WHAT YOU NEED TO KNOW ABOUT CEASE & DESIST LETTERS

This is legal terminology that often strikes the very core of our business world. Demand letters relating to the alleged infringement of intellectual property rights are often referred to as “cease and desist letters”. Be that as it may, let it be clear that the term wrestles with some other non-business matters as well. For the purposes of our discussion, the meaning and the implication of the term is simplified as follows:

Cease and desist letter made it easy to understand

Our daily lives among many other things are affected by the conduct we are experiencing and the interactions we have with people. We regulate and accept conducts that are aligned with our interests. So, when we see conduct that is unacceptable to our principles/rights, our natural tendency is to see that unacceptable conduct to stop IMMEDIATELY.

This is where the cease and desist letter becomes both meaningful and mechanical. You are basically putting the other party on notice that the type of conduct you are seeing in them ought to be stopped and you really mean it!

Why cease and desist letter is my first step?

The law of good faith requires the members of society to exhaust all measures they can to avoid a court battle. The cease and desist letter may be your first step and the cheapest one that you could do through your lawyer when you desire to see unacceptable conduct stop. No matter how much you feel justified, and how absolute you see the other party at fault, you need to do this before even thinking to pick up a fight with someone to safeguard your rights.

What are the areas covered by the cease and desist letter?

In general, the scope is pretty wide. It can be used to stop someone from defaming you or someone who you deem breaks the law to the disinterest of your business, or someone who breaches the rules of commerce. So yes, it covers both your personal and business life.

How effective is a cease and desist letter?

It all depends on the circumstances and there are many variables involved that can make a cease and desist letter effective or non-effective at all. But, the good news is that it works in most circumstances, and here is the prime reason; When you demand your rights, you are demanding this with reason and essentially you are telling the other party that stopping the non-acceptable conduct right now is not only for your own good but also for the other party to avoid unnecessary hassles and litigation costs. In other words, you are telling them quite nicely that if they stop now, you may not seek any penalty, but if they don’t, you will do so at their peril.

How could I opt to have this letter issued?

No matter how frustrated and upset you may be, my recommendation is not to panic and stay cool. Anger defeats any rational decision-making process. Take the letter or proof of what you consider an infringement of your rights to your lawyer and let him/her advise you as to how to construct a good cease and desist letter and always stay positive and energized.

Source: Cease and Desist Letters

Early Super Access! How to exercise your rights during COVID-19

Needing early super access? You’re not alone.

In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for a certain group of people and traders. Although the early access prescription appears easy to follow, there can be cases that fall on the eligibility borderline. The scales weigh more on the side of eligibility rather than the ineligibility side of early access for the applicant. The simple consequence of this misinterpretation could risk an eligible applicant becoming an ineligible one. 

What did the Government say?

The Government would allow early access to the super funds by those affected by the COVID-19 crisis. Basically, an eligible super funds member can withdraw $10,000.00 this financial year which ends on 30 June 2020, and another $10,000.00 next financial year which starts as of 1 July 2020. This is tax-free the Government said.  The measure is designed to address the existing hardship on the eligible individuals and traders to whom this new ruling would apply. 

I am currently employed but my wife has been made redundant. Can we both apply for early access to our super funds?

If you are still working and it is only your wife who has been made redundant after 1 January 2020, then your wife can only exercise her right of early access to her super funds. To become eligible, she needs to show that either: 

• As an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or
• As a sole trader, her business has suffered a 20% or more reduction in her turnover.

I am unemployed but receive a job seeker payment. Can I still apply for early access to my super funds? 

Yes, you can.

I receive a youth allowance for job seekers. I have not many funds left in my super. Can I still apply for the early access, or do I need to have a minimum available in my super funds?

Yes, you can. So far the Government has not set a benchmark for the available funds in a super account. The Government has however defined the maximum that can be withdrawn from the super funds in this and next financial year.

I currently receive parenting and some other special payments from Centrelink, can I still apply for early access to my super funds?

