupation, you must have a suitable skills assessment, and you must satisfy a points test. Age and English language criteria apply.

3. Partner visa

If you are married or in a de facto relationship (same or opposite sex), you may be able to apply for permanent residency if your spouse or de facto is an Australian citizen, permanent resident or an eligible New Zealand citizen. Partner visas are granted in two stages – first a provisional visa for 2 years then, after reassessment, a permanent visa may be available. The exact type of partner visa you are eligible for will depend on whether you are inside or outside Australia at the time of applying.

Suggested way forward

Australia’s migration system is very complex and constantly changing. The 457 visa was replaced with Temporary Skill Shortage visa in March 2018 and the rights of 457 visa holders have therefore been significantly affected. Your most appropriate pathway to permanent residency will depend on many factors. You should speak to an immigration lawyer who can best assess your situation and advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Australia has strict laws around issuing passports to children and the parental consent needed for a child’s passport to be issued. The laws are designed to prevent children from being taken overseas by one parent against the wishes or knowledge of the other parent.

The law states that a passport for a child can only be issued if each person who has parental responsibility for the child has provided written consent for the child to have a passport. Generally, people with parental responsibility are the parents named on the child’s full birth certificate. Written consent must be provided in accordance with the instructions on the passport application form and must be witnessed by an appropriate person.

Obtaining written consent from both parents may not always be possible. The law recognises this and allows a child’s passport application to be considered under the ‘special circumstances’ provisions in the relevant passports legislation. ‘Special circumstances’ include, but are not limited to:

• where the non-consenting parent has not been contactable for a reasonable period of time;
• where a family violence order exists against the non-consenting parent; or
• where the non-consenting parent is medically incapable of providing consent.

If you are unable to obtain the consent of the other parent and believe you satisfy one of the special circumstances, you must complete form ‘B9 – Child without full parental consent’ (available from www.passports.gov.au) in support of the child’s passport application. The Department of Foreign Affairs and Trade, which is responsible for issuing passports, will assess your application and determine whether special circumstances exist. The delegate assessing the application may issue the passport, deny the application because special circumstances do not exist, or refuse to make a decision because it should be dealt with by a court.

Instead of applying to the Department of Foreign Affairs and Trade, you have the option of applying directly to court for a passport to be issued to a child. You would need to prepare and lodge formal legal documents with the Federal Circuit Court, which may require professional assistance from a lawyer.

Suggested way forward

From the information you provided, you may have special circumstances on the grounds that your child’s father is medically incapable of providing consent. You need to submit form B9 together with your child’s passport application and provide evidence of the special circumstances. Alternatively, you may want to consider speaking to a lawyer who can advise you of your legal options, including the option of applying directly to court for the issue of a passport for your child. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You are correct in saying that you, as the primary 457 visa holder, are subject to certain restrictions on the kind of work you do while in Australia. As a primary 457 visa holder, you cannot engage in work on your own account (i.e. run your own business) or undertake secondary employment unless it is undertaken for your current sponsor, is consistent with the position you were originally approved to fill, and is incidental to your principal employment. If the franchise business you want to establish is not compliant with these restrictions, you will not be able to run the franchise business without breaching your visa conditions.

The rules are different for secondary 457 visa holders. A secondary 457 visa holder is a dependent (usually a family member) of the primary visa holder. Because the secondary visa holder is not working to fill a specific skills shortage, there are fewer restrictions on the secondary visa holder's right to work in Australia. For example, under a 457 visa, the secondary visa holder can engage in skilled or unskilled work with any employer. This would mean that, without further information about your situation and any additional or specific visa restrictions you may be subject to, your wife may be able to establish the franchise business in her name.

Note that the rules relating to temporary skilled visas (such as 457 visas) were changed in mid-2017. An immigration lawyer will be able to tell you exactly what rules apply to your situation.

Suggested way forward

Your wife may be able to establish the franchise business without breaching her visa conditions. You should speak to an immigration lawyer who can properly assess your situation and advise you on the best course of action. By pressing the "Consult a Lawyer" button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The simplest way to resolve a dispute with your neighbour is by talking to them directly and trying to reach a resolution that works for both parties. If you have tried to discuss the smoke issue with your neighbour and they have not fixed the problem, you should contact your local council. Local councils are responsible for administering environmental regulations relating to noise, air, light and water. This includes investigating complaints and issuing fines in relation to air and odour complaints.

You should contact your local council to find out how you can lodge a formal complaint against your neighbour. The council may investigate the matter in accordance with their dispute resolution process and speak to your neighbour about the problem. You may be asked to attend mediation or some other kind of dispute resolution process to try to reach an outcome to the problem. If your neighbour does not comply with the council’s requests, they may be issued with a fine.

If your local council is unable to help, you may want to speak to a lawyer about your legal options. The law says that if your private property is affected by an ongoing nuisance of some kind (such as loud noise, a bad odour or some other kind of interference), you may be able to take legal action against the person causing the problem. This may result in a court order requiring the person to stop causing the nuisance and/or compensation for any harm you may have suffered. Formal legal proceedings like this are complicated and can be slow and costly, so they should only be pursued after you have tried obtaining the help of your local council.

Suggested way forward

Contact your local council to find out how you can lodge a formal complaint against your neighbour. If this proves unsuccessful, you should consider speaking to a lawyer about your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The first thing you should do is continue to report the fake accounts to Facebook. Impersonating other users is a breach of Facebook’s user policy and is therefore likely to result in the closure of the fake accounts. Taking screenshots of the fake accounts may help you prove that your personal details are being used without your permission. Trying to resolve the problem directly with Facebook will be the most straightforward way to address the issue.

In some circumstances, a request can be made to Facebook to obtain data about a particular user, such as the IP address of the person creating the fake accounts. However, this information is very difficult to obtain and is only possible via law enforcement officials (i.e. the police) and in accordance with Facebook’s operational guidelines. Facebook will generally deny a request for this type of data from a private individual such as yourself.

If your partner’s ex applies for an Apprehended Personal Violence Order (APVO) from the Local Court, and you do not consent to an order being made, the Magistrate must decide whether there are proper grounds for making the APVO. Your partner’s ex will be required to provide written statements to the court explaining the grounds for the APVO and setting out the evidence against you. A hearing will be held where both you and your partner’s ex can provide the court with additional oral evidence about your case.

For an APVO to be made against you, your partner’s ex would need to provide enough evidence to satisfy the court that there are fears for his safety and those fears are reasonable. In proving that those fears are reasonable, your partner’s ex would need to prove that you are the person sending the harassing messages via Facebook. Your partner’s ex may have difficulty proving that the messages are being sent by you. If the court is not satisfied that his fears are reasonable, an APVO will not be made.

Suggested way forward

The most direct way to resolve this issue is to continue to deal with Facebook until the fake accounts stop sending messages to your partner’s ex. If the matter escalates and an APVO application is made against you, you should speak to a criminal lawyer about your rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Australia, there are national laws that regulate how organisations obtain and handle individuals’ personal information. These laws are contained in the Privacy Act 1988 (Cth) and apply to most types of major businesses and organisations, including banks. This means that the Commonwealth Bank is required to comply with the national privacy laws when dealing with customers’ personal information.

Under these laws, you have certain rights. These include the right to know why your personal information is being collected, how it will be used and who it will be disclosed to; the right to ask for access to your personal information; the right to ask for your personal information to be corrected; and the right to make a complaint about an organisation if you think they have mishandled your personal information.

If you believe the Commonwealth Bank has mishandled your personal information by, for example, disclosing it to a third party, you should complain directly to the bank and wait 30 days for them to respond. If you do not receive a response within 30 days or you are dissatisfied with their response, you can lodge your complaint with the Office of the Australian Information Commissioner (www.oaic.gov.au).

Complaints to the OAIC must be in writing and can be lodged via the privacy complaint form on their website. Your complaint should describe the problem, any attempt by the bank to address the issue, and copies of any relevant documentation. If your complaint is within the scope of the OAIC’s work, they may investigate your complaint and attempt to reach some kind of resolution.

Note that, currently, the law does not allow you to sue someone directly for a ‘breach of privacy’, in the same way you can sue someone for other legal wrongs, such as negligence or defamation. This means that it is very unlikely that you could commence legal proceedings against the bank on the sole basis that they breached your privacy.

Suggested way forward

Your first step should be to lodge a complaint with the bank. If you are unhappy with their response, you can lodge a formal complaint with the OAIC who may attempt to resolve the issue. If you want further advice on your legal options, you should consider speaking to a lawyer who can advise on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. From the information you provided, it sounds like your business activities may be affected by copyright. Australia’s copyright laws are set out in the Copyright Act 1968 (Cth) which ensures that people who create new material have a right to protect their work from unauthorised use by third parties.

Copyright law applies to a wide range of artistic works, including paintings, drawings, cartoons and photographs. The owner of the copyright is usually the person who created the original material, such as the artist who created the artwork. The owner’s copyright protection is automatically given to them from the time the work is first created. The owner does not “apply” for copyright and there is no system of registration.

The owner of the copyright has a number of exclusive rights over their material, such as the right to reproduce the work and to communicate the work to the public. Anyone who does not own the copyright will generally need permission to use the material in one of these ways (e.g. by obtaining a licence to use the material), otherwise they will be infringing copyright. Using part of the material without permission may also infringe copyright if it is an important part of the whole work.

If the book coverings you are using as part of your business comprise artistic material, such as drawings or cartoons, it is very likely that the original artist or the book publisher owns copyright in the material. You would need to obtain permission or a licence from the artist or publisher before using the material in business’ products. If you do not obtain permission or a licence, you run the risk facing legal action for copyright infringement.

Suggested way forward

Copyright and intellectual property rights can cause problems for small businesses if not managed properly. You should consider speaking to a lawyer about your business venture and how you can minimise any legal risks it may face. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A timeshare is a type of ownership or right to use a property, usually a holiday property, for a specific period of time. Owning a timeshare right can involve many benefits but, like any financial investment, it carries several risks. Under the purchase contract, timeshare owners are often obliged to pay ongoing maintenance fees for the property and the value of the timeshare may decrease over time, making it very difficult to sell.

Timeshares are typically purchased via a contract. The law requires all timeshare purchase contracts to contain cooling off periods lasting between 7 and 14 days. The contract can be easily cancelled within this period. But if an owner no longer wants the timeshare after this cooling off period, their only option will be to sell the timeshare to a new buyer.

Timeshares are notoriously difficult to sell. From the information you have provided, there does not appear to be any breach of contract or other legal issue arising from the timeshare operator’s conduct. You may find that the timeshare has simply lost value and is therefore proving difficult to sell. You will most likely be required to pay the ongoing maintenance fees as long as you hold the timeshare.

If you believe the timeshare operator has engaged in misconduct or you want to make a formal complaint about their behaviour, you should first put your complaint in writing and send it to the timeshare operator. If you are dissatisfied with their response, you can take your complaint further to the Financial Ombudsman Service (www.fos.org.au) or the Credit & Investments Ombudsman (www.cio.org.au). These are external dispute resolution services that may be able to help you resolve any problems you are having with the timeshare operator.

Suggested way forward

Although there do not appear to be any legal issues arising in your situation, you may still want to speak to a lawyer about the timeshare and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The law provides a number of remedies in situations where a person has unjustly benefited or made a gain (e.g. a profit) at the expense of another person. In these situations, the law says that there is a need for ‘restitution’, which typically involves compensating the party who has suffered a loss.

Restitution claims are complicated and can take many different forms. In your situation, you may be able to base your claim on the fact that you provided services to the owner/CEO of the company (or the company itself) without reasonable remuneration. You would need to prove that you expended time, labour and/or resources at the request of the company owner and your services were freely accepted by the company owner. To strengthen your claim, you would need to provide evidence of your work for the company (e.g. correspondence, log books, receipts) and that your services benefited the company owner or the company itself.

The law also says that if someone promises to do something and you rely on that promise to your detriment (e.g. suffer a loss), you will have a claim against that person to enforce the original promise and/or claim compensation. In other words, the person is stopped from going back on their promise. In your situation, if you can prove that the company owner led you to believe that you would be a 49% shareholder and you relied on that assumption in providing services to the company, you may have a legal claim against the company owner if he is now refusing to honour the original agreement. These types of claims can be very difficult to prove and the strength of your particular claim will depend on a number of factors, such as the nature of the correspondence between you and the company owner and the conduct of all parties during the time you have been working for the business.

Suggested way forward

From the information you provided, it appears that you may have a number of legal options available to you. Speaking to a lawyer will help you get a better picture of the strength of your claim and the potential complexity and expense involved in pursuing these claims. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It sounds like the domain name provider has, either accidentally or intentionally, failed to provide the service you paid for. Technically, this may give you a legal right to claim compensation from the service provider for breach of contract, but this may be practically difficult.

The sale contract between you and the service provider may have been accompanied by terms and conditions (e.g. you may have clicked “I agree” to the terms of sale before making the purchase). These terms and conditions may set out the rights of both parties in a dispute and how a dispute should be resolved. You should read the terms of the contract again to see if it provides any information about how the dispute can be resolved. If you need help understanding the terms and conditions of the contract, you can speak to a lawyer.

If the terms and conditions are not helpful or were not provided to you at the time of sale, you should consider negotiating directly with the service provider. Explaining your concerns and providing evidence of the events that led to your website being shut down and your domain name sold may help the other party understand the dispute. You should also explain the financial loss you have suffered and justify the amount of compensation you are seeking.

If negotiating is not successful, you may want to contact Consumer Affairs Victoria (www.consumer.vic.gov.au) to see what assistance they can provide. If the service provider is based in Victoria, Consumer Affairs may be able to offer conciliation services to resolve the dispute. This is a voluntary process that would require the cooperation of the service provider.

Your last resort is taking legal action. In its most simple form, you may be able to claim compensation from the service provider for breach of contract. This claim would need to be pursued in court. Court proceedings are lengthy and costly and almost always require the assistance of a lawyer. Your claim may be very complicated if the service provider is not based in Victoria.

Suggested way forward

You should try to resolve the dispute by using one of the above options. If none of them are successful, you may want to speak to a lawyer who can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Intellectual property (IP) refers to new or original creations such as inventions, words, phrases, symbols, logos, designs and ideas. The law recognises that intellectual property is a valuable asset. As a business owner, there can be great commercial value in the intellectual property rights associated with your business.

There are many different types of IP that can be registered. For your purposes, you may want to register a design. A design is what makes a product look the way it does – its shape, configuration, pattern and ornamentation. A product’s design gives it a unique appearance that distinguishes it from other products. Registering a design gives the owner legal protection for the visual appearance of the product and exclusive rights to use, licence or sell the design for commercial purposes.

Registration protects a design for 5 years from the date of application, and can be renewed for a further 5 years. If a registration lapses, the design becomes freely available for anyone to use. Importantly, registering a design is only half the process. A design owner can only enforce their legal rights against third parties if the design has been ‘certified’ by examiners at IP Australia (www.ipaustralia.gov.au). A design will only be certified if it is ‘new and distinctive’.

In your situation, you may want to consider registering the design of your product and packaging. This will give you exclusive rights to deal with the design commercially. However, if your designer personally created the original design, he or she may want to assert their intellectual property rights in the design, either now or in the future. If there was no written agreement between you and the designer that addressed intellectual property rights, you should ask your designer to assign his or her intellectual property in the design to you. This can be done via a legal document known as a ‘deed of assignment’ or something similar. This is a technical legal document that will need to be prepared by a lawyer.

Suggested way forward

Before you register the design, you need to ensure that you hold all the intellectual property in the design. A lawyer can help you prepare the necessary documentation to make sure you properly acquire ownership of the design. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Personal injury claims generally arise when a person, who is owed a duty of care by another person or organisation, has suffered harm as a result of that person’s or organisation’s negligent conduct. The law says that the injured party is entitled to be compensated for the loss they have suffered as a result of the injury and, in some cases, for the financial loss they will suffer in the future (e.g. loss of income).

If you have suffered injury as a result of someone else’s negligence, you may be entitled to seek compensation. In theory, these claims are pursued through a court and decided by a judge. However, due to the expense and lengthiness of court proceedings, the vast majority of personal injury claims are settled between the parties outside of court. This means the negligent party agrees to pay an amount of compensation to the injured person in exchange for them discontinuing the legal claim.

Even though this type of settlement avoids going to court, it still requires the involvement of lawyers. Lawyers are needed to identify the legal issues in dispute and ensure that the amount of compensation being claimed is proportionate to the loss suffered by the injured party. It is very unlikely that an organisation would take a claim seriously if the injured person was not represented by a lawyer.

Finding a lawyer to represent you in a personal injury claim is relatively straightforward. A lot of personal injury lawyers offer a ‘no win, no fee’ arrangement whereby you only pay the lawyer’s fees if you successful obtain compensation. In other words, the lawyer simply takes a portion of your compensation pay out. This type of fee arrangement can help make legal representation more affordable for someone who has suffered an injury but cannot otherwise pay for a lawyer.

Suggested way forward

Obtaining legal representation in a personal injury case will significantly increase your chances of making a successful compensation claim. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. To include your children’s names on the title to your house, they will need to have an interest or share in the property. This means that you will need to complete and lodge the following forms with your local Land & Property Information (LPI) office:

• Transfer form 01T – This form records your children’s acquisition of an interest in the property. You will need to indicate whether you and your children are to hold the interest as ‘joint tenants’ or ‘tenants in common’. These terms have a special legal meaning and affect what happens to the property if either you or one of your children dies. You should seek legal advice about the type of co-ownership you want.
• Notice of sale (NOS) form – This form can be completed online or ordered in hard copy from the LPI website (www.lpi.nsw.gov.au).
• Original Certificate of Title – This document will be held by you or, if there is a mortgage on the property, the lender.
• Any mortgage documents – If the property is mortgaged, your children’s acquisition of an ownership interest in the property needs to be reflected in the mortgage documents. You should contact the lender to discuss the proposed transfer as soon as possible.

In NSW, transfer of land duty (formerly called stamp duty) is payable on most transfers of land. Your children will be transferees of land and therefore required to pay duty to the Office of State Revenue (OSR). Duty is calculated based on the total dutiable value of the property subject to the transaction. If your children are not paying money to acquire an ownership interest in the property, you will need to provide evidence of the value of the property. This will require a valuation of the property to be done. Note that the ‘Transfer form 01T’ referred to above must be stamped or marked by the OSR before presenting the form to LPI. More information on stamp duty can be found on the OSR website (www.osr.nsw.gov.au).

Suggested way forward

Dealing with property can be a complicated process. You should speak to a property lawyer about your planned transfer as they can advise you of your legal obligations and assist in the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Australian Securities Exchange (ASX) is regulated by a strict set of rules that are strongly enforced by the market operator. These rules specify the manner in which a company may be listed, the obligations on a company whilst listed, and the circumstances in which a company may be suspended or removed from the ASX.

A company may be suspended from quoting their shares on the ASX for various reasons, such as a failure to comply with their continuous disclosure obligations or another breach of the exchange rules. A suspension does not amount to an automatic removal of the company’s shares from the exchange. A suspension may be temporary and the company may be eligible to resume trading their shares without making a new application for listing to the ASX. Resuming trade will depend on a range of factors, such as the reason for the initial suspension and whether any additional obligations must be complied with before trading can resume.

Being suspended is different to being removed from the official list of the ASX. If a company has been removed from the official list of the ASX, the company would need to apply to the ASX for admission to the official list and the application would have to be granted before the company’s shares could be traded again.

Suggested way forward

The rules regulating ASX admission, trading and suspension are complicated, and breaching those rules can result in serious penalties. You should consider obtaining the expert assistance of a corporate lawyer who can help you navigate this complex area of law. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Generally speaking, when an employee resigns, they are entitled to be paid out any entitlements that have properly accrued during their term of employment. This means you should be paid out for the time in lieu and annual leave that you have accrued since you commenced employment with the employer.

In some situations, the terms of your employment contract may specify the resignation process and what entitlements you will be paid out. You should check your employment contract for how much notice you must give your employer before leaving, what your pay entitlements are, and anything else you think may impact your departure from the business.

If your employment is not covered by an employment contract, you may still be protected by an award or enterprise agreement. You may need the assistance of a lawyer to determine exactly what your rights are if you are covered by one of these instruments.

If you want to claim remuneration for the hours you worked overtime, you should start by speaking to your employer. If you have evidence of the exact hours you worked overtime, this will help clarify the amount you should be compensated. If you employer is unwilling to pay you for the overtime, you may be able to bring a claim against them for unpaid wages. A lawyer can help you prepare this claim.

Suggested way forward

You can find more information about workplace rights on the Fair Work Ombudsman website (www.fairwork.gov.au). You should consider speaking to an employment lawyer if you want more tailored advice about your legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is difficult to comment exactly on your rights and options without knowing the terms of the permit or the name of the council that issued the “pre-approval” notice.

Generally speaking, if you have not yet been granted the actual permit by the council, it is very unlikely that you can lawfully operate your business. If you begin operating your business before the final permit is issued, it would mean that you are operating a business without a permit, which may attract penalties. Even without the VCAT proceedings, it is unlikely you could have begun operating your business until final approval was given by the council. However, you should check the terms of the “pre-approval” notice and contact your local council to clarify exactly what you can and cannot do whilst the VCAT proceedings are on foot.

In any event, VCAT proceedings are designed to be relatively efficient and objectors to permits must comply with strict deadlines. If you want more information about the estimated schedule of the VCAT hearing, you can contact the VCAT registry directly.

If you decide to operate your business before final approval is given by the council, you may not only attract penalties from the council, but the objecting neighbours may also obtain an injunction from VCAT or a court. An injunction is a legal document issued by a tribunal or court that requires someone to stop doing something. It is very important that you comply with an injunction if you receive one.

Suggested way forward

You should contact your local council to clarify your rights whilst the VCAT proceedings are in progress. For more tailored advice on your situation, you should speak to a lawyer about the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. There are different ways you can structure and run a business, each with their own advantages and legal obligations.

Sole trader

Running a business as a sole trader is generally the easiest option. If you have an ABN, you can invoice your customers and account for your revenue as part of your personal income when you lodge your tax return. However, operating as a sole trader can expose you to the most risk. If something goes wrong in your business that causes a loss to a customer or a third party, you may be personally liable for that loss. In other words, if someone successfully sues you in court, you may be required to pay compensation to that person from your personal assets.

Company

A popular business structure is a company. A company is a separate legal entity that is created when you incorporate and register your business. A company can have its own assets and debts, enter contracts with third parties, and sue and be sued. A company is owned by its shareholders who can change from time to time. You can be the sole shareholder if you so choose.

Every company has a least one director who is responsible for the direction and management of the company. In your situation, this could be you alone or together with anyone else you want to appoint as a director. In Australia, directors and other company officers must comply with a number of legal obligations under the Corporations Act 2001 (Cth). There are also reporting requirements and associated administrative costs with running a company. The Australian Securities & Investments Commission has more information about setting up and running a company (www.asic.gov.au).

While the downside to running a company is the regulation and administration involved, the main benefit is that, if your company is sued by a customer or supplier or another third party, you will generally not be personally liable. Instead, any legal claim will be against the assets of the company.

In addition to the above, there are several other things to consider when setting up a business. For example, depending on the type of business structure you choose, you may need to apply for an ABN, a Tax File Number, register your business name and domain name, lodge a trade mark application to protect any intellectual property, take out business insurance and/or register for GST. More information about starting a business can be found atwww.business.gov.au.

In your situation, if you are looking to set up an interim arrangement before you register a company, you could simply invoice the customer as individual service providers, each with a different ABN. However, there may be some complication with the nature of the legal agreement or contract that governs the services to be provided. It would be preferable to have only one contract between the customer and the service providers, rather than multiple contracts with each of the service providers. The easiest way to achieve this is to form a company and, through that company structure, sign a contract with the customer.

Suggested way forward

There are many issues to be considered when setting up a business. The above information is only a guide and you should consult a lawyer for more specific advice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Every visa has conditions or restrictions that must be followed by the visa holder. Every person who holds a Temporary Work (Skilled) visa (subclass 457) is subject to two main conditions: condition 8107 and 8501. Under the first condition, the visa holder:

1. must work in their nominated occupation and only work for their sponsor;
   
2. must not work in a position or occupation that is inconsistent with their sponsored position; and
   
3. must not engage in work for another person or on the visa holder’s own account while undertaking the employment to which the visa was granted.

Based on the above information, it appears that earning money from your own business in addition to your visa-sponsored employment is not permitted under the standard 457 visa conditions. While there does not appear to be a restriction on registering a business in your own name, actually working for that business and earning an income from that business is prohibited.

If you have breached your visa conditions, you may be contacted by the Department of Immigration and Border Protection for investigation. The Department may issue you with a “Notice of Intent to Consider Cancellation”. This notice allows you to put forward reasons why your visa should not be cancelled. If you receive such a notice, you should contact an immigration lawyer immediately.

Suggested way forward

Complying with visa conditions is a serious matter. You should speak to an immigration lawyer as soon as possible who can properly assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Illegal dumping occurs when rubbish or waste is put or left on land without authorisation. The law seeks to prohibit illegal dumping by imposing fines on those individuals or organisations who are found to have dumped waste illegally. In your situation, it appears that the other builders have dumped construction waste on your land without your permission.

You should contact your local council to report the problem. Local councils have a range of powers to investigate land and waste management issues, and, if appropriate, to issue fines to those individuals responsible. Your local council may also be able to remove the waste from your land or require the persons responsible for the dumping to remove their waste.

If your local council is unable to help, you can report the matter to the Environment Protection Authority Victoria (www.epa.vic.gov.au). The EPA has the power to investigate illegal dumping and, if appropriate, issue fines or prosecute individuals or organisations who are responsible for the dumping. You can contact the EPA by calling 1300 372 842.

If neither your local council nor the EPA are able to assist, you may be able to commence legal proceedings directly against the persons responsible for dumping the waste. There are several laws that give land owners (such as yourself) rights against third parties who interfere with your enjoyment of your land. For example, you may have the right to seek an order from a court that the third parties remove their waste from your land, or that you be paid compensation to cover the cost of removing the waste yourself. Pursuing formal legal proceedings such as this is a complicated process that requires the help of a lawyer.

Suggested way forward

Start by contacting your local council and then the EPA. If neither organisation can assist, you should contact a property lawyer who can assess your situation and advise you of the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. As you have identified, one of the most important legal issues in running a small business is advertising and marketing, especially the statements you make in promotional material.

The law does not allow you to make any statements that are incorrect or likely to create a false impression. This rule applies to statements made on websites, packaging or by salespeople when interacting with customers. Sometimes disclaimers and the “fine print” can be used to give more detail about a product or service, but disclaimers are usually not enough. The key issue is whether the overall impression of the marketing material would mislead a consumer. Fines and other penalties apply to businesses that make false statements.

Your specific examples raise several issues. Some of your statements relate to the quality of the product, which would need to be substantiated with evidence that proves those claims are true. Similarly, any statement about the product being the “best” must not be false or misleading. Greatly exaggerated claims are considered “puffery” and therefore not misleading, but if the claim is only slightly exaggerated, then it may actually be misleading to a consumer.

There are many factors to be considered when preparing marketing material for a product or services. The ACCC website (www.accc.gov.au) offers helpful information on these matters, but it is general advice and is not specifically tailored to your situation or business. The NSW Fair Trading website (www.fairtrading.nsw.gov.au) also offers general information for small businesses in relation to advertising and marketing.

Suggested way forward

The above two websites are a helpful starting point for considering what to include in your marketing material. However, they are not a substitute for a proper legal assessment of your business’ advertising practices. To minimise the risk involved, you should consider speaking to a business lawyer who can advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The situation you have described raises several legal issues.

Defamation

The content of the reviews being posted may amount to defamation. For a statement to be considered ‘defamation’, it must:

1. be published (i.e. communicated) to at least one person through words or images;
2. identify the defamed person or organisation, either directly or through implication; and
3. be 'defamatory' (i.e. convey a meaning that lowers the reputation of a person or business in the eyes of a reasonable person, or cause the person or business to be despised, ridiculed or avoided by the general public).

If all three of these requirements exist, it is likely that the defamed person or organisation will have a right to sue the publisher. Note that the publisher may have a legally-recognised defence. Generally, it is a defence if the defamatory material is substantially true, if it is a fair comment on a topic of public interest, or the information is not very important and unlikely to damage reputation. This is not an exhaustive list and the publisher’s possible defences will depend on the specific situation.

If a person is being defamed, the first step would be to contact the person making the statements and issue them with a ‘cease and desist’ letter. The situation becomes a lot more difficult if the identity of the person making the statements is not known. You should start by contacting the website or platform where the reviews are being published. Most public websites have policies or ‘terms of use’ that regulate how users interact with the website, including the posting of comments. You may find that the website has a complaints or dispute resolution process available where the content of material being published is defamatory or otherwise inappropriate.

If the website is unwilling to help, you may have the option of obtaining a court order requiring the website’s operators to cooperate with you. Obtaining such a court order is a complicated process that would require expert legal assistance. Furthermore, even if you get the court order, there is no guarantee that it would reveal the identity of the person making the defamatory statements or that the person would be found liable for defamation.

Stalking and harassment

Stalking is a criminal offence. It can include intimidation and harassment, either online or in person. For intimidation or harassment to amount to stalking, it must be the sort of behaviour that would normally cause a person to feel intimidated or afraid, or cause a person serious harm. Behaviour is not stalking if it is part of an industrial relations dispute, a political or genuine public dispute, or related to public interest or legitimate business matters.

Without knowing the content of the anonymous reviews about you and your business, it is not clear whether they are sufficiently serious to amount to stalking. If they are sufficiently serious, you should contact the police and ask them to investigate the matter. The police will weigh up various legal and operational factors before deciding to investigate a matter, so they may not always agree to investigate or prosecute something on your behalf. If you are unhappy with the police’s response, you can lodge a formal complaint via the Queensland Police website (www.police.qld.gov.au).

Suggested way forward

You should start by contacting the website or platform where the reviews are being posted and ask them to investigate or resolve the matter (e.g. by blocking the user). If this is unsuccessful, you will need to speak to a lawyer who can properly assess your situation and advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. There are several ways to obtain Australian citizenship. For migrants, one option is to first obtain permanent residence and then, once eligible, apply for citizenship. To apply for citizenship in this way, the applicant must: be a permanent resident, meet the resident requirements, be of good character, and intend to live or maintain a close connection and continuing association with Australia.

The ‘residence requirement’ refers to the amount of time you have been a permanent resident and remained in Australia before applying for citizenship. Under the general residence requirement, under new laws effective from 20 April 2017, an applicant must show at least 4 years’ permanent residence immediately prior to their application for citizenship. This means that, under the general rules, you will need 4 years of permanent residence before you apply for citizenship.

However, if you are a scientist employed by an Australian university who has obtained a PhD in your field of speciality and are undertaking research and development of benefit to Australia, then the ‘special residence requirement’ may apply. The special residence requirement allows you to travel outside Australia within the 4 years of permanent residency if your travel is for work purposes. To be eligible for the special residence requirement, you must have worked in your job for at least 2 years and have been living in Australia for a total of 16 months (480 days) during the 4 years before you apply for citizenship, with at least 4 months (120) days of that time in the year immediately before your application.

For you, although your occupation as a scientist at an Australian university may qualify for the special residence requirement, it appears that you have not held that job for long enough (minimum 2 years). Once you do become eligible, you need to provide additional documentation with your citizenship application. Specifically, you must provide a letter of support from your employer confirming details of your work employment as a scientist at an Australian university and the nature of your work. You will also need to provide proof that, although you spent periods of time overseas, your home has been in Australia. This evidence may include the presence of a spouse or children in Australia, evidence of property held in Australia, tenancy agreements, rates notices, etc.

Suggested way forward

Immigration law is complicated and, for political reasons, subject to change. You should speak to an immigration lawyer about exactly what you need to do to apply for Australian citizenship. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In the City of Joondalup, parking regulations are contained in the Parking Local Law 2013. Clause 2.4 of the Law states that a driver shall not park a vehicle where a parking sign indicates a fee is payable for parking unless: (a) the vehicle is parked in compliance with any instructions on the sign, meter, ticket or ticket issuing machine, and the necessary fee is paid for each parking stall that the vehicle occupies. The Law defines “vehicle” very broadly to include a trailer. The Law does not distinguish between boat and box trailers.

From the information you provided, it appears that you have been issued an infringement for breaching the above parking regulation. Appealing the infringement on the grounds that the sign was unclear or ambiguous is a difficult task, as the law in this area is unclear and the council will probably fight to keep the infringement in place.

Although the law regarding interpretation of parking signs is not black and white, on the basis that the Parking Local Law 2013 does not distinguish between different types of trailers, it is likely that parking a trailer of any type in that parking area would breach clause 2.4. Furthermore, if a court were to decide the matter, it would be asked to put itself in the shoes of an ordinary person reading the parking sign. As courts always take an objective (rather than subjective) approach to deciding matters, it is irrelevant that you personally interpreted the sign as applying only to boat trailers. The court would make its decision based on a reasonable person’s interpretation of the parking sign, which may be that the sign applied to any trailer.

Alternatively, if you parked the box trailer unattached to a vehicle, it is possible that the council issued you with an infringement on different grounds. Clause 3.9 of the Law states that a driver shall not park a vehicle at a parking facility if the vehicle is a trailer or a caravan unattached to a motor vehicle. If the council has issued your infringement on this basis (rather than non-compliance with a parking sign), then you would not be able to appeal the infringement on the basis of ambiguity or misinterpretation.

Suggested way forward

The law is uncertain with respect to interpreting and misinterpreting parking signs. The above information gives an indicator of some of the arguments you would need to address if you were to pursue the matter further. If you deem it to be financially viable, you should speak to a solicitor who can assess your matter further and advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, there are strict laws regulating the building and renovating of houses and the tradespeople who complete that work. If a project involves work worth more than $5,000, the law says that the builder and home owner must sign a written contract. A builder must also be registered with the Victorian Building Authority if the job is over $5,000 and must take out domestic building insurance if the work is over $16,000.

From the information you provided, it appears that the builder in your situation has breached multiple regulations with respect to entering a contract, registration and obtaining insurance. You should report this information to the Victorian Building Authority (www.vba.vic.gov.au), which may investigate and penalise the builder for non-compliance.

In terms of resolving your girlfriend’s building dispute, you should try to negotiate a resolution directly with the builder. If this is not possible, put your concerns more formally in writing and request a written response from the builder. This helps create a record of your correspondence for future reference. If you do not receive a response within a reasonable time, you can make an application to Domestic Building Dispute Resolution Victoria (www.dbdrv.vic.gov.au). This is an independent organisation offering free services to help home owners and builders resolve their disputes in an efficient and fair manner. This is done via conciliation services and is less formal than tribunal or court proceedings. If the builder does not want to participate in conciliation, DBDRV may appoint an assessor to conduct an assessment of the building work in question, issue a dispute resolution order, or issue a certificate stating that the dispute is not suitable for conciliation.

If the dispute remains unresolved after applying to DBDRV, you may be able to apply to the Victorian Civil & Administrative Tribunal (www.vcat.vic.gov.au) for an order resolving the dispute.

Suggested way forward

You should begin by calling Consumer Affairs Victoria’s Building Information Line on 1300 557 559 or visiting their website (www.consumer.vic.gov.au). Given the value of your girlfriend’s project and the difficulties you have already faced with the builder, you may also want to consider speaking to a lawyer who can negotiate on your behalf and help you resolve the dispute. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a person dies without a will (“intestate”), their estate is distributed in accordance with predetermined rules. In South Australia, these rules are contained in the Administration and Probate Act 1919 (SA). The rules that will apply to your mother’s situation will depend on her specific circumstances.

If your mother had a spouse or domestic partner who is still alive, they will be entitled to part of the estate. If the estate is less than $100,000, the spouse or domestic partner will be entitled to the whole of the estate. If the estate is more than $100,000, the spouse or domestic partner will be entitled to: up to $100,000, half the balance of the estate, and the personal belongings of the deceased person. The children of the estate will subsequently be entitled to the remainder of the estate in equal shares.

If your mother did not have a spouse or domestic partner who is still alive, then the whole of her estate will be distributed equally amongst her children.

You said that your mother was paying a mortgage for a property she did not own. It is not clear who owned this property. If the property was owned by her spouse or domestic partner, then the property will continue to below to that person, despite any financial contribution your mother made in mortgage repayments. The outcome would be different if the property was in your mother’s sole name. You can carry out a title search on the property to find out if your mother was the registered owner of the property. A lawyer can help you do this.

Suggested way forward

As your mother died without a will, you will need to obtain letters of administration from a court in order to distribute the estate. You should consider speaking to a wills and estates lawyer who can help you through this process and advise you of your right to obtain a share in the value of the property. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The safest and preferred method for adopting a child from another country (called “intercountry adoption”) is through the central authority in your state or territory. In South Australia, that authority is the Department of Child Protection (www.childprotection.sa.gov.au). There are several steps to this process, including: a formal application, an adoption assessment and decision by the local Australian authority, a placement proposal issued by the overseas authority, the immigration application process, travelling to meet and collect the child, and the legalisation of the adoption.

While this process can be lengthy, it is still the preferred method. There are international laws that regulate intercountry adoption and following the above method is the best way to ensure you and the overseas authority do not breach international law. Following this method of adoption also means you will receive the support of the Australian and South Australian governments during and after the adoption process.

There are other ways to adopt a child from another country. For example, if you hold citizenship in another country, you could arrange a domestic adoption through the government of that country and then attempt to bring that child back to Australia. This is called an “expatriate adoption”. This method of adoption is riskier because Australian adoption authorities do not take any responsibility for the adoption process. For the adoption to be recognised in Australia, you would need to prove that you were not living overseas to bypass the legal requirements for the entry of your adopted child into Australia, and that you have lawfully obtained full parental status in relation to the child. You would then need to obtain an adoption-specific visa for your child to enter Australia.

Suggested way forward

For more information, visit Intercountry Adoption Australia (www.intercountryadoption.gov.au), which provides a step-by-step guide for intercountry adoption. Arranging overseas adoption and immigration into Australia can be a complicated process. You should consider speaking to a family or immigration lawyer who can best explain the different options and help you through the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced immigration lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there,

Since it is legal advice that you are looking for, you must speak directly to a lawyer. You should consider speaking to a corporate lawyer who can review your T&Cs and advise you about your business’s legal status.

Hi there. The law does not require both parties to be in Australia for a divorce application to be finalised. However, to commence proceedings, divorce application documents must be served on the other party. If the other party lives overseas, there are special procedures that must be followed when filing for divorce with the court.

If your husband is living overseas, you must serve your divorce application on him by hand or post at least 42 days before the court hearing. If you do not know his overseas address, and he cannot otherwise be located, you must have taken all reasonable steps to locate him. You will need to prove that you have taken these steps in a legal document submitted to the court called an ‘affidavit’.

You may then apply to the court for an order modifying the service rules in your case. This is known as an application for ‘substituted service’. If the order is granted by the court, you can serve the documents on a third party who will bring the divorce documents to your husband’s attention, or serve the documents by post rather than by hand. In very exceptional circumstances, the court may allow you to proceed without serving the divorce documents on your husband (called ‘dispensation of service’).

You can file your divorce application using the interactive online form on the Commonwealth Courts Portal (www.comcourts.gov.au) or by completing the form and filing it with the Family Law Registry at either Melbourne or Dandenong Magistrates’ Courts. For more information, visit the Family Court website (www.familycourt.gov.au), which provides a helpful guide to applying for divorce.

Suggested way forward

You should speak to a family lawyer who can help you to understand your legal rights and responsibilities when serving documents on a spouse who is overseas. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A lease is a type of contract. If the parties forming a contract agree on one thing but accidentally write down a different thing in the contract, the law says that the mistake can be rectified so that the parties can proceed with the contract as intended. As it is highly unlikely either party in your situation intended the reduced rent rate to apply from the year 3017, a court has the power to correct this clerical error. This would mean the parties are still bound by the lease.

You also said the tenants signed the new lease without a witness. In Western Australia, the law requires a lease to be in the prescribed form, which includes a person witnessing the tenants’ signatures. A witness is not necessarily required when signing a lease extension or renewal, provided the lease terms and tenants remain the same as the original lease. However, in your situation, because the tenants on the lease changed, the lease extension must have been in the prescribed form and properly witnessed. If this was not done, the lessor may be liable to pay a fine, although this is unlikely given the relatively minor nature of the oversight. As the lessor, you may also be able to defer liability to the agent who was responsible for the errors.

Based on the information you provided, it is likely the lease extension was validly entered despite the two administrative errors. Assuming this is correct, the tenants are bound by the lease for the duration of the fixed-term tenancy. If the tenants want to break the lease early, they must give notice under the Residential Tenancies Act 1987 (WA), if applicable, and may be liable to pay an early-exit fee and/or a portion of the outstanding rent for the remainder of the lease term.

Suggested way forward

You should contact the WA Department of Commerce for advice about resolving your tenancy dispute by calling 1300 30 40 54 or visiting their website (www.commerce.wa.gov.au). You may also want to consider speaking to a property lawyer who can assess your situation and advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Western Australia, the police, or a court, may only impound or confiscate a vehicle if the driver has committed a certain offence under the road laws. Whether a vehicle is impounded or confiscated will depend on the nature of the offence and whether there have been any previous offences of a similar kind. The relevant offences are split into three categories: driving offences, driver’s licence offences and road rage offences. Crimes outside these categories are unlikely to result in confiscation of a vehicle.

The police have the power to impound a vehicle, but do not have the power to confiscate a vehicle. Only a court can do this. A court may order the confiscation of a vehicle in relation to an offence that falls under one of the above three categories. In your case, the driver of your vehicle must be found to have committed an offence under one of these categories, otherwise it is unlikely that the police or a court will have the power to do anything with the vehicle. If the driver is found to have committed such an offence, and has previously committed similar offences, the police may apply to the court for the vehicle to be confiscated.

The police and courts generally consider the person responsible for a vehicle to be the person whose name the vehicle is licensed under. While you may have paid for the vehicle, and owned it up until recently, as you have said that it was licensed in the driver’s name at the relevant time, the police and courts will most likely only consider that person’s conduct and previous driving history when determining whether to confiscate the vehicle.

Suggested way forward

A vehicle can only be impounded and confiscated if a particular crime has been committed and a court has ordered its confiscation. You should speak to a criminal lawyer about the court process involved in challenging the decision to confiscate your vehicle. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Without further details about the two products you wish to import and distribute in Australia, it is difficult to say what further legal requirements you may need to satisfy. The following information may provide some assistance in understanding your general obligations when importing goods to Australia.

You may first want to determine how your goods are classified according to customs laws. While there is no general requirement for importers to hold an import licence, certain goods or classes of goods known as ‘restricted imports’, may require additional documentation and approval before being imported. In this case, an importer will need to request permission from the relevant authority and may also need to obtain import and quarantine permits to ensure clearance through customs. For goods that attract quarantine permits, they will most likely also require treatment (e.g. for pests). You should visit the Australian Customs website (www.border.gov.au) to see whether your goods are classified as restricted.

Certain goods or classes of goods must also be correctly labelled with a trade description (i.e. details of where and by who they were made, packed or prepared). Where a trade description is required, an importer is responsible for ensuring that the label, and where it is positioned, complies with customs laws. Failure to meet labelling requirements may delay the importing process or result in the goods being seized. You should visit the Australian Customs website to determine what labelling requirements apply to your goods, particularly if they include food or prepacked articles. The certificates you mentioned will probably only satisfy some, but not all, of these obligations.

You may also need to consider what duties and fees are payable. Import processing charges (IPCs) are calculated on the value of the shipment and the cargo channel used to transport the goods. Customs duties are calculated on the customs value of the goods, being approximately 5% of the price the importer paid for the goods. A goods and services tax (GST) is also incurred on most goods imported into Australia, and is calculated as 10% of the value of the taxable importation. You should familiarise yourself with the duties and fees payable in your situation, as imported goods cannot be cleared by customs until the applicable duties and fees are paid by the importer.

The Food and Drug Administration (FDA) is a government authority in the United States, not Australia. For goods imported into Australia, FDA approval is unlikely to be required, especially as Australia has its own Therapeutic Goods Administration (TGA) which regulates imported goods in this area and performs a similar function to that of the FDA in the United States. See the TGA website for more information (www.tga.gov.au).

Suggested way forward

Understanding and complying with your obligations as an importer of goods into Australia can be a complex and time consuming process. The consequences for failing to comply with your obligations under Australian customs laws range from financial penalties to imprisonment for serious offences. You should speak to a lawyer who is accredited and licensed as a customs broker to assist you in navigating the process and preparing the relevant documentation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your situation raises several legal issues. In Tasmania, there are strict rules about when a person can have sexual intercourse with another person. If you are 12 to 14 years old, a person cannot have sex with you if they are more than three years older than you, even if you consent. If you are 15 or 16 years old, a person cannot have sex with you if they are more than five years older than you, even if you consent. Once you turn 17 years old, you can consent to have sex with anyone who is also 17 years or older.

If you engaged in sexual relations with your husband before you turned 17, and he was more than five years older than you, he has committed a crime, even if you consented. It is also a crime to maintain a sexual relationship with a young person outside of marriage (i.e. the period before you were married but maintaining a sexual relationship). There are serious penalties for these crimes, including imprisonment.

From the information you provided, it appears that your husband has committed serious criminal offences. You should consider reporting the matter to your local police station, which may investigate and prosecute your husband. The police can still charge your husband with an offence, even if it happened many years ago. If you are concerned about your safety, either now or when you contact the police, you can apply to the Magistrates Court for a Family Violence Order or ask the police to issue a Police Family Violence Order. These orders prohibit an alleged or potential offender (i.e. your husband) from threatening, abusing or assaulting you or your children. An order can also stop your husband from approaching or contacting you or your children.

With respect to the Department of Education’s knowledge of your relationship with a teacher (who later became your husband), you may have grounds to seek financial compensation for any physical or psychological injury or harm you suffered as a result of the Department’s negligence. Personal injury claims for negligence are very complicated proceedings that require the specialist assistance of lawyers. Proceedings can be slow and expensive and there is no guarantee your claim would be successful. However, it is worth speaking to a personal injury lawyer to determine if your claim is worth pursuing.

If you would rather not use a lawyer and are happy to deal directly with the Department of Education, you can lodge a formal complaint by writing a letter to the Secretary of the Department of Education, GPO Box 169, Hobart TAS 7001 or by sending an email (servicecentre@education.tas.gov.au). You can also lodge a complaint with the Tasmanian Integrity Commission (www.integrity.tas.gov.au), which is responsible for investigating misconduct or unethical behaviour within government agencies.

Suggested way forward

Your situation raises serious legal issues. You should consider speaking to a criminal lawyer or personal injury lawyer to get advice about your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Personal Property Securities Register (PPSR) is a central online register that allows businesses and individuals to register a security interest over certain personal property, known as collateral. One type of security interest that may be registered is a purchase money security interest (PMSI). A PMSI may benefit the registering party by providing a ‘super-priority’ - which is a security interest that defeats all other, including earlier, created and registered security interests in the same collateral. However, certain registration requirements, including specific timeframes, must be complied with in order to for a super-priority to be secured by a PMSI.

An application to register a security interest on the PPSR must be in the approved form and contain particular information, including that of the parties involved and the property to be secured. When completing the registration online the process is the same as a general security interest, only with the additional step of indicating, when prompted, that it is a PMSI. For more information about the application process, you can visit the ‘Registrations’ page on the PPSR website (www.ppsr.gov.au).

Any registration of a security interest on the PPSR will attract fees. The fees generally depend on how long the security interest is to be registered. For example, registration for seven years or less costs $6.80. More information about fees is available on the PPSR website.

The PPSR does not require a separate registration to be made for each supply or lease of inventory that is to the same buyer or lessee. A single transaction can have the effect of covering subsequent security interests in property that is supplied at a later date. However, given that subsequent registrations may be for a different class of property, involve a different purchaser or may be for a different registration duration, it is important to pay close attention to your desired security arrangements each time an application for registration is made.

Suggested way forward

Registering a security interest, especially in situations of supplying inventory, is an important business practice subject to strict rules around the accuracy of the information that is provided. Speaking to a business lawyer will help you understand whether your security interest is registrable. They can also help draft the necessary legal documentation and complete the registration(s) for you. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, there are regulations that set out the general rules of conduct for real estate agents, including how they handle confidential client information. The regulations clearly state that confidential information, obtained by an agent while acting on behalf of a client, should not be disclosed unless the client consents or the agent is legally required to disclose the information. If an agent unlawfully discloses a client’s confidential information, they may be subject to disciplinary action by NSW Fair Trading.

NSW Fair Trading (www.fairtrading.nsw.gov.au) handles complaints about alleged breaches of the rules of conduct governing real estate agents. In your case, if you did not consent to the release of your personal information and the agent was not required to disclose it by law, you can lodge a formal complaint against the agent. However, before lodging a complaint online, you must be able to prove that you have contacted, or tried to contact, the agent to resolve the issue, otherwise Fair Trading NSW may not accept your complaint until you can prove this.

Once a complaint is lodged, Fair Trading NSW may investigate and take disciplinary action against the agency or individual agent if they are satisfied there has been a breach of the rules. The disciplinary action taken depending on the facts of each case, and ranges from a written warning to suspension or cancellation of an agent’s practising certificate.

You also said that the person to whom your personal details were disclosed has been threatening and blackmailing you. This person may be committing one or more criminal offences, such as blackmail, extortion or stalking. These are serious crimes with serious penalties. You should report this person’s behaviour to your local police station so they can properly investigate your matter.

Suggested way forward

You should consider lodging a formal complaint with Fair Trading NSW against the real estate agent. The conduct of the other person who is blackmailing and threatening you should be reported to the police. You may also want to consider speaking to a lawyer who will help you understand your rights and legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Parties in a relationship can sign a ‘financial agreement’ at any time before, during or after a relationship. These agreements are commonly signed before a marriage (sometimes referred to as a ‘prenuptial agreement’), but they can also be signed during a marriage or after the relationship has broken down.

A financial agreement can be used to ensure property or assets are dealt with in a certain way if the relationship breaks down. You can use a financial agreement to ensure you retain ownership of certain property and that it is not divided or shared with your partner or spouse. A financial agreement is unique to each relationship and so there is no formula for what it should contain. However, all financial agreements must comply with the following rules in order to be valid:

• The agreement must be signed by both parties.
  
• Before signing the agreement, both parties must obtain independent legal and financial advice on all aspects of the agreement, including how it affects their rights and whether the terms are just and equitable.
  
• A lawyer must provide a signed statement that legal advice was provided to each party.
  
• The agreement must not have been set aside or terminated by a court.
  
• The agreement must satisfy the written requirements as according to the principles of contract law.

If you are unable to sign a financial agreement (e.g. your wife does not consent), and you proceed with the divorce, you will still need to negotiate a property settlement. Couples are free, and must first attempt, to negotiate the division of property between themselves and try to reach an agreement without involving the courts. If an agreement can be reached, and requires formalisation (i.e. make it legally binding and enforceable), the Family Court can issue consent orders on application. However, if an agreement cannot be reached, the Family Court can also issue financial orders to decide the appropriate division of property.

The court, in reaching a decision, will take into account the initial amount contributed by each spouse to the marriage, as well as the direct and indirect financial contributions of each spouse to the marriage, non-financial contributions, and the future needs of each spouse. The court's decision will be one that the court considers to be just and equitable based on the facts and circumstances of your case.

Suggested way forward

Property settlements during a divorce can be complicated and, if you want to enter a financial agreement, you must obtain professional advice from a lawyer. You should consider speaking to a family lawyer about your legal options and the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In your situation, there are several services available to help ease your financial hardship. Government payments are offered for a wide range of personal circumstances, and the courts can also issue child support orders to ensure that ex-partners contribute financially to the expenses associated with caring for children.

A single, expectant mother who was employed before the birth of their child(ren) may be able to access Parental Leave Pay. To be eligible for Parental Leave Pay an individual will need to meet certain employment criteria, including having worked for at least one day per week for no less than ten of the past thirteen months before the birth. If you satisfy this and the other requirements, or otherwise receive an exemption, you will likely be eligible for this payment.

There are other financial assistance packages offered by the government that do not necessarily require you to have been working before the birth, including the Newborn Upfront Payment and Parenting Payment. For more information about these financial assistance payments, including your eligibility, visit the Separated parents section of the Department of Human Services website (www.humanservices.gov.au).

Depending on the nature of a relationship before the parties separated (i.e. a marriage or de facto relationship), it is likely that the partner who is not the primary carer of the children will be required to provide financial assistance in the form of child support. The Department of Human Services calculates the amount the parent is required to contribute. The Federal Circuit Court (www.federalcircuitcourt.gov.au) can also issue legally-binding orders to enforce payment if you, as the other parent, make an application for these orders.

If your ex-partner has agreed to pay 50% of the children’s expenses, and you are satisfied with this contribution, you can apply to the court to formalise this agreement. If you are not satisfied with this contribution, you should contact the Department of Human Services to obtain an estimate, based on their calculations, of what an appropriate contribution would be.

Suggested way forward

To ensure you receive the financial assistance you are entitled to, you should consider speaking to a family lawyer, and financial advisor or counsellor, who will be able to advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a couple separates, it will be necessary to determine how their assets and liabilities are divided, including the proceeds from the sale of any property owned by both parties. Couples are free, and must first attempt, to negotiate the division of property between themselves and try to reach an agreement without involving the courts. If an agreement can be reached, and requires formalisation (i.e. make it legally binding and enforceable), the Family Court can issue consent orders on application. However, if an agreement cannot be reached, the Family Court can also issue financial orders to decide the appropriate division of property.

Given that your de facto relationship lasted for at least two years, you can apply to the court to have the division of property determined and enforced. The court, in reaching a decision, will take into account the initial amount contributed by each partner to the purchase of the property, as well as the direct and indirect financial contributions of each partner to the relationship, non-financial contributions, and the future needs of each partner.

There is no presumption that the property should be split 50:50. The court's decision will be one that the court considers to be just and equitable based on the facts and circumstances of your case. Given that there is no set formula used, while the court may ultimately settle on an even split, the exact outcome cannot be predicted.

Suggested way forward

You should consider speaking to a family lawyer about how to manage your property division and what would happen if you were to take the matter to court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An employment contract is an agreement between an employer and a worker, that sets out all the terms of the job, including things like holiday pay and other entitlements. Terms will vary depending on whether a worker is classified as an employee or independent contractor and, if an employee, on what basis they are employed (e.g. casual, part-time or full-time). Minimum entitlements apply to employment contracts, but generally do not extend to casual employees and independent contractors.

The first step is to determine whether you were classified as an employee or independent contractor, as per the terms of your employment contract. Your classification determines what entitlements you can claim. More information about the classifications of workers can be found on the Fair Work Australia website (www.fairwork.gov.au).

Australian employment law establishes the National Employment Standards (NES) which set out ten minimum employment entitlements for all employees, including the right to holiday pay (e.g. annual leave, paid sick and carer’s leave). Casual employees and independent contractors are excluded from the NES. This means that, if you were classified as either a casual employee or independent contractor, it is likely you were not entitled to holiday pay.

Reimbursement of income-related expenses, known as an ‘expense payment fringe benefit’, is an entitlement that an employer may offer to an employee, but it is not mandatory. Only certain employees may be offered this entitlement, and so if you were classified as either a casual employee or independent contractor, you were probably not entitled to expense payment fringe benefits. Although your employer may have acted unprofessionally by agreeing, in an email, to reimburse your expenses, they may not be required by law to reimburse you if your employment contract did not mention reimbursement.

Suggested way forward

You should consider speaking to an employment lawyer about your legal options, including what entitlements you may recover. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When entering a relationship, or marriage, you may wish to protect any property or assets of yours that you do not want to be divided with your partner if the relationship breaks down. A financial agreement (commonly referred to as a “prenuptial agreement”) is a binding contract that allows you to achieve this. This agreement can be created before, during or after the relationship, and applies to both marriages and de facto relationships.

A financial agreement is unique to every relationship and so there is no formula for what it should contain. However, there are strict legal rules around how the agreement is prepared and entered into. If these rules are not followed, the Family Court may declare the agreement invalid.

In your case, assuming you want to make a financial agreement to keep your two properties separate from the relationship, and ensure the terms of any property division are clearly agreed upfront, then the first step is to obtain the consent of your partner. If your partner consents, the next step is to ensure that you follow these rules for preparing and signing the agreement:

• The agreement must be signed by both parties.
  
• Before signing the agreement, both parties must obtain independent legal and financial advice on all aspects of the agreement, including how it affects their rights and whether the terms are just and equitable.
  
• A lawyer must provide a signed statement that legal advice was provided to each party.
  
• The agreement must not have been set aside or terminated by a court.
  
• The agreement must satisfy the written requirements according to the principles of contract law.

Where both parties sign a financial agreement that complies with the above requirements, it will become legally binding. The agreement can be enforced by either party through a court if the relationship breaks down in the future.

Suggested way forward

For a financial agreement to be binding, it is important that a lawyer provides advice to both parties and helps prepare the documents. You should consider speaking to a family lawyer about your legal options and executing a financial agreement. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Before purchasing a property, it is common for the seller or purchaser to commission a building inspection report. This report is a written record of the property’s condition before sale, including the presence of any significant building defects such as a faulty roof. If this report fails to identify a major building defect it will be in breach of the Australian Standards. The person who conducted the inspection may be liable to the purchaser who relied on the report when purchasing the property.

According to the Australian Standards, an inspection should normally report on the condition of the roof void and the roof exterior. In your case, the roofing fault would most likely be considered a detectable building defect and one that the inspector should have identified. Provided there is no mention of the defect in your report, your first step should be to resolve this issue with the inspector who conducted the building inspection report. If you are dissatisfied with the response of the inspector, and they are a member of an industry association, you may be able to access a free complaint handling service to escalate your claim.

If you cannot resolve the matter directly with the inspector, your next step is to seek legal advice to bring a claim in negligence against the inspector for failing to identify the roofing defect. If you are successful, and the inspector is insured for professional indemnity, you may be awarded damages to compensate you for any expenses incurred in repairing the defect.

Suggested way forward

It sounds like you may have legal grounds to bring a claim in negligence against the individual or business who commissioned your building inspection report. You should speak to a lawyer about your legal options and how to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Thank you for you submitting your question through the free Q&A service that is provided by LawAdvisor. At the moment we are not accepting questions from outside of Australia, and this will continue to be the case until we officially launch internationally (which we hope will be very soon!). For an update of when this will be, please keep checking our website and socials.

In the meantime, you may find the following resources useful in understanding your legal issue and whether you have a claim: Citizens Advice (https://www.citizensadvice.org.uk/), and Advice Now (www.advicenow.org.uk); and The Law Society (www.lawsociety.org.uk).

Hi there. In NSW, a person charged with certain serious criminal offences must show cause why his or her detention is not justified, otherwise they may be refused bail and remanded in custody. Even where a person can satisfactorily show cause, a court may still decide to refuse bail if they believe there is an unacceptable risk that the person would fail to appear in court when required, commit an offence while on bail, endanger public safety or interfere with witnesses or obstruct the course of justice.

In your case, the court probably had sufficient grounds for believing that you posed an unacceptable risk if bailed. As a result, you were remanded in custody awaiting your trial. There are no laws that require court proceedings to be commenced within a certain period. The court system is very slow and there can be long delays before a trial is held, especially if the police need to gather a lot of evidence.

A person who is injured whilst in custody, may be able to claim compensation from the State, however, this is a complicated process and often there are many barriers to making a successful claim. Depending on the circumstances surrounding your injury, while it may ease the financial burden you are currently facing, you should know that seeking compensation from the State is a complicated area of law and you would need expert advice from a lawyer on whether you have a claim.

Suggested way forward

When people are charged with criminal offences and remanded in custody indefinitely, only to be acquitted at trial, they often endure significant disruption. You should speak to a lawyer about your rights and best way to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. To include your parents’ names on the title to your house, they will need to have an interest or share in the property. This means that you will need to complete and lodge the following forms with your local Land & Property Information (LPI) office:

1. Transfer form 01T – This form records your parent’s acquisition of an interest in the property. You will need to indicate whether you and your parents are to hold the interest as ‘joint tenants’ or ‘tenants in common’. These terms have a special legal meaning and affect what happens to the property if either you or one of your parents dies. You should seek legal advice about the type of co-ownership you want.
   
2. Notice of sale (NOS) form – This form can be completed online or ordered in hard copy from the LPI website (www.lpi.nsw.gov.au).
3. Original Certificate of Title – This document will be held by you or, if there is a mortgage on the property, the lender.
4. Any mortgage documents – If the property is mortgaged, your parents' acquisition of an ownership interest in the property needs to be reflected in the mortgage documents. You should contact the lender to discuss the proposed transfer as soon as possible.

In NSW, transfer of land duty (formerly called stamp duty) is payable on most transfers of land. Your parents will be transferees of land and therefore required to pay duty to the Office of State Revenue (OSR). Duty is calculated based on the total dutiable value of the property subject to the transaction. If your parents are not paying money to acquire an ownership interest in the property, you will need to provide evidence of the value of the property. This will require a valuation of the property to be done. Note that the ‘Transfer form 01T’ referred to above must be stamped or marked by the OSR before presenting the form to LPI. More information on stamp duty can be found on the OSR website (www.osr.nsw.gov.au).

It is unlikely you could add your parents’ names to the certificate of title for your house without their knowledge. This is because, as transferees, they would need to sign several legal documents, including those listed above, as part of the sale process. You would not be able to properly or legally complete these documents without their signatures.

Suggested way forward

Dealing with property can be a complicated process. You should speak to a property lawyer about your planned transfer as they can advise you of your legal obligations and assist in the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Sometimes employment contracts contain a ‘non-compete’ or ‘restraint of trade’ clause, which is a term of the contract that says one party (the employee) agrees not to engage in trade that would compete with the other party to the contract (the employer). A restraint of trade clause usually remains in force even after the employment contract has ended.

Australian law says that a restraint of trade clause must be reasonable in the interests of the parties to the contract. This means that, if an employer wants to rely on the restraint clause, they will need to show that the clause protects their legitimate business interests and does not go beyond what is necessary to protect those interests. The restraint clause must also be reasonable in the interests of the public – in other words, the clause must not be contrary to or interfere with the public interest. Importantly, a restraint of trade clause cannot be used simply to reduce or avoid competition.

If you wait the specified 6 month period and comply with all other terms of the restraint clause, you will not be in breach of the restraint clause. However, if you do not follow the terms of the restraint clause you may be in breach of the contract (and therefore liable to pay compensation to the employer), unless the restraint clause is not reasonable in the interests of you, the employer and the public. If the restraint is unreasonable, a court may deem the clause to be invalid.

Suggested way forward

Breaching a restraint of trade clause can have significant consequences. You should consider speaking to an employment lawyer who can advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The police can immediately impound your vehicle for 30 days if you are caught committing a high-risk or dangerous driving offence. This includes repeat offences of unlicensed or disqualified driving. If you commit an impoundment offence for a third time, the police can impound or immobilise your vehicle for 30 days and your vehicle may be permanently confiscated after you attend your court hearing.

Whether your vehicle is permanently confiscated will depend on nature of your driving offence and your history of driving (and other criminal) offences. The court may also impose other penalties for your unlicensed driving such as a fine, disqualification from driving, or imprisonment. A lawyer can advise you of potential penalties.

Although unlikely based on your driving offence history, if you become eligible to retrieve your vehicle from impoundment, you will need to first pay for the cost of storage.

It is not clear why you mentioned the conduct of the specific police officer who charged you or impounded your vehicle. It is not relevant what unit or department the police officer works in, as all police officers have the same authority to arrest and charge people suspected of committing an offence. If you believe the police officer acted unprofessionally or engaged in misconduct, you can lodge a complaint with Victoria Police online (www.police.vic.gov.au) or by phoning 1300 363 101.

Suggested way forward

The offences you describe are serious and carry significant penalties. You should speak to a criminal lawyer about the court process and the future of your vehicle. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A person charged with a criminal offence is usually entitled to be released from custody on bail if they sign an undertaking promising that they will appear in court at a later date to answer the charge.

In Victoria, a person who fails to comply with their bail conditions or fails to appear in court when required, can be arrested and charged with a further offence. Unless the person has a ‘reasonable cause’ for breaching their bail conditions or not appearing, the person may face a penalty ranging from an infringement notice to 12 months’ imprisonment. If your son breached his bail conditions or failed to appear in court when required, he would have been arrested and brought before a judge, magistrate or bail justice to determine whether his bail should be revoked.

It appears that your son’s bail was revoked and that he is now back in custody. He has the option of making a further bail application, but only if new facts or circumstances have arisen since your son’s bail was revoked, he was not represented by a lawyer when his bail was revoked, or the order revoking bail was made by a bail justice (rather than a magistrate or judge). If a further application for bail is made, your son (or his lawyer) would need to show cause why bail is justified. The court will refuse bail if there is an unacceptable risk that your son, if released, would fail to appear in court when required, commit an offence while on bail, endanger public safety or interfere with witnesses or obstruct the course of justice.

Suggested way forward

Your son has the option of making a further bail application, but he would need the help of a criminal lawyer to ensure he has the best chance of making a successful application. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If your partner signed the tenancy agreement as a co-tenant with their ex-partner, the law will recognise both parties as responsible for the lease until they legally terminate the tenancy or transfer it to another person.

If your partner removed their name from the lease when they moved out of the property by transferring their share to a new tenant or the remaining tenant, then your partner is unlikely to be responsible for any future matters regarding the property. However, if they did not remove their name from the tenancy, simply moving out of the premises will not automatically end their obligations as a tenant.

The simplest way for your partner to end their involvement is to negotiate with the real estate agency or landlord, explaining the situation and asking that the matter be pursued solely with your partner’s ex-partner. Although the agency does not have to agree to your request, they do have the power to withdraw any legal proceedings they may have commenced in court or at the NSW Civil and Administrative Tribunal. If the negotiation is unsuccessful, your partner should be prepared to attend the court or tribunal hearing and present any oral or documentary evidence that supports their side of the story.

Suggested way forward

Your partner would benefit from speaking to a property lawyer who can advise them of their legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Lawyers are under strict professional duties to act in the best interests of their client. If they breach these duties by acting unprofessionally or improperly, they can face a range of consequences.

As a former client of the lawyer, you can lodge a formal complaint against the lawyer with the Victorian Legal Services Board and Commissioner (www.lsbc.vic.gov.au). Before lodging the complaint, you should call the Board on 1300 796 344 to discuss your problem and to check that your complaint will be properly handled. If you lodge a complaint, the Commissioner will assess it to determine whether it should be investigated. If so, the lawyer involved will be asked to respond to the issues you have raised.

The next step may involve an informal mediation process whereby you and the lawyer come together to reach a resolution to the dispute. If the lawyer is found to have breached one or more of their professional duties, the Commissioner may decide to take disciplinary action against the lawyer or decide to prosecute the matter in a tribunal. In some cases, the lawyer may be required to pay financial compensation to the client for any loss or harm suffered because of the misconduct.

Suggested way forward

You should contact the Victorian Legal Services Board and Commissioner to discuss your complaint. If you want to take the matter further, you may want to consider speaking to another lawyer who can advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The issue you describe may involve an instance of defamation. The law gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible for the attack. To make a claim for defamation, you need to satisfy three things:

1. The defamatory material must be published. This includes print, online (including mass emails) and broadcasts.
2. The material must identify the person who has been allegedly defamed. It is not necessary for the person to be directly identified. Defamation may still exist if a reasonable person reading the publication understands it as referring to the relevant person.
3. The material must be ‘defamatory’ in nature. This means it must convey meaning about a person that lowers their reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the public.

You will have a claim for defamation if you can prove each of these three things. You should also be aware that the person who made the defamatory comments may not be liable for defamation if they have a recognised defence (e.g. the defamatory material is true or is a fair comment on a matter of public interest).

Suggested way forward

If you believe you have been defamed by a former employer or colleague, you should consider speaking to any generalist lawyer who can advise you of the prospects of your legal claim. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Residential Tenancies Act 1987 (WA) has strict rules designed to protect the rights of tenants. The information you provided suggests the landlord has breached several of these rules, as explained below.

Eviction notice

You received an eviction notice on your phone. The reason for the eviction notice is not clear. If the eviction was because you were behind in paying your rent, the landlord should have used a Form 1B ‘Notice of Termination for Non Payment of Rent’, giving you 7 days to pay the rent owed otherwise the landlord could apply to court for a termination order ending your lease. The court date must be at least 21 days from when you received the Form 1B.

If the landlord’s eviction notice was for another reason, the minimum notice period varies depending on the reason for the eviction. If you were in breach of your tenancy agreement (other than for rent arrears), you should have received a breach notice and been allowed 14 days to fix the issue. If you did not fix it, the landlord could have used Form 1C ‘Notice of Termination’ giving you 7 days to vacate the property. If the landlord simply chose to evict you for no specific reason, they should have given you 60 days’ notice for a periodic tenancy (i.e. a month-to-month lease) or 30 days’ notice for a fixed term tenancy but no earlier than the end of the fixed term.

While it is not clear what type of eviction notice was used or the exact grounds on which the landlord tried to evict you, it appears that the landlord did not properly serve you with the notice. Notices of eviction must be served by post or in person. They can only be sent electronically or by email (including an image sent to your phone), but only if there was a prior agreement in writing between you and the landlord permitting notices to be sent electronically. Furthermore, it appears your landlord did not give you sufficient notice, as you said you only received the notice 3 days before the end of the notice period.

Locked out of property

It is illegal for a landlord to evict you without a court order, and the landlord cannot personally lock you out. Only the Sheriff (or their representative) can do this when they are acting in accordance with a court order. From the information you provided, it is unlikely the landlord obtained a court order for your eviction, especially as they changed the locks and welded the gate only one day after the end of the notice period.

As it appears you have been evicted illegally, you should make a court application as soon as possible. You can ask for court orders allowing you to stay at the property, to get your personal belongings (if any remain at the property), or for financial compensation. You can start your court application by lodging the relevant forms with the Magistrates Court (www.magistratescourt.wa.gov.au), but you may want to obtain legal advice before doing so. You can also lodge a formal complaint against your landlord with the WA Department of Commerce (www.commerce.wa.gov.au) by phoning 1300 304 054.

Suggested way forward

It sounds like the landlord has failed to follow the rules of the Residential Tenancies Act and that you have strong grounds to seek court orders to fix the situation. You should contact Tenancy WA as soon as possible on (08) 9221 0088 or 1800 621 888 or visit their website (www.tenancywa.org.au). You may also want to consider speaking to a lawyer who can help you take action to enforce your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. As a general rule, the police are not allowed to search a person’s property (e.g. house or car) unless they have obtained a search warrant. The same rule applies to making a secret recording of telephone conversations (i.e. phone-tapping). If the police searched your house, phone and laptop, they would have obtained a search warrant authorising them to lawfully carry out the search.

In South Australia, the police have access to general search warrants that remain valid for up to 6 months. If a general search warrant was obtained in your situation, the police officer named in the warrant (plus their assistants) can enter and search any premises where there is reasonable cause to suspect an offence has been or is about to be committed, the presence of stolen goods there or evidence of an offence. The police may choose to exercise this power any time within the 6 month period.

If it has been more than 6 months since the search warrant was issued, the police may not have authority to conduct further searches of your property or secretly record telephone conversations. If you believe the police may be acting outside their authority, you can lodge a formal complaint with the Office of the Police Ombudsman SA (www.policeombudsman.sa.gov.au). The Ombudsman is an independent body that can investigate allegations of police misconduct.

Suggested way forward

If you believe your rights are being infringed by the police you should lodge a complaint and consider speaking to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, to validly alter a will, a person must execute a separate document called a ‘codicil’. This document can be handwritten or typed. To be legally valid, the codicil must be executed in the same way as a will. This means it must be signed by the will-maker and witnessed by at least two other people. It is also important that a codicil refers to the correct version of the original will (i.e. the codicil should refer to the date of the latest will prepared by the will-maker). In your case, the separate handwritten document may be a codicil (and therefore a valid amendment to your mother’s will) if it was signed by her and witnessed by at least two other people. It does not matter that the document is handwritten.

A Deed of Family Agreement (also known as a Deed of Family Arrangement, or Variation) is a legal document that records the distribution of a deceased person’s estate in a way that is different to the terms of the will. For example, the beneficiaries of a will may want to rearrange the allocation of benefits between themselves for tax reasons. The most efficient way to create and execute a Deed is to consult a wills and estate lawyer. Before engaging a solicitor, you should meet with all the other beneficiaries and reach an agreement on the desired redistribution of the estate.

Suggested way forward

To ensure the will is validly altered and to seek advice and prepare a Deed of Family Agreement, you should speak to a wills and estate lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under section 34 of the Road Traffic (Administration) Act 2008 (WA), the police may request a person to give information that may identify a driver in charge of a vehicle involved in a traffic offence. It is important to remember that the police are under no obligation to provide evidence of the identity of the driver involved in an offence, as identifying the vehicle will suffice.

As the vehicle is licensed in your name, the police will ask you to provide the information and you are expected to comply with the request. This means that, if you have or could have reasonably ascertained the identity of the driver at the relevant time, you must provide this information to the police, otherwise you will be committing an offence. This may require you to look back through personal calendars, diary entries, messages, receipts, etc, to determine what you (or the actual driver) was doing at the relevant time. After doing this, if you still cannot determine the identity of the driver, you may not be in breach of section 34. However, a lot will depend on your particular circumstances and what the court believes to be ‘reasonable’ in your personal situation.

Separate to section 34 is another obligation in section 35. Section 35 requires you to take reasonable measures or make reasonable arrangements to ensure that you, as the responsible person for the vehicle, will be able to comply with the police’s identity request. For example, if a logbook is used for the vehicle, the person responsible for the vehicle must ensure that the logbook is kept up to date so that that the driver at any particular time can be identified. From the information you provided, it is unlikely that section 35 is relevant to your situation.

Suggested way forward

You need to comply with all police requests. If you want legal advice on what steps you need to take to ensure compliance, you should speak to a criminal lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Australia, there are no specific laws that require a person to disclose their history of sexual partners. This includes disclosing their history to a current sexual partner. So while there may be strong moral obligations to be open and honest with partners, failing to do so is not a criminal or civil offence.

Note, however, that in NSW there are laws that require disclosure of a HIV-positive status to sexual partners prior to having sex. Disclosure is only required if the HIV-positive person is not taking reasonable precautions against transmission of HIV (i.e. if they are engaging in unprotected sex). It is not clear whether this law would apply to your friend's situation.