Providing you meet the individual, or, the sole trader tests above, yes you can.

Having read your article here, I now know that I am eligible to have early access to my super funds, how do I do it?

Applications are to the ATO via the My Gov website. The process is pretty simple. The ATO will verify the applicant, assess the application, record the bank account details, and make a decision. The ATO will then direct the nominated fund to release the requested amount to the bank account specified by the member. It is essential to know is that the member does not need to contact his/her super funds at all in the process.

Just so I could educate myself, what is the total amount that this scheme will allow to be accessed from the super funds, and how much more will be left in the super after?

According to the Government, it is estimated that around $27 billion funds might be taken out via early release, however, this is less than 1% of a circa $3 trillion superannuation in the system owned by the Australian members.

Article Source: Early Super Access

What is defective building work & can you sue for consequential damage?

 

Suffered From Effects Of Defective Building Work in QLD?

You can sue for consequential damage.

This article aims to provide general guidelines for consumers in relation to their defective building work and to shed light on the circumstances scenario where a cause of action may be available to claim consequential damage from the contractor who attended to the work. The guidelines are not meant to be a substitute for legal advice and may not apply to individual circumstances. Please, call our office and discuss your individual case.

The Queensland Building and Construction Commission (QBCC) has been empowered by s 72 of the Queensland Building and Construction Commission Act 1991 (the Act)  to direct a contractor, whether licensed or unlicensed, to rectify building work that is either defective or incomplete or to remedy consequential damage caused by or as a consequence of carrying out building work. The direction is commonly referred to as a direction to rectify (DTR).

What is consequential damage?

Consequential damage at law refers to indirect damages or losses not flowing immediately from an act, but rather from the consequences of the act. For instance, loss of business as a result of a fire. In Queensland and in the context of s 71H of the Act, consequential damage is a damage

• Caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence, or recklessness of the person carrying out the work; and
• To a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.

What is building work?

The legislative definition of building work includes —

• Any work personally carried out whether directly or indirectly;
• Providing administration, advisor, management or supervisory services for building work, including:
  • Entering into a contract or submitting a tender for building work;
  • Offering (quoting and tendering) to carry out building work;
  • Taking payment or arranging payment of subcontractors;
  • Arranging labor or arranging and conducting on-site meetings and inspections;
  • Preparing plans and specification;
  • Coordinating the scheduling of work for building contractors even as an agent for another person;
  • Obtaining engineering or soil reports, or arranging for certificates from local government to be issued, etc;
  • Supervising building work;
  • Providing advice or a report for a building;
  • Contracting for work as a subcontractor to a builder.

 

What is defective work?

The QBCC Act describes defective building work to include work that is faulty or unsatisfactory. The words faulty and unsatisfactory are to be given their ordinary and natural meaning. In considering whether the work is defective or not, the following may be called in assistance. Any building work which has the characteristics of the following may be considered defective work—

• The work does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard; and
• The work involves the use of a manufactured product, and that product has been used, constructed, or installed in a way that does not comply with the product manufacturer’s instructions.

In Gemini Homes (QLD) Pty Ltd v QBCC [2014] QCAT 481. The Tribunal opined that—

“… The QBCC is not required to identify a non-compliance with the Building Act 1975, National Construction Code or manufacturer’s instruction, in establishing that the building work is defective. Where defects are evident, yet the cause is unclear, the building work may be determined to be defective and may be the subject of a DTR.”

Where to lodge a complaint about defective and incomplete work?

For information in relation to lodging a complaint with the QBCC for defective or incomplete work, please visit the QBCC website via the following link:

http://www.qbcc.qld.gov.au/building-complaints/complaints-about-defective-building-work

What obligations do I have prior to lodging a complaint?

You need to lodge your complaint as soon as possible. The following timeframe must be adhered to:

• A claim under the Queensland Home Warranty Scheme for structural defects must be made within 3 months of noticing the defect;
• A claim under the Queensland Home Warranty Scheme for non-structural defects must be made within 7 months of the completion of the work (and the non-structural defect must have come to light within 6 months of substantial completion); and
• A request for DTR should be made within 12 months of becoming aware of the defects/incomplete work or consequential damage.

What are structural defects examples?

• Leaking roof;
• Leaking shower to internal walls; and
• Major cracking of walls.

What are non-structural defects examples?

• Chipped internal paintwork;
• Sticking drawers; and
• Minor cracking of plasterboard.

 

Legal Help.

Aylward Game Solicitors have assisted a number of clients in relation to building defect cases that include mediation to resolution and litigation as possible pathways. We look forward to discussing your options and protecting your rights. Our experienced team can be reached on 1800 217 217.

Article Source: Defective Building Work

Need A Divorce? What Happens Next

For those coming to a realisation that the marriage is ending, you’re probably racking your brains on the best way to wrap everything up legally so that you can proceed to ‘recovery’ both emotionally and financially from your potential former spouse. But what actually happens from here? How you approach separation will depend on your individual situation. Fortunately, most states and divorce lawyers offer a few options to try and find the easiest method of a divorce settlement that, once approved through the court, legally terminates your marriage.

Mediated Divorce Contracts

A mediated divorce is a viable option for couples that can speak with each other amicably and agree on most of the main issues as well as in marriages that do not involve complicated child custody or complex financial issues. In a mediated divorce, the two spouses work with a mediator (often an experienced family lawyer) who assists the parties to negotiate the settlement and reach a detachment agreement. The mediator does not decide upon the result but works together with the parties to reach a resolution.

If you think you and your spouse can effectively interact to work out detachment terms, you could reap the benefits of this approach. Mediation costs much less than engaging in court battles plus the decision and approval through the courts is significantly quicker than with traditional separation cases in court.

Collaborative Divorce Contracts

In a collaborative detachment, each spouse hires a qualified collaborative family lawyer who agrees to participate in a collaborative divorce process, rather than an adversarial one (as per contested separation situations). Both family lawyers have to be eager to do something to resolve the matter. In a collaborative divorce process, lawyers and their clients both work to appease the individual needs of the other party while trying to be fair and just to the result. It seeks the most favorable outcome for all parties (particularly the children).

Contested Divorce Settlements

Contested divorce settlements are the kind of divorce that’s regularly in news reports with celebrities ‘out for blood’. Unfortunately, these types of detachment occur in the real world too and generally take place when the two spouses aren’t able to concur on important issues. In the contested divorce, each spouse hires an individual attorney to represent their interests in an adversarial contest.

A contested divorces may be necessary for situations where:

• A child custody arrangement cannot be formulated

• There is a quarrel about how a property or financial assets need to be split

• The marriage was abusive

When you are associated with a contested separation, you will need a lawyer who is experienced with divorce litigation, that you trust, and who are able to best represent your interests.

Where to from here?

We’ve helped thousands of separating couples and have a focus on Collaborative practice. Ian Field is a highly experienced mediator and has conducted many hundreds of family law cases, including in a capacity as an Independent Children’s Lawyer (ICL). To speak with someone that can help, call us on 1800 217 217. Aylward Game, Ahead of the Game.

Article Source: Need A Divorce

 

Divorce Asset Split In Australia: Who Gets What In A Property Settlement?

It is essential for you to decide about property settlement if you are thinking to end your relationship. It is good to know how assets split in Australia works. Our article will inform you about the process and rules for property settlement in Australia. Also, you will find tips for getting better results. We also have some examples that can explain to you the working process of the divorce settlement. 

You cannot predict the exact outcome of your process, but you can take some steps to get the necessary help. 

• Get in contact with the best real estate agents in your town. 
• Get help from experts in a divorce settlement. 

What is a property settlement?

If you are getting a divorce, then property settlement will decide how to divide your assets and liabilities. It contains both shared and individual properties. 

You can solve this issue without the involvement of Lawyers or the Family Court of Australia, by making an agreement with your partner. It is important to make the agreement formalize with the court to make it legally binding. 