Suggested way forward

If your friend wants professional legal advice, they should consider contacting NSW Legal Aid (www.legalaid.nsw.gov.au) or their local Community Justice Centre (www.cjc.justice.nsw.gov.au). Otherwise, they can speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, while it is generally expected that children will remain at home until they are 18, there is no law that specifies the minimum age to move out of home. That said, if a child under 18 decides to leave home, enquiries may be made by welfare authorities to assess the environment the child is moving into and whether they will be safe.

If you move out, the authorities, such as the police, the Department of Communities and Child Safety and Disability Services (Child Safety), may not force you to return home if you can show that you have a safe place to go and that you can financially support yourself. The authorities will consider things such as:

• your parents' attitude;
• your maturity level;
• your access to satisfactory accommodation and income; and
• if you are in a safe place.

If the authorities believe you are not moving to a safer environment and that you should be forced to return home, they can apply for a child protection order or a court order. This means a court will determine where, and with who, you must live.

Remember that Centrelink benefits are usually only accessible from the age of 16, and only if certain conditions are met. Given that you and your partner are still 15, you may not be able to access Centrelink money. You should take this into account before deciding whether you want to move out. You should also think about what would will happen if your relationship breaks down and you are no longer able to live with your partner.

Suggested way forward

Moving out is a big step and it can be a very difficult experience for a young person. You should speak to an adult that you trust – like a school counsellor or teacher – about your plans to move out. If you want more information about the law and your rights, you can visit the Lawstuff website (www.lawstuff.org.au) or contact Youth Advocacy Centre (www.yac.net.au).

Hi there. If goods you purchased were not delivered to you by post, as agreed at the time of sale, the supplier is likely to have breached a term of the sale contract. While this may technically give you a legal right to make a claim against the seller, depending on the value of the goods, you will probably find that it is impractical to enforce that right. For this reason, the information below contains practical solutions for dealing with your issue.

Without knowing whether your purchase was made from an Australian or international seller, your first step should be to contact them to try and resolve the problem. They may have the lodgement and tracking information which will help determine whether, and where, the goods may have gone missing. This is particularly important where the seller is alleging that a family member, or occupier of the delivery address, signed for and took receipt of the goods.

If you believe the seller is acting unprofessionally or you wish to make a formal complaint about their conduct, you can contact NSW Fair Trading (www.fairtrading.nsw.gov.au) to discuss your dispute.

If you cannot resolve the matter directly with the seller, your next step is to contact Australia Post. Where goods go missing while in the Australia Post mail system, you can lodge a request for compensation. Australia Post may, at its discretion, grant compensation of up to $50 and a refund of postage paid, or they may elect to repair or replace a missing or damaged postal item. If, after making enquiries with Australia Post, you believe they have not adequately addressed your concerns, the Postal Industry Ombudsman (www.ombudsman.gov.au) may be able to assist in some circumstances.

Suggested way forward

It is frustrating when your goods do not arrive as they should, or the seller or Australia Post have failed to provide a proper service. Speaking to a lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.s based on experience and the scope of services.

Hi there. When a couple separates, it will be necessary to determine how their assets and debts are divided, including any property that was owned by each of them. You are free to negotiate this division of property directly with your spouse and try to reach an agreement without involving the courts. If an agreement can be reached, and you wish to formalise it (i.e. make it legally binding and enforceable), you can apply to the Family Court (www.familycourt.gov.au) for consent orders. In your case, if you are satisfied that you are entitled to, and willing to accept, a payout equal to half of the value of the property, you can apply for consent orders from the court.

However, if you are unable to reach an agreement with your spouse or you want the property settlement to also take into account your future financial needs for living and raising your child, it may be more appropriate to ask a court to divide your property for you (called 'financial orders'). There is no set formula used to divide your property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The decision will be one that the court considers to be just and equitable based on the facts of your case. A court can also make orders with respect to child support and parenting arrangements.

Suggested way forward

It is important that you get what you are entitled to in the property settlement. Speaking to a family lawyer will help you understand your legal rights and the best way to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A company will enter receivership when a receiver is appointed by a secured creditor (a type of party to whom the company owes money) or, in some circumstances, by the court. The receiver’s job is to take control over some or all of the company’s assets and sell them to repay the outstanding debt. The law recognises that a receiver acts in a commercial capacity and has discretion as to how they do their job. This means a receiver is mostly free to make commercial judgments about salvaging the company without scrutiny from shareholders or an external body such as the Australian Securities and Investments Commission (ASIC) or the courts.

In your case, the receiver’s decision to reject an arrangement whereby an alternative financier would be involved to pay off the debt is likely to be considered a matter of commercial judgment and a decision based on various factors. A receiver is under several legal duties (such as the duty to take reasonable care to not sell company property for less than market value), and these duties may have influenced the receiver’s decision about the financier.

This is not to say that all “commercial judgments” of a receiver cannot be scrutinised. If you believe there is evidence that the receiver has acted illegally or failed to perform the duties of their role, ASIC may investigate. Complaints and reports of misconduct against receivers can be made to ASIC (infoline@asic.gov.au) or by calling 1300 300 630. If this is unsuccessful, your next option would be to take formal legal action as a shareholder against the receiver, by requesting the courts to order an inquiry.

Suggested way forward

First consider whether you have evidence to substantiate a complaint against the receiver. If you do, you can prepare an official complaint and lodge it with ASIC. If you want legal advice on your rights as a shareholder, and whether the receiver has acted illegally, you should speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Clubs and associations generally exist as unincorporated bodies bound by a set of rules or bylaws. Unless a club has been incorporated, it does exist as a separate legal entity. This can make it difficult to determine in who’s name the club’s property (such as bank accounts) should be held. Ordinarily the officers or executive committee of the club hold the property in their own names and transfer it the next officeholders on their departure.

If a club member has purchased property for the club in their personal capacity, the law will generally recognise that person as being entitled to keep the property (and any keys used to access it), subject to any agreement between club members or club bylaws about transferring ownership in certain circumstances. You should review the club bylaws to check if there are any rules about transferring or surrendering club property when a person leaves the club.

If the member is breaching the club rules by refusing to return club property or keys to club property, you may be able to take legal action against them to enforce the rules, but it will be cheaper and quicker to try to negotiate a resolution with the member directly. If you are unable to negotiate an outcome, you may want to consider using a free mediation service available at your local Community Justice Centre (www.cjc.justice.nsw.gov.au). If this is unsuccessful, your next option would be to take formal legal action against the member.

Suggested way forward

Formal legal proceedings can be expensive and time consuming. For this reason, you should try to resolve your legal issue via other means. If you want legal advice on your club’s rights and the best course of action, you should speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, when a person receives a traffic infringement notice for an offence that was actually committed by another driver, they may nominate that driver as the person responsible. The nominated person will become responsible for payment of the fine and the loss of any demerit points, if applicable. To do this, you must nominate a driver within 28 days of receiving the infringement notice, otherwise your application may not be accepted.

It appears that you amended your Nomination Statement to include a different driver, when in fact the initial nomination was correct. In this situation, is important that you remedy your error as soon as possible by contacting the authority that issued the fine and explaining your situation. Failing to correct your mistake may result in you being found to have provided false and misleading information, and liable for a fine of up to $9,000 and the loss of your licence.

The issuing authority may decide to reject your application, for whatever reason, in which case the person initially identified on the infringement notice will remain responsible for paying the penalty.

Suggested way forward

You should contact the authority that issued the fine to correct your mistake and ensure the infringement notice is issued in the name of the correct driver. If you are concerned you may be liable for an offence, you should consider speaking to a lawyer about your legal right and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a couple separates, the parties usually need to determine how their assets and debts will be divided. If the couple was married or in a de facto relationship (i.e. a domestic dependent relationship lasting at least 2 years), there are special legal rules that apply to the division of the couple’s property. The information below explains these rules and how they may apply to your situation.

A debt owed by a party to a marriage, or de facto relationship, is considered property and divided between the parties on this basis. The parties are free to negotiate how the debt will be divided between themselves without involving the courts. However, if they are unable to reach an agreement and want to obtain a legally binding agreement, they can seek assistance from the courts. Applications for financial orders are made to the Federal Circuit Court or Family Court of Australia (www.familycourt.gov.au). As part of the court process, the parties must attend a formal mediation before reaching the courtroom.

There is no standard formula that a court will use in deciding how to divide a couple's property, including any jointly or singly held loans. Generally, the court considers things such as what each person owns and owes, direct and indirect financial contributions by each party to the relationship, non-financial contributions and their future needs. Where there is documented evidence of particular expenses, such as money spent on a vehicle or repairs, this will form part of the evidence that the court will use to decide on an appropriate division.

If you were not married or in a de facto relationship – for example, your relationship lasted less than 2 years – the above rules will not apply to you. Instead, you are free to negotiate with your ex-partner any arrangement regarding shared assets or debts. You may want to speak to a lawyer to about negotiating on your behalf.

Suggested way forward

It is difficult to predict how property, especially debts, will be divided in the event of a separation or divorce. Speaking to a family lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a couple separates, the parties usually need to decide how to divide their property between them. The law encourages parties to try to reach an agreement without having to resort to formal options like going to court. If the parties cannot reach an agreement, the law dictates how a couple’s property should be divided between them.

However, these laws only apply to married couples or people who have been in a de facto relationship for a minimum period of 2 years. From the information you provided, it appears that your relationship would not be recognised as a de facto relationship in the eyes of the law, and therefore the rules about property division do not apply to you.

You should try to negotiate with your ex-partner to resolve the issue. You may want to consider using the free mediation services provided by a Community Justice Centre (www.cjc.justice.nsw.gov.au). Mediation involves an independent third party who helps the parties try to resolve their dispute. Pursuing more formal dispute resolution options, like going to court, may not be worthwhile as these avenues can be time consuming and more costly than the value of the money you are seeking to recover.

Suggested way forward

You should try to resolve the matter by negotiating or mediating the issues with your ex partner. If you want more detailed advice on your legal rights and options, you should consider speaking to a family lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a person passes away and they had a will at the time of their death, the executor of the will (or another representative of the estate) will need to apply for probate from the Supreme Court. Probate is the process whereby the court confirms that the will is valid and grants permission for the executor to finalise and distribute the estate according pursuant to the terms of the will. An executor cannot distribute the estate without first obtaining probate.

Suggested way forward

You will need to apply for probate. The Supreme Court of NSW website (www.supremecourt.justice.nsw.gov.au) has helpful information on how to do this. If you require professional assistance, you should speak to a wills and estates lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In South Australia, the law does not ban any particular breed of dog, and so the sale of a ‘menacing’ dog is not necessarily illegal. The management of dogs is regulated by the Dog and Cat Management Act 1995 (Act). This Act contains rules about different classifications of dogs, including ‘menacing’ dogs, but it does not impose a ban on this class of dog.

However, the Act does place restrictions on five particular breeds of dog. If the dog you are referring to is one of these five prescribed breeds, and the owner is advertising to sell or give away the dog, the owner is probably committing an offence and may be liable for a fine of up to $2,500.

If the dog were to attack someone in the future, the owner would bear primary responsibility and may face an additional fine of up to $2,500 plus other legal consequences. The local council may also be at fault if it was aware of the dangerous dog and risk of an attack but failed to take steps to prevent the attack from occurring or failed to do its job in regulating dangerous animals. The actual extent of the council’s liability will depend on a wide range of factors and should be determined on a case-by-case basis.

Suggested way forward

You should follow up your complaint about the dog with your local council, explaining that you believe the owner may be committing an offence by selling the dog. You may also want to speak to a lawyer who can advise you on your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When selling a property, it is up to the individual seller how they carry out the sale and the price involved. The only thing to be aware of is underquoting of a sale price, although this is only likely to be a concern where an agent is engaged to handle the sale. You should do your own market research on prices for comparable properties in the area and consider using an independent valuer to assess your property.

You mentioned using the figure of $280,000 to help calculate your vendor financing (VF) and rent-to-buy options. Rather than using the figure as guidance, you should consider the terms of your VF and rent-to-buy options, including what deposit amount you are seeking and how you prefer the balance to be paid.
Costs commonly associated with selling a property include the agent’s fees and commission, if applicable, fees imposed by your lender if your property is mortgaged, and any government charges such as capital gains tax (CGT).

Each sale option you mentioned involves a degree of financial risk. The main risk is the purchaser defaulting on their repayments. Your exact rights in the event of a default would depend on the terms of the agreement you have entered with the purchaser. You can minimise the risk of losing money and protect yourself by ensuring you enter a professionally drafted and legally enforceable agreement with the purchaser.

You should also consider the possibility of a purchaser subsequently renting out the premises to a third-party tenant. In this situation, the law would recognise a legal relationship forming between you, the buyer and the tenant. This may mean you have certain rights or responsibilities that involve one or both of the other parties.

Suggested way forward

There are many risks involved in selling a property, especially if the sale involves VF or a rent-to-buy option. You should speak to a property lawyer who will be able to advise you on your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. To include your parents’ names on the property titles of those that you currently own, they will need to have an interest or share in the property. This means that you will need to complete and lodge the following forms, for each property, with your local Land & Property Information (LPI) office:

1. Transfer form 01T – This form records your parent’s acquisition of an interest in the property. You will need to indicate whether you and your parents are to hold the interest as ‘joint tenants’ or ‘tenants in common’. These terms have a special legal meaning and affect what happens to the property if either you or one of your parents dies. You should seek legal advice about the type of co-ownership you want.
2. Notice of sale (NOS) form – This form can be completed online or ordered in hard copy from the LPI website.
3. Original Certificate of Title – This document will be held by you or, if there is a mortgage on the property, the lender.
4. Any mortgage documents – If the property is mortgaged, your parents' acquisition of an ownership interest in the property needs to be reflected in the mortgage documents. You should contact the lender to discuss the proposed transfer as soon as possible.

In NSW, transfer of land duty (formerly called stamp duty) is payable on most transfers of land. Your parents will be transferees of land and therefore required to pay duty to the Office of State Revenue (OSR). Duty is calculated based on the total dutiable value of the property subject to the transaction. If your parents are not paying money to acquire an ownership interest in the property, you will need to provide evidence of the value of the property. This will require a valuation of the property to be done. Note that the ‘Transfer form 01T’ referred to above must be stamped or marked by the OSR before presenting the form to LPI. More information on stamp duty can be found on the OSR website (www.osr.nsw.gov.au).

Suggested way forward

Dealing with property can be a complicated process. You should speak to a property lawyer about your circumstances, including any tax issues, as they can advise you of your legal obligations and assist in the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The exact nature of your legal question is not clear, so the information below is of a general nature only and may be relevant to your situation.

Probate is the process of proving and registering the last will of a deceased person in the Supreme Court. When a person dies, probate must be applied for and obtained from the court before the executor of the will can administer the deceased’s estate. An application fee must be paid when applying for probate. This fee is paid by the person who is applying for probate, although it may be reimbursed under the terms of the will if the will says so.

Suggested way forward

More information about probate application fees can be found on the Courts Administration Authority of South Australia website (www.courts.sa.gov.au). You may also want to speak to a lawyer if you have specific questions about managing your estate or someone else’s. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Australia, there are no clear laws that specify whether a police informant is entitled to receive payment for their assistance. This means it is difficult to say whether you are entitled to seek additional compensation.

When claiming reward money, the law says that the information offered by a person assisting in a police investigation must be significant and directly lead to an offender being charged and convicted. The precise criteria for reward payments are unique to each case. Whether you have satisfied the criteria will depend on the nature of the information you provided and the degree to which it helped convict the eight offenders.

The law also says that if a person provides services to another person who benefits from those services, the first person is entitled to be compensated for their efforts. This rule can apply even if no formal contract has been agreed between the parties. You may find that, based on your dealings with the police and the quality of the information you provided, you may have a right to be compensated for your services. This is a complicated area of law and you would need expert advice from a lawyer.

Generally speaking, if you want to lodge a formal complaint with the police, you can do so via the NSW Police Force website (www.police.nsw.gov.au) or by phoning 1800 622 571.

Suggested way forward

It sounds like you may have legal grounds to claim additional compensation. You should speak to a lawyer about your rights and the best way for enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, the law says that an owners corporation has the principal responsibility for managing the complex in which you live (called a strata scheme). The owners corporation must manage and control the use of the common property and administer the strata scheme for the benefit of lot owners. This means that the owners corporation (via its management committee) should make decisions, including those relating to improvement works, for the benefit of all owners. It is possible that, as an individual lot owner, you have a right to challenge decisions of the owners corporation that do not benefit you. You would need to obtain legal advice on the exact nature of your rights, but in the meantime, there are practical steps you can take to resolve your dispute.

You should first consult the by-laws that govern your strata scheme. These by-laws will tell you how to lodge a complaint with the owners corporation and what dispute resolution process must be followed. The law in NSW requires a resident and an owner’s corporation to resolve a dispute between them in accordance with the by-laws before escalating the matter.

If you are unable to reach an agreement on alternative arrangements for the improvement works, your next step is to undergo mediation. NSW Fair Trading (www.fairtrading.nsw.gov.au) offers free mediation services to lot owners and owners corporations. An independent third party, called a mediator, helps the parties discuss their concerns and try to reach an agreed outcome. If you find a solution to your problem, you can put it in writing at the end of the mediation.

If you are unable to reach an agreed outcome during mediation, you can file an application with the NSW Civil and Administrative Tribunal (www.ncat.nsw.gov.au). The Tribunal is a specialist, low cost tribunal capable of resolving a dispute between a lot owner and an owners corporation. Unlike mediation, the decision of the Tribunal will be binding and both parties must follow the Tribunal’s orders. You do not need a lawyer to make an application, but you may want to seek legal advice before doing so.

Suggested way forward

There are practical steps you can take to try to resolve your current legal problem. You should consider speaking to a lawyer who will help you understand your legal rights and the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Even though you did not put your agreement in writing, the law may still recognise that a contract has been formed between you and the other person. Your Facebook messages may contain evidence of the terms of the agreement, such as the fee for your services. The law will recognise a contract where the parties were sufficiently serious about their arrangement and intended to be legally bound by the agreement.

In your situation, whether your contract is binding will depend on a number of factors, particularly your correspondence with the other person. If you can prove a contract existed, and the other party understood their payment obligations, you may have a legal right to recover the debt.

Recovering a debt from another person can be a difficult and time-consuming task. In NSW, there are Community Justice Centres (CJC) that offer assistance in resolving disputes such as your current one. CJCs regularly mediate in the area of money and debt, helping parties reach an agreement that is fair and likely to be honoured by both sides. You should consider resolving your dispute via a CJC. You can find more information on CJCs on their website (www.cjc.justice.nsw.gov.au) or by calling 1800 990 777.

If the CJC option is not successful or viable, your next option is to try to recover the debt through court proceedings. Going to court can be expensive, and requires a lot of time and effort to reach an outcome. Depending on how much money is owed to you, you may find that this option will cost you more than the value of the debt.

Suggested way forward

It sounds like you may have a right to recover the outstanding debt from the other party. Start by contacting your local CJC or a lawyer to discuss your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Western Australia, fraud, whether committed in the workplace or elsewhere, is a criminal offence. Under section 409 of the Criminal Code, ‘fraud’ is committed when any person who, with intent to defraud, by deceit or any fraudulent means obtains property from another, or engages in similar acts. The offence carries, in most cases, a maximum penalty of seven years' imprisonment.

Certain fraud offences may also be heard summarily, which means that the maximum penalty you could receive is lowered and your matter may be heard in the District Court rather than the Supreme Court. However, this may only occur where the value of the property fraudulently obtained does not exceed $10,000.

It is advisable that you seek legal advice and arrange for legal representation, given the seriousness of the charges. If financial hardship is limiting your ability to do this, you should contact Legal Aid WA (www.legalaid.wa.gov.au), or call 1300 650 579. They will will assess your situation and identify an appropriate service to help you. Without knowing your personal circumstances it is difficult to say whether you will be granted legal assistance.

Suggested way forward

Contact Legal Aid WA to have your legal problem assessed and to see whether you are eligible for legal representation in order to defend the charges. If this is unsuccessful, you should consider speaking to a criminal lawyer to help you further understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Tasmania, anyone who has suffered a physical or psychological injury as a result of a crime may be able to apply for Victims of Crime Assistance. This is financial compensation that can cover the cost of medical treatment or psychological services, loss of wages, and pain and suffering. Independent Criminal Injuries Compensation Commissioners decide whether compensation is appropriate and the amount to be awarded.

Time limits apply to making an application for Victims of Crime Assistance. If you were a child at the time of the offence, you must apply for compensation within three years of turning 18 years old. Commissioners have discretion to extend the prescribed time limit in special circumstances if you lodge an Extension of Time Application. ‘Special circumstances’ is a legal term that means something unusual, uncommon or exceptional that justifies your failure to make an application within the time limit. Although each application is determined on a case-by-case basis, you will not qualify for an extension simply because you did not know about your right to apply for Victims of Crime Assistance, or you did not know about the time limit.

Suggested way forward

You should contact the Victims of Crime Service on 1300 300 238 to discuss your eligibility for Victims of Crime Assistance and how to complete an Extension of Time Application, if appropriate. You may also want to speak to a lawyer who can help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You should start by looking at the work order or contract that you signed when approving the plans and quote. Your rights and responsibilities in the event of a dispute will probably be clearly explained within a dispute resolution or cancellation policy section of the contract. You should follow the terms and conditions of this dispute policy to try to reach a resolution with the store about your problem. Contact the store directly to obtain further information about their procedures for handling customer complaints, specifically cancellation of orders.

If, after attempting to resolve the issue with the store, you are unable to reach an agreement that you are satisfied with, you may wish to take more formal measures. If your pool and pergola installation job is covered by certain construction legislation in the Northern Territory, you may be able to apply to have the dispute adjudicated by an independent third party. If this option is available to you, you would need to lodge a construction contract dispute within 90 days of the dispute arising with either your local Community Justice Centre (CJC) or the Construction Contracts Registrar of the Darwin Magistrates Court, if the value of your claim is over $10,000. An independent adjudicator is appointed to assess the dispute and reach a decision that is legally enforceable.

Suggested way forward

Contact the store to obtain more information about their dispute resolution policy. You may also want to speak to a lawyer who can review the terms of your contract and advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a person’s property is damaged as a result of the actions of another, it is preferred that the two parties try and reach an agreement between themselves over how the cost of repairs will be paid. In NSW, Community Justice Centres (www.cjc.justice.nsw.gov.au) exist to help people who may have similar issues to yours. A CJC will try and encourage you and the other person to reach an agreement and, as in your case, share any costs that are incurred for repairing the damage. They offer friendly and professional services, with many of the matters that they handle resulting in a fair outcome.

However, from what you have said, the person who damaged your mobile phone is not willing to help pay for the cost of having it fixed. It then becomes a matter of whether you are willing to pursue them through court, in order to make them pay. Going to court can be expensive, and may require a lot of your time and effort. Depending on the value of your phone and how costly you anticipate the repairs being, this option is likely to cost you more than you are seeking to recover.

Suggested way forward

Having damage caused to your own property, regardless of how valuable it may be, can result in costly repairs that should not necessarily have to be paid by only you. You should speak to a CJC or a lawyer about your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Property ownership in Australia is heavily regulated, and there are strict ownership rules around who can buy property. Temporary residents and foreign non-residents, including temporary visa holders, are subject to strict rules and fees when purchasing residential property, that Australian citizens and permanent residents are not. It is not clear whether you are looking to purchase a new dwelling or an established dwelling. This distinction is very important as different restrictions, fees and responsibilities apply.

New dwelling

If you are looking to purchase a ‘new dwelling’, you will not be subject to any conditions, other than gaining approval from the Foreign Investment Review Board (FIRB), and there is no limit on the number of these properties you may purchase. However, before purchasing one, you should find out more information from FIRB (www.firb.gov.au) to avoid a penalty.

Established dwelling

If you are looking to purchase an established dwelling, you must gain approval from FIRB and satisfy additional conditions. Temporary residents are only allowed to purchase one established dwelling to live in as their principal place of residence in Australia. That property cannot be used for investment, renting, or holidaying purposes. In your case, once your visa expires and you leave Australia, you are required to sell the property within three months.

FIRB approval

As a temporary resident, you will be required to apply to FIRB before purchasing any property. If, while you are waiting for your application to be approved, you purchase a property, you may be found to have broken the law. There is no standard processing period in which to expect an outcome of your application, although, the maximum is 40 days from the date of lodgement and payment of fees. The fee that must be paid depends on the price of the property that you are purchasing – starting at $5,000 for a purchase valued at $1 million or less.

Fees for NSW

In NSW, a temporary resident who purchases a property, whether existing or new, is required to pay a 4 per cent surcharge duty as well as a 1.5 per cent land tax surcharge. These fees are not applicable to permanent residents and citizens. You will also be required to pay a transfer of land duty, which is a fee that is calculated on the value of the property being purchased, and is paid by both foreign and permanent residents. These fees apply whether or not you will be living at the property. As a holder of a temporary visa, there is little that you can do to eliminate any of the charges that will apply to your purchase.

Suggested way forward

Purchasing property can be complicated, and knowing your responsibilities as a potential owner of property is important. To ensure that you comply with the laws that cover foreign purchases of property in NSW you should speak to a property lawyer who will be able to assist you with your purchase. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Prospective business owners in Australia must provide accurate and up-to-date personal information when completing the registration process, and there is good reason. Certain responsibilities arise from registering and running a business in Australia, the most important being the full and accurate disclosure of appropriate information for tax purposes. Some individuals are disqualified from registering a business, such as certain foreign residents, or those who have been convicted of a criminal offence. It is therefore important that businesses are registered using accurate personal details.

If you were to register a business in Australia in a name that is not your own, it is unlikely you will be able to satisfy the requisite identity checks and, more importantly, you risk being investigated by the Australian Securities and Investments Commission (ASIC) for providing false information.

If you have a specific reason for why you do not want your personal information to be publicly available, (e.g. concerns for your personal safety), you may be able to request the suppression of this information. For more information about this, visit the ASIC website (www.asic.gov.au) or call 1300 300 630.

Suggested way forward

To explore whether you have any other options available to you, and to ensure these options are lawful, you should speak to a business lawyer about your situation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When an employee’s position becomes redundant, their employer must provide written notice of the date of termination and comply with the minimum notice period. However, whether an employer chooses to make an offer of acceptable alternative employment, either within the same business or elsewhere, is a matter for each individual redundancy and not a recognised legal requirement in Australia. If an employer does make an offer, this may be expected to occur sometime before the final day of employment for the redundant position. There are no laws regarding the backdating of an offer of alternative employment.

If an employer makes an offer of alternative employment for a position that is within the same business, they can apply to the Fair Work Commission for approval to vary the amount of redundancy pay, potentially to nil, that they are required to pay. The Commission will determine whether the employer is required to provide redundancy pay to the employee based on whether the offer of alternative employment is fair and acceptable. The factors that the Commission will consider include pay, hours of work, location, nature of employment and the employee’s individual circumstances. Importantly, an employee’s refusal of a reasonable redeployment offer may preclude them from being entitled to redundancy pay.

If you are offered acceptable alternative employment, a decision from the Commission about your redundancy pay will need to be reached prior to your final day of employment.

Suggested way forward

You should visit the Fair Work Ombudsman website (www.fairwork.gov.au) for further general information about redundancy. Speaking to an employment lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your situation may raise two legal issues. First, if you or your children were physically injured or feared immediate physical harm as a result of the drink being thrown, an assault may have occurred. Assault is a criminal offence and you should report the matter to the police as soon as possible. The police will decide whether to investigate the incident and, if so, whether to prosecute the offender.

Second, if you or your children suffered an injury – including psychological harm – as a result of the worker throwing a drink at you, you may have a claim for person injury compensation against McDonald’s. To make this claim, you would need to show that McDonald’s, through the actions of its employee, breached their duty of care owed to customers and that you or your children suffered harm as a result of their misconduct. If you or your children did not sustain any injuries, it would be very difficult for you to make a claim.

Suggested way forward

You should lodge a formal complaint with the McDonald’s store where this incident occurred. Otherwise, if there is sufficient evidence to establish that you or your children were injured, you should speak to a lawyer to get advice about your legal options and whether you can make a claim. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a parent, who is subject to an existing parenting order, wishes to move house, they should first try and come to an agreement with the other party without involving the courts. If this is not possible, and you are unable to negotiate an agreement with your partner, you will need to seek assistance from a court to approve the relocation and amend the existing parenting order.

By moving interstate without first reaching an agreement with your partner or obtaining court approval, you may be in breach of the parenting order. If this is the case, your partner can apply to the court to enforce the current order, and avoid having to travel the additional distance when returning your child back to you.

Despite having already moved house, you may still apply to the Family Court for an order approving your move and amending the terms of the parenting order. However, the court does not have to accept your application, especially if it is not in the best interests of your child. Regardless of what outcome the court reaches, its decision will be legally binding on you and your partner.

Suggested way forward

It is important that you comply with the terms of the parenting order. To do this, you will likely need the assistance of a court. Speaking to a family lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a couple separates, it will be necessary to determine how their assets and debts are divided. This includes the proceeds from the sale of any property owned by both parties. You are free to negotiate this division of property directly with your spouse and try to reach an agreement without involving the courts. However, if you want to obtain a legally binding agreement or you are unable to negotiate an agreement with your spouse, you can seek assistance from the courts.

It is not clear why you think your partner is entitled to 75 per cent of the proceeds of sale. This figure may be accurate if it was reached by mutual agreement between the both of you, otherwise it may not necessarily reflect what a court would decide. There is no standard formula that a court will use in deciding how to divide a couple's property. The court will consider all of the relevant facts that are unique to the couple's case, paying particular attention to the contributions made by each spouse, including:

(a) direct financial contributions of each party (e.g. wages, mortgage repayments) and indirect financial contributions (e.g. gifts, inheritance from relatives);
(b) non-financial contributions of each party to the marriage (e.g. caring for children and homemaking); and
(c) the future requirements of each party based on health, age, caring for children and capacity to earn a wage.

The court will then divide the property based on what is just and equitable in all the circumstances.

Suggested way forward

It is difficult to predict exactly how property will be divided in the event of a separation or divorce. Speaking to a family lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a person becomes involved in bankruptcy proceedings in Australia, any actions that they take, or have recently taken, are likely to be closely scrutinised by a court. This is because a person, upon becoming a bankrupt, has certain responsibilities under Australian laws. If they fail to comply with these laws, it can lead to criminal penalties.

As you said you have been served a letter to appear in court, it appears that your state of bankruptcy is imminent. Attempting to sell any property that you own can lead to the issuing of a warrant for your arrest if a court becomes aware of your plans. If the property has already been sold, you will need to disclose these transactions, and any others that have occurred within the past two years, when you attend court. Failing to do so is a serious offence that can result in a criminal penalty of up to one year imprisonment.

If you have spent, hidden, or otherwise no longer have, the money received from the sale of property, failing to adequately explain what you did with the money may result in your state of bankruptcy being extended for up to eight years.

Suggested way forward

Actions taken before you are legally declared bankrupt may still be scrutinised by a court, especially if it involves the sale of property. You should speak to a lawyer about your legal rights and the best way to handle your bankruptcy proceedings. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A leave of absence (LOA) for contracting work in Victoria will differ from one workplace to the next, depending on the terms of agreement that have been negotiated. While there is no established ‘standard’ period for a leave of absence, it is generally the case that a contractor, or employee, will remain employed or engaged during their leave.

It is not clear what is meant by the second part of your question, given that an LOA term generally does not exist in isolation but, rather, within an agreement.

Suggested way forward

If you are a small business wanting help with including LOA terms into a new or existing agreement, you should consider speaking to a lawyer who can advise you on the best approach. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An employer must give a minimum amount of notice before terminating an employee’s employment. If you were working for less than one year, you must have been given at least one week’s notice or paid out the equivalent amount in wages. The same rule applies to all employees, even if you were on probation.

If you received less than one week’s notice, you may be eligible to make an unfair dismissal claim. Unfair dismissal claims are possible when an employee’s termination was harsh, unjust or unreasonable. You would need to prove that the amount of notice you received, or other circumstances leading up to your termination, were harsh, unjust or unreasonable. Unfair dismissal claims must be lodged with the Fair Work Commission (www.fwc.gov.au) within 21 days of your employment ending. If your claim is successful, you may be reinstated or receive compensation.

You may face some difficulty proving that your termination was harsh, unjust or unreasonable – especially if you were still on probation. Probation periods are designed to give employers greater flexibility in managing new employees (e.g. lower wages, simpler rules around ending employment, etc). Depending on the exact terms of your employment contract, you may find that your employer had the right to terminate your employment without first addressing performance issues.

Suggested way forward

You should speak to a lawyer about your situation and whether you should lodge an unfair dismissal claim or seek another remedy. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A Directors Indemnity Agreement, also known as a Deed of Indemnity, is a very common agreement entered into between a director of a company and the company. It establishes when the company will indemnify the director for personal liabilities or legal costs incurred while that director is performing their role. Entering into a Deed of Indemnity can be done regardless of whether a company has one or many directors.

By the very nature of what a Deed of Indemnity aims to achieve, there is always going to be an inherent conflict. This is because it is in the interests of a director to maximise the benefits available to them, whereas a company will look to limit its exposure and risk. Note that, in Australia, it is an offence against the corporations laws for a director to cause a company to enter into an agreement that confers unreasonable personal benefits on a director.

When it comes to executing a legal document, the wording and format of the execution page needs to clearly specify how the document is being executed. Documents that are not executed properly may not be valid or legally binding. For a proprietary company that has a sole director who is also the sole company secretary, that director can sign any legal document in order to validly bind the company. It follows that, for a Deed of Indemnity, the sole director must sign the deed for the company to be bound. However, if the sole director is not also the sole company secretary (e.g. if the company has not appointed a secretary), additional steps are required in order to properly execute the document.

Suggested way forward

A lawyer can advise you of your powers as a sole director and what you should do to ensure the Deed of Indemnity is effective. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, the law says that, at the start of a tenancy, the landlord must ensure the premises is clean, in good repair and fit for the tenant to live in. The landlord must also comply with any health and safety laws affecting the premises (i.e. the property must comply with building codes, local planning laws, swimming pool regulations, etc).

If you believe your landlord is currently in breach of these obligations, you can serve them with a Notice to remedy breach (Form 11) and allow them 7 days to fix the situation. If they fail to remedy the breach within 7 days, you can serve them with a Notice of intention to leave (Form 13) and vacate the premises after a further 7 days. If the premises is completely unliveable, you can leave the premises on the same day you give the notice to the landlord. Forms are available for download from the Residential Tenancies Authority (RTA) website (www.rta.qld.gov.au).

If you have cleaned up the property yourself and want to continue living there, there is no automatic right for you to claim a reduction in rent. This is something you need to negotiate with your landlord. It may help if you write a letter or email explaining your cleaning efforts (including the time and money spent doing it) and that you believe the value of this work to be equivalent to two weeks’ rent.

If the landlord does not agree to a rent reduction, you could try to resolve the matter by using the RTA’s dispute resolution service. You can start this process by lodging a dispute resolution request (Form 16) with the RTA. If this is unsuccessful, you can apply to the Queensland Civil and Administrative Tribunal (www.qcat.qld.gov.au). This is an independent tribunal where tenants and landlords can present their stories and the tribunal will make a decision based on this information.

Suggested way forward

You should contact the Residential Tenancies Authority for advice on 1300 366 311. You may also want to speak to a lawyer about your legal options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Determining who is at fault in a car accident can be difficult. If the police have charged one driver with a traffic offence as a result of the accident, it can mean they are partly liable for the damage, but not necessarily for all the damage. Often both parties contribute to an accident and this should be reflected in who pays for what damage.

If you were uninsured at the time of the accident, it is important that you get legal advice about who is at fault before contacting the other driver or their insurance company. If you believe the other driver was at fault, you can send them or their insurance company a letter of demand, requesting them to pay for the damage to your vehicle. You should include copies of at least two different quotes for the repairs. This will help you prove that the amount of money you are claiming is fair and reasonable. The other driver can refuse to pay for repairs that are excessive or unreasonably expensive.

If the other driver does not accept that they were at fault, they are unlikely to pay for your repairs. In this case, you both have the option of taking the matter to the Magistrates Court (www.magistratescourt.wa.gov.au) where the court will determine who was at fault and who is liable to pay for the repairs. Note that court proceedings can be expensive, slow and unpredictable, so you should try to resolve the issue without heading to court.

Suggested way forward

Speaking to a lawyer will help you understand who was at fault and whether you are liable to pay for the repairs. A lawyer can also suggest ways of resolving the matter without going to court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Tasmania, assault is a criminal offence. ‘Assault’ is the intentional application of force to another person without their consent. The offence is much more serious if the assault is on a pregnant woman, especially if it results in the death of the foetus.

If the police have been notified of the alleged assault, they will make a report and determine if the allegation is serious enough to warrant an investigation. If so, they will investigate the matter and if there is enough evidence to prosecute the crime, they may charge you with assault. You would then need to appear in court where you have the option of pleading guilty or defending the charge.

It is not clear whether the police have been notified or whether they are intending to investigate or prosecute the matter. If the allegation is unsubstantiated, you may find that the police do not proceed with the investigation or prosecution. However, if you are charged with assault, you may be able to defend the charge on the basis that the assault was not intentional (i.e. it was an accident). Defending a charge in court is a difficult task and you would benefit from a lawyer’s help.

Suggested way forward

You can contact the police to ask if they intend to investigate or prosecute the alleged assault. If you are charged with the offence and required to appear in court, you should speak to a criminal lawyer to get advice about your legal options and whether you can defend the charge. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a relationship between the parents of a child, or children, breaks down and they no longer live in the same home, there can be difficulty in knowing what the rights of the parents and the children are. The law says that both parents have parental responsibility for their children until they reach the age of 18 years. This means that both you and the father of your children have a say in the parenting arrangements. If you are unhappy with the current arrangements, you can negotiate a new parenting arrangement with the father without going to court. However, if you cannot reach an agreement, you may have to apply to court for a parenting order. A court will make a parenting order based on what is in the best interests of your son and daughter.

Whether you can restrict the father’s access to your children will depend on whether you can prove that his access is not in their best interests. In the eyes of the law, the living arrangement of either parent, whether it be shared housing, short-stay accommodation, or similar, is unlikely to heavily influence the terms of a parenting order. A court considers a wide range of factors in making its assessment, such as the people who will be involved in your children’s lives, any risk of harm to your children’s safety and, potentially, their own views on contact, depending on their age and maturity. If the court is satisfied that the children’s contact with their father, in the current circumstances, is not in their best interests, it may restrict access. However, it is also important to remember that in Western Australia, as well as other states in Australia, the current family laws emphasise the importance for parents to have shared parental responsibility.

Suggested way forward

Sorting out stable and ongoing parenting arrangements can be complicated, especially when the parties are not able to reach an agreement. You should consider speaking to a family lawyer who can help ensure that you get the best outcome for you and your children. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, the offence of rioting occurs when three or more people assemble and intend to assist one another, by force if necessary, in pursuit of a common unlawful purpose. Actual violence must be used to carry out this purpose, thereby causing alarm to others. If you have been charged with rioting, the prosecution will need to prove each of these elements in court.

In your defence, you may be able to argue that you lacked the requisite criminal intent or that your identity has been mistaken for someone else’s. Given that riots are often chaotic events, you may also be able to challenge the prosecution’s evidence on the basis that it is inadequate or does not prove your guilt beyond reasonable doubt.

Although ‘mob mentality’ is not a recognised defence, you may be able to raise this point if you are found guilty or plead guilty and the court is deciding on an appropriate sentence. As with all criminal offences, a court will consider the circumstances surrounding the offence, your past criminal history and your current personal circumstances when deciding on an appropriate sentence. In Victoria, rioting carries a maximum penalty of 10 years’ imprisonment.

Suggested way forward

Whether you plead guilty or not guilty to a criminal charge can have a significant impact on your sentence. You should consider speaking to a lawyer who can advise you of your options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, exhumations are regulated by the Department of Health and Human Services. If you want to exhume human remains from a place of internment (such as a cemetery), you need to apply to the Department for an exhumation licence. Applications must be in the prescribed form and include a statement from the cemetery detailing whether they have any objections to the exhumation application. You also need to include a statutory declaration regarding consent from direct and indirect family members. An application fee is payable.

The Department will consider your application and may grant or refuse an exhumation licence. A licence may be issued subject to certain terms and conditions. Once you have the licence, you can arrange for the exhumation to take place. Exhuming remains without a licence is a criminal offence that carries serious penalties.

More information about applying for an exhumation licence can be found on the website of the Victorian Department of Health and Human Services (www.health.vic.gov.au).

Suggested way forward

You can apply for an exhumation licence without the help of a lawyer, but if you want professional assistance, you should contact a family lawyer or wills and estates lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An employment contract can exist orally or in writing. From the information you provided, it appears that you have been subject to an oral employment contract for the last 3 years. Your employer is now seeking to change the terms of your employment by making you sign a written employment contract that is different to your current work arrangements.

The law allows employers to make reasonable changes to working arrangements as part of their power to give proper and reasonable instructions to employees and to manage the business. However, if the proposed changes are significant or fundamentally different to your existing job, your employer generally cannot make the changes without your consent. Note that some changes may be permitted by law or an applicable industrial award or workplace agreement, but your employer will still need to consult you about the changes before implementing them.

If you do not agree to the proposed changes, and your employer proceeds anyway, your employer may be breaching the existing employment contract. This would entitle you to bring a legal claim against the employer for compensation or an order preventing the employer from making the changes.

If your employer terminates your employment because you refuse to sign the new contract or for another reason related to the changes to your job, you may be eligible to make a claim for ‘unfair dismissal’. An unfair dismissal is where an employee’s termination is harsh, unjust or unreasonable. Unfair dismissal claims must be lodged with the Fair Work Commission (www.fwc.gov.au) within 21 days of your employment ending. If you can successfully prove you were unfairly dismissed, you may be entitled to reinstatement or compensation.

Suggested way forward

You should raise your concerns with your employer, preferably in writing (e.g. email) so that you have a record of your correspondence. If your employer proceeds with the changes, you should speak to an employment lawyer about claiming breach of contract or, if appropriate, lodging an unfair dismissal claim. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An easement is a legal right held by one property owner over another person’s property. There are many types of easement, but the most common is a ‘right of way’ easement that gives one property owner the right to traverse across a neighbouring property for access purposes. Easements typically exist in subdivided lots where a right of way is needed to access a main road.

You may find that an easement already exists in favour of your parents’ property. A registered easement will be listed on the Certificate of Title for the property that is burdened by the easement. You can obtain a copy of the Certificate of Title for your neighbour’s property by carrying out a title search on the Queensland Department of Natural Resources and Mines website (www.dnrm.qld.gov.au). Note that fees apply and you may need expert assistance in interpreting the document.

If an easement in favour of your parent’s property is not listed on the Certificate of Title, then it most likely does not exist. If no easement exists, you will be trespassing if you enter your neighbour’s property without their consent.

It is possible to create and register a new right of way easement in favour of your parent’s property. However, you would need to obtain your neighbour’s consent for this to happen as the easement will burden their property and potentially decrease its value. Note that an easement cannot unreasonably deprive your neighbours from using their own land.

Suggested way forward

You should start by determining whether a registered easement already exists in favour of your parent’s property. If it does not, you should speak to a property lawyer about your options for creating and registering a new easement over your neighbour’s land. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. As an employee, you are ordinarily entitled to compulsory superannuation contributions from your employer if you are 18 years old or over and paid $450 or more (before tax) each month. The same rules apply regardless of whether you work full time, part time or as a casual. From 1 July 2014, these ‘super guarantee’ contributions must be at least 9.5% of your ordinary earnings.

Sometimes you can nominate a super fund to which you want your contributions paid, and other times you must use the super fund chosen by your employer (for example, if you work for the government or are paid super under a particular workplace agreement).

Your employer is required by law to make super contributions from the day you start employment. These payments must be made at least 4 times per year by the quarterly due dates set by the federal government. Your employer can choose to make payments more regularly (for example, fortnightly or monthly), so long as your total super guarantee contribution for the quarter is paid by the due date. The due dates follow the four quarters of the financial year and are 28 October, 28 January, 28 April and 28 July.

If you have not received your super contribution into your super fund for the relevant quarter by these cut off dates, then your employer is in breach of their legal obligations. You should contact your employer and super fund to find out why the payments have not been made. If this does not fix the problem, you can lodge an online enquiry about unpaid super with the Australian Taxation Office (www.ato.gov.au). You will be required to provide your contact details, your employer’s contact details and ABN, and information about your employment. The ATO will contact your employer to investigate the matter on your behalf. You will be kept updated of the progress and, if you are found to be entitled to unpaid super, these payments will eventually be made to your super fund.

There are other ways in which you can obtain unpaid super. If you are employed under the federal workplace relations system, you can seek an order from an eligible court under the Fair Work Act 2009 (Cth). Alternatively, the Fair Work Ombudsman (www.fairwork.gov.au) can help if you have not received all of your workplace conditions and entitlements, such as superannuation payments. These alternative options would require the assistance of a lawyer who can guide you through the process.

Suggested way forward

You should consider lodging an enquiry about unpaid super with the ATO (www.ato.gov.au). Alternatively, you may want to speak to a lawyer if you want more comprehensive advice about your legal rights and the options available to resolve the situation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a married or de facto couple separates, the parties will generally need to divide their assets. This is called a ‘property settlement’. You can negotiate a property settlement with your ex-partner without going to court, but if you want the arrangement to be legally binding or if you cannot agree on how to divide your shared assets, then you can apply to court for assistance. Applications are made to the Federal Circuit Court or Family Court of Australia (www.familycourt.gov.au). As part of the court process, the parties must attend a formal mediation to attempt to reach an agreement on the property settlement before actually reaching the court room.

If the matter ends up in court, there is no set formula used to divide a couple’s property. The court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The proportion of your share will depend on many factors, including the assets you have retained, your current income, future earning capacity and the degree of custody you have of your children. The court’s decision will be one that the court considers to be just and equitable based on the overall facts of your case.

Parenting arrangements for your children are dealt with in a similar way. If you and your wife can agree on these arrangements, there is no need to go to court. You can simply put your agreement in writing in a document known as a ‘parenting plan’. This plan is not legally binding, but you can apply to court for a ‘consent order’ if you want the parenting arrangements to be enforceable in the event one parent fails to comply with the plan.

You can also apply to court for a ‘parenting order’ if you and your ex-partner are unable to agree on parenting arrangements. The court will make an order based on what is in the best interests of the children. In making this decision, the court will consider a wide range of factors, such as who the children will live with, their safety and wellbeing, and, if they are old enough, their own opinion on the proposed parenting arrangements.

Suggested way forward

If you are having difficulty negotiating a property settlement or parenting arrangements with your wife, you should consider speaking to a family lawyer who can advise you of your rights and the best course of action. A lawyer can also represent you in any mediation or formal court proceedings that may arise. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear what your son has been accused of, although it is unlikely to directly affect the mediation unless it has something to do with the future parenting arrangements between you and his father. It is important to remember that mediation is designed to be self-directed, so the parties have control over what issues are discussed and what outcomes are reached. The mediator is not there to evaluate the merits of either parent’s case; they are there to help facilitate a mutually agreed outcome.

With respect to restricting access to your son by your ex-partner’s wife and daughter, this will depend on whether you can prove that their access is not in the best interests of your son. If your mediation is unsuccessful and you decide to take the matter to court to obtain a parenting order, the court would make parenting arrangements based on what is in the best interests of the child. The court would consider a wide range of factors in making this assessment, such as the people who will be involved in the child’s life, any risk of harm to the child’s safety and, if the child is old enough, their own views on parenting arrangements. If the court were to be convinced that your son’s contact with your ex-partner’s wife and daughter is not in his best interests, the court may restrict access.

Suggested way forward

Understanding what would happen in court can help you prepare for your mediation and adjust your expectations accordingly. A family lawyer can properly advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a marriage or de facto relationship of at least 2 years’ duration has ended, the parties can divide their property in what is called a ‘property settlement’. The parties can negotiate a settlement without going to court, but if they want the arrangement to be legally binding or if they cannot agree on how to divide their shared assets, they can apply to court for assistance.

There is no set formula used to divide a couple’s property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The proportion of each person’s share will depend on many factors, including any formal or informal agreements reached when purchasing certain property during the relationship. For shorter relationships, the court will pay particular attention to the original contributions of each party. The court’s ultimate decision will be one that the court considers to be just and equitable based on the facts of the case.

In your situation, the court would consider each person’s original contribution to purchasing the house and any agreement about how the profit was to be shared in the event of a sale. However, such an agreement may not necessarily be enforceable, especially if it was not put in writing or the parties did not intend it to be legally binding. A court may decide that, as part of the property settlement, the minority interest holder is entitled to a larger proportion of the profit than what the other party is claiming. The court’s decision will depend on the overall current financial positions of both parties and their contributions during the de facto relationship.

Note, however, that the outcome will be different if you have previously signed a ‘financial agreement’ (sometimes called a pre-nuptial agreement) with your de facto partner. If you have signed such an agreement and it specifies, amongst other things, how the profit is to be split if the house is sold, then the terms of this agreement will prevail over any alternative claim.

Suggested way forward

Property settlements are not straightforward and the rights of both parties depend on a wide range of factors. You would benefit from speaking to a family lawyer who can advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Mistaken payments made via electronic transfers are regulated by the ePayments Code – a set of national guidelines that virtually all banks are required to follow. Under the Code, your health insurer’s bank (i.e. the bank that holds the account from which the money was originally paid) may be required to retrieve the mistakenly paid money. The bank’s responsibilities under the Code will depend on how quickly the mistake was reported to them.

If the mistaken payment was reported within 10 business days, the funds must be returned to the original account. If the mistake was reported between 10 business days and 7 months, the unintended recipient’s bank must freeze the funds. The recipient then has 10 business days to show they are entitled to the funds. If they cannot prove this, the funds will be returned. If the mistake was reported after 7 months, the funds can only be returned if the unintended recipient agrees to return the money.

The above rules only apply if the recipient has enough money in their account to repay the funds. If they do not have enough money, the recipient’s bank must make a reasonable attempt to get the money back. For example, the bank may negotiate a repayment plan with the account holder.

You will need to speak to your health insurer who, in turn, will need to contact their bank about the mistaken payment. The bank should then follow the above rules, depending on how quickly the mistake was reported. You may need to speak to your health insurer’s disputes or legal department, as their general customer service team may not be aware of the ePayments Code.

If you are dissatisfied with your health insurer’s response, you can lodge a formal complaint with the Financial Ombudsman Service (www.fos.org.au) or the Private Health Insurance Ombudsman, which is part of a larger organisation known as the Commonwealth Ombudsman (www.ombudsman.gov.au). Both of these organisations independently investigate complaints relevant to specific industries and, where appropriate, recommend a resolution to a dispute.

Suggested way forward

Start by speaking to your health insurer about their bank’s responsibilities under the ePayments Code. Then consider lodging a formal complaint with an ombudsman service. You may also want to speak to a lawyer who can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your legal options will depend greatly on the type of agreement you want to make between the beneficiaries of an estate. Below is some general information that may be of assistance.

A legal agreement can generally be made between anyone about any subject matter, provided several conditions are satisfied. An agreement will only be recognised as binding in the eyes of the law if an offer was made by one party and accepted by the other party, payment or something else of value changed hands, and the parties intended their arrangement to be legally binding. The law also requires the terms of a contract to be sufficiently certain, complete and not for an illegal purpose. If you satisfy each of these elements, the law will generally recognise your agreement as a binding contract.

In the context of an agreement between beneficiaries under an estate that is yet to be administered, some types of agreements are not valid. For example, before an estate is administered, a beneficiary cannot agree to give another person a specific asset or item of property from the estate that the beneficiary will be entitled to under the will. This is because the asset is considered ‘future property’. In other words, the beneficiary does not yet have any property to give.

However, it is generally possible for a beneficiary to assign their right to receive an asset or item of property from the estate before it is administered. Importantly, the beneficiary is assigning their right to receive the asset, rather than giving the actual asset. This is a technical legal distinction that requires expert drafting if it is to be included in an agreement between beneficiaries. There are also other formalities that must be complied with in these types of agreements.

Suggested way forward

While the type of agreement you want is not clear, it is important to note that some restrictions apply when dealing with property under an estate that is yet to be administered. Speaking to a lawyer will help you understand your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Building Code of Australia (www.abcb.gov.au) is a uniform set of technical provisions for designing and constructing buildings in Australia. It contains specific sections on fire resistance and stability. Different rules apply to different classes of building. State-based legislation and codes of practice may also apply to specific industries or types of hazardous work.

Suggested way forward

Your enquiry is very specific. You would benefit from speaking directly to a lawyer or engineer who can assess your situation and properly advise you of the relevant building requirements. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you want to divorce your husband, you can apply for a divorce by lodging an application with the Federal Circuit Court or Family Court (www.familycourt.gov.au). To be eligible, you must have been separated from your spouse for at least 12 months. Australia has a system of no-fault divorce, which means that the parties must simply show that the marriage has broken down irretrievably. In other words, you must prove to the court that there is no reasonable chance of your relationship resuming. You will need to serve a copy of your application on your husband so he can participate in the divorce proceedings.

If you are separating from your husband, or divorcing him, you will need to divide up any shared property in the marriage. This is called a ‘property settlement’. You can negotiate a property settlement with your husband without going to court, but if you want the arrangement to be legally binding or if you cannot agree on how to divide your shared assets, then you can apply to the court for assistance.

There is no set formula used to divide a couple’s property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The proportion of your share will depend on many factors, including your current income and future earning capacity. If you have a lower income stream than your husband and lower earning potential, your husband may be liable to pay you spousal maintenance. The court’s decision will be one that the court considers to be just and equitable based on the facts of your case.

In the short term, you may pawn any personal property that you co-own with your husband, but the value of the items may be deducted from any final property settlement that is reached.

Suggested way forward

Speaking to a lawyer is the best way for you to ensure your legal rights are protected and that you get what you are entitled to from the shared assets. A family lawyer can negotiate a property settlement on your behalf or represent you in court proceedings. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you have been injured at work, or because of your work, you may be eligible to claim workers’ compensation from WorkCover Queensland. Compensation is available for personal injuries arising out of, or in the course of, your employment if the employment is a significant contributing factor to the injury. Injuries can include psychiatric or psychological disorders, such as anxiety or depression.

You can make a claim by contacting WorkCover Queensland online (www.worksafe.qld.gov.au) or by phoning 1300 326 128. Applications must be made within 6 months of the injury arising. The date of injury may not be clear in cases of non-physical injury, where a psychological or psychiatric condition manifests over a period of time. In any case, the 6 month time limit may be extended if your delay in making an application was due to a mistake, your absence from Queensland or another reasonable cause.

Once a claim has been made, it is assessed to determine whether you are eligible for compensation and, if so, how much. You will have the opportunity to give details of the injury and relevant event(s) before WorkCover Queensland makes it decision about your eligibility. The employer is also contacted to obtain further information and notify them of your claim.

For claims involving psychological or psychiatric injuries, special criteria apply. Compensation will generally not be payable for such an injury arising from your employer’s reasonable management action taken against your or your expectation or perception of this action. In other words, injuries resulting from transfers, demotions, disciplinary action, etc, are generally not compensable.

Separate to the workers’ compensation scheme, you may have a direct legal claim against your employer if they failed to provide a safe working environment and you suffered physical or non-physical injury as a result of their negligence. If you can successfully prove their negligence, you may be awarded compensation for loss of wages and/or pain and suffering. Without more detail, it is difficult to assess the strength of this claim. A personal injury lawyer can better assess your situation and your legal rights.

Suggested way forward

You should start by contacting WorkCover Queensland to ask about your options for claiming compensation for your injuries. You may also want to speak to a personal injury lawyer who can advise you of your legal options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Below is some background information and specific responses to your questions.

Types of co-ownership

There are two types of co-ownership under Australian property law. The first is known as ‘joint tenancy’, which gives all joint tenants the right to possess all of the property. There can be multiple joint tenants. Each joint tenant’s interest must have been created at the same time from the same event (e.g. the purchase of a house), so it is not possible for a new person to become a joint tenant later on. If a new person wants to become a co-owner of the property, they must join as a tenant in common (discussed next). Joint tenancy also involves the right of survivorship. This means that, if one joint tenant dies, their interest will automatically pass to the remaining joint tenant(s), regardless of what is specified in the deceased tenant’s will.

The second and more common type of co-ownership is known as ‘tenants in common’. This allows multiple parties to hold equal or unequal shares in the property and to deal with them as they wish. For example, a person can sell or transfer their share of the property to a third party who will become a new tenant in common. The right of survivorship does not apply, so a deceased’s owner’s interest in the property can be dealt with according to their will.

With this background information, the answers to your questions are as follows:

1. It is possible under NSW law to have more than two owners of a property holding their interest as joint tenants, but all of the owners must have purchased the property in the same transaction.
2. If a third party later purchases an interest in an existing property owned by two people as joint tenants, the third person will acquire their interest as a tenant in common. The third person cannot be a joint tenant because their purchase transaction is a separate, later event to the original creation of the joint tenancy. The two pre-existing owners will remain joint tenants.
3. If one of the two joint tenants is replaced with an incoming owner, the joint tenancy will be destroyed. Each owner will hold their interest as tenants in common.

Duty and taxes

In NSW, transfer of land or business duty (formerly known as stamp duty) is payable on the sale or transfer of land. The purchaser or transferee is liable to pay the duty within three months of signing the sale contract or transfer document or, if there is no document, after the sale or transfer occurs. Duty is calculated on the total dutiable value of the property. In your situation, duty would be payable if a third person purchased or otherwise acquired an interest in the property, regardless of the co-ownership arrangement. See the NSW Office of State Revenue website for more information (www.osr.nsw.gov.au).

Capital gains tax (CGT) is payable when a person makes a capital gain from the sale of an asset. If one of the existing owners sold their interest in the property to a third party, they may be liable to pay CGT. However, a CGT exemption applies if the property is the main residence of the seller. See the Australian Taxation Office website for more information on whether CGT is payable (www.ato.gov.au).

Suggested way forward

Your questions deal with technical legal concepts of property ownership. Depending on your plans for the property, you may want to speak to a lawyer for a properly assessment of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your rights will depend on the type of parenting arrangements you have in place. If you have previously negotiated informal parenting arrangements with your ex-partner without going to court, you can simply renegotiate these arrangements if you want to change them. If you can agree on new parenting arrangements that give you greater custody of your child (or any other responsibilities), you should make a ‘parenting plan’. This is a written document that sets out the parenting arrangements you have agreed on (i.e. custody, visitation rights, etc). You can make this plan without having to go to court. However, this means that the parenting plan is not legally enforceable (i.e. neither parent is legally required to comply with the plan).

Another option is to obtain a ‘consent order’ from a court, which is essentially a legally binding version of your agreed parenting plan. A court will only approve a consent order if the parenting arrangements are in the best interests of the child. A consent order would make your parenting arrangement binding and legal action could be taken if one parent breaches the parenting order.

If you are unable to reach an agreement with your partner about parenting arrangements, you can apply to court for a ‘parenting order’. This is a court order that specifies who the child will live with, how much time the child will spend with each parent, the allocation of parental responsibility and any other aspect of the child’s care and welfare. The court will make its decision based on the principle that each parent has parental responsibility for the child until it reaches 18 years, and that the parenting arrangements must be in the best interests of the child. Both parents must comply with the parenting order made by the court. Penalties apply if a parenting order is breached.

The above options assume that you do not have an existing consent order or parenting order in place. If you do have one of these orders in place, you and your ex-partner are legally required to follow the terms of those orders. If you want to change the existing orders, you can apply to court for a variation. You would need to prove that there has been a significant change in circumstances (e.g. you have become seriously concerned for your child’s safety and welfare).

Finally, if you decide to deny your ex-partner access to your child, he has the right to apply to court for a parenting order that, amongst other things, gives him access to his child.

Suggested way forward

Parenting arrangements can be difficult to agree on, especially if the relationship has broken down. You should speak to a family lawyer about your options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An employer can terminate the employment of an employee if they engage in serious misconduct on the job or otherwise breach their employment contract. If an employee commits a criminal offence, such as driving whilst under the influence of a drug or other banned substance, their employer generally has the power to sack them, especially if the misconduct poses a risk to the health and safety of other employees or customers.

There are laws in Australia that protect workers from being unfairly dismissed from a job. However, an unfair dismissal claim can only be made if the sacking was harsh, unjust or unreasonable. Terminating your employment because you committed a criminal offence is, without aggravating factors, unlikely to qualify as an unfair dismissal. The fact that a subsequent employee engaged in similar misconduct but retained their job is unlikely to make your termination harsh, unjust or unreasonable.

In any event, an unfair dismissal claim must generally be brought within 21 days of your employment ending. Although this deadline can be extended in extraordinary cases, from the information you provided, it appears that the deadline has passed.

Suggested way forward

Although you do not appear to have any clear legal remedies available, you may want to speak to an employment lawyer who can properly assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Australia has strict laws regulating personal finance and the provision of credit. These laws can be found in the National Credit Code. The rules that apply to your specific situation will depend on the value of your finance. But there are general rules that apply to all credit providers. These include the provider disclosing certain information to the borrower before providing finance (called pre-contract disclosure), taking steps to determine if the borrower can afford the loan, and giving the borrower regular statements during the term of the loan or finance arrangement.

For most credit contracts, a provider can only charge a maximum of 48% interest per annum, inclusive of fees and charges. If the credit is for between $2001 and $5000, an establishment fee of $400 can be charged on top of this interest rate. If your credit provider is charging you more than 48% interest, they are breaching the National Credit Code.

You should ask the provider for a written statement of the remaining balance on your loan. If you believe there is an error, you should talk to the provider directly to resolve the issue. If they cannot help you, ask about their internal complaints or dispute resolution policy. If you are dissatisfied with their internal handling of the matter, you can lodge a formal complaint with the Credit & Investments Ombudsman – an external and independent dispute resolution service for credit matters (www.cio.org.au). The Ombudsman may investigate your matter and propose a solution. If you are unhappy with the outcome, you may still be able to pursue your matter in court with the help of a lawyer.

Suggested way forward

Start by speaking to the credit provider directly and, if appropriate, lodging a complaint with the Credit & Investments Ombudsman. You may also want to speak to a lawyer who can advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your situation raises several important legal issues.

Employment status

Even though you were not paid by the employer, it is still possible for you to be considered an employee in the eyes of the law. Whether you were an employee depends on many things. If you were helping with the ordinary operation of the business or were integral to the running of day-to-day business, rather than just obtaining work experience or observing, you are more likely to be considered an employee. Similarly, if your work was benefiting the business rather than you personally, you are likely to be an employee.

If you were legally an employee, the employer has a legal duty to pay you wages. This applies even if no written employment contract was signed between you and the employer. Depending on the exact nature of the arrangement, you may be able to claim unpaid wages from the employer.

Mistake on the job

Employees have a duty to exercise reasonable skill and care on the job. If an employee fails to exercise reasonable skill and care, and the employer suffers a loss as a result, the employer has a right to recover that loss from the employee. Often employers are insured for these losses so that they can recover the money from an insurer, rather than the employee, who may not have enough money to cover the loss.

If you made a mistake on the job causing the business to lose money, you will not have to repay the money unless you failed to exercise reasonable care and skill in doing your work. An employee’s honest and inadvertent mistake, especially where there is little supervision on the job, is not likely to result in the employee being liable for the loss. However, if the employee engaged in serious misconduct or wilful negligence, they will have to repay any loss suffered by the business.

If you were not considered an ‘employee’ of the business, the outcome is similar. In the work arrangement you described, the law may say that you owed the owner of the company a duty to act with care. If the owner can prove that your conduct fell below the standard of a reasonable person in your position, then the owner may be able to recover any financial loss caused by your conduct.

Suggested way forward

From the information you provided, it is unlikely you are obliged to repay the money to the employer. From a practical perspective, the employer would need to commence formal legal proceedings against you to recover the money. This may be more costly than the value of the loss, so the employer may decide not to pursue the matter. But if they do, you should speak to an employment lawyer who can advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Western Australia, the ‘offer and acceptance’ process is used to buy and sell most properties. The offer to buy a property is made using a Contract for Sale of Land (or Strata Title by Offer and Acceptance form) and the General Conditions. Both the seller and buyer can negotiate special conditions attaching to the sale and add them as extra clauses in the offer documents. Any special conditions must be precisely worded to avoid any confusion or future disputes. The parties should specify what needs to be done, by who, by what date and what will happen if the special condition is not fulfilled. Expert assistance is recommended to ensure any special conditions are binding and effective.

From what you have described, it appears that the seller wants to attach a special condition that the sale is subject to the seller receiving approval for their loan to be transferred to a new property (this is known as loan portability). The seller is probably wanting to align the sale of their existing property and the purchase of a new property. As a buyer, you should be aware that the seller’s approval may be delayed (or even denied) or there may be other complications in the seller organising their new property purchase.

The law does not specify a fixed time limit on a special condition such as this. However, as the buyer, you are free to negotiate a time limit on the seller obtaining approval to transfer their loan. You would need to add the specific details of the special condition into the offer documents (e.g. precisely what approval is needed, time limit, consequences if not obtained, etc). You can draft the clause such that, if the seller fails to obtain approval within the set period, the sale does not proceed.

Suggested way forward

You are free to negotiate with the seller any special conditions you want to apply to the purchase of the property. However, you should first speak to a conveyancer or property lawyer who can draft the appropriate wording for the contract to ensure your risk exposure is minimised. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Every person born in Australia is automatically an Australian citizen, subject to a few exceptions. A person born outside Australia may apply to become an Australian citizen (by descent) if, at the time of the birth, at least one parent was an Australian citizen. If that parent themselves was an Australian citizen by descent, the parent must have been lawfully present in Australia for a total of two years at any time before the child’s citizenship application is made.

This means your daughter’s child will be eligible to apply for Australian citizenship, provided your daughter has lived in Australia at any time for at least two years. The application process involves submitting identity documents and evidence that one parent was an Australian citizen at the time of birth. Note that fees apply. See the Department of Immigration and Border Protection website for more information (www.border.gov.au).

Suggested way forward

Your daughter can apply for her child’s Australian citizenship online, in person in Australia or at the Australian High Commission in London. For more tailored advice to her situation, she may want to speak to an immigration lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If your property has been sold to a pawn broker by another person, you may have difficulty getting it back. A lot will depend on whether the person who sold the property to the pawn shop knew it was stolen. If the person (or the pawnbroker itself) knew the jewellery was stolen, you may have a stronger chance of recovering the property.

The exact nature of the pawn brokering arrangement is also important. Most pawn brokering arrangements allow the borrower to retrieve their property at the end of the loan period. You may find that, once the borrower has repaid their debt to the pawn broker, they are entitled to take back the property. You should speak to the person who sold the jewellery to the pawn broker about their borrowing arrangement.

Despite the above steps, the most effective way to deal with your issue is to report the theft to police. Taking another person’s property without their consent is a criminal offence. If you report the matter to the police, they may investigate and prosecute the offender. If your jewellery cannot be recovered, and the offender is found guilty by a court, the offender may be ordered to pay you compensation for the value of the property. The police may also be able to help you deal with the pawn broker.

Suggested way forward

You can start by speaking to the person who sold the property to the pawn broker, or the pawn broker itself. You should also seriously consider reporting the matter to the police, as this is the most effective way of redressing the situation. A lawyer can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You may be able to ask for more compensation by lodging a complaint with the Accident Compensation Conciliation Service, which acts as an independent third party and facilitates the discussion between injured employees and their employers or Worksafe agents. If the Conciliation Service agrees to take on your case, this does not necessarily guarantee greater compensation.

The Accident Compensation Conciliation Service applies the principles of alternative dispute resolution to guide the people involved to share their concerns, communicate clearly and come to an agreement. If the parties do not agree on a solution, then the conciliator may recommend one, or in certain circumstances, direct payments to be made. They can also refer the matter to a medical panel to re-evaluate the severity of the injury. If the parties cannot reach a resolution, then the conciliator may be able to refer you to a court.

A formal request for conciliation is typically lodged within 60 days of receiving a decision about the amount of compensation under a workers’ compensation claim. If you lodge the form after this 60 day window, it is important to provide the reasons for late lodgement. This form can be found on their website (www.conciliation.vic.gov.au).

One problem you might face is that the conciliation conferences are usually held in Melbourne. If you are staying in Italy and cannot attend a conciliation conference in Melbourne, it is best to check whether it is possible to conduct the conciliation over the telephone or another medium by emailing the service (info@concilliation.vic.gov.au). If you decide to take court action after conciliation, you will have to be in Australia.

Suggested way forward

Workers’ compensation can be complicated, but it is important you understand the options available to you. You can contact WorkCover VIC for advice and assistance (info@worksafe.vic.gov.au). For more information about the Accident Compensation Conciliation Service, visit their website or email them (info@conciliation.vic.gov.au). You may also want to consider speaking to a lawyer who can advise you on your legal options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Below is some general information regarding intellectual property laws as they relate to your business idea. You would benefit from speaking to a lawyer who can provide you with more tailored advice.

Patents

An idea, such as a new business product or model, can be protected as a patent. A patent can cover any device, substance, method or process that is new, inventive or useful. The owner of a patent has exclusive commercial rights to the invention for the life of the patent and can enforce these rights against third parties. A patent owner can stop others from manufacturing, using or selling the invention in Australia without permission, license the patent to someone else on agreed terms, and sue third parties who use the invention without consent. There are different types of patents for different inventions, and the life of a patent is generally between 8 and 20 years. Patents involve initial and ongoing fees.

If you are looking to patent a method or process as part of your new business, you should first conduct a comprehensive search for patent information of competitors. This will tell you if another person has already patented the same or a similar invention and whether your method or process is likely to infringe an existing patent. Each registered patent document includes a detailed description of an invention and information about the inventor and applicant. You can start your search using the national databases available from IP Australia (www.ipaustralia.gov.au), but you will also need to check international databases to ensure your search is comprehensive.

A comprehensive patent search will determine whether your proposed business idea would infringe one or more existing patents, whether it be in Australia or overseas. If there are no existing patents covering your business idea, you may want to consider registering one. Note that patents are not always the right choice for every business, as they can be costly to obtain and maintain. However, if the potential for commercial returns outweighs these costs and there is no similar idea or existing technology, then a patent may be worthwhile.

Copyright

Your business idea sounds like it would also be affected by copyright laws. Copyright applies to many things, including print and online books. The author of the book is automatically granted exclusive rights over their material, including the right to reproduce the work and licence its use to third parties. Anyone who does not own the copyright will generally need permission to use the material, otherwise they will be infringing copyright. Significant penalties apply to copyright infringement. To produce audio versions of text books, you would first need to obtain a copyright licence from the original author or publisher. Fees would be involved.

Suggested way forward

Your business idea involves several important intellectual property issues, which can create financial risk if not properly managed. You should speak to a lawyer about your options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Lending money to friends or family can be risky, especially if the relationship breaks down. The first step you should take is to write a letter to your boyfriend’s mother setting out the details of the loan (e.g. date, amount, method of transfer) and requesting that she repay the money by a certain date, otherwise you may take legal action against her. In legal terms, this document is called a ‘letter of demand’. You should send the letter via registered post and keep a copy for your own records.

If your boyfriend’s mother does not repay the money by the date specified in the letter, you may be able to take legal action against her. You can make a claim in the Magistrates’ Court (www.magistratescourt.vic.gov.au) for civil matters, such as loaned money that has not been repaid. To successfully make a claim against your boyfriend’s mother, you would need to prove certain things about the loan.

For example, you would need to establish that both you and your boyfriend’s mother intended the money to be repaid and that it was not a gift. You would also need to establish that you both intended to create a legally binding agreement (i.e. you were both serious about entering the agreement such that the lender would sue the borrower if they failed to repay the money). If any part of the agreement was put in writing (e.g. letter, email, text messages), this will strengthen your claim.

If you are successful in making a civil claim in the Magistrates’ Court, your boyfriend’s mother will be legally required to repay the money. If she still does not repay the money, you can commence further legal proceedings to enforce the court’s decision and recover the debt. This can be a complicated and slow process and, if your boyfriend’s mother does not have enough money to repay the debt, may not be worthwhile.

Suggested way forward

Recovering money from friends or family is possible, but it can be a slow and difficult process, especially if the relationship has broken down. You should start by sending a letter of demand and then seeking professional legal advice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It sounds like your claim may relate to alleged negligence by the school or the dental practice that reinserted your tooth, which resulted in you suffering personal injury. This would ordinarily mean you have a right to sue the wrongdoer for compensation, but this right is subject to strict time limits. The rules about time limits for legal proceedings are complicated, so you should seek professional advice.

For personal injury claims in NSW, legal proceedings must generally be commenced within 3 years from the date that you acquired the right to sue – this is usually the date of injury. It is possible to extend this time limit by up to 5 years if a court believes that it would be just and reasonable to grant an extension. Whether you are eligible for an extension depends on the length and reason for the delay, the time you became aware of your injury and its full extent, and whether a potential defendant would be unfairly prejudiced by the extension.

In addition to this extension, there is limited scope to seek a further discretionary extension from a court if you were unaware of your injury or the nature, extent or cause of the injury when the original time limit expired. You would need to apply for this further extension within 3 years of discovering the true nature or extent of your injury. The length of the extension is at the court’s discretion.

If you acquired the injury before 1 September 1990, the rules are slightly different. The general time limit is 6 years, but this may be extended by a court if you did not become aware of material facts about your case (including the true nature and extent of your injury) until after the 6 year time limit ended.

Suggested way forward

The rules about time limits for commencing legal proceedings are complicated. You would benefit from speaking to a personal injury lawyer to determine if you have a cause of action against the school or dental practice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you have been charged with a drug offence, you will be required to attend a court hearing on a specified date. At the hearing, you will have the option of pleading guilty or not guilty. If you plead not guilty, the police prosecutor will present their evidence of the crime and then you will have the opportunity to challenge this evidence or otherwise defend the charge against you. If you are found to be not guilty of the offence, you will not receive a penalty.

If you are found guilty or if you plead guilty to the offence, the court will impose a sentence that it deems appropriate in the circumstances. In Queensland, the penalty for possession of a dangerous drug depends on the type of drug and the amount of the drug. MDMA and LSD are considered ‘schedule 1’ dangerous drugs and possession of either drug is an offence carrying a maximum penalty of 15 years’ imprisonment. If the offence involves a large quantity of the drug (i.e. at least 0.4g of LSD or 200g of MDMA), the penalty increases to 25 years’ imprisonment. These are the maximum penalties available, and are only imposed in the most serious cases. The court also has discretion to impose lesser penalties (such as fines, good behaviour bonds or community service orders) or no penalty at all.