The aim of a divorce settlement is to divide assets between couples in a way that they don’t need each other for financial support. This process counts all the properties or financial responsibilities that were involved during the marriage.  

Property settlement after a divorce time limit

It is good to resolve this issue as soon as possible if you are having a divorce or getting separated. This involves all the property purchased during marriage or after separation. After divorce, you have a year to apply for property settlement, and after the breakdown of a de facto relationship, you will have 2 years. If unfortunately, you cannot apply during the time, you can apply to the Family Court of Australia for special permission. 

The property settlement agreement:

It is a legal agreement between divorced or separated individuals. It contains the arrangements for property settlement after divorce or separation. 

There are two approaches for reaching a property settlement agreement:

• Both individuals can decide the matter of property division, and then they will formalize their agreement through the court. 
• You can Family Court of Australia to decide on dividing the assets. 

If you can decide without the help of the court, you will save some bucks and time. But it may not be possible in your situation. You may need a lawyer to get some legal advice and a voice for you in court. 

The divorce law Australia for property settlement is the same all around Australia, it doesn’t matter in which state you live. Also, it is not mandatory to complete the divorce before dividing the assets. You should go to the settlement as soon as possible. 

How much time does the settlement take?

It depends on how you proceed. It will be much faster if you can decide with your former partner. But if it is not possible, then you should go to court. You may have to wait for months or even years to get the result from the court.

Guidelines for dividing assets:

Here is a procedure that you can use in both conditions. 

• List of all assets and liabilities: Provide a list that contains all of your assets with their values. Both parties submit their own files. We know it as a “pool of assets”. The list includes all individual and shared properties. 

• Future financial needs: Make an estimate of the future financial needs of each person, to get a fair guess we include the person’s earning capacity, child support, health, age, and financial resources. 

• Proposed agreement: Create a proposed agreement that shows who gets what.
• Assess: Check if the agreement is fair or not. If you are happy with the agreement, then go to court to formalize it, else apply to the court to have a just decision. 

If the court is going to decide, then it will also follow a similar pattern. The court will see all of your assets and will also consider the future needs of a person. The court will try its best to give a fair and just decision. 

Property Settlement After Divorce

Can I sell the property after divorce?

It is not wise to sell any property before dividing assets. Because everything you own will be a part of the pool of assets. You will need to add it for sorting an agreement for the property. But you can sell it if the other partner agrees. 

Tips for dividing assets:

In a divorce settlement, you wish for better results. Remember the following dos and don’ts  when going through this problem:

The dos:

1. • Keep a record of all assets or debts. 
   • If you want to sell property, inform your informal partner. 
   • You should get legal advice for both selling and settlement of assets. 
   • Try to use alternatives of the court as it saves time and money. You have two options other than the court

 

• Mediation: In mediation a neutral professional guides the process of settlement. If you can make an agreement through mediation, then the court formalizes it. 

• Arbitration: It is just like a court, but it is not formal. If both parties decide an agreement there, they register an arbitral award in the court and become binding for both individuals.

 

The don’ts:

• Do not wait until the divorce is final for property settlement. 
• Do not hide any assets or property.

Property settlement examples:

Johnny and perry had a divorce in Australia, their asset pool was:

• A marital home worth 1,200,000 dollars and its mortgage was $700,000, so the total becomes $2,000,000.
• They also had a car worth 25,000 dollars.
• Perry’s superannuation worth $15,000.
• Johnny’s superannuation worth $25,000.

They can make an agreement or the court can decide that Perry gets 60% and Johnny gets 40%. According to their future requirements and financial resources. This is a 60/40 split divorce. 

Perry can keep the car, and they both keep superannuation. Johnny will keep the house and will pay Perry so she can buy a place. 

Frequently asked questions:

Let’s have a look at the most commonly asked questions for property settlement. 

How to work out divorce settlements?