The penalty that you may face will be based on the seriousness of the crime and the circumstances in which it occurred. The court will also give you an opportunity to present any mitigating factors that may explain your offending behaviour or personal circumstances. The court will consider your personal situation (e.g. age, health, financial status, family situation, employment prospects) as well as your attitude towards the crime. The court will also take into account any prior convictions, especially if they are drug related.

In terms of the future, your criminal record will show the drug offences you have been charged with and the penalties imposed. This may affect your future job prospects and ability to hold certain government clearances. An existing criminal record will also mean that, if you are convicted with another offence in the future, your penalty will be more severe than if you had no prior criminal record.

Suggested way forward

Although it is possible to represent yourself in court, you would benefit from speaking to a criminal lawyer about what to expect and how to prepare for your hearing. A lawyer can also represent you in court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A marriage annulment refers to a situation where a marriage is declared invalid or void because it is not lawful. There are specific grounds on which a marriage may be deemed invalid. These include: where a person remarries before divorcing their first spouse; where a person gets married under the age of 18 years without court approval; where the relationship prohibits marriage (e.g. between siblings); or the marriage ceremony is not valid (e.g. carried out by an unauthorised celebrant). A marriage may also be invalid if either person did not give their real consent to the marriage – for example, they were mentally incapable of giving consent, they were mistaken as to the identity of the other person or the nature of the ceremony, or there was duress or fraud. If one of these grounds exists, a marriage is invalid and can be annulled. From the information you provided, your marriage does not appear to fall into one of the above categories. This means an annulment may not be available to you.

If you want to end your marriage, you have the option of divorcing your husband. To be eligible for a divorce, you must first have been separated from your spouse for at least 12 months. It is possible for a couple to be legally ‘separated’ whilst still living at the same property (e.g. one person lives in a separate part of the house, personal finances are kept separate, etc).

To apply for a divorce, you can file an application with the Federal Circuit Court or Family Court (www.familycourt.gov.au). Australia has a system of no-fault divorce, which means that the parties must simply show that the marriage has broken down irretrievably. In other words, you must prove to the court that there is no reasonable chance of your relationship resuming. You will need to serve a copy of your application on your husband so he can participate in the divorce proceedings.

If you are considering divorce, you may also need to think about how any shared property in the marriage will be divided. You can negotiate a property settlement with your husband without the help of the court, but if you want the arrangement to be legally binding or if you cannot agree on how to divide your shared assets, then you can apply to the court for assistance.

Suggested way forward

Although you can apply for a divorce on your own, you may want to first speak to a family lawyer to get advice on the consequences of the divorce on your property and assets. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If children are involved in a separation, the parents are also free to reach an agreement on parenting arrangements.

Property and income

If you and your wife can reach an agreement on how to divide the property (including who gets the family home), there is no need to go to court. However, you can apply to court if you want to make the agreement binding, or if you are unable to reach an agreement on how to divide your property. There is no set formula used to divide a couple’s property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The court’s decision will be one that the court considers to be just and equitable based on the facts of your case.

This means you may be able to move back into the family home and ask your wife to move out, but you would need to negotiate this with her. If you cannot reach an agreement, you would need to apply for court orders to this effect as part of a broader application for division of assets.

If you cannot meet your own reasonable expenses from your personal income or assets, you may be entitled to receive spousal maintenance from your wife, depending on her income. Similarly, if your wife is unable to support herself, you may be liable to pay spousal maintenance to her.

Parenting arrangements

You can negotiate parenting arrangements with your wife. This is called a 'parenting plan', which is a signed, written agreement that can cover anything relating to how your children are parented. It can be created and changed at will without court proceedings if both parents agree to the conditions in place. However, parenting plans are not legally enforceable so there would be no legal consequences if the terms are breached. A ‘consent order’ is required from a court to make parenting arrangements binding.

If you cannot reach an agreement with your wife about parenting arrangements, you can apply to court for a ‘parenting order’, which is an order made by the court specifying the new parenting arrangements for your children. A court will make its decision based on what is in the best interests of the children.

In your situation, as with the family home, you are free to negotiate shared custody of your children. If you cannot reach an agreement, you would need to apply for parenting orders from the court. Depending on whether you take partial custody of your children, you may be entitled to receive welfare benefits as a single parent. If you do not take custody, you will still be required to financially support your children by paying child support. You should contact the Department of Human Services for more information (www.humanservices.gov.au).

Suggested way forward

If you cannot reach an agreement with your wife about financial and parenting arrangements, you should consider speaking to a family lawyer who can properly assess your situation and advise you of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If a mortgaged property is sold, the seller will usually need to organise a ‘discharge of mortgage’ from the lender if the mortgage is to be repaid in full using the proceeds of the sale. From the information you provided, it appears that the bank has not granted you a discharge of mortgage for either property.

You should start by contacting the bank to find out why there is a delay and what you can do to ensure the mortgage is discharged as soon as possible. Without knowing the exact reason for the delay, it is difficult to determine whether you require further legal advice.

If the bank cannot adequately explain the reason for the delay or you otherwise have a grievance about poor service, you should lodge a written complaint with the bank’s internal complaints handling process. Instructions on how to lodge a complaint should be available on the bank’s website or by phoning their general enquires line.

If you are dissatisfied with the bank’s response, you can lodge a further complaint with the Financial Ombudsman Service (www.fos.org.au). This is an independent organisation responsible for investigating and resolving disputes in the banking and financial services sector. The FOS will assess your complaint and, if appropriate, investigate the matter. The bank will be given an opportunity to respond to your complaint before a resolution is reached via mediation, conciliation or another method.

Suggested way forward

You should begin by asking the bank about the reason for the delay in discharging the mortgage and what you can do to speed up the process. Depending on their response, you may want to speak to a lawyer for further guidance on whether you require professional legal advice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you are a public servant working for the Department of Defence, you can lodge a formal complaint about an unfair or unreasonable action taken in relation to your employment. This is called an application for a ‘Review of Actions’. Your application must be in writing and explain what is causing you concern and why. Your application will be assessed and, if appropriate, investigated and steps taken to resolve the problem (such as mediation or conciliation). If you are dissatisfied with the outcome, you can request a further review by the Merits Protection Commissioner. More information on how to lodge a complaint can be found on the Department of Defence website (www.defence.gov.au/complaintresolution).

If you are an active member of the Australian Defence Force, you need to lodge your complaint as a ‘Redress of Grievance’ application. The matter will be handled by the Directorate of Military Redress and Review. You can contact your appropriate Service Liaison Officer for more information on how to lodge a complaint, or call the Inspector General of the Australian Defence Force on 1800 688 042. If you are not satisfied with the outcome, you can lodge a further complaint with the Defence Force Ombudsman, which is part of the more general organisation known as the Commonwealth Ombudsman. You can lodge a complaint online (www.ombudsman.gov.au) or by calling 1300 395 776.

The above complaints processes may require you to prepare a written statement outlining your complaint and, if relevant, gather supporting documentation. Resolving your complaint may also take some time. If you would rather not ‘fight’ the issues you are facing at work and you are ‘happy to leave’, you may have the option of simply resigning from your position. How much notice you must give your employer before resigning will depend on the terms of your employment contract or the award or enterprise agreement you are covered by. You should check your employment terms to familiarise yourself with the resignation process, or speak to a human resources representative at your workplace.

Note that some of the complaints processes above may not be available to you after your employment ends.

Suggested way forward

You should try resolving your issues using one of the complaints processes outlined above. If these are unsuccessful or if the matter escalates, you may want to speak to a lawyer about your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An idea can be protected as a patent. A patent can cover any device, substance, method or process that is new, inventive or useful. The owner of a patent has exclusive commercial rights to the invention for the life of the patent and can enforce these rights against third parties. A patent owner can stop others from manufacturing, using or selling the invention in Australia without permission, license the patent to someone else on agreed terms, and sue third parties who use the invention without consent. There are different types of patents for different inventions, and the life of a patent is generally between 8 and 20 years.

If you are looking to patent a method or process as part of your new business, you should first conduct a comprehensive search for patent information of competitors. This will tell you if another person has already patented the same or a similar invention and whether your method or process is likely to infringe an existing patent. Each registered patent document includes a detailed description of an invention and information about the inventor and applicant. You can start your search using the national databases available from IP Australia (www.ipaustralia.gov.au), but you will also need to check international databases to ensure your search is comprehensive.

A comprehensive patent search will determine whether your proposed ‘service idea’ would infringe one or more existing patents, whether it be in Australia or overseas. If there are no existing patents covering your business idea, you may want to consider registering one. Note that patents are not always the right choice for every business, as they can be costly to obtain and maintain. However, if the potential for commercial returns outweighs these costs and there is no similar idea or existing technology, then a patent may be worthwhile.

Suggested way forward

Your first step should be to search for existing patents. This is a technical process that is best done with the expert assistance of an intellectual property lawyer or patent attorney. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The owner of the damaged vehicle must show that their repair quote is fair and reasonable. To do this, the owner should obtain at least two quotes and use the cheapest quote.

If you, as the driver responsible for paying for the repairs, believe the owner’s quote is not fair and reasonable, you can obtain your own quotes. Again, it is best practice to obtain more than one quote and provide copies to the vehicle owner.

If you cannot reach an agreement with the owner, you can pay them the value of the cheapest quote, provided the quote is objectively reasonable. The owner can then use the money to organise the repairs at their own convenience. If you choose to pay them out, there is a possibility that the owner may seek to claim any shortfall in value from you (i.e. the difference between the amount you paid them and their original quote). They would need to commence formal legal proceedings in court to recover this money.

You should try to negotiate an agreement with the vehicle owner, reminding them that the law requires their quote to be fair and reasonable. You can use the services of your local Dispute Settlement Centre of Victoria (www.disputes.vic.gov.au), which offers mediation and dispute resolution advice.

Suggested way forward

You should try to negotiate an outcome with the other party. If this is unsuccessful or if the matter escalates, you may want to speak to a lawyer about your rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. An Employer Nomination Scheme Visa (subclass 186) is a permanent residency visa that depends on having a specific nominated position. If the nominated position is no longer available (i.e. you have been made redundant), the visa application for permanent residency cannot proceed. If a new employer nominates you in the future, a new application for permanent residency must be lodged. For the Temporary Residence Transition stream under this visa, the minimum requirement of two years’ full-time work will start again.

Note that, under the Skilled Work Visa (subclass 457), you must find another employer to sponsor your 457 visa, apply for another kind of visa, or leave Australia within 90 days, or before your visa expires if it expires in less than 90 days. Once you find a new employer, you can re-apply for the Employer Nomination Scheme Visa (subclass 186).

If you are found to be in breach of the above conditions, you and your sponsor may face consequences, and the Department of Immigration and Border Protection would likely seek to cancel the visa. You should also be honest and open with any government official when making enquiries, as attempting to hide information often leads to visa cancellation as well as exclusion from returning to Australia for certain periods of time.

Suggested way forward

Since it is very important to abide by your visa conditions, you should contact the Department of Immigration and Border Protection (www.border.gov.au) to obtain more information about your rights and restrictions under the two visas. It is also worth speaking to an immigration lawyer about your options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If your brother is in danger or otherwise subject to domestic violence, he should report it to the police as soon as possible. The police may investigate the matter and, if appropriate, lay charges against his partner.

Your brother can also protect himself by obtaining an intervention order against his partner. An intervention order can be used to stop harassment, threats or abusive behaviour by preventing your brother’s partner from contacting him. He can apply for an intervention order by contacting the police or his local Magistrates Court.

If your brother is experiencing domestic violence or other distressing conditions whilst subject to a home detention order, he should raise the issue with his supervising Community Corrections Officer from the Department of Correctional Services (www.corrections.sa.gov.au). It may be possible to modify the conditions of his home detention.

Suggested way forward

Apart from the above options, there are very few legal solutions available to fix your brother’s relationship with his partner. If you want further information about his legal rights, you should consider contacting a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The repair of a retaining wall is the responsibility of the owner whose property benefits from the retaining wall. This will be the property that created the need for a retaining wall by changing the level of the landscape. In rare cases where the retaining wall lies on the boundary such that it benefits the property owners equally, then both neighbours must contribute to its repair, which usually means a 50/50 split. If it is unclear who the retaining wall benefits, then an expert determination may be obtained from council records, or independently by employing a registered geotechnical engineer or surveyor.

Suggested way forward

You may want to contact your local council for further general information. If the legal dispute continues, it would be best to speak to a private lawyer who can advise you of your options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The penalty for theft, including shoplifting, depends on the specific facts of your case. However, the law does provide a range of possible penalties, depending on whether the offence is tried on indictment in the County Court or summarily in the Magistrates’ Court.

If found guilty of theft in Victoria as an indictable offence, the maximum possible penalty is 10 years' imprisonment. However, imprisonment is usually only imposed for serious cases involving repeat offences or where the amount stolen is significant. Instead of imprisonment, a court may impose a good behaviour bond, a fine, or a community corrections order.

If the offence is heard summarily in the Magistrates' Court, because the court considers it to be less serious in nature, the maximum penalty is 2 years' imprisonment and a maximum fine of about $37,310. Again, the maximum penalty would only be imposed in severe cases.

Suggested way forward

If you are appearing in the Magistrates' Court, it is best to speak to a criminal lawyer for legal representation and advice specific to your situation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A reverse mortgage is a type of home loan that allows you to keep ownership of your house whilst borrowing money using the house as security. The loan can be paid as a lump sum, a regular income stream and/or a line of credit. Interest is charged on the loan, but you do not have to make repayments while you live in the house. The loan must be repaid in full when you sell your home, move out of the home or pass away.

You said your mother has a reverse mortgage on her property. Her loan may become repayable if she moves into aged care or passes away. If you are living at the property at this time, and the property and reverse mortgage agreement is in her name only, you may find that you cannot stay at the property if it needs to be sold to repay the loan.

To accommodate this situation, some reverse mortgage agreements can be written for two people, so that, if one person dies, the other person can continue to live in the property. This would require the parties to co-own the property (i.e. both names need to be on the certificate of title). If you want to acquire a share in your mother’s property, you will need to lodge the relevant land transfer documents with NSW Land & Property Information (www.lpi.nsw.gov.au) and pay any applicable stamp duty.

Note, however, that your mother’s reverse mortgage agreement may permit her to sell half her property to you, or otherwise transfer you an interest in her property. Doing so may trigger a breach or default, making her liable to pay a penalty or fee to the lender. You should check the terms and conditions of the reverse mortgage agreement to see if changes in ownership are permitted.

More generally, reverse mortgage agreements are not available to persons under the age of 60. If you are younger than this, you may need to consider other financing arrangements for the granny flat.

Suggested way forward

Reverse mortgages and property transfers are complex areas of law. You should speak to a property lawyer to understand your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The exact nature of your question is not clear. For this reason, the information below is of a general nature only.

Defamation

The law gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible for the attack. To make a claim for defamation, you need to satisfy three things:

(1) The defamatory material must be published. This includes print, online and broadcasts.

(2) The material must identify the person who has been allegedly defamed. It is not necessary for the person to be directly identified. Defamation may still exist if a reasonable person reading the publication understands it as referring to the relevant person.

(3) The material must be ‘defamatory’ in nature. This means it must convey meaning about a person that lowers their reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.

You will have a claim for defamation if you can prove each of these three things. You should also be aware that the person who made the defamatory comments may not be liable for defamation if they have a recognised defence (e.g. the defamatory material is true or is a fair comment on a matter of public interest).

Unincorporated associations

An unincorporated association is a type of organisational structure typically used by community groups and charities. Unlike an incorporated structure (such as a company), an unincorporated association is not a separate legal entity from its members. This means it cannot enter into contracts or hold assets in its own name. While the association’s property may be thought of as the members’ collective property, it is more likely owned by one or more of the organisation’s committee members in their personal capacity. The true owner of the property will generally have the right to deal with the property as they wish.

Suggested way forward

Your situation raises important legal issues. You would benefit from speaking to a lawyer who can help you understand your legal rights and advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You have been asked to provide your company’s memorandum and articles of association. In Australia, these two documents are more commonly known as the company’s constitution. The constitution is a written document that sets out the rules for how the company is to be structured and how it will operate. Constitutions usually contain information about shares and dividends, directors’ meetings, shareholder meetings and winding up procedures. Most companies prepare and adopt a constitution when they are incorporated, although it is not necessary for all Australian proprietary limited companies to have a constitution. For more information on constitutions and setting up a company, visit the Australian Securities and Investments Commission website (www.asic.gov.au).

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A corporate or commercial lawyer can prepare a constitution for your company. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there.

Boundary of lot

In Victoria, an owners corporation (or body corporate) is responsible for maintaining common property, while lot owners are responsible for maintaining their own lot. The boundary between the common property and private lots is specified in the plan of subdivision. In all plans of subdivision, the boundary between common property and a private lot (or one lot and another lot) is the middle of the wall, unless the plan of subdivision indicates otherwise. In newer plans of subdivision, the boundary is often the building line (i.e. the exterior point at which a building starts).

You should review the plan of subdivision for your complex to determine where the boundary lies. A copy of the plan of subdivision can be obtained from the Victorian Department of Transport, Planning and Local Infrastructure (www.dtpli.vic.gov.au). Fees may apply. If your lot includes the balcony wall, then you are responsible for maintaining it and repairing any damage. Furthermore, as a lot owner, you are also required to properly maintain in a state of “good and serviceable repair” any part of your lot that affects the outward appearance of the lot. If the damage to your balcony wall is noticeable from the outside of your lot, you may be legally required to repair the damage.

Your owners corporation will have an internal dispute resolution procedure. You can lodge a complaint in writing with the owners corporation under their internal dispute resolution procedure. If this is unsuccessful, you can lodge a formal complaint with Consumer Affairs Victoria (www.consumer.vic.gov.au). CAV can provide conciliation and mediation services to help resolve the dispute. If this is unsuccessful, you can apply to the Victorian Civil and Administrative Tribunal (www.vcat.vic.gov.au) for an order resolving the matter.

Structural defects

Structural defects are usually covered by one or more warranties and guarantees under state and national law. This means that a builder may be required to fix a structural defect (or pay compensation to the value of the defect) that has been caused by their poor workmanship, depending on how long ago the building was completed. Domestic building insurance, which must be held by builders for all jobs valued over $16,000, usually covers the costs of structural defects for 6 years and non-structural defects for 2 years. Insurance may also cover builders who have become insolvent. You should contact Consumer Affairs Victoria for more information on building warranties and insurance.

Suggested way forward

You should start by reviewing the plan of subdivision for your complex. Resolving owners corporations disputes can be complicated, so you may want to speak to a property lawyer who can advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The penalty for a simple drug offence depends on the specific facts of your case. However, the law does provide a range of possible penalties for each offence.

If found guilty of a simple drug possession offence in Western Australia, the maximum possible penalty is a $2,000 fine or 2 years in prison, or both. Maximum penalties are usually only imposed in the most serious cases. The penalty you face will depend on a range of factors, including the circumstances of the offence and your current personal situation. Prior offences of any kind (not just drug offences) will also be considered by the court.

Despite already undertaking community service, you may still be eligible for additional community service hours, provided the total number of hours does not exceed 500.

Suggested way forward

You should speak to a criminal lawyer for more specific advice about your situation and your options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The information below should give you greater certainty about your legal rights.

1. Your rights as a beneficiary

There is no legal obligation for beneficiaries to be told that they are beneficiaries before the gifts in the will are given to them. However, beneficiaries do have several other rights that are protected by law. As a beneficiary under a will, you are legally entitled to have the estate properly administered and to receive your entitlement specified in the will. Beneficiaries who receive a share of the remainder of the estate are entitled to access the full accounting of the estate funds, including details of all funds received and expended in the estate, as well as details of how the estate is to be distributed. A beneficiary can take legal action against an executor who fails to provide adequate information upon request.

2. Duties of the executor

It is common practice for an executor to seek the help of lawyers to administer the estate on their behalf. However, the lawyer must carry out the executor’s duties to the estate in accordance with the law and the will. The assets cannot be distributed contrary to the will unless the executor obtains consent from all adult beneficiaries. Executors are allowed to be reimbursed by the estate for reasonable expenses incurred in administering the estate, including legal fees.

If you believe the executor has breached his duties and is not putting the interests of the beneficiaries first, you can apply to the Supreme Court of Victoria to remove the executor and have another person appointed in his place. These applications can only be made before the assets are distributed. Also be aware that any legal proceedings can cause delays and incur additional costs.

3. Disability and your rights

Under national human rights laws, discrimination occurs when a person suffering a disability is treated less favourably than a person without the disability in the same or similar circumstances. If you feel discriminated against by the police, your employer or someone else in a public position, you could lodge a formal complaint with either the Victorian Equal Opportunity & Human Rights Commission (www.humanrightscommission.vic.gov.au) or the Australian Human Rights Commission (www.humanrights.gov.au). Both organisations will try to help you resolve the matter with the other party. Alternatively, you can contact the Disability Discrimination Legal Service for further advice (www.ddlsaustralia.org).

You said that your brother is using your disability against you. Although Australia’s discrimination laws generally do not apply to private family disputes, his actions as executor may otherwise mean he is not putting your interests first as a beneficiary. He is therefore likely to be breaching his duties as executor. Legal action can be taken to stop his conduct and/or remedy any harm that has been done.

4. Right to the cremated remains

In Victoria, the person entitled to receive the deceased’s ashes is the person who obtained the permit for cremation, or in other words, arranged the funeral. This is usually the executor named in the will, so you may not have a right to possess your mother’s ashes if you were not the executor. However, your exact rights will largely depend on the circumstances of your personal situation. A court may be able to resolve a dispute between you and your brother about the location or possession of the ashes.

Suggested way forward

To ensure the will is properly executed and your rights as a beneficiary are protected, you should speak to a lawyer who is an expert in wills and estates. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The threats to unfairly cause your co-worker to be dismissed from her job could be a form of intimidation or harassment, and the spreading of false rumours could technically be defamation.

However, when relying purely on the information provided, it seems that the cheater's actions may not be severe enough to take to court. Even so, there are many alternative dispute resolution services available to your co-worker and her former friend. You can see a list of service providers in NSW on the Law Society website (http://www.lawsociety.com.au/community/disputesandmediation/ADRproviders/index.htm). These services help people resolve disputes with the help of an impartial third party.

If the issue escalates and your co-worker begins to fear for her safety, she can apply for an Apprehended Personal Violence Order (APVO) to protect against violence, intimidation or harassment. To apply for an APVO, a person can contact the police or make an application at a Local Court. Note, however, that an application may be refused if the court believes it is frivolous or has no reasonable chance of success.

If the defamation is severe or continues, your co-worker might have the option of suing for defamation. This must be done within one year from the date the false and defamatory information was communicated. If a court finds that the information was defamatory, the sufferer may be awarded money as compensation for damage to their reputation, any economic loss suffered, and hurt feelings.

Suggested way forward

In these situations, the best solution is for the people involved to communicate and find a resolution. If the issue remains unresolved, a dispute resolution service may help. It seems unlikely that court intervention is currently needed, but if the court becomes involves, your friend would benefit from seeking professional legal advice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A lease is a legal agreement between a landlord and tenant for a fixed period of time. You may be able to end the lease early by mutual agreement, giving up possession or assignment. For each option, the costs will differ.

The simplest and most cost-effective way to end the lease early is by mutual agreement. This requires you and the landlord to sign a written agreement that clearly states that the lease will end on a date before the end of the 3 month term.

If mutual agreement is not possible, you can give up possession by notifying the landlord in writing that you intend to break the lease early. However, this tends to be the most costly option because the landlord can then apply to the Victorian Civil and Administrative Tribunal (www.vcat.gov.au) to claim compensation from you. The compensation includes a re-letting fee calculated on a pro-rata basis, reasonable advertising costs, and rent until either the landlord finds a new tenant or the original 3 month term ends – whichever end date comes first. You should check the original lease document to see if it specifies an exception to these rules, or any additional costs. You should give the landlord as much notice as possible if you intend to break the lease so that they can find a replacement tenant.

Rather than ending your lease early, it may be easier to hand over or ‘assign’ your lease to a new tenant. You will need to obtain your landlord’s consent, update the tenancy agreement, and arrange for the transfer of the bond. The landlord can charge you the reasonable costs of preparing an assignment in writing, but they cannot charge you for creating a new tenancy agreement with the new tenant.

Suggested way forward

If your landlord does not agree to ending the lease early and assignment is impossible or inconvenient, you should review the original terms of the lease to see what consequences you will face for ending the lease before the end of the 3 month term. You may want to speak to a property lawyer to further inform you of your rights, to prepare your legal documents and guide you through the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is possible to start a business in Australia as an Australian citizen, a permanent resident or the holder of an Australian business visa. There are 2 business visas that may apply to your situation: the Business Innovation and Investment (Provisional) visa (subclass 188), and the Business Talent (Permanent) visa (subclass 132).

Most foreign national business owners start on the Provisional Business Innovation and Investment visa (subclass 188) and then, after 4 years, apply for permanent residence under the Business Innovation and Investment (Permanent) visa (subclass 888). You can apply for a provisional visa (subclass 188) by submitting an expression of interest through the Department of Immigration and Border Protection (www.border.gov.au).

Alternatively, you may be eligible for the Permanent Business Talent visa (subclass 132). This visa is for applicants who (a) own or partly own an overseas business, have net business and personal assets of at least $1.5 million AUD, and an annual business turnover of at least $3 million AUD, or (b) have at least $1 million AUD in venture capital funding in Australia to develop a high-value business.

You can read more about these visas by entering their names and subclass numbers into the search bar on the Department of Immigration and Border Protection online portal (www.border.gov.au).

For a step-by-step guide on how to start a corporation in Australia, see the Australian Securities & Investments Commission website (www.asic.gov.au). At the registration stage, it is best to engage a solicitor, accountant or company formation agent to complete the registration. While it is possible to lodge all the required documentation yourself with ASIC, there can be penalties for individuals who lodge documents containing inaccurate or misleading information.

A company and its directors and officers must observe the many legal obligations contained in the Corporations Act 2001 (Cth) plus associated rules and regulations. This Act regulates the formation of a company, its operation and administration, and the responsibilities of the directors and officers. The ASIC website has more detailed info on this topic (www.asic.gov.au).

The requirements for setting up a corporation, and complying with Australia’s corporate laws are broad and complex topics. For this reason, the information here is a guide only and should not be used as a substitute for professional legal advice.

Suggested way forward

If you have further questions about setting up a business in Australia and complying with local laws, try contacting ASIC on 1300 300 630 (or +61 3 5177 3988 from outside Australia) or submit an online enquiry. You may also want to speak to a professional lawyer with experience in immigration and business to provide detailed advice, prepare your legal documents and guide you through the process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Australia, under the Marriage Act 1961 (Cth), a person is not allowed to sue their fiancé or fiancée for compensation simply because they failed to perform a promise, undertaking or engagement to get married. In other words, you cannot sue your fiancé simply because the engagement has been called off.

However, it is still possible for one party to commence legal proceedings to recover any gifts they have given to the other person in contemplation of marriage. For example, it may be possible for one person to recover an engagement ring (or the value of the ring), if the other party has broken or breached the promise to get married. If you gave your fiancé valuable gifts during your engagement, you may be able to recover all or part of the value of those gifts. A lot will depend on the circumstances in which the gifts were given and how and where the relationship ended.

If you believe your fiancé intended to defraud you of your property (including money) by deceitful means, he may have committed the offence of fraud. Crimes are prosecuted by police, so you will need to report the matter to your local police station for investigation. Note that it may be very difficult to prove your fiancé committed fraud without clear evidence of his fraudulent intention at the time of taking your property.

Lastly, you and your fiancé are likely to have been in a de facto relationship because your relationship lasted for more than 2 years. Whether you are in a ‘de facto’ relationship in the eyes of the law will also depend on whether you lived together, whether a sexual relationship existed, the degree of dependence on one another, any agreements for financial support, the shared ownership or use of property, the degree of commitment to a life together, and public aspects of your relationship.

When a de facto couple separates, the parties will ordinarily need to divide up their assets. The parties are free to reach an agreement on how their assets will be divided between them. If the parties can reach an agreement, there is no need to go to court. However, the parties can apply to court if they want to make the agreement binding, or if the parties disagree on how to divide their property.

Suggested way forward

Suing your fiancé for compensation may be possible, but it would require the expert assistance of a lawyer. Speaking to a family lawyer will help you understand your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services

Hi there. When you use an online service, such as a game or website, you agree to be bound by their terms of service. Sometimes this agreement is made obvious (e.g. by clicking “Agree” on a pop up screen) and other times you are deemed to agree to the terms of service simply by continuing to use the platform. The terms of service are usually made available on the website or platform.

By using the free-to-play game, you agreed to be bound by its terms of service. You should check the terms to see if they give the provider the authority to ban users from the platform if they are suspected of using unauthorised third party software. If so, the service provider had the right to ban you. The same rule would apply even if you paid for the service.

If the terms do not give the service provider this power, or if you do not believe you actually did breach the terms, you may have been banned improperly. Your best chance of resolving the issue is by contacting the service provider directly. It is very unlikely they will pay you compensation unless you can prove that you have suffered loss or harm as a result of their conduct.

Suggested way forward

You should start by trying to resolve the issue directly with the service provider. If this is unsuccessful, you may want to speak to a lawyer who can help resolve your problem. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, the laws relating to liability for wandering livestock on public roads are not clear cut. Based on the information you provided, you may have a claim for negligence against the cattle owner, but a lot will depend on the specific circumstances of the case.

To successfully sue for negligence, several key elements must be proven. You would need to prove: that the cattle owner owed you, as a road user, a duty of care; that the cattle owner breached that duty by failing to stop his cattle from wandering onto the road; and that the owner’s breach of duty caused you physical and/or mental harm. The law of negligence is particularly complex and not every type of personal injury will result in a successful claim for compensation. Many factors need to be considered, including the foreseeability of the accident, the reasonableness of taking steps to avoid the accident, and the injured person’s behaviour at the time of the accident. A personal injury lawyer can assess these factors to determine the strength of your claim.

In 2016, a NSW court awarded compensation to a driver who was injured in a road accident partly caused by cows that had wandered onto a highway. The owner of the cows had failed to maintain an adequate fence on his property that bordered the highway, despite the local council ordering him to fix the fence. The court found that the cattle owner had been negligent and was therefore liable to pay compensation to the injured driver.

It is common for farmers to take out public liability insurance that ordinarily covers incidents caused by wandering cattle. The cattle owner in your situation may be insured for this type of event, so it may be worth pursuing the claim.

Suggested way forward

Although negligence claims can be complicated, it is worth speaking to a personal injury lawyer to get a proper assessment of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If the parties can reach an agreement, there is no need to go to court. However, the parties can apply to court if they want to make the agreement binding, or if the parties disagree on how to divide their property.

There is no set formula used to divide a couple’s property, but the court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The proportion of your share will depend on many factors. In the case of a recent marriage, the court will pay close attention to the property and assets each party brought into the marriage. The court’s decision will be one that the court considers to be just and equitable based on the facts of your case.

Superannuation is treated separately from the rest of the property in a marriage. The law allows parties to value their superannuation and reach an agreement on how to split it, if at all. To split superannuation, each party must first obtain independent legal advice and then apply to court for a consent order that makes the agreement binding. Alternatively, if no agreement on superannuation can be reached, the parties can apply to court for an order splitting the superannuation.

Suggested way forward

Family Relationships Online (www.familyrelationships.gov.au) offers free family dispute resolution services that may be of assistance if you are wanting to avoid court. In any case, you may want to consider speaking to a family lawyer who can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your question raises two separate legal issues. Firstly, sexual offences against children are serious crimes that should be immediately reported to the police. A victim or someone who knows about or suspects the criminal behaviour can report the matter to the police. Once the matter is reported, the police are responsible for investigating and prosecuting the matter in court. A private citizen can help with the police investigation but they are not responsible for prosecuting the matter. If you know or suspect that a sexual offence involving a child has been committed by someone, even if the offence was committed a long time ago, you should immediately report the matter to the police. Contact details for your local police station are available on the NSW Police Force website (www.police.nsw.gov.au).

Secondly, in Australia, invasion of privacy is not a crime. It is also not possible to sue someone for invasion or breach of privacy. In some circumstances, the alleged breach of privacy may amount to defamation (e.g. if the sensitive information or content is defamatory and published or distributed to third parties) or if confidential information has been leaked. Without knowing more about your particular case, it is difficult to know whether you could pursue either of these legal claims.

Suggested way forward

You should report any suspected or known child molestation to the police immediately so they can investigate and prosecute the matter. If you require legal assistance as a victim or witness, you could seek help from Legal Aid NSW (www.legalaid.nsw.gov.au), although their eligibility criteria are very strict and they are not able to take on every case. You may also want to search for a private lawyer who can advise you of your options, especially in relation to the alleged breach of privacy. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, a person’s driver licence can be suspended for many different reasons. If you drive a vehicle whilst your licence is suspended, the penalty will depend on the reason your licence was originally suspended. Below are the various reasons your licence may have been suspended, and the penalties attached to each offence.

If your licence was suspended because: of a ‘show cause’ action taken by the police or Queensland Department of Transport and Main Roads; you are medically unfit to drive safely; you accumulated too many demerit points or committed a high speed offence; you committed a drink driving or drug driving offence resulting in an immediate licence suspension; or you have not paid your fines, then you may be issued an infringement notice or dealt with by a court for unlicensed driving. If you are convicted of unlicensed driving by a court, the magistrate may impose a fine of up to $6,600 or imprison you for up to 18 months.

If your licence was suspended because: you did not pay a fine imposed by a court; you accumulated too many demerit points; or you were convicted of driving more than 40 km/h over the speed limit, then you will be dealt with by a court for unlicensed driving. If you are convicted of unlicensed driving, the magistrate must disqualify you from holding a driver licence for a period of between 1 and 6 months, and may impose a fine of up to $4,400 or imprison you for up to 1 year.

If your licence was immediately suspended because: you were charged with a middle-level drink driving charge (0.10 or higher); you failed to give police a breath or blood sample when requested; you were charged with a low-level drink driving offence whilst an earlier charge was still pending; or you were charged with driving under the influence, then you will be charged with unlicensed driving. If you are convicted of unlicensed driving, the magistrate must disqualify you from holding a driver licence for 2 to 5 years, and may impose a fine of up to $4,400 or imprison you for up to 1 year.

Some of the above penalties are mandatory (i.e. minimum disqualification periods) and others, such as the value of the fine or the length of the prison sentence, are at the discretion of the magistrate. The law requires imprisonment to be a penalty of last resort. This means that a term of imprisonment will only be imposed as a sentence if the court thinks it is the most appropriate outcome, taking into consideration a wide range of factors. These can be circumstantial factors, such as the events leading up to the offence, or personal factors, such as the offender’s prior criminal history, the offender’s attitude and his or her current life situation. The laws around sentencing offenders are very complex and many factors will influence a court’s final decision.

Suggested way forward

Although sentencing outcomes cannot be predicted with certainty, a lawyer can advise you of the likely outcome and help prepare your case for court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If an accused person fails to attend their own court hearing, the court can adjourn the matter (i.e. set a new court date in the future to resume the matter) or the court can decide the matter in the absence of the accused person. If a matter has been ‘dealt with’, this usually means that the court has decided the matter and, if appropriate, handed down a penalty. You should contact the Local Court registry to ask about the history and status of your matter (www.localcourt.justice.nsw.gov.au).

If you, as a witness to a crime, were not notified of the hearing date(s) or did not receive a subpoena in the mail, you should contact the NSW Office of the Director of Public Prosecutions (www.odpp.nsw.gov.au). The ODPP is responsible for prosecuting crimes on behalf of the police. A person who has given police a witness statement about a crime may be called on to give evidence in court, but the police are not required to subpoena every witness to a crime. A written witness statement may be used as evidence in court instead of a witness giving oral evidence.

Suggested way forward

You should start by contacting the Local Court and ODPP to enquire about the matter. If you want more detailed advice on your legal options, you should speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you are owed money or property by an individual who has entered bankruptcy, you cannot continue to claim that debt directly from them. Once the individual enters bankruptcy, a trustee is appointed to manage the bankrupt estate and make payments to creditors if funds become available.

As an unsecured creditor, you may be eligible to receive payments from the trustee (called ‘dividends’) from the sale of assets or compulsory payments from the bankrupt person. If funds become available, creditors must lodge a ‘proof of debt’ with the trustee and, if requested, a statutory declaration confirming the details of the debt.

Once the bankruptcy ends (usually three years), creditors’ debts are released or extinguished. This means that an unsecured creditor cannot continue to pursue the debt, regardless of whether they recovered any money via a dividend during the bankruptcy.

The above information assumes the seller in your situation was a sole trader conducting business in his personal capacity, rather than through a company. If the seller was a company, the process for claiming and proving debts is slightly different.

Suggested way forward

You should contact the trustee of the bankrupt individual to find out more information and register your claim. If you do not know the trustee’s details, you can complete a Bankruptcy Register Search on the Australian Financial Security Authority website (www.afsa.gov.au). For more detailed advice on recovering your property or money, you should speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, it is a criminal offence known as ‘fraud’ to dishonestly obtain another person’s property or use someone else’s property for personal use. Penalties vary depending on the value of the property and seriousness of the crime.

If someone has reported suspected fraudulent behaviour to the police, the police must decide whether to investigate the matter. If the police find enough evidence, they may decide to prosecute the matter in court. If you are a suspect in the police investigation, you may be questioned by the police. You can help the police by answering their questions, but you can also exercise your right to silence. You may want to have a lawyer represent you during police questioning.

If the police find enough evidence to prosecute the matter against you, you will be notified and required to attend a court hearing. At the hearing, you can plead guilty or not guilty. If you plead not guilty, you can give your side of the story and offer any evidence that proves you are not guilty of the offence. If found guilty, an appropriate penalty may be imposed based on the nature of the crime and your personal circumstances.

Suggested way forward

Based on the information you provided, it is not clear how serious the allegations are and, if a police report has already been lodged, whether the police are going to investigate the matter further. If you are contacted by the police, you should ask a lawyer for advice about your rights and the best course of action. In the meantime, you best option is to try to resolve the dispute directly with the other parties involved. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You have asked whether the Superannuation Complaints Tribunal has the power to invalidate unfair or invalid terms.

The Superannuation Complaints Tribunal (www.sct.gov.au) is an independent, national body responsible for investigating and resolving complaints relating to superannuation. Once a complaint is lodged, the Tribunal has the power to review the decision of the original decision maker (i.e. the superannuation fund) to determine whether the decision was unfair or unreasonable. The Tribunal will consider the practical consequences of the decision and how it affects the person who lodged the complaint or, in the case of a death benefit review, any beneficiaries.

If the Tribunal decides that the decision was fair and reasonable in the circumstances, the Tribunal must allow the original decision to stand. If the Tribunal decides that the decision was unfair or unreasonable in the circumstances, the Tribunal has the power to remove, as far as possible, the unfairness or unreasonableness. The Tribunal may vary the decision, ask the superannuation fund to reconsider the decision, or set aside the original decision and substitute a new decision.

Importantly, the Tribunal is bound by the same laws and rules as the superannuation fund that made the original decision. This means the Tribunal cannot do anything that is against the law or the superannuation fund’s operating rules or insurance policies.

Regarding your specific situation, it is possible to lodge a complaint with the Tribunal about a decision made by QSuper. If the Tribunal decides that QSuper’s decision was unfair or unreasonable in the circumstances, it can take steps to fix it. However, the Tribunal cannot do anything that is not allowed under QSuper’s insurance policies or operating rules.

Suggested way forward

Challenging a decision of a superannuation fund can be a complicated but important task. You would benefit from speaking to a superannuation or wills and estates lawyer who can help you with your complaint. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The exact nature of your legal problem is not clear. For this reason, the information below is of a general nature only.

In Australia, the federal parliament can only make laws with respect to certain matters specified in the text of the Constitution. One of those matters (under section 51(xiv) of the Constitution) is insurance, other than ‘State insurance’ (i.e. insurance conducted by a state agency or body as insurer). For state insurance matters, the laws of the relevant state will apply.

An example of the federal parliament exercising this insurance power is the Insurance Contracts Act 1984 (Cth). This legislation regulates various matters relating to insurance contracts, such as responsibilities on the insured party and insurer, disclosures and misrepresentations, and the claims process. Section 10 of that Act specifies the types of insurance contracts covered by the legislation. Section 9 specifies the types of insurance contracts excluded from the legislation, including insurance contracts in the course of state insurance. This exclusion is consistent with section 51(xiv) of the Constitution (explained above), which allows state insurance matters to be regulated by the states.

QSuper is a special type of superannuation fund known as a public sector superannuation scheme. It is not subject to the same system of national regulation as private superannuation funds. Similarly, its insurance services (such as its death and TPD insurance) are state insurance matters and therefore not subject to the Insurance Contracts Act 1984 (Cth).

Suggested way forward

You raise specific and potentially complex questions about superannuation and insurance law. Although the exact nature of your problem is not clear, you may benefit from speaking to a superannuation or insurance lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Whether you purchase a property or otherwise acquire title to a property, you will have to pay stamp duty unless an exemption applies.

In Victoria, there is an exemption for pensioners, for home buyers who use the property as their principal place of residence if the property is $550,000 or less, for first-home owners with a family if the property is $200,000 or less, and for young farmers buying their first farmland property. If you fall into one of these categories, you may be exempt from paying stamp duty.

Suggested way forward

To obtain an estimate of the stamp duty owed, you could use the Victorian Government Land Transfer (stamp) duty calculator (http://www.sro.vic.gov.au/calculators/land-transfer-calculator). You may want to consider speaking to a property lawyer about your legal options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Australia offers visas to skilled migrants. Applicants for these visas must nominate an occupation from a specified list of skilled occupations. The list is called the Skilled Occupation List and is available from the Department of Immigration and Border Protection website (www.border.gov.au).

Skilled migrant visas ordinarily involve a ‘points test’ to determine whether the applicant is eligible to receive an invitation to apply for a visa. Points are awarded for various factors such as age, English language proficiency, qualifications, etc. The test also asks about the applicant’s Australian and foreign work experience in their nominated skilled occupation or a closely related skilled occupation.

‘Closely related’ means a job in the same industry where the occupant exercises substantially the same skills and requires the same level qualifications as their nominated occupation. Importantly, the closely related skilled occupation must itself be a ‘skilled occupation’ and therefore appear on the Skilled Occupation List.

In your situation, while your nominated occupation of ‘nurse practitioner’ appears on the Skilled Occupation List, your closely related occupation of ‘nursing assistant’ does not. This suggests that you cannot use your nursing assistant experience as part of the points test.

Suggested way forward

Immigration law can be a difficult system to navigate on your own. You would benefit from speaking to an immigration lawyer who can help you understand your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, a child is expected to live with their parents or legal guardian until they turn 18 – but there is no law requiring a child to remain at home until then. Once a child turns 16, the authorities (i.e. the police or the Department of Communities, Child Safety and Disability Services) will generally not force them to return home if they have a safe place to live and they can financially support themselves. The authorities will also consider the opinions of both parents and the child’s maturity level. If the child is at risk or unable to financially support themselves, the authorities may force the child to return home or put the child in state care.

For parents, the law says that both parents have parenting responsibility for a child until he or she turns 18. If your current parenting arrangement under the consent order is not working, it can be changed without going back to court if you and your son’s mother can reach an agreement on new parenting arrangements. If you are unable to reach a new parenting agreement, you can apply to court to vary the existing consent orders. You would need to prove that there has been a significant change of circumstances that makes a change necessary. The court would consider your son’s wishes, including who he wants to live with. The court must ensure that any new parenting arrangement is in the best interests of the child.

Regarding the trust account, although your son may have earned some or part of the money in the account, his mother is the legal owner of the account and therefore retains the authority to withdraw the funds from the account. Your son could contact the bank to explain the situation and enquire about his options. Depending on the exact terms of the account, he would likely become entitled to the money when he turns 18 years. In the meantime, your son may want to ask his employer to deposit his future wages into the new bank account that he controls directly.

Suggested way forward

You raise important legal issues relating to your son, his welfare and your parenting responsibilities. You should consider speaking to a family lawyer to help you understand the legal options available and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. We have assumed that the term “go after” means your brother’s former business partners would seek money from your brother. This may be because he owes them money. For example, he may have borrowed money from them to start or run the business, and has not repaid all or part of the loan. It is important to understand the legal basis of the former business partners’ claim and the strength of that claim. This will help your brother understand the level of risk he faces and the likelihood that he will face legal action to recover the money.

If a person successfully sues another person in court for the recovery of a debt, a court will typically order that the borrower pay the lender money. If the borrower does not comply with the court order, the lender may commence another proceeding in court (called enforcement proceedings) to determine the financial status of the borrower and whether proactive measures can be taken to obtain the money (e.g. redirecting part of the borrower’s wages to the lender).

Your brother’s inheritance under your mother’s will is relevant if his former business partners successfully sue him for the debt (or another legal claim they may have against him), and enforcement proceedings are subsequently commenced to determine his financial status. In this situation, he would need to disclose his financial affairs, including his recent inheritance.

It is not possible for your brother’s former business partners to claim directly from your mother’s estate. In Queensland, a ‘family provision application’ entitles someone who is not named in a will to apply for a share in the deceased person’s estate. This application can only be made by the deceased person’s spouse, child or financial dependent. If your brother’s former business partners do not fall into one of these three categories, they cannot claim directly from your mother’s estate.

Your brother has the right to disclaim his share of your mother’s estate if he wants to. He and the executor of the estate would sign a formal legal document confirming he disclaims his interest in the estate and does not wish to exercise his rights to receive a share in the estate. Your brother’s former business partners would not be able to challenge his disclaimer.

Suggested way forward

Your brother would benefit from speaking to a lawyer about the potential legal claim against him by his former business partners, and the best course of action to address it. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The law says that, when a person leaves their property in the possession of another person with their knowledge and consent, the second person must take reasonable care of the property. If the person looking after the property is not being paid to do so, the law will be less strict in requiring them to act carefully in looking after the goods. In other words, if you are being paid to look after someone’s property, the law expects you to act with more care and diligence.

However, regardless of whether money has changed hands, a person looking after the property must avoid acting in a way that is inconsistent with the true owner’s ownership rights. For example, destroying or selling the property would be inconsistent with the true owner’s legal rights. If this happens, the true owner can sue the wrongdoer for ‘conversion’. If successful, the true owner may be awarded compensation for the value of their loss if the original property cannot be recovered.

Although you may technically have a claim for conversion, there are several practical obstacles you may face in enforcing your rights. Your friend notified you via text message that they no longer wanted to look after your property and, by trying to phone you, they may have been giving you an opportunity to collect your belongings before they were sold. The law may see your failure to communicate with your friend and collect the property as contributing to your own loss. This does not prevent you from suing your friend, but it may reduce the compensation you are entitled to.

More generally, you need to think about the expense and complexity of commencing formal legal proceedings against your friend. Depending on the value of the property, you may want to consider informal options for resolving this dispute, such as mediation or negotiation.

Suggested way forward

If your friend is willing to negotiate or mediate a resolution to your dispute, you can both access the free services of your local Dispute Resolution Centre (www.qld.gov.au/law). If this is not viable, you should speak to a lawyer about the legal options available to you and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. We have assumed that you have been charged, for a second time, with driving whilst your licence is suspended (also known as driving whilst disqualified).

In Western Australia, it is an offence to drive whilst unauthorised to do so. A first offence carries a fine of $300, and any second or subsequent offence carries a $600 fine.

It is an additional offence to drive whilst your license is suspended due to an accumulation of fines and demerit points. The penalty is a fine between $200 and $1,500 and/or a term of imprisonment of up to 12 months. A court can also disqualify an offender from obtaining an Australian licence for up to 3 years.

If your licence was suspended or disqualified due to a reason other than an accumulation of fines or demerit points (e.g. your licence was disqualified for drink driving), the penalties are different. A first offence attracts a fine between $400 and $2,000 and/or a term of imprisonment of up to 12 months. Second and subsequent offences carry a fine between $1,000 and $4,000 and/or a term of imprisonment of up to 18 months. A court may also disqualify an offender from obtaining an Australian licence for a period of between 9 months and 3 years, depending on the seriousness of the offence.

If you fall into one of the above categories, you will have received a written notice from the police, Department of Transport or the Magistrates Court outlining the details of the charge. You may be required to attend a court hearing where you can plead ‘guilty’ or ‘not guilty’ to the offence. The penalty imposed by a court will largely depend on the nature of the offence and your personal circumstances.

Suggested way forward

You should consider speaking to a criminal lawyer to better understand your legal rights and the consequences you face. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, when a court imposes a penalty on a person who has been found guilty of an offence, the court can decide to impose an ‘adjourned undertaking’. This means the offender must promise to the court that he or she will be of good behaviour – and abide by any other special conditions the court imposes – for the duration of the undertaking. An undertaking may last for up to five years. If a person breaches the conditions of an adjourned undertaking, he or she must return to court to be re-sentenced. Adjourned undertakings are commonly referred to as good behaviour bonds or orders.

‘Good behaviour’ means the offender must not commit any further offences. If your good behaviour bond does not contain any special conditions, you are simply required to not break the law in any way for the duration of the bond. Communicating with the victim of your offence is not likely to break the law (and therefore the conditions of the bond), provided your communication is not of a nature that would constitute another offence. For example, some types of harassing or overly-frequent communication may amount to the crime of stalking, and some offensive or obscene communication may break laws regarding decency or antisocial online conduct.

If, in addition to a good behaviour bond, a person is subject to a personal safety intervention order or family violence intervention order, it is very likely that contact with the victim is not allowed. Types of permissible behaviour are specified in the terms of the intervention order.

Suggested way forward

If you are unsure whether your communications with the victim are allowed under the good behaviour bond, you should first speak to a lawyer about your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You should start by speaking to the bank about what to do if a co-signatory to an account is not cooperating. The bank may offer an internal dispute resolution process to resolve the matter or provide an alternative way for you to access the money without the other party’s signature. For example, the bank may require you to completing a statutory declaration confirming the other party’s non-cooperation.

If the bank is unable to help, you may be able to recover your money by taking legal action. The law says that a person who makes a promise to another person cannot go back on that promise if it would cause the other person detriment or loss. In your situation, the property owners may be stopped from refusing to return your money if it was originally agreed that you would be returned the money at the end of the lease or term deposit.

The technical grounds on which your claim is based will largely depend on the history of your relationship with the property owners, any written agreements signed at the time of the deposit, and any verbal or written variations to the agreement during the life of the term deposit or lease. You should also note that, although technically you may be entitled to the money, you may face practical obstacles in its recovery, such as the complexity and expense of commencing formal legal proceedings and gathering enough evidence to prove your claim.

Suggested way forward

You should start by speaking to the bank about the problem. If they are unable to help, you should speak to a lawyer who can assess your situation and advise you of the best course of action to recover your money. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear how your questions relate to the two individuals on Christmas Island, or the legal problem they face. For this reason, the information below is of a general nature only.

In Australia, the federal parliament can only make laws with respect to certain matters specified in the text of the Constitution. If parliament makes a law that falls outside this scope, it can be challenged in court and declared invalid. As you identified, under the Constitution, the federal parliament can make laws with respect to naturalization and aliens. These laws generally relate to citizenship, immigration and border protection.

To determine whether a specific Commonwealth law is constitutionally valid, the legal and practical effect of the legislation must be considered against the full scope of the federal parliament’s lawmaking power. In your situation for example, the specific drafting and operation of the deportation law would need to be assessed against the Commonwealth’s power to make laws with respect to citizenship, immigration and border protection. This is a complex and technical process that requires the expert assistance of a constitutional lawyer.

The United Nations Convention on the Law of the Sea is an international treaty establishing the rights and responsibilities of countries with respect to seas and oceans. The Convention came into force in 1994 and established new concepts, such as ‘Exclusive Economic Zones’ (i.e. an area over which a country has special legal rights to explore and use maritime resources). Papua New Guinea agreed to be bound by the UN Convention on the Law of the Sea in 1997, although it already had bilateral agreements in place with several countries, including Australia, regarding maritime borders and exclusive zones for economic activity. In 2014, PNG passed new laws regarding its sea boundaries.

Suggested way forward

Although the exact nature of the legal problem you face is not clear, you raise important and technically-complex legal questions. You would benefit from speaking to a constitutional lawyer and international or maritime law expert who can properly respond to your enquiries. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Your girlfriend can negotiate parenting arrangements with her husband regarding their children. They can make a ‘parenting plan’, which is a written agreement that sets out parenting arrangements. The plan can specify who has custody of the children and for what periods of time, visitation rights, and anything else they want to put in writing about how their children will be parented. They can make this plan without having to go to court. However, this means that the parenting order is not legally enforceable (i.e. neither parent is legally required to comply with the plan).

If your girlfriend and her husband are not able to reach an agreement on the future parenting arrangements for their children, they can apply to court for a ‘parenting order’. This is court order that specifies who the children will live with, how much time the children will spend with each parent, the allocation of parental responsibility and any other aspect of the children’s care and welfare. The court will make its decision based on the principle that each parent has parental responsibility for the children until they reach 18 years of age, and that the parenting arrangements must be in the best interests of the children. Both parents must comply with the parenting order made by the court. Penalties apply if a parenting order is breached.

If a parent intends to relocate their children to another town or interstate, and this would limit the time the children spend with the other parent, a court may not give permission for the relocation. If the father intends to relocate interstate with his children, he should seek the consent of the mother first or apply for permission from the court. The court will only allow the relocation if it is in the best interests of the children. If the father relocates without the court’s permission, your girlfriend can apply to court for an order requiring the father to return the children until new parenting arrangements have been finalised.

Suggested way forward

Organising parenting arrangements after a separation or divorce can be a difficult task, especially if the parents disagree. Speaking to a family lawyer will help your girlfriend understand her legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If the mediation agreement between you and your ex-wife was reached without going to court, it will not be legally binding. This means neither parent is legally required to follow the terms of the agreement.

If you are dissatisfied with the existing mediation agreement or the parenting decisions of your ex-wife, you can renegotiate the mediation agreement with her. This would require your ex-wife to first agree to the renegotiation and then to whatever new parenting plan you propose.

If renegotiation is not a viable option, you can apply to the Family Court or Federal Circuit Court for a parenting order. A parenting order is a court order that sets out the parenting arrangements for a child or children. The order will specify who the child will live with, how much time the child will spend with each parent, the allocation of parental responsibility and any other aspect of the child’s care and welfare. The court will make its decision based on the principle that each parent has parental responsibility for the child until it reaches 18 years, and that the parenting arrangements must be in the best interests of the child. Both parents are legally required to follow the parenting order, and penalties can apply if a parent fails to follow the terms of the parenting order.

Suggested way forward

You can seek greater or full custody of your child by directly renegotiating the current parenting arrangement with your ex-wife or by commencing court proceedings to obtain a parenting order. Speaking to a family lawyer will help you understand your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Buying a car privately is inherently risky because it relies on the buyer using their knowledge and judgment. If you buy a car from a licensed car dealership, there are national and state-based laws that protect buyers from defective vehicles. These warranties ensure the vehicle is of acceptable quality and that the dealer pays for any repairs required immediately after sale.

However, these same protections do not apply to vehicles purchases privately. The law only requires the seller to be the true owner of the vehicle (i.e. the seller cannot sell a stolen car), but it does not give the buyer any warranties under which they can claim the cost of repairs. This is why you should always obtain an independent inspection of a privately advertised vehicle before buying it.

Despite the above, you may have some recourse under Australian contract law. There are general principles of law that say a seller cannot make false statements to a buyer for the purpose of inducing the buyer into making a purchase. If the seller makes false statements, the buyer may be able to get out of the contract and/or claim compensation from the seller for the value of any loss suffered (e.g. cost of repairs). This legal option may be available to you, depending on the nature of the negotiations between you and the seller, and whether you have any evidence to support your side of the story.

Suggested way forward

While there may not be any consumer warranties available in your situation, you should consider speaking to a lawyer who can assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under section 501 of the Migration Act 1958 (Cth), a person holding an Australian temporary or permanent residence visa may have their visa cancelled if they fail the character test. One way a person can fail the character test is if have a ‘substantial criminal record’ (i.e. they have been sentenced to one or more terms of imprisonment that, when added together, total 12 months or more). Note that there are many other grounds on which a person can fail the character test.

If a visa holder fails the character test, the Department of Immigration & Border Protection (DIBP) may send them a Notice of Intention to Consider Cancellation. This document usually asks the visa holder whether they pass the character test and whether their visa should be cancelled. If your brother has received a Notice, he should seek legal advice as soon as possible. A response must be received by the DIBP within 14 days.

It is possible for a visa holder to fail the character test but still retain their visa. So even if your brother fails the character test, it is still worth explaining to the DIBP why his visa should not be cancelled. He may want to explain his background (i.e. immigration, childhood, upbringing), current circumstances (i.e. family, children, employment) and the impact deportation would have on his life and family. Providing supporting documentation and independent evidence will help his case.

In deciding whether to cancel a person’s visa on character grounds, the DIBP must consider the need to protect the Australian community from criminal conduct (including the seriousness of the visa holder’s crime and likelihood of reoffending), the best interests of any children in Australia who are affected by the potential visa cancellation, and the general expectations of the Australian community. The DIBP must also consider the strength, nature and duration of the visa holder’s ties to Australia. Other relevant factors include the visa holder’s age and health, links to country of origin, hardship to their family, and any prior warnings issued by the DIBP.

After taking these factors into account, the DIBP will decide whether to cancel the person’s visa. A decision to not cancel the visa can be revisited in the future if the person commits a further criminal offence. In any situation, regardless of the original decision, the Minister for Immigration and Border Protection can step in and personally cancel any person’s visa on ‘national interests’ grounds. If a person’s visa is cancelled, they will be moved to immigration detention and then deported.

It is possible to appeal a visa cancellation to the Australian Administrative Tribunal. Very strict time limits apply for appeals.

Suggested way forward

Although your brother faces serious consequences if his visa is cancelled, he has the opportunity to present his case to the DIBP before they make a final decision. Your brother would benefit from speaking to an immigration lawyer who can help him prepare his written response and advise him of his legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A patent can cover any device, substance, method or process that is new, inventive or useful. The owner of a patent has exclusive commercial rights to the invention for the life of the patent and can enforce these rights against third parties. A patent owner can stop others from manufacturing, using or selling the invention in Australia without permission, license the patent to someone else on agreed terms, and sue third parties who use the invention without consent. There are different types of patents for different inventions, and the life of a patent is generally between 8 and 20 years.

If you are looking to patent a method or process as part of your new business, you should first conduct a comprehensive search for patent information of competitors. This will tell you if another person has already patented the same or a similar invention and whether your method or process is likely to infringe an existing patent. Each registered patent document includes a detailed description of an invention and information about the inventor and applicant. If a patent is ‘pending’, this means the application for the patent has not yet been finalised.

You can start your search using the national databases available from IP Australia (www.ipaustralia.gov.au). You should also check international databases to ensure your search is comprehensive.

Suggested way forward

Effectively searching patent databases is a specialised skill and you would benefit from speaking to an intellectual property lawyer or patent attorney who can carry out the searches. They can also advise you whether your method or process is sufficiently different from any existing patents to avoid infringing the rights of a third party. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there.

Promissory notes

A promissory note is a written legal document in which one person (the issuer) promises to pay an agreed sum of money to another person (the payee). The payment can occur on a specific date or when the payee demands payment. Promissory notes are generally used when parties want to record in writing that one party owes money to another party. They are less complicated than a formal loan agreement.

Promissory notes will be legally binding, provided a few basic requirements have been met. The document will need to be in writing, clearly set out the obligations of the issuer and payee, and be signed by the issuer in the form of a ‘deed’. This is slightly different to signing a document in the form of an ‘agreement’, so you may want to obtain legal advice to make sure the issuer has properly executed the document. The parties also need to intend the promissory note to be legally binding (i.e. intend to make or demand payment when due).

The issuer and payee have the choice of inserting any terms and conditions into the promissory note that they want. However, if the document becomes too complicated, it may become subject to Australian corporations laws. In these situations, you would need the advice of a lawyer to ensure the document is compliant.

Using superannuation as security for a loan

Under Australian law, it is generally not possible to use superannuation as a form of security for a loan. However, there are limited circumstances where superannuation held in a Self-Managed Super Fund (SMSF) can be used to invest in property – called a ‘limited recourse borrowing arrangement’. The laws regulating this type of borrowing are very strict and only permit the purchase of a single asset to be held in a separate trust. If the borrower defaults, the lender can only claim against the single asset held in the separate trust. The borrower does not have recourse to the other assets of the SMSF.

Suggested way forward

You raise important questions about borrowing that would benefit from the expert advice of a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If the parties can negotiate an agreement, there is no need to go to court. However, the parties can apply to court if they want to make the agreement binding, or if the parties disagree on how to divide their property.

The law will ordinarily regard parties' contributions as approximately equal, especially in long term relationships, unless there is evidence that suggests the parties did not intend ownership to be shared equally. If you seek the assistance of a court in dividing your assets, the court will make its decision based on several factors, including: what each person owned before the relationship, the net value of each person’s current assets (including superannuation), financial and non-financial contributions (e.g. homemaking, maintenance) made by each person over the course of the relationship, and each person’s earning capacity and future needs. It is possible that, in determining each party's financial needs relative to their earning capacity, a party who is in greater and legitimate financial need may have the balance for division shifted in their favour.

Suggested way forward

Separation or divorce is a difficult experience, and how property will be divided depends greatly on your individual circumstances. For general information on property division, see the Family Court website (www.familycourt.gov.au). You would benefit from speaking to a family lawyer to help you understand your legal rights and to negotiate on your behalf. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The law relating to fence disputes in Victoria is contained in the Fences Act 1968 (Vic). Under section 9 of that Act, a land owner is responsible for paying the entire cost of repairing or replacing a dividing fence that is damaged or destroyed by the owner or a person on the owner’s land with their consent (e.g. a tenant living on the land).

However, the Fences Act 1968 (Vic) does not apply to land owned or occupied by state or federal governments and their agencies (see section 31). This means that your neighbour – the Victorian Department of Health and Human Services – is not bound by section 9 and therefore not legally required to contribute to the cost of the repair or replacement of your dividing fence. This does not prevent the DHHS from offering to pay for all or part of the cost of the new fence. If they are offering to pay 50% of the costs, this may be the best offer you are going to receive.

An alternative option is to pay for the new fence and then, within 6 months of a private owner or occupier taking ownership of your neighbouring property, serve a notice on them to recover 50% of the value of the fence (see section 30H of the Act). If you cannot reach an agreement with your new neighbour within 30 days of giving them notice, you can seek a court order under s 30C of the Act by filing a complaint with the Magistrates' Court. Note, however, that it is very unusual for government-owned land to be sold to private persons, especially land on which the DHHS operates public housing. Therefore, although partial recovery may be technically possible under the Act, it is unlikely to be a feasible option.

Suggested way forward

If you are not satisfied with the offer made by the DHHS, you can try to resolve the issue using the services of your local Dispute Settlement Centre (www.disputes.vic.gov.au). If this is unsuccessful, you may want to speak to a lawyer to help you understand your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The law provides several warranties with respect to defective vehicles. A vehicle will be defective if, when sold, it is not of acceptable quality. ‘Acceptable quality’ means the vehicle is safe and lasting, it looks acceptable, and it does all the things someone would normally expect the vehicle to do. The type of vehicle and how much it cost are also relevant to determining whether it is of acceptable quality. A vehicle will also be defective if it is not fit for the purpose for which you purchased it (i.e. to drive), or if it fails to meet any extra promises made by the seller about performance, condition or quality.

In your situation, the significant oil leak is likely to mean the vehicle was not of acceptable quality at the time of sale, and that it is not fit for driving. This means it is a defective vehicle and is covered by two separate warranties.

The first warranty is a ‘consumer guarantee’ under the national Australian Consumer Law. This guarantee cannot be excluded by a supplier, even if the sale contract tries to exclude it. The guarantee entitles you to have the vehicle repaired or, if the defect is major, replaced or refunded.

The second warranty is a ‘dealer guarantee’ under NSW legislation and can be pursued as an alternative to the consumer guarantee above. Under the dealer guarantee, the dealer must repair or make good, at their own expense, any defective vehicles they sell. This means the vehicle must be repaired so that it is in a reasonable condition having regard to its age. This warranty is subject to a limitation period. For second-hand vehicles under 10 years old with less than 160,000 km on the clock, the warranty must be claimed before 5,000 km or 3 months after the date of purchase, whichever occurs first.

You should contact NSW Fair Trading (www.fairtrading.nsw.gov.au) by calling 13 32 20 to obtain advice on your situation. NSW Fair Trading offers a free dispute resolution service to motor vehicle owners with dealer guarantee or repair disputes. It is a voluntary service that aims to resolve the problem through mutual agreement. If this process is unsuccessful, you have the right to lodge a claim with the NSW Civil and Administrative Tribunal (www.ncat.nsw.gov.au).

Suggested way forward

You should contact NSW Fair Trading for advice. If they are unable to help, you should consider speaking to a lawyer who can advise you of your legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under Australian contract law and NSW building legislation, a person will have a claim against their builder under the building contract if there are unreasonable delays or the work is defective or incomplete. In your situation, it appears that you may have a legal claim for breach of contract against the builder which would entitle you to recover compensation for the loss you have suffered as a result of the breach (i.e. additional costs, rent).

However, your situation is complicated by the fact that the builder has entered voluntary administration. Voluntary administration is commenced when a company is facing insolvency. It involves an external party (the voluntary administrator) taking control of the company to try to save it from going out of business. The voluntary administration is responsible for investigating the company’s financial affairs and presenting different options for the future of the company to creditors. A creditors’ meeting is held where they vote on the future of the company. The company may return to business as usual, it may be wound up (called liquidation), or a legal document called a ‘deed of company arrangement’ may be agreed on to pay off the outstanding debts of the company. More information about voluntary administration is available from ASIC (www.asic.gov.au).

Creditors of a company have a right to be involved in a voluntary administration and to make a claim against the company by completing a ‘proof of debt’ form, available from the voluntary administrator. You may be considered an unsecured contingent creditor because you would be entitled to compensation if you were to successfully sue the builder for breach of contract. You should contact the voluntary administrator of the company to enquire about your right to participate in the administration. If the company has already entered liquidation, you should contact the liquidator about whether you have a right to receive a dividend.

Participation in the above proceedings is likely to be your strongest chance of recovering some of the money you have lost, as the usual option of suing the builder for breach of contract is not available in a voluntary administration or liquidation.

On the question of trading whilst insolvent, there are strict laws that prohibit this type of conduct by companies. If a company is found to have traded whilst insolvent, the directors of the company may be liable for civil or criminal penalties. These proceedings are brought by the corporate watchdog, ASIC, and usually do not involve individual creditors. However, it is possible for a creditor to sue the directors of a company in their personal capacity for trading whilst insolvent, so it may be worth speaking to a lawyer about whether this option is available to you.

Suggested way forward

Although you would ordinarily have a straightforward legal claim against the builder, their insolvency means your legal rights are more difficult to enforce. You would benefit from speaking to a construction lawyer who can advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The question of who keeps the engagement ring when a couple separates before marriage does not have a single, straightforward legal answer. There are two different answers that could apply. The first applies to couples who are not in a de facto relationship, and the second applies to couples who are in a de facto relationship. In most cases, the first answer will apply.

If an engaged couple separates before marriage and are not in a de facto relationship, the dispute can be resolved under Australian contract law. According to these laws, an engagement ring is a gift given in exchange for the promise of marriage occurring in the future. If the marriage does not take place, the person who gave the ring has the right to have it returned to them.

There are exceptional situations where the ring-receiver may be able to keep the ring, for instance, where the ring-giver has broken the promise by displaying violence or entering a steady and sexual relationship with a third party. Based solely on the information you have provided, it seems that the exception would not apply, meaning the ring may have to be returned. If returning the ring is impossible because it has been destroyed, damaged, lost or sold to an third party, then a payment equivalent to the ring’s value would be the appropriate remedy. You may want to discuss the specifics of your situation with a lawyer to confirm whether the exception applies.

Different rules apply to de facto couples. A de facto couple is one that has a child together or has been living together for at least two years. In these situations, the ring will be treated in the same manner as all other shared property of the couple that is divided up on separation. If a couple seeks the assistance of a court in dividing their property, the court will not make any presumptions about who is entitled to the ring and will instead consider what is ‘just and equitable’ in the circumstances. As the court makes its decision based on the specific details of your case and has wide discretion in its decision, it is difficult to give a definitive answer of who is entitled to the ring in a de facto separation.

Suggested way forward

Separation is a difficult experience and the laws pertaining to your question are not clear cut. You would benefit from speaking to a family lawyer to help you understand your legal rights and to negotiate on your behalf. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A trade mark is a right that is granted over a word, phrase, letter, shape, logo or picture used to represent the products or services of a business. It is used to distinguish a business from its competitors. A registered trade mark gives the business exclusive rights to use the trade marks in Australia for commercial purposes, sell the rights to the trade mark to another business, and protect the trade mark if others try to use it. For these reasons, trade marks (like all types of intellectual property) are a valuable asset for a business.

You need to be careful that your business operations do not infringe the intellectual property rights of others. If you use a word, phrase or logo that is the same or similar to an already registered trade mark, you run the risk of infringing the intellectual property rights of that business. If this occurs, the other business (including those located overseas) can take legal action against you to stop the continued use of the trade mark and/or pay compensation for any loss that business had suffered.

To find out if another person or business has already registered a particular trade mark, you can search the free databases provided by IP Australia (www.ipaustralia.gov.au). Note, however, that conducting a thorough search is not a simple task. You need to consider different classifications for trade marks, review visual representations of certain words or phrases, and consider rules about surnames. Furthermore, the databases provided by IP Australia only relate to Australian registrations, so will not necessarily return results for trade marks registered in other countries.

Suggested way forward

Ensuring your business operations do not infringe another person’s intellectual property will help you avoid financial risk. You would benefit from speaking to an intellectual property lawyer who can provide expert assistance with searching for similar trade marks and registering your own. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, an Apprehended Violence Order (AVO) is an order made by a court against a person (the defendant) who makes another person (the applicant) fear for their safety, or to protect the applicant from violence, intimidation or harassment. An Apprehended Domestic Violence Order (ADVO) is a type of AVO that applies when the applicant and defendant are or were living together or in a relationship.

Once an AVO is made by a court, either the applicant or defendant can apply to vary the AVO if there has been a change in circumstances. However, if children are named on the AVO (i.e. they are also protected by the AVO), then only the police can apply to have the AVO varied, unless the court grants special permission for the applicant or defendant to seek a variation.

In making or varying an AVO, a court can impose any kind of prohibition or restriction on the defendant’s behaviour as is necessary to ensure the safety and protection of the applicant from domestic or personal violence. Specifically, the court can prohibit or restrict the defendant’s access to any premises occupied or frequented by the applicant, regardless of whether the defendant owns the premises. This means that, even though you are the legal owner of your house, the court may consider it appropriate to restrict or prohibit your access to the house if your ex-partner ordinarily lives at or otherwise frequents the house.

At the variation hearing, you will have the opportunity to defend or challenge any variation that your ex-partner is seeking. You could argue that it is not necessary to prohibit you from living in your own house to ensure your ex-partner is protected from domestic or personal violence. In other words, there are alternative ways to ensure your ex-partner’s safety (i.e. by her living at another property).

Suggested way forward

Although you can represent yourself in AVO proceedings, the grounds on which you could defend or challenge the AVO variation application are quite technical and would be best made by a criminal or family lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you are suspicious that the supplier you are dealing with is acting fraudulently, you should stop all further payments and contact a consumer law authority and the police.

When you shop online, the rights and remedies available to you will depend on whether the supplier is based in Australia or overseas. Since it is unclear where your online supplier is based, the information provided here relates to Australian law.

For Australian businesses, you will always be entitled to a refund if the business misleads you by hiding significant costs and other details. This right arises automatically under the Australian Consumer Law without needing to satisfy further conditions proposed by the business. If the online business is based in Australia, there are several authorities you can go to for help. As a starting point, you could contact or lodge a complaint with the Australian Competition & Consumer Commission (www.accc.gov.au), which has the power to investigate breaches of the Australian Consumer Law. You can ask them to refer you to other consumer help organisations if the matter falls outside their area of responsibility.

If you think the supplier has been more than just misleading, and has fraudulently taken your money, this is a crime and you should report it to the police. Online scams can be reported to your local police station. You may also want to report the matter to the Australian Cybercrime Online Reporting Network (https://report.acorn.gov.au), which may investigate the matter on your behalf, depending on the nature of your report and level of detail you provide.

Suggested way forward

Your rights as a victim of online fraud or misleading trade will vary depending on the identity of the supplier and the feasibility of taking legal action against them. You should immediately stop paying the supplier and consider speaking to a lawyer who can advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Western Australia, it is an offence to wilfully or unlawfully destroy or damage any property. If the destruction of property does not involve fire, and the damage to the property is less than $25,000 in value, the maximum penalty is 3 years’ imprisonment and a $36,000 fine. If the destruction involves fire or the value exceeds this amount, the maximum penalty is much higher.

At court, you will need to decide whether to plead ‘guilty’ or ‘not guilty’. If you plead not guilty, the prosecution will present their case against you, including any evidence they may have (e.g. witness statements, CCTV footage, etc). You will then have the opportunity to present your side of the story. Possible defences for this crime are insanity, duress, emergency, accident, lack of intention to wilfully do damage or destruction, or incorrect identification (i.e. you were not the person who did the damage). If you are successful in claiming a defence, or you can otherwise provide evidence that shows the prosecution has not made a proper case against you, then you may be found ‘not guilty’.

If you plead guilty or are found guilty by the magistrate or judge, you will be sentenced. The exact sentence imposed cannot be predicted, as much will depend on the nature of the crime, your conduct at the time of the offence and since that date, and your current personal circumstances (e.g. criminal history, family situation, employment, any signs of remorse, etc). The court will consider these factors when deciding on an appropriate sentence and whether to record a conviction. Generally, imprisonment is a punishment of last resort and reserved for only the most serious cases.

Suggested way forward

You may want to consider speaking to a lawyer about your legal rights and best course of action in court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is legal for an employer to pay you in cash rather than to a bank account. However, cash-in-hand jobs are sometimes offered by businesses deliberately using cash transactions to hide their income to avoid paying tax to the Australian Taxation Office, or to avoid deducting tax or paying superannuation to employees.

If you are paid your wages in cash, this could mean that you are being paid less than the correct award wages. As you have not been asked to complete a Tax File Number Declaration, you could also end up with a large tax bill at the end of the financial year because your employer has failed to deduct tax from your pay. You may also be missing out on superannuation contributions if you are at least 18 years old and earn over $450 per month. And you may also find that you are not covered by workers’ compensation insurance, which is a compensation scheme available to most workers who are injured on the job.

Despite receiving wages in cash, you are still legally entitled to receive a payslip within one working day of pay day showing all your earnings and the amount of tax deducted. You are also entitled to receive a ‘payment summary’ (or PAYG payment summary) at the end of each financial year showing your full earnings for the year and how much tax has been deducted.

Suggested way forward

You should check with your employer that you are being paid the proper wage (including superannuation contributions) and that the right tax deductions are being made for each pay period. You can contact the Fair Work Ombudsman for more information about your rights (www.fairwork.gov.au) or speak to an employment lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, police can issue a ‘move on direction’ if they reasonably suspect that a person’s behaviour or presence is causing anxiety to another person, interfering with a trade or business, disrupting the peaceable and orderly conduct of an event or gathering, or is disorderly, indecent, offensive or threatening to another person. A direction can be issued in a public place or certain other locations such as a shop, school, licensed premises, railway station, mall, etc.

In issuing a move on direction, a police officer must follow certain rules. The officer must: (a) supply their details as soon as reasonably practicable by giving their name, rank and station; (b) if the person fails to comply with the direction and if practicable, warn the person it is an offence to fail to comply with the move on direction without a reasonable excuse and that they may be arrested for the offence, and (c) give the person a reasonable opportunity to comply with the move on direction.

The officer(s) issuing your move on direction should have complied with the above three requirements. If they did not (e.g. you were not given a reasonable opportunity to comply with the move on direction), they will have failed to follow their statutory duties as police officers. This does not automatically mean that you are not guilty of the offence, but it would help you make the argument that you were not given a reasonable opportunity to call a cab or otherwise vacate the area.

If you want to defend the matter in court, you would need to plead ‘not guilty’. The prosecution would present their case against you, including evidence in the form of police statements. You would then have the opportunity to present your side of the story, including any claims that the police failed to follow proper procedure in issuing the move on direction. Having evidence to support your claim will strengthen your case. The magistrate or judge would then decide whether you are guilty or not guilty and, if appropriate, impose a penalty. A conviction may or may not be recorded depending on the circumstances of the offence and your personal situation (e.g. prior offences, any remorse you have shown, etc).

Suggested way forward

It sounds like you may have valid grounds to defend the charge against you. You should consider speaking to a criminal lawyer who can advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If no police report was made and there is no other third party evidence about the accident, it is very difficult to prove who was at fault. This makes it difficult to determine which repairer’s quote should be used to fix the damage.

You may want to consider using mediation to settle the dispute. This uses an objective third party to mediate an outcome, without having to resort to formal legal proceedings. Both parties must agree to participate in the mediation. Any outcome is not legally binding on the parties. The Queensland Government offers free mediation services via its Dispute Resolution Centres (www.qld.gov.au/law/).

If mediation is unsuccessful, your next option would be to incur the cost of the repairs and then commence formal proceedings in the Queensland Civil and Administrative Tribunal (www.qcat.qld.gov.au) or Magistrates Court (www.courts.qld.gov.au) to claim compensation for any excess amount paid. However, based on the information you provided, it sounds like you would have difficulty proving that the other party was at fault and that they therefore owed compensation for any excess losses you suffered.

Suggested way forward

You should consider using mediation to resolve the dispute with the other party, as this is the cheapest and quickest option available. If it is unsuccessful, you may want to consider speaking to a lawyer who can advise you of the next best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. While your father may be the legal owner of the property, other people may acquire a right to a share in the property over time. For example, you and your sister may gain an interest in the property because you are living in the property and effectively repaying his mortgage (via rent). Your father’s wife may also gain an interest in the property in the event of a divorce simply because she was married to him at the time of purchase.

To ensure your father retains his legal ownership of the property in the event of a divorce, he could enter a ‘financial agreement’ (sometimes referred to as a ‘prenuptial agreement’, although this is not the correct name). A financial agreement is a binding legal agreement entered into by parties to a marriage that specifies the financial arrangements should the marriage break down.

The agreement can be made before, during or after a marriage and can cover financial settlement (including property, debts and superannuation), financial support of one spouse after the breakdown, and any incidental issues. For a financial agreement to be binding, both parties must have signed the agreement and received independent legal advice before signing.

Suggested way forward

Entering a financial agreement that specifies property arrangements in the event of a divorce is likely to be the strongest way to protect your father’s (and you and your sister’s) interest in the apartment. You should consider speaking to a family lawyer who can fully assess your options and advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Lawyers and barristers are under strict duties to act in the best interests of their client and to always act properly and professionally. Each state and territory in Australia has its own set of rules governing lawyers’ conduct and an investigative body responsible for maintaining the integrity of the profession.

You can complain to the relevant body if you believe a lawyer has engaged in unsatisfactory professional conduct or professional misconduct. This could include threatening or abusive behaviour, poor advice and representation, serious delays, conflicts of interest, misleading or dishonest conduct, etc.

If you want to make a complaint against a lawyer or barrister practising in NSW, you can lodge a formal complaint with the NSW Office of the Legal Services Commissioner by visiting their website (www.olsc.nsw.gov.au) or phoning 1800 242 958. In South Australia, you can lodge a formal complaint with the Legal Profession Conduct Commissioner by visiting their website (www.lpcc.sa.gov.au) or phoning 1800 337 570.

The matter will be assessed and, if appropriate, conciliation with be pursued to try to resolve your complaint. Alternatively, the allegations may be investigated by the relevant body and, if proven, the lawyer or barrister may face appropriate disciplinary action. Compensation may be awarded to affected persons in very limited circumstances.

In very serious cases of poor conduct by a lawyer, a client may have a right to sue the lawyer for compensation because of the lawyer’s negligence. Negligence claims require the expert assistance of a lawyer, as there are strict legal tests that need to be satisfied to make a successful claim.

Lastly, you asked how you can obtain copies of notes held by the Director of Public Prosecutions. Obtaining documents from government agencies is ordinarily possible by lodging a ‘freedom of information’ request with the relevant agency. However, in both NSW and South Australia, documents held by the Director of Public Prosecutions are exempt from the freedom of information regime. This means it is not possible to obtain copies of these documents.

Suggested way forward

You should pursue the appropriate complaints process outlined above. If you want more information about whether you can sue the lawyer in question, you may want to consider speaking to another lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. There are not many legal options available for someone to challenge or dispute the employment status of another person, especially on the grounds of personal character or family history.

If an employee of the Queensland Police Service – including a Police Liaison Officer – engages in improper conduct on the job, you can lodge a formal complaint against them. You can do this by completing an online complaint form (www.police.qld.gov.au) or phoning 131 444. How your complaint is handled will depend on the nature and level of detail of your complaint. It may be resolved through conciliation or a formal investigation may be opened for more serious matters.

If you are not satisfied with the handling of your complaint, you can contact the Crime and Corruption Commission (www.ccc.qld.gov.au) to discuss the matter further.

Suggested way forward

Apart from the above complaint process, there are not many options available for challenging the employment status of a police employee on personal grounds. However, you may want to consider speaking to a lawyer who can fully assess your situation and legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, legal claims such as yours must be pursued within six years from the date on which your claim arose. This means that, based on the information provided, it is not too late for you to act. There are several steps you can take to try to recover the money owed to you.

You could send a ‘letter of demand’ setting out the terms of the original agreement, the amount owed, a demand for payment (including a due date and a payment method), and explaining what action you will take if the payment is not made. Although there are no strict formalities for this document, a letter drafted by a lawyer may increase your chances of resolving the dispute quickly and easily.

If a letter of demand is unsuccessful in resolving the matter, you could pursue mediation at a Community Justice Centre, operated by the NSW Department of Justice (www.cjc.justice.nsw.gov.au). This is a free service designed to resolve disputes between private persons through mediation. Importantly, both parties must consent to attending the mediation and any outcome is not legally binding (i.e. it cannot be enforced against either party). The benefit of mediation is that you avoid the costs and delays of going to court.

If mediation is not viable or successful, you can commence legal proceedings at a Local Court (www.localcourt.justice.nsw.gov.au). You will need to lodge a Statement of Claim setting out the debt owed and the grounds on which you are claiming this money. Court proceedings can involve some risks, such as fees, delays and an adverse outcome.

Suggested way forward

You have several options available to you to recover the money owed. You should consider speaking to a lawyer who can advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It sounds like you are in a difficult position. As your brother is an adult (i.e. aged over 18 years), there are not many legal options available for controlling his living or parenting arrangements.

One option is for you or your father to apply for guardianship over your brother. In Victoria, a guardian is a person who, once appointed, can legally make lifestyle decisions for another person (the ‘represented person’), such as those relating to health, accommodation and access to services. The represented person must have a disability, which generally includes Autism Spectrum Disorders.

An application for guardianship is made to the Victorian Civil and Administrative Tribunal (VCAT). A hearing is held to determine whether the represented person has a disability and whether their disability prevents them from making reasonable judgments. Before granting guardianship, the tribunal must consider whether the represented person’s needs could be met by other means less restrictive of the person’s freedom of decision and action. The tribunal must also give effect, where possible, to the wishes of the represented person.

If you or your father were to successfully apply for guardianship (or joint guardianship) over your brother, you would be able to make lifestyle decisions for him, such as where he lives. Another option is to apply to be an administrator, which would allow you to make financial and legal decisions on behalf of your brother.

Suggested way forward

The VCAT website has helpful information about guardianship orders (www.vcat.vic.gov.au). You may want to consider speaking to a family lawyer about your legal options and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under Australian law, each parent has parental responsibilities for their children until they reach 18 years old. This means you have a legal right and responsibility to be involved in the parenting arrangements for your child until this age.

The law say that you must try to agree on parenting arrangements with your ex-wife. You should try negotiating a new parenting plan for your daughter with your ex-wife, either informally or via a family dispute resolution service provided by the Australian Government (www.familyrelationships.gov.au).

If, and only if, these measures are unsuccessful, you can apply to the Family Court or Federal Circuit Court for a parenting order. A parenting order sets out the parenting arrangements for your child, such as who the child will live with, how much time they will spend with each parent, the allocation of parental responsibility, how the child will communicate with each parent, and any other aspect of the child’s care and wellbeing. In making a parenting order, the court must be satisfied that the order is in the best interests of the child.

If your daughter is mature enough to express her own opinions about her living situation, she will be given an opportunity to present her views to the court. An Independent Children’s Lawyer may be appointed by the court to ensure her views are properly represented in the proceedings.

A parenting order is legally binding, which means that both parents must comply with any conditions in the order, otherwise penalties may apply.

Suggested way forward

You should consider negotiating a new parenting arrangement with your ex-wife and daughter, either directly or through a dispute resolution service. If this is unsuccessful, you can apply to court for formal parenting orders. You should consider speaking to a family lawyer who can advise you on the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you and your friend are the legal owners of the property (i.e. both of your names are on the certificate of title), and you do not consent to your ex-partner living in the property, she may be considered a ‘squatter’ in the eyes of the law. This means that you, as the legal owner, have the right to seek assistance from the police to evict her. Your ex-partner may also be committing trespass, which would entitle you to bring a civil claim against her for compensation. She may also be liable to pay a fine under certain land protection legislation in NSW.

The above information presumes that your ex-partner does not hold any ownership rights to the property. Even though you (and your friend) are the legally registered owners and the ones responsible for repaying the mortgage, there are some circumstances where the law will recognise non-financial contributions (e.g. homemaking, maintenance) as giving another party an interest in the property. Depending on the nature of your relationship (i.e. duration, financial arrangements, shared assets), you may find that your ex-partner has a protected interest in the property that may prevent her from being evicted.

Furthermore, as you have recently separated from your partner, you may be looking to divide all your shared assets from your relationship, not just the house. Property can be divided by simply reaching an informal agreement between the parties. However, if the parties cannot reach an agreement, an application can be made to the Family Court or Federal Circuit Court to resolve the property settlement. As part of this settlement, you may want or need to trade possession of the house for some other asset(s) from your relationship.

Suggested way forward

Your rights against your ex-partner will depend greatly on the nature of your relationship and the circumstances of how the property was acquired and has been maintained since the date of purchase. You should speak to a property or family lawyer who can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Whether you will be granted a visa depends on the laws and regulations of Canada.
A person may be denied entry to Canada if they have been convicted of an offence outside of Canada that is considered a crime in Canada, or they have committed an act outside of Canada that is considered a crime under the laws of the country where it occurred and would be punishable under Canadian law, regardless of whether a conviction was recorded in the home country.

The nature of the offence you committed is not clear, so it cannot be determined whether it would be punishable in Canada. If it is punishable in Canada, you may be deemed ineligible to enter Canada (referred to as ‘criminally inadmissible’ under Canadian law).

However, there are several ways to overcome criminal inadmissibility and therefore gain entry to Canada. Depending on the nature of the crime and whether enough time has passed, a person may be deemed rehabilitated under Canadian immigration law and eligible to enter Canada. Alternatively, if at least five years have passed since the offence date, a person can apply for individual rehabilitation by showing that they have been rehabilitated and are highly unlikely to take part in further crimes.

There are other ways to overcome criminal inadmissibility, but they do not appear to apply to your situation.

In deciding whether to grant you a visa, Canadian border services officers will assess your application against certain criteria and rules, having regard to the nature of the offence, the date of the offence, and any penalty imposed. It is difficult to predict whether you will be granted a visa. Visit the immigration and citizenship section of the Government of Canada website for more information (www.cic.gc.ca).

Suggested way forward

You would benefit from speaking to an immigration lawyer or Canadian law expert to determine whether your visa application is likely to be approved as well as your appeal options if the application is denied. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Residential Tenancies Act 1997 (Vic) sets out the rules for landlords and tenants in Victoria. Under the RTA, a tenant is prohibited from subletting the whole or part of their rented premises without the landlord’s consent. The question is whether allowing AirBnB guests to stay in your rented premises in exchange for money amounts to ‘subletting’. In Victoria, there is not a straightforward answer to this question, so it is not clear whether allowing AirBnB guests to stay in your rented premises is lawful.

In mid-2016, a case appeared before the Supreme Court of Victoria in which a whole apartment was advertised for guests on AirBnB. In that situation, the court held that the arrangement amounted to a sublet and was therefore in breach of the tenancy agreement and RTA. However, the outcome may have been different if the tenants had only allowed guests to stay in part of the rented premises (e.g. a spare room).

In addition to the RTA, you also need to be aware of your obligations as a tenant under your tenancy agreement (usually called a ‘lease’). Often these agreements contain ‘special conditions’ that specifically prohibit guests from AirBnB or similar accommodation sharing websites from staying in the rented premises without the landlord’s prior consent. You should review the terms of your tenancy agreement to determine if these special conditions apply to your lease.

Remember that breaching your tenancy agreement or the RTA can give the landlord the right to evict you from the rented premises with only 14 days’ notice.

Suggested way forward

While there is a financial incentive to listing your rented premises on AirBnB, breaching your tenancy agreement or the RTA can result in serious consequences. You should consider speaking to a property lawyer to fully understand your rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under Australian law, it is generally possible for a beneficiary under a will to renounce or reject their entitlement. The beneficiary and executor of the estate would sign a formal legal document that confirms that the beneficiary disclaims their interest in the deceased’s estate and does not wish to exercise their rights to receive a share in the estate.

However, Australian law is different to Romanian law. If the will under which your father (and now his three children) received the property interest was executed in Romania pursuant to Romanian law, then your rights as beneficiaries to claim or disclaim an interest in the estate would be governed by Romanian law. You would need to consult an expert in private international law or Romanian law for further assistance.

Suggested way forward

You may want to start your investigations by speaking to an Australian wills and estates lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The promise could be incorporated into formal parenting arrangements for your children, namely a parenting plan or consent order.

A 'parenting plan' is a signed, written agreement that can cover anything relating to how your children are parented. It can be created and changed at will without court proceedings if both parents agree to the conditions in place. However, parenting plans are not legally enforceable so there would be no legal consequences if the terms are breached. If you want a ‘legally’ written promise that is legally enforceable, a consent order may be more suitable.

Obtaining a consent order from the Family Court of Australia or Federal Circuit Court makes a parenting plan legally binding. If a consent order is breached, the person involved must go to court. The court may order the person to fix the situation by paying financial compensation to another party (e.g. the other parent) or the court may modify the parenting arrangements if there has been a change of circumstances. If a parent fails to comply with a court order, they may face a fine and/or imprisonment in serious cases.

However, not all applications for a consent order are approved by the court. By law, the court must be satisfied that the proposed parenting arrangements are in the best interests of the children. To obtain a consent order, you must convince the court that it is in your children's best interests to be kept away from your ex-girlfriend.

Suggested way forward

If you agree with your ex-wife about parenting arrangements, you can negotiate a parenting plan (non-binding) or obtain consent orders from the court (legally binding). You should consider speaking to a family lawyer who can fully advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services

Hi there. There are several visas that Applicant 2 could be eligible for, although each application process includes an initial stage during which Applicant 2 must be overseas while the visa application is processed. Applicant 2 may or may not be eligible for these visas. Their eligibility will depend on whether health, character, financial or family requirements are satisfied. For this reason, the information below is of a general nature only. To learn more about these visas, visit the Department of Immigration and Border Protection website (www.border.gov.au).

Partner (Provisional) visa (subclass 309) and Partner (Migrant) visa (subclass 100)

These two visas allow a spouse of an eligible New Zealand citizen to travel to and live in Australia. The marriage must be legally valid in Australia, and the married couple must be living together. There are two separate application processes. First, the applicant would need to apply for the Partner (Provisional) visa (subclass 309), which is a temporary visa only. The applicant must be outside Australia when they apply and also when the visa is granted. Second, the applicant would need to apply for the Partner (Migrant) visa (subclass 100), which is for permanent residency. The applicant can be in or outside Australia when the visa is granted. Usually the applicant would be eligible to apply for the permanent visa two years after being granted the temporary visa, but the waiting period varies and depends on the applicant’s circumstances.

Contributory Parent (Temporary) visa (subclass 173) and Contributory Parent visa (subclass 143)

The first of these two visas is a temporary visa that allows parents of Australian citizens or eligible New Zealand citizens settled in Australia to live in Australia for up to two years. The applicant must be outside Australia when the temporary (subclass 143) visa is being processed and granted. Once it is granted, the applicant can apply separately for a permanent Contributory Parent visa (subclass 143) that will allow them to live in Australia permanently if they have a child who is an Australian citizen or an eligible New Zealand citizen settled in Australia.

Parent visa (subclass 103)

This visa lets parents live in Australia if their child is an eligible New Zealand citizen who is settled in Australia. This is a permanent visa, and is cheaper than the Contributory Parent visa, but there can be long waiting times of up to 30 years.

Note: For all the above visas, you and your children are likely to be ‘eligible New Zealand citizens’. Eligible New Zealand citizens are those who hold a Special Category Visa (subclass 444), which is automatically granted to most New Zealand citizens upon arrival in Australia. To confirm whether you hold a subclass 444 visa, you can use the Visa Entitlement Verification Online service (www.border.gov.au).

Suggested way forward

Immigration law can be a difficult area to navigate. You should consider speaking to a professional immigration lawyer to better understand your spouse's eligibility for these visas, and to guide you through the application process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. While not all false statements are unlawful, a publication that amounts to defamation may give the injured party a right to sue.

What is defamation?

For a statement to be considered ‘defamation’, it must:

1. be published (i.e. communicated) to at least one person through words or images;
2. identify the defamed person or organisation, either directly or through implication; and
3. be 'defamatory' (i.e. convey a meaning that lowers the reputation of a person or business in the eyes of a reasonable person, or cause the person or business to be despised, ridiculed or avoided by the general public).

If all three of these requirements exist, it is likely that the defamed person or organisation will have a right to sue the publisher. Note that the publisher may have a legally-recognised defence. Generally, it is a defence if the defamatory material is substantially true, if it is a fair comment on a topic of public interest, or the information is not very important and unlikely to damage reputation. This is not an exhaustive list and the publisher’s possible defences will depend on the specific situation.

How can I prevent defamation from occurring?

If you believe that you are about to be defamed, you should ask the person not to publish the material and warn them that what they intend to do could amount to defamation. You might want to send the publisher a ‘Cease and Desist Letter’ which is a formal legal document requesting the other party to stop certain conduct and, if appropriate, outlining your right to take legal action. Pursuing either of these options may mean the matter is resolved without proceeding to court. In most cases, the threat of legal action is enough to prevent defamation, but if the issue persists or is urgent, you could seek an injunction from a court to prevent publication or continued publication of the defamatory material. Obtaining an injunction is a complex legal proceeding that requires expert assistance from a lawyer.

What can I do if defamatory material has already been published?

If defamatory material has been published, you should first ask the person to remove the publication (if possible). If the publication is on a social media, you could also report the post to the social media website or platform. As a last resort, you could exercise your right to sue the publisher for defamation. This must be done within one year from the publication date. If a court finds that the information was defamatory, you may be awarded money as compensation for damage to your reputation, any economic loss you suffered, and any hurt feelings.

Suggested way forward

Defamation law is complicated, especially when dealing with publications that are distributed online. Stopping the publication or further publication of defamatory material, or seeking compensation for harm suffered, requires expert assistance. Speaking to a lawyer will help you understand your legal rights and the best way to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The laws that apply to married couples who are separating or divorcing also apply to de facto couples who have been together for at least two years.

Whether you are in a ‘de facto’ relationship in the eyes of the law will depend on all circumstances of your relationship. This includes the duration of your relationship, whether you lived together, whether a sexual relationship existed, the degree of dependence on one another, any agreements for financial support, the shared ownership or use of property, the degree of commitment to a life together, whether the relationship is legally registered, the care and support of any children, and public aspects of your relationship.

When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If the parties can reach an agreement, there is no need to go to court. However, the parties can apply to court if they want to make the agreement binding, or if the parties disagree on how to divide their property.

Based on the information you provided, you are likely to be entitled to a share in the assets of your relationship. The law recognises not only financial contributions, but also non-financial contributions as a homemaker or parent. The proportion of your share will depend on many factors. The law will ordinarily regard the parties' contributions as approximately equal, especially in long term relationships, unless there is evidence that suggests the parties did not intend ownership to be shared equally. If the matter proceeds to court, the court will also consider each party's financial needs relative to their earning capacity. This means that if you are in greater and legitimate financial need, the court will shift the balance for division in your favour.

Suggested way forward

Separation is a difficult experience, and the law will divide your pooled assets in accordance with principles of overall fairness. For more general information on property division for de facto couples, see the Family Court website (www.familycourt.gov.au). You would benefit from speaking to a family lawyer to help you understand your legal rights and to negotiate on your behalf. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. From the information you provided, it appears that a person, who owned the copyright to an image, has passed away and left that copyright to beneficiaries under a will. You are wanting to know how the image can be used legally.

Copyright is the legal protection afforded to the original expression of ideas and usually applies to art, literature, music, films, photographs, etc. The copyright will exist automatically in the work (i.e. you do not need to apply or register for copyright protection). The copyright is owned by the creator of the work and lasts for the lifetime of the creator plus 70 years thereafter or, in some cases, 70 years after the date of publication.

The copyright owner has a number of exclusive rights, such as the exclusive right to use and publish the work, and the right to license the work to third parties for a fee. The copyright owner can also assign the copyright to another person via a written agreement. This new person becomes the owner of the copyright and acquires the same exclusive rights of the original owner/creator.

In your situation, it appears that the creator’s copyright was bequeathed to one or more people under a will (called beneficiaries). If the written assignment is valid, these people will become the new copyright owners. These owners can exercise the same rights as the original copyright owner/creator (i.e. exclusive use, licensing, royalties, etc). The new owners can also enforce their rights against third parties who infringe the copyright in the work.

Suggested way forward

Visit the Australian Copyright Council website for more information (www.copyright.org.au). You may also want to consider speaking to a lawyer who can properly advise you of your legal rights with respect to the copyrighted image. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear whether you asked Housing SA to fix the fence next to your house. If you did, then Housing SA should have notified you of any repair costs that would be passed on to you and the terms on which you would be expected to repay this money.

If Housing SA did not provide you with any written or oral information about the debt you would incur, you may want to make a formal complaint with the SA Department for Communities and Social Inclusion (www.dcsi.sa.gov.au). If you are not satisfied with their response, you can lodge a further complaint with Ombudsman SA (www.ombudsman.sa.gov.au), which may investigate your matter.

It sounds like Housing SA has sold the debt to a debt collection agency because you did not repay the money within an appropriate time frame or in adequate instalments. A debt collection agency has a right to obtain the money from you, but they should, where feasible, accommodate your financial situation. If you are experiencing financial hardship, you can: seek a variation of the repayments (e.g. smaller amounts more frequently), offer to pay a lump sum that is slightly less than the total amount owing as a final settlement of the debt, or ask for the debt to be waived entirely if you have no assets or income. You should negotiate with the debt collection agency to see if you can reach an alternative arrangement.

If the debt collection agency is hassling you or is otherwise acting aggressively or improperly, you can lodge a complaint with the Financial Ombudsman Service (www.fos.org.au).

Suggested way forward

If the above options are not helpful, you may want to consider speaking to a financial counsellor for assistance. A lawyer can also help you by fully assessing your situation and advising you of the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, the Owners Corporations Act 2006 (Vic) regulates the powers of owners corporations, including how fees may be levied from lot owners. Annual fees are set according to lot liability and may cover general administration, maintenance and repairs, insurance and other recurring obligations. If the owners corporation has an approved maintenance plan, the annual fees must include fees for the implementation of that plan.

In addition to annual fees, the owners corporation can levy special fees and charges designed to cover extraordinary items of expenditure. The meaning of ‘extraordinary’ is not provided in the legislation, but can be assumed to refer to items that are not part of the usual expenditure of the owners corporation. Extraordinary items of expenditure would not include costs for items typically covered by annual fees under section 23 of the Act, including items specified in an approved maintenance plan. This means the answer to your second and third questions is most likely ‘no’.

A maintenance plan is designed to plan for future items of expenditure that may be necessary to maintain the property, and a maintenance fund is designed to finance a maintenance plan. A maintenance plan only comes into effect once it is approved by the owners corporation, and only after this approval can a maintenance fund be established. In other words, a maintenance fund cannot precede a maintenance plan. This means the answer to your fourth question is most likely ‘no’.

Importantly, in leveraging extraordinary fees, an owners corporation must obtain the consent of 75% or more of the lot holders (i.e. by passing a special resolution) if the amount involved is more than twice the annual fees. The purpose of this rule is to ensure that most of the lot holders approve of the extraordinary expenditure.

Suggested way forward

It appears that you have quite specific questions about the power of an owners corporation to leverage extraordinary fees. The above information is of a general nature only, and should not be considered legal advice. You would benefit from speaking to a lawyer who can properly advise you of the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear what you mean by ‘stock’. You could be referring to shares or other securities in the company, or to the physical stock that is traded as part of the business. Below is some general information that may be relevant to either of these two situations.

Shares in the company

If the business is incorporated and you are registered as a shareholder of the company, you are the legal owner of those shares and, subject to the rules of the company constitution, you can sell those shares to another shareholder or third party. Depending on the constitution, you may also be able to sell those shares back to the company as part of a share buy-back scheme.

It is not clear what you mean by ‘our’ stock. If the shares are in your name only, then the shares can only be sold with your consent. If someone else is selling your shares without your authorisation, then you may have a civil claim against them for breaching your proprietary rights as a shareholder.

If the shares are held jointly with your business partner, you should refer to the company constitution, which will most likely specify the process for selling jointly held shares.

Physical stock of business

If your business is incorporated, the trading stock is most likely owned by the company, rather than you or your ex business partner in a personal capacity. This means that, if the business is to be wound up, the stock will need to be distributed pursuant to Australian corporations law. You should consult a lawyer for further information about this process.

If the business is not incorporated, then the trading stock will be owned by you and/or your ex business partner in your personal capacity. Precisely who owns it will depend on how it came into the business (who purchased or created it, who paid for it, etc). If you are the original owner of the stock, you may have a legal claim against your ex business partner if she has sold it without your authorisation.

Your rights will also be affected by any oral or written agreement that was reached between you and your ex business partner. If the agreement about splitting the stock was sufficiently certain and you both intended the agreement to be legally binding, the law will usually require the parties to follow through with their promises. If your ex business partner is not abiding by the agreement, you may have a legal claim against her to enforce the agreement or recover your share of the stock.

Suggested way forward

It sounds like you may have a legal claim against your ex business partner. You can pursue mediation through your nearest Dispute Resolution Centre run by the Queensland Government (www.qld.gov.au/law), but mediation requires the consent of both parties. If your ex business partner does not want to participate in mediation, you may need to resort to formal legal proceedings. You would benefit from speaking with a lawyer who can advise you of your legal rights and the best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In South Australia, a police officer has the power to require a person to submit to an ‘alcotest’ or breath analysis if the officer believes on reasonable grounds that a person is driving or has driven a motor vehicle. It is an offence to not comply with the officer’s request for testing (e.g. refusing to exhale into the apparatus).

Penalties that may be imposed for non-compliance include a fine, ranging from $1,100 to $2,900. By law, a person convicted of this offence will also be disqualified from holding a driver’s licence for a minimum period of 12 months (for a first offence) or a minimum period of 3 years (for a subsequent offence). However, for a first-time offender, the court has discretion to reduce the disqualification period to 1 month, if deemed appropriate in the circumstances. Any prior driving offences will be considered by a court when deciding on an appropriate penalty.

From the information you provided, your husband may have committed an offence by refusing to submit to the breath test requested by the police officer. Your husband may have a valid defence if he had good cause for refusing or failing to comply with the police officer’s request. What is considered ‘good cause’ will largely depend on the facts of your husband’s situation and the events of that day.

Note that a person cannot lawfully refuse a breath test simply because the person consumed alcohol after they last drove the vehicle. In this situation, the law requires the person to still submit to the testing.

It is not clear whether your husband has actually been charged with the offence of non-compliance or any other offence in relation to this event. If he has been charged, he would have received written notification from the police on the day, or subsequently in the mail. If he is charged, he will need to attend court for a hearing. If he is not charged, the matter will be discontinued.

Suggested way forward

You may want to contact your local police station to find out if your husband has a charge against him. If he has been charged, you should consider speaking to a criminal lawyer who can advise you of your husband’s rights and the best way to prepare for court. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, there are two types of ‘drug driving’ offences. The first is for driving whilst under the influence of a drug. A person will commit this offence if a drug measurably affects their ability to operate a motor vehicle. The penalty imposed by a court can include disqualification from driving for up to 6 months, a fine of up to $3,413 and/or a term of imprisonment for up to 9 months. Repeat offenders face more serious penalties.

The second type of drug driving offence is for driving whilst a ‘relevant drug’ is in your system. ‘Relevant drugs’ include all illicit substances and some prescription medications. The penalties include disqualification from driving for between 1 and 9 months, a fine of up to $1,706 and/or a maximum term of imprisonment of 3 months. Again, repeat offenders face higher penalties.

It is not clear whether you have been charged with one or two drug driving offences. In any case, you are likely to face a penalty when the matter is dealt with by a court. The exact nature of the penalty and its severity will depend on many factors, such as the seriousness of the offence, the circumstances in which it occurred and any prior offences. In sentencing an offender, a court must follow similar cases and sentencing guidelines so that an appropriate punishment is handed down. However, the court must also take into account the personal circumstances of an offender (job status, income, health, carer or parental responsibilities, etc) and how a penalty would affect these circumstances.

When it comes time to decide on an appropriate sentence, the court will allow you to make statements and give evidence (including any supporting documentation) about your personal situation and the impact of certain penalties (such as disqualification from driving). The court will take this information into account before giving you an appropriate sentence.

Suggested way forward

You should consider speaking to a criminal lawyer about your situation to fully understand your legal rights and how best way to prepare for your court hearing. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A similar question has already been asked. You may find the response relevant to your situation.
https://www.lawadvisor.com/questions/liability-compensation

Hi there. It sounds like you are in a difficult position. You may be entitled to compensation if you can prove that your landlord was negligent. To successfully sue your landlord for negligence, several key elements must be proven. First, you must prove that the landlord owed you a duty of care. This is straight forward, as the landlord is likely to owe you, as the tenant, a duty of care to avoid risk of harm to you by providing a safe property.

Second, you must prove that the landlord breached this duty by doing (or not doing) something that fell below the standard of care expected of landlords in his position. For example, you would need to show that the steps he installed were faulty or dangerous or otherwise posed a foreseeable risk of harm to you as the tenant.

Third, you must prove that the landlord’s breach of duty caused you harm. In other words, there must be a connection between what the landlord has done (or not done) and the injury you have suffered.

The law of negligence is particularly complex and not every type of personal injury will result in a successful negligence claim. The above steps can be very difficult to prove and require the expert assistance of a personal injury lawyer. There are also some factors that may reduce your entitlement to compensation, such as contributory negligence (i.e. any conduct by you that contributed to your own injury).

Suggested way forward

From the information you provided, it cannot be determined whether your claim for compensation would be successful in a court of law. Most of these cases are settled before reaching court because of the cost involved in commencing legal proceedings. Whether you accept the landlord’s offer of free rent will not affect your ability to pursue a negligence claim, unless he asks you sign a ‘release from liability’ agreement or similar document. You should consider speaking to a lawyer about your situation to fully understand your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A class action is a legal proceeding involving a large number of people (called plaintiffs) against one or more defendants. In claims lodged with the Federal Court of Australia, a plaintiff can opt out of a class action proceeding before a date specified by the court.

To opt out, a plaintiff must complete and lodge Form 21, which is available on the Federal Court of Australia website (www.fedcourt.gov.au). You will need to populate the form with the following information: the proceeding number (this should be included in previous correspondence you received about the matter), the district registry and division of the court, and your personal details. You do not need to attach supporting documentation.

You can lodge the form with the court by post, fax, uploading an electronic form on the court’s website, or by visiting any Federal Court registry in person (there are registries in each capital city in Australia). There is no filing fee.

Suggested way forward

You should contact a Federal Court registry for more information on completing and lodging Form 21. If you want personalised advice, you can speak to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In NSW, a development consent is a type of authority that must be obtained, usually from the local council, before certain development activities can occur. Anyone can make a submission to a council about a development application, regardless of whether it has been publicly advertised. A submission can support the application, oppose it or request modifications.

You can make a submission to your local council about the proposed development next door. Your submission should point out where the application does not comply with the council’s development requirements. You can also comment on the general merits of the application. A lawyer or town planner can advise you on how to best put forward your case opposing the development application. You can also contact your local councillor about the matter.

Councils consider a range of factors when assessing development applications, including mandatory requirements, discretionary requirements and merit issues like the impact of the proposal on the environment and surrounding properties. The council will then make a decision on whether to accept or reject the application, or accept it with modifications.

If you are unhappy with the council’s decision, there is no right to appeal the merits of the decision. You can only lodge an appeal with the NSW Land and Environment Court if the council has failed to follow proper legal procedures. Similarly, the NSW Ombudsman is not able to investigate all complaints about development applications or council decisions. The Ombudsman can only intervene if there is evidence the council’s procedures for assessing applications are seriously deficient, or if the council has acted in bad faith or improperly.

Suggested way forward

To ensure your submission opposing the development application is as strong as possible, you should consider speaking to a professional, such as a planning lawyer, to obtain advice. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. As a general rule, the law says that someone who possesses property has a right to keep that property, subject to the rights of the true owner. In your situation, if you still have possession of the vehicle, you will be allowed to keep it, unless the ‘true owner’ asks for it back. The issue to be determined is the identity of the ‘true owner’.

Whomever is registered as the vehicle’s owner will have strong grounds to claim they are the true owner. This means that, if your father in law is still registered as the vehicle’s owner, then he will be able to claim his right to recover the vehicle.

However, the law recognises that the true owner is not always the person whose name is on the relevant documentation (e.g. registration for a vehicle, certificate of title for land). There are some circumstances where another person may have stronger ownership rights because they contributed (more) to the purchase price, or it would be unconscionable to deny their rights to the property.

Even if you are not registered as the vehicle’s owner, you will have some proprietary rights to the vehicle if you contributed to some or all of the loan repayments. Depending on the exact number and value of these contributions, as well as your interactions with the father in law (and other parties), your ownership rights may be superior to the registered owner of the vehicle.

Suggested way forward

It appears that you are in a strong position to refuse to return the vehicle to the father in law. However, your exact legal rights can only be determined by a proper review of your situation and the past dealings between the parties involved. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. This does not appear to be a situation where the law can be of much assistance. If the certificate was generated as part of your work and related to some aspect of the business, you may find that, under the terms of your employment contract, the document is considered to be the employer’s property. This would mean that the employer has a right to keep the document.

However, if the certificate was not generated at work or by you in your working capacity, or did not form part of the business, then the certificate is likely to be your property. The law says that people who “borrow” property must return it, if that is what was agreed between the parties. While this may theoretically give you a right to reclaim the certificate, practically, enforcing this right would be too difficult and/or costly. You should consider other practical solutions such as contacting your former boss’ supervisor in writing or, if possible, requesting a re-issue of a certificate from the original creator.

Suggested way forward

You can speak to a lawyer if you want a full assessment of your legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is a criminal offence to engage in sexual intercourse with a person below the age of consent. The age of consent represents the age a person is considered to have the capacity to give valid informed consent to sexual acts. In NSW, the age of consent is 16 years, which means a person aged 16 and above can have sexual intercourse with a person of the same age or older.

However, it is illegal and a serious crime if a person has sexual intercourse with a 16 or 17 year old and the person has care or authority over the teenager (e.g. a teacher, coach, counsellor, health professional, etc). The law presumes these situations to be abusive due to the power imbalance these special relationships create. Note that an exception applies if the two people are married.

If the police are notified of any unlawful behaviour, they will investigate and prosecute the matter.

Suggested way forward

If you want to know more about your legal rights on this matter, you should consider speaking to a lawyer, as there can be serious consequences for getting it wrong. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. According to RACQ's own company policies, they must act in a fair and considerate manner that takes into account financial hardship. Specifically, if a person is experiencing difficulty in repaying the debt due to illness, unemployment or another reasonable cause, RACQ can extend the period of repayment and reduce the amount of each instalment, postpone payments for an agreed period, or extend the period of repayments for an agreed period of time. You should contact RACQ for an evaluation of your situation and request one of the above options.

If you cannot reach an agreement after the evaluation, RACQ will try and have the issue resolved internally by having your situation reviewed by another evaluator with more knowledge and experience. If you are still not satisfied within 45 days of lodging your complaint, RACQ will refer you to the Financial Ombudsman Service (www.fos.org.au) so the dispute can be resolved externally. RACQ will provide instructions on how to lodge a dispute with the Ombudsman.

Suggested way forward

The most practical solution at this stage would be to call RACQ on 131 905 and explain your situation to someone from the 'claims' line. If the issue persists, you may want to consider speaking to a lawyer who can advise you of your legal rights and responsibilities. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear what criminal offence you were arrested for or the reason you must attend court. Below is some general information that may help you.

When the police are investigating a matter, their job is to collect evidence that will support the prosecution of the offence. A person accused of an offence may be interviewed by police for the purpose of obtaining such evidence (e.g. witness statements). The police’s job is not to resolve the matter or dispute, so they do not need to listen to everyone’s point of view.

Resolving the matter and hearing both sides of the story is the responsibility of the court. At court, an accused person can plead ‘guilty’ or ‘not guilty’ to an alleged offence. If they plead ‘not guilty’, the prosecution will make their case, and then the accused person can put forward their own story or version of events. The accused person may choose to present evidence in support of a valid legal defence. The court (either a judge or a jury, depending on the type of offence) will then decide if the accused person is guilty.

While police have a responsibility to help prosecute crimes, including obtaining evidence in support of their case, police must follow strict procedural rules and codes of conduct. If you think the police have acted improperly, you can lodge a formal complaint with the NSW Police Force by calling the Consumer Assistance unit on 1800 622 571.

Suggested way forward

If you have been charged with an offence, it is important to understand your legal rights and options before you attend court. You should consider speaking to a criminal lawyer for assistance. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The exact grounds on which your RSA badge is being removed are not clear. For this reason, the information below is of a general nature only.

Removal of RSA accreditation

A person’s RSA authorisation may be removed by the Licensing Court if they breach a condition contained in the liquor licence for the premises at which they work. The condition may relate to the supply or sale of liquor, the health or welfare of customers and staff, or the supervision of the licensed premises by a 'responsible person’ (i.e. a person deemed fit and proper and holding an RSA). An RSA may also be removed if the person is convicted of an indictable offence (even if the offence is not related to their job) or they are otherwise no longer a fit and proper person.

Ordinarily, the Licensing Court will hear and decide applications for the removal of an RSA accreditation. A defendant can represent themselves in court or be represented by a lawyer. They will have the opportunity to present their side of the story and any relevant evidence to support their case.

Discrimination law

Under national laws, discrimination occurs when a person suffering a disability is treated less favourably than a person without the disability in the same or similar circumstances. ‘Disability’ includes an illness that affects one’s thought processes, perception of reality, emotions or judgment or that disturbs behaviour. A depressive illness is accepted as falling within this meaning.

However, a person’s or organisation’s conduct will not be considered unlawful discrimination where that conduct would have affected a person without a disability in the same way. That said, discrimination will arise when a policy applies to everyone but has an unfair effect on a person with a disability.

Similarly, under state law in South Australia, it is unlawful to discriminate on the basis of mental health. However, there is an explicit exception for situations where a person is not able to engage in an occupation adequately or safely. For example, an employer will generally not be considered to have discriminated against an employee if their conduct was necessary to ensure the work was done properly or safely.

If you feel discriminated against by the police or your employer, you could lodge a formal complaint with either the Equal Opportunity Commission of South Australia (www.eoc.sa.gov.au) or the Australian Human Rights Commission (www.humanrights.gov.au). The Commission will contact you to discuss your complaint, speak to the other party about the issue and then provide you with a copy of their response. If the issue is still unresolved, it may progress to the 'conciliation’ stage, where you would speak directly with the department whilst an independent conciliator helped both sides reach a resolution. This could be achieved in a number of ways, for instance, with an apology, change of policy, and/or compensation.

Suggested way forward

Your situation raises important legal questions that require more specific review. You should speak to a disability or human rights lawyer for detailed advice and representation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs will vary between providers based on experience and the scope of services.

Hi there. The penalty for a second offence of driving while disqualified will vary based on the specific facts of your case. However, the law does provide a range of possible penalties for each offence.

For driving while disqualified, as a second offence, the penalty is disqualification from holding or obtaining a driver's licence for a minimum period of 9 months, up to a maximum of 3 years, on top of any current disqualification periods. The penalty may also include a fine between $1,000 and $4,000.

Additionally, there could be a prison sentence of up to 18 months. While imprisonment is an available sentencing option, it is not a mandatory penalty. It is a long-standing principle that imprisonment is the punishment of last resort, and a court will consider all the circumstances of your case (including your offending conduct and personal circumstances) before deciding whether imprisonment is an appropriate penalty.

Suggested way forward

For more general information on driving offences, see Legal Aid WA’s website (www.legalaid.wa.gov.au). If you are charged with this offence, you may want to seek professional legal advice and representation. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Queensland, the legislation governing the possession of weapons is the Weapons Act 1990 (Qld) and the Weapons Regulation 1996 (Qld). Other states and territories have similar laws.
Even if you did not know that the weapon was prohibited, it is still an offence to possess it without a licence or a valid defence. The fact that customs may have incorrectly allowed the weapon into the country, such that you did not realise the device was a category H weapon, is unlikely to be valid defence in a court of law.

However, you may have another defence open to you on different grounds. In relation to the unlawful possession of a short firearm in category H, possible defences include duress (being forced by someone else), necessity and mistaken identity. This is not an exhaustive list and the application of defences will depend on your individual situation.

Suggested way forward

You may want to speak to a lawyer for a full evaluation of your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The psychological report is confidential and the property of the original psychologist who created it, so the school does not have legal authority to show it to you. If the school were to give you a copy, they would risk being sued for breach of confidentiality. To obtain the report, you should speak to the original psychologist directly.

All psychologists in Australia are bound by strict ethical guidelines that protect the confidentiality of patient information. Psychologists cannot divulge personal information contrary to the wishes of their patients, so the report can only be shared with you and the new psychologist with your child’s consent.

The only situations where patient consent is not required are where there is imminent risk of harm to the patient or another person, or the consent is voided by the patient's incapacity to understand the nature and consequences of disclosure, typically due to age or disability. Based on the information you provided, these exceptions may not apply to your situation.

It is not clear whether you are also trying to obtain other school records relating to your child. Whether you have access to these documents will depend on several factors. The school must abide by privacy laws and, if it is a public school, state records legislation. It must also consider the age and best interests of your child, the need for parents to be informed of the information, and the school’s duty of care to the student. Each of these factors will determine whether you can access a record or document held by the school.

Suggested way forward

You should first speak to your child and then the original psychologist about obtaining a copy of the report. You may also benefit from speaking to a lawyer who can review your full legal options and help you negotiate with the school. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. While the help of a solicitor is often recommended, there is no legal requirement that a lawyer must prepare a will.

As long as you are over 18 years of age and are of sound mind, such that you are conscious of your actions, you are eligible to make a will. A minor can still make a will if they have been married or have been granted permission from the Supreme Court to do so.

If you plan on drawing up your own will, you must take great care to fulfil all the formal requirements. If they are not met, the will may be void and your estate could incur considerable expenses to have a court interpret the will.

Suggested way forward

You can prepare your will in a number of ways. Do-It-Yourself will kits are usually available via newsagents and similar distributors. You can also consider using thePublic Trustee of SA to prepare your will (http://publictrustee.sa.gov.au/), although their free will service requires you to appoint the Public Trustee as your executor.The professional drafting and guidance of a wills and estate solicitor is always best. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services.

Hi there. Thanks for reaching out! This question has been previously answered.

https://www.lawadvisor.com/questions/parole-transfer-help

Hi there. It sounds like you are in a difficult position. If you are not able to accept the change in location, you may be entitled to redundancy pay or other financial compensation. Whether you are entitled to receive a payment will depend on whether the employer’s decision to relocate the place of work is permitted by your employment contract or otherwise reasonable. Note that compensation will not be available if you accept the change in location (i.e. you cannot claim compensation for the inconvenience of moving).

To determine whether your employee has the right to relocate your employment, you should look at the terms of the employment contract. If the contract states that a change in location is possible, then the employer is within their rights to change the place of work. Even if your employment contract does not say anything about relocation, the employer may still be able to relocate your place of work if it is specified in a company policy, it is a custom and practice for your area of work, the relocation is due to technological advancements, or you were informed about the possibility of relocating before starting employment.

However, if the contract suggests your worksite is exclusively Bella Vista, you may be able to claim compensation for what is called ‘repudiation’ of a contract. This means the employer has acted in a way that suggests they no longer want to abide by the terms of the original agreement. If you can prove your employer has repudiated the contract, you may be entitled to compensation. Note that you would need to end your employment with your employer as part of this claim.

A relevant question to be considered in your situation is whether the relocation is reasonable. The law will allow an employer to relocate the worksite if the relocation is reasonable. Factors that determine if a relocation is reasonable are: whether the new place of work provides similar employment opportunities, the amount of notice given before relocation, the accessibility to the new location including the distance travelled, whether the employer has made reasonable efforts to facilitate the transition, and the size and nature of the business. Also relevant is any disruption to employees’ private lives, work/family balance, and other personal inconveniences. If you can prove that the relocation is unreasonable, you may be entitled redundancy pay.

Suggested way forward

You should visit the Fair Work Ombudsman website (www.fairwork.gov.au) for further general information. As the legal outcome depends on the specific details of your situation, you should consider speaking to an employment lawyer who can advise you of your full legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If a person dies without a will (called ‘intestate’), then their assets and debts (their ‘estate’) will be distributed according to a fixed set of rules under the Succession Act 2006 (NSW). These rules are complex, especially if the deceased person had children to multiple spouses during their lifetime.

As a general rule, a stepchild does not have an automatic right to receive a share of their stepparent’s estate if the stepparent died without a will. However, in some circumstances, a stepchild may be eligible to make a ‘family provision’ claim to a portion of the estate. To be eligible, a stepchild must prove they were wholly or partly dependent on the deceased person or were a member of the deceased person’s household.

An application for a ‘family provision’ order must be made to the Supreme Court of NSW within 12 months of the date of death. An applicant must prove that the statutory rules that apply when there is no will do not adequately provide for the applicant’s proper maintenance, education or advancement in life. The court will take into account the nature of the relationship between the applicant and deceased person, the applicant’s current needs and any other relevant factor in the circumstances.

Suggested way forward

Succession law can be complicated, especially if there is no will or if there is disagreement between surviving family members. You should consider speaking to a wills and estates lawyer who can properly advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Generally, the law assumes that, if you have signed a contract, you have also read and understood the terms of that contract and you agree to be bound by them. If you decide to exit a contract early because of a change of mind, you will be in breach of the contract terms and a financial penalty may be imposed. The terms and conditions of your loan contract should explain any financial penalties you need to pay for an early exit from the contract. In the Northern Territory, there is generally no cooling-off period for vehicle purchases.

You may be able to terminate the contract without financial penalty if the car dealership misrepresented the terms of the loan. A misrepresentation occurs if a seller makes false statements to a buyer (or fails to notify the buyer of essential information) for the purpose of getting the buyer to sign the contract. Whether the car dealer made misrepresentations to you depends on the nature and circumstances of your conversations with the dealership. Your legal rights will also be affected by the relationship between the car dealership and the bank, and the extent to which the car dealership held themselves out to be a representative of the bank.

Suggested way forward

You should contact Northern Territory Consumer Affairs on 1800 019 319 for more information. You would also benefit from speaking to a lawyer who can review the loan contract and advise you of your best course of action. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Under Australian law, a child will automatically acquire Australian citizenship if they are born in Australia and have at least one parent who is an Australian citizen. The law also presumes that a man is the father of a child if the father is married to or lives with the woman who gave birth to the child. These presumptions can be challenged via paternity tests.

In your situation, it is not clear who wants to adopt the child and for what purpose. For this reason, the below information about NSW adoption laws is of a general nature only and may or may not be relevant to your situation.

To adopt, first the applicant must meet the eligibility requirements. These include how long the applicant has had an established relationship with the child, how long they have lived together with their partner if applicable, their age as well as the child's age, how long they have been living in NSW, and whether they are fit and proper people to fulfil parental responsibilities.

Under NSW law, this information can be filed in an application with the Supreme Court as a signed written statement called an affidavit, with an attached police certificate. Two close friends need to have observed the applicant interacting with the child in a family environment, and also complete an affidavit filed at the Supreme Court. An Adoption Assessor meets with the applicant in their family home and prepares a report to be submitted to the Supreme Court.

Lastly, the biological parents must consent to the proposed adoption by signing an Instrument of Consent filed with the Supreme Court. If the child is over 12 years of age, they must also consent to the adoption.

Suggested way forward

If you want more information about adoption in NSW, you can visit the NSW Government Family & Community Services website (www.community.nsw.gov.au). You may also want to speak to a family lawyer who can advise you about the adoption process. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Intellectual property (IP) refers to new or original creations such as inventions, words, phrases, symbols, logos, designs and ideas. The law recognises that intellectual property is a valuable asset, so the law gives IP creators or owners the right to protect and enforce their legal rights against third parties who use their IP without authorisation. You need to be careful that your business operations do not infringe the intellectual property rights of others. There are two types of IP that you need to be aware of: copyright and trade marks.

Copyright

Copyright is the legal protection afforded to the original expression of ideas and usually applies to art, literature, music, films, etc. A Star Wars film, for example, will be copyrighted and the copyright will be owned by the creator – usually the production company. As a general rule, copyrighted material cannot be used by another party without the creator’s authorisation, typically via a paid licensing arrangement.

However, under Australian copyright law, you can use copyrighted material for the purposes of parody or satire if the use is 'fair'. When determining whether there has been fair use or fair dealing, the law will take into account the purpose and character of the use (e.g. non-profit purposes are favoured over commercial purposes), the nature of the copyrighted work, the amount that is used, and the potential effect on the original copyrighted work's market value. These main factors will be considered together, along with any other relevant circumstances.

It can be difficult to know for certain whether there has been fair use, but there are general trends. The use is likely to be fair if you have used a minimal amount of copyright material necessary to make the parodic or satirical point. The minimal amount necessary could be the entire source material for some products, but it would cease to be fair use if those products were sold or widely distributed. Ultimately, if your products could become a market substitute for the products of the original copyright owners, then it is unlikely to be fair use and the parody or satire exception will not apply.

Trade marks

The second type of IP you need to be aware of is trade marks. A trade mark is a right that is granted over a word, phrase, letter, shape, logo or picture used to represent the products or services of a business. It is used to distinguish a business from its competitors. A registered trade mark gives the business exclusive rights to use the trade marks in Australia for commercial purposes, sell the rights to the trade mark to another business, and protect the trade mark if others try to use it.

Trade marks are an integral part of pop culture. If your business intends to use popular words, phrases or logos that are trade marks registered by another business, then you run the risk of infringing the intellectual property rights of that business. If this occurs, the other business could take legal action against you to stop the continued use of the trade mark and/or pay compensation for any loss that business had suffered as a result.

Note that the above information only relates to Australian law, and does not consider the law of another jurisdiction, such as the United States, where many films are produced and many iconic pop culture products originate.

Suggested way forward

IP infringement can pose a significant risk to your business. You can find more information about copyright from the Australian Copyright Council (www.copyright.org.au) and trade marks at IP Australia (www.ipaustralia.gov.au). As this is a complicated matter, you should consider speaking to an IP lawyer who can fully advise you of your legal rights and the best way to protect your commercial interests. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If a person is found guilty of an offence and a court has sentenced that person to a term of imprisonment not exceeding two years, a court may order that the person be subject to an intensive correction order (ICO) rather than go to jail. An ICO carries a number of conditions that the person must comply with. These conditions include not committing any offence, residing only at an approved premises, undergoing drug and alcohol testing, undertaking community service, and several other conditions that restrict the person’s behaviour.

A person will breach their ICO if they fail to comply with any of its conditions. If a serious breach occurs, the Parole Authority may revoke the ICO, in which case the person will go to jail to serve the remainder of their original prison sentence.

From the information you provided, it appears that your partner’s ICO was revoked as a result of a breach and he has been jailed. When an ICO is revoked, the law says that the Parole Authority must meet within 28 days to reconsider their decision to revoke the ICO. At this meeting, your partner has the option of making submissions to the Parole Authority regarding his circumstances and why they should reverse their decision to revoke the ICO. More details about how your partner can make these submissions can be found on the “revocation notice” he received from the Parole Authority.

Alternatively, your partner can apply to the Parole Authority to have his ICO reinstated if the following conditions are satisfied:

1. A person must wait until they have spent at least 1 month in prison before applying for their ICO to be reinstated.
2. The application must state what the person has done, or is doing, to ensure that they will not fail to comply with their obligations under the ICO if it is reinstated.
3. The Commissioner of Corrective Services must approve the person’s suitability for an ICO.

Alternatively, your partner may be able to apply to the Parole Authority for a home detention order (instead of reinstatement of his ICO) for the remainder of his sentence.

If your partner is unsuccessful in dealing with the Parole Authority, he may have a limited right to have the matter dealt with by the Supreme Court of NSW.

Suggested way forward

Your partner has a number of options for having the decision to revoke his ICO reviewed and/or reversed. You or your partner should contact the NSW State Parole Authority to discuss the above options (www.paroleauthority.nsw.gov.au). You may also want to consider speaking to a lawyer who can help you understand your partner’s options and the best way forward. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is assumed that you have been charged under NSW law. Note that different rules will apply if your offence involved drug importation or trafficking across borders, in which case the matter will be dealt with under national drug and trafficking laws.

In NSW, under the Drug Misuse and Trafficking Act 1985 (NSW), it is a criminal offence to possess certain prohibited drugs (known as ‘possession’). It is a separate offence to supply prohibited drugs to another person (known as ‘supply’). There is not a separate offence for ‘trafficking’ drugs. Rather, the offence of supplying drugs will attract a higher penalty if the quantity of the drug supplied exceeds a certain threshold (known as a ‘traffickable quantity’).

You said that you possessed approximately 300 grams of Alprazolam at the time of the offence. The law says that 15 grams or more of Alprazolam is a traffickable quantity of the drug, and therefore attracts higher penalties for both possession and supply. The law also says that, a person possessing a traffickable quantity of a drug, is guilty of supplying that drug unless they can prove that: (a) they possessed the drug for a reason other than supply, or (b) the drug was prescribed by a medical practitioner.

If you had a genuine medical reason for possessing the drug and/or the drug was prescribed to you by a medical practitioner, then you may have grounds for having the charge against you downgraded or withdrawn.

If the charge against you remains the same, there are several factors that can determine the seriousness of the penalty you are given. For example, a person who pleads guilty to an offence will generally get a lower sentence than someone who does not. Furthermore, in sentencing an offender, a court must consider the personal circumstances of the offender and the context in which the offending conduct occurred. In your situation, the court may take into account your mental health and other personal circumstances that would influence the penalty imposed against you.

Suggested way forward

Defending a criminal charge can be difficult, especially if you disagree with the nature of the charge laid against you. You should consider speaking to a lawyer who can negotiate on your behalf with police prosecutors and advise you of the best way to deal with the charge. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Generally speaking, a person does not need permission before they write a book about another person. There are laws in Australia that protect the right to free speech and the ability to make fair comments about matters of public interest. However, sometimes these publications can cross the line by damaging the reputation of an individual. In these situations, defamation law gives a person whose reputation has been wrongfully attacked the right to take legal action against those responsible for the attack. To make a claim for defamation, you need to satisfy three things:

1. The material must be published. This includes a written book or article, online content and radio or television broadcasts.
2. The material must identify the person who has been allegedly defamed. It is not necessary for the person to be directly identified. Defamation may still exist if a reasonable person reading the publication understands it as referring to the relevant person.
3. The material must be ‘defamatory’ in nature. This means it must convey meaning about a person that lowers their reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.

If you can prove that each of these three things exist, then you will most likely have a claim for defamation against the author and/or publisher of the book. If the book has not yet been published, you can seek a court injunction stopping the publication (or continued publication) of the offending material. Injunctions can be difficult to obtain in these situations because the court must be careful not to make a decision that restricts free speech.

If the book has already been published, and your reputation has been harmed as a result of the defamatory material, you may be awarded compensation by a court.

Lastly, you need to be aware that the author or publisher may not be liable for defamation if they have a recognised defence (e.g. the defamatory material is true or is a fair comment on a matter of public interest).

Suggested way forward

Defamation law is complicated, especially when dealing with publications that are distributed Australia-wide or online. Stopping the publication or further publication of defamatory material, or seeking compensation for harm suffered, requires expert assistance. Speaking to a lawyer will help you understand your legal rights and the best way to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The Australian Department of Foreign Affairs and Trade (www.dfat.gov.au) is responsible for helping Australian citizens overseas. If your boyfriend is an Australian citizen, you should contact the DFAT 24-hour consular emergency helpline as soon as possible on 1300 555 135. If possible, your boyfriend should contact the Australian High Commission in South Africa, located in Pretoria, on +27 12 423 6000. DFAT is best placed to help you and your boyfriend in this situation.

Suggested way forward

After you have contacted DFAT, you may need to consider engaging a private lawyer. For Australian-based lawyers, you can use LawAdvisor. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Employees have a right to be paid for the hours they work. If you think you are being underpaid, you should raise the issue directly with your employer, as this is likely to be the quickest way to resolve the matter. If you have already tried resolving the issue with your employer, you can lodge a ‘workplace dispute form’ with the Fair Work Ombudsman, who can assess your complaint and determine if an investigation is necessary. More details about resolving workplace disputes and how to lodge a complaint can be found on the Fair Work Ombudsman’s website (www.fairwork.gov.au).

More generally, employers have a legal duty to keep employment records, such as employee details, pay rates, hours worked, leave entitlements, etc. By law, these records must be kept accurately for 7 years, must not be false or misleading, and must not be altered other than to correct a mistake. An employer may be investigated by the Fair Work Inspector if their record keeping does not comply with the relevant laws. The Fair Work Ombudsman can investigate this issue if there is evidence to suggest your employer is not keeping proper records of employment.

Suggested way forward

You should first contact the Fair Work Ombudsman to see if they can help. Alternatively, you may want to consider speaking to an employment lawyer who can fully assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. You have correctly identified that the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which regulate civil claims in the Supreme Court of Victoria, only require court approval of a settlement agreement with a minor if a legal proceeding is already on foot. A proceeding will generally be on foot if a legal claim has been lodged with the registry of the Supreme Court.

If proceedings have not yet commenced with the Supreme Court, then the above rule will not apply because the rules only apply once a claim is lodged with the court. For the same reason, a minor does not need to be represented by a litigation guardian unless court proceedings are on foot.

However, if a legal agreement is to be entered to settle a dispute, then ordinary principles of contract law will still apply. Minors generally lack capacity to enter into legal contracts, making it difficult for another party to the contract to enforce their rights under the contract. There are also further statutory rules that prescribe when a minor can and cannot be sued to recover loaned monies.

Suggested way forward

Although the nature of your legal problem is not clear from the information you provided, you may want to consider speaking to a lawyer who can properly assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A violence restraining order (VRO) is an order obtained from a court that requires an individual to stay away from certain people or stop behaving in a certain way towards certain people. A VRO can be obtained between family members for the purpose of avoiding family violence. Family violence includes emotional, physical, sexual and psychological abuse.

The person subject to a VRO is required by law to follow the terms of the order. If the person does something the order says they cannot do, the person will be in breach of the order. It is a criminal offence for breaching a VRO. The penalties for this offence are a fine of up to $6000 and/or imprisonment for up to two years.

If you are subject to a VRO that prohibits you from spending time or communicating with your son’s father, and you have breached the order by engaging in this prohibited conduct, then you may be charged with a criminal offence. It will be up to the court to consider the seriousness of the breach and, in light of all the circumstances of your case, whether to impose a penalty, and what that penalty should be.

If your son’s father, as the protected person under the VRO, was involved in the breach, the court may decide to alter the terms of the original VRO.

Suggested way forward

Although it appears that your hearing date may have passed, you should consider speaking to a lawyer who can fully advise you of your legal rights and the best way to protect them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If your mother executed a will before she passed away, then her estate will be divided up according to the terms of that will. The executor of the will is responsible for obtaining a grant of probate from the court so that the estate can be distributed to the beneficiaries (i.e. the persons named in the will as recipients of a share in the estate).

If you have been named in the will and allocated part of the estate, then you will be legally entitled to this property. You should contact the executor of the will to make arrangements for receiving any property that has been left to you.

If you are not named in the will or you believe you have not been adequately provided for in the will, you, as a child of the deceased person, can apply to court under the Inheritance (Family Provision) Act 1972 (SA) for a reallocation of assets. The application must be made within 6 months of the grant of probate. A court will only reallocate the assets if it believes the deceased person failed to provide adequately for your proper maintenance, education or advancement in life.

If your mother passed away without a valid will (called ‘intestate’), the situation is more complicated. Her estate will be distributed according to a set of rules contained in the Administration and Probate Act 1919 (SA), known as statutory orders. The exact distribution rules that will apply to your mother’s estate will depend on whether her spouse or domestic partner is still living, and the overall value of the estate.

Suggested way forward

Inheritance laws can be complicated, especially if there is no will or if there is disagreement between surviving family members. You should consider speaking to a wills and estates lawyer who can properly advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. A witness summons is a legal document that requires the recipient to attend court on a particular date to give evidence (or produce documents to be used as evidence) in a legal proceeding. A summons must be served on a person or left at their usual or last known residence or place of business.

The intended recipient of a summons is required by law to attend court as directed. If a person refuses or neglects to attend court as directed, without sufficient cause, that person may be guilty of contempt of court. Serious penalties, such as a fine or imprisonment, may be imposed on a person who is found to be in contempt of court.

It is difficult to predict what will happen in your situation. As you did not receive the summons until shortly before the hearing date, you may be deemed to have a sufficient cause for not attending, provided you were genuinely unable to attend the hearing. Whether the court accepts your excuse will depend on the particular circumstances of your situation.

Suggested way forward

You should contact the registry of the court at which the hearing was held and explain your situation. You may also want to consider speaking to a lawyer who can fully advise you of your legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The law is designed to ensure workers’ rights are protected. A person cannot have their employment terminated in a harsh, unjust or unreasonable way. If this happens, the worker can lodge an “unfair dismissal” claim with the Fair Work Commission (www.fwc.gov.au) within 21 days of their employment being terminated. However, an unfair dismissal claim is only available to employees (not independent contractors) who work on a full-time, part-time or regular casual basis. Other eligibility criteria relating to length of employment and the size of the business may also apply.

From the information you provided, it appears that you are an independent contractor, rather than employee. If you were providing services to the security company as an independent contractor, you are not eligible to lodge an unfair dismissal claim.

You should check the terms of the contract under which you agreed to provide services to the security company. It may contain provisions relating to the circumstances in which the company can end your engagement as an independent contractor. If the company has acted within the scope of this agreement, then it is unlikely that they have acted unlawfully. However, if you believe the company has acted outside the scope of your agreement, then you may have a right to some kind of legal remedy.

Suggested way forward

You should consider speaking to an employment lawyer who can fully assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear whether you have obtained a final Apprehended Violence Order (AVO), or whether you have obtained an interim AVO and a decision about whether to impose a final order is to be made at the February court hearing.

In either case, you can apply to court for a revocation of the AVO. You must state the grounds on which you seek the revocation, and you must serve notice of your application for revocation on your former partner. The court will not revoke the AVO if it is satisfied that there has not been a change in the circumstances on which the original order was based. You would therefore need to explain to the court and prove that there is, or will be, a change in circumstances justifying that the AVO be revoked.

Suggested way forward

You should contact the Local Court of NSW (www.localcourt.nsw.gov.au) where you lodged the AVO application for more information on how to revoke the AVO. You may want to speak to a lawyer about your legal options and the consequences of revoking the AVO. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It is not clear whether any formal agreement was reached between the parties when the money was loaned (e.g. a loan contract). If there was an agreement (oral or written), then you may be required to follow the terms of this agreement and repay the lender accordingly, if the agreement is deemed to be valid in the eyes of the law.

But if there was no formal agreement and you are now not able to negotiate a resolution with your former partner (or her father), then you may need to resort to more formal legal remedies. The law is designed to help couples (both married an de facto couples) divide up any shared assets or debts in the event their relationships breaks down.

It is not clear how long you were in a relationship with your former partner. If you were living with your former partner on a genuine domestic basis, then the law sees this as a de facto relationship. You have the right to apply to court within 2 years of your de facto relationship breaking down to obtain orders with respect to any shared property or outstanding shared debts. The court will take into account the circumstances in which each debt arose or asset was purchased, and who was financially responsible for those debts or assets. The court will also consider the future financial needs of both parties and their current income.

It is not possible to predict how a court would determine your case, as much depends on the circumstances of your relationship and assets/debts.

Suggested way forward

Reaching a fair outcome regarding shared property and debts after a relationship breaks down can be difficult. You should consider speaking to a family lawyer who can advise you of what legal options you have to enforce your rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Buying property off-the-plan is a risky endeavour as the final product may differ from what you expected and may be worth less than what you paid by the time it is finished. It is very important that potential buyers read the contract to ensure, as best as possible, that they understand what kind of property they are purchasing and what their rights will be if something goes wrong.

If your contract did not state that the unit would be built to suit the needs of a person with a disability, and you were not otherwise informed of this information, then you may have a legal claim based on ‘misrepresentation’. This is a legal claim that can be made when one person makes a false statement intended to induce another person to enter the contract. If the vendor failed to tell you that the unit would not have these special modifications, and you entered the contract on this understanding, then you may have a right to claim compensation from the vendor and/or a right to get out of the contract (depending on what stage of development the unit is at).

Suggested way forward

Based on the limited information you provided, and without reviewing the sale contract, is very difficult to determine whether you have a legal claim against the vendor. You should consider lodging a formal complaint with Fair Trading NSW (www.fairtrading.nsw.gov.au) about the conduct of the vendor. You should also consider speaking to a property lawyer who can fully advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It sounds like you are in a difficult position. You have the option of negotiating a new parenting arrangement with your husband that involves you relocating to Townsville with your two daughters. If you are able to reach an agreement, you should put it in writing, although this will not make the agreement legally binding. If you want the agreement to be legally binding, you would need to apply for a consent order from the Family Court before you move. This would mean both parents are legally required to follow the terms of the new parenting arrangement.

However, if you are not able to reach an agreement with your husband, you could attend a dispute resolution session. Family Relationships Online is a government service provider offering these type of services (www.familyrelationships.gov.au).

If you are still unable to reach an agreement, you could apply to court for a relocation order that will allow you to move to Townsville with your children. Whether you will succeed and be granted this order will depend upon whether the relocation order is in the best interests of the children. The court will also take into account other factors such as the children's views, the reason for the relocation, the financial implications of the move, the amount and ease of contact your children will have with both parents, and the extent to which each of you have previously satisfied your parental responsibilities. This list is not exhaustive and the court will make a decision based on the specific facts of your situation.

Note that, if you decide to relocate your daughters without your husband’s permission, he has the right to apply for a recovery order from the Family Court, which will effectively return your children to him.

Suggested way forward

For more information on family law matters, including relocating children, visit the Family Court website (www.familycourt.gov.au). If the issue escalates, or for professional advice on the best course of action, you should speak to a family lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. The first issue is whether the act of recording a conversation contravenes security laws. In Victoria, it is an offence to record a private conversation that you are not involved in, unless you have the express or implied consent of all people in the conversation. A private conversation is one where you could reasonably assume the parties involved do not want to be overheard, and they can reasonably expect that they will not be overheard. Recording a conversation unlawfully can result in significant consequences. On the other hand, if you are a party to the conversation, the act of recording will generally be lawful.

The next question is whether this type of evidence can be used in family law proceedings. A court will have discretion as to whether to allow this type of evidence to be used in the court proceedings. This will be decided by weighing the value of the evidence as proof, against the danger of the evidence being unfair, misleading or confusing. In making a decision, the court will consider the nature of the case and any illegal or improper methods used in obtaining the recording. The value of the evidence must be very high, otherwise the recording will be rejected and could damage your perceived trustworthiness in court.

A court will decide whether to allow an audio recording as evidence on a case-by-case basis, so it is difficult to say whether your particular recordings can be used as evidence.

Suggested way forward

Gathering appropriate evidence for family court proceedings can be difficult. You should consider speaking to a family lawyer who can advise you of your legal options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, each property owner must ensure that their pipes do not affect other property owners and that they are properly connected to council-nominated points of discharge. Whether you are responsible for the costs of repairing the stormwater drain will depend on the location of the damage. If the damage to the pipe is within your property boundary line, you will most likely have to cover the costs. If the damage is within your neighbour's boundary, they will have to pay. If the location is unclear, you should contact your local city council for an assessment.

If the pipe needs to be moved or diverted, you may need to pay for this work to be done, even if the pipe is on your neighbour’s property, because the work is a result of your renovation. The exact laws that will apply to your property will depend on the local city council laws. From the information you provided, your council catchment area is not known.

Suggested way forward

Usually these types of issues can be settled between neighbours with a simple agreement. However, if the issue persists, consider contacting the Dispute Settlement Centre of Victoria on (03) 8684 1333 for a non-legal mediation service. Alternatively, you can speak to a lawyer who can properly assess your situation and advise you of your legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. It sounds like you are in a difficult position. The exact nature of your legal problem is not clear. If someone is in danger or has had their personal or property rights violated, then the law may be able to help. But without these things, there are not many legal options for resolving family disputes.

If someone is at risk of harm, a violence restraining order (VRO) can be obtained to require an individual (such as your sister) to stay away from certain people or stop behaving in a certain way towards certain people. A VRO can be obtained between family members for the purpose of avoiding family violence. Family violence includes emotional, physical, sexual and psychological abuse. Threatening, intimidating, offensive or emotionally abusive behaviour is a type of family violence that can be dealt with under a VRO. The person subject to a VRO is required by law to follow the terms of the order, breach of which may result in serious penalties. To obtain a VRO, you can apply directly to the Magistrates Court of Western Australia (www.magistratescourt.wa.gov.au) or through the police.

Suggested way forward

You may want to consider contacting Relationships Australia (www.relationships.org.au), which provides counselling and mediation services to help resolve family conflict. If a legal issue arises, you may want to consider speaking to a lawyer. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. In Victoria, police retain criminal history information of all persons for law enforcement purposes and the administration of justice. However, not all criminal history information will be included in a police check obtained for third parties, such as potential employers. Generally speaking, a police check in Victoria will not disclose any criminal record that is more than 10 years old from the date of sentencing, provided the individual was 18 years and over at the time of sentencing. Different rules apply for minors aged under 18 years.

However, there are some exceptions to this rule. A criminal record that is more than 10 years old may be disclosed on a police check if: the penalty was imprisonment for 30 months or more; the record includes a serious offence of violence or a sex offence and the police check is obtained for a job or voluntary work with children or vulnerable people; or if the record includes serious offences where the individual was acquitted or found not guilty because of insanity or mental impairment. A police check will also disclose a criminal record that is more than 10 years old if the reason for obtaining the police check is for a specified purpose. These purposes include: registration as a health professional, employment in prisons or the police force, a bus driver licence, a security guard licence, and a firearms licence, amongst others.

From the information you provided and assuming you were at least 18 years old at the time of sentencing, your criminal record is likely to appear on your police check until 10 years has lapsed. In some states and territories in Australia, there is legislation in place to have a criminal record removed after a certain time period, which may be less than 10 years, but these types of laws do not exist in Victoria.

If you want to dispute the information contained in your police check, you can make an application to Victoria Police to investigate the matter. The Victoria Police website (www.police.vic.gov.au) contains more information about this dispute process, or you can call 1300 881 596.

Suggested way forward

Although it does not appear that your criminal record can be removed from a police check before the end of 10 years, you may want to consider speaking to a lawyer for advice about your legal rights and options. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.