The first step to take for divorce settlements is to get legal help. It is better to make an agreement by discussing with your former partner as it will save you time and a few bucks. 

Does a wife have more benefits?

The wife can get half of the assets. In the case of child support, she can even get an amount from the income of her husband. 

Source: Divorce Property Settlement

Why Divorce Rate in Australia is So High?

 

Before discussing the details of the divorce in Brisbane or anywhere in Australia. Let us discuss the term marriage. Marriage is known as a legal contract between two people. They are united due to this contract. They are together in all formats of life. Marriage also gives a happy sexual life. And about divorce, the ending of this contract is known as divorce. Divorce officially announces that these persons are no longer together. When one of the persons is not feeling comfortable with the other one, he can demand a divorce. Luckily the percentage of divorce rate in Australia has reduced.

No-fault divorce: 1975:

The divorce rate in Australia was very high before 75. It had to be reduced. In 1975 a law was passed it was named “no-fault divorce”. This law was introduced for the first time in Australia. In the first year of implementation, the divorce rate increased. Amendments were required in this family law. In 1976 there were some changes in the law to make it better.

It says that couples should be separated for at least 12 months before applying for a divorce.    

Now let’s discuss the details of the divorce rate in Australia.

What is the divorce rate in Australia?

In the 1960s and the 1970s, the divorce rate was very high. It was about 4.6 persons per 1000 residents. But it declined when the Family Law Act 1975 was passed. This law supported no-fault divorce. And reduced to just 1.9 till 2016. But it raised again in 2017 up to 2.0. Hence the divorce percentage in Australia has reduced.

Another reason for the decline of the divorce rate in Australia is late marriage or marriage between same-sex. Same-sex marriage is now legal in Australia. In the first 6 months of 2018, 99 percent of marriages were between same-sex.

Duration of marriage:

In Australia, 43 percent of divorced people were married for about 9 years.  And most of their age was between 25 to 30 years.

The average time between their separation is about 8.3 years. And they get divorced within 12 years. It indicates that half of the couples are married for less than 12 years and a half for a longer time. And there are some marriages which last till death.

There is a great chance of divorcing in the marriages of 20 years. In 1990 its percentage was 20 it increased to 28% in 2010. And it again gained peek in 2017 and raised to 27%. 

Have same-sex marriages affected the divorce rate in Australia?

After the changes in Marriage Act 1961 same-sex marriage is now legal. There were 3,149 same-sex weddings were registered in Australia till 30th June 2018. And they can also get divorced but not many divorces are reported from these couples.

What are the reasons behind divorces?

The marriage plays the part of the perfect bond between two persons. It is a very wise decision to make. The couples are usually very happy at the start of their marriage. So, what disturbs their relationship? Why do they have a divorce?

An Australian study reported that there is 71 percent of divorces blame “affective issues”. These affective issues are:

• Problems of communication 27%
• Lost connection 21%
• Trust issues 20%

The other causes of divorce in Australia can be:

• Abuse either physically or emotionally 7.4%
• Abuse via drugs or alcohol 7.4%
• Financial issues 4.7%
• Work pressure 2.7%
• Interference of family 0.6%
• Health issues 4.7%

Divorce Rate in Australia

Tips for long term marriage:

We concluded the following points from the life of couples with long time marriages.

• Respect is a great factor it should come from both sides.
• Have complete trust in each other
• Maintain happy physical/sexual relation
• Have good communication skill to talk about any problem easily
• Maintain equity
• Support the decision made by partner
• Be cooperative
• Manage time for each other

When applied for the divorce, do I have to attend the court hearing?

It depends on some conditions. You may or may not have to attend the court hearing. Let’s have a look at them:

•   If you don’t have any children under 18 years. Then you will not have to attend the court hearing it applies on both sides.
•   If a joint application is applied then you will not have to attend the court hearing, even if you have children under 18 years.
•   If a sole application is applied then you may have to attend the court hearing on having a child under 18 years.

 What is the procedure to get a divorce?

Getting a divorce is not the same anymore. That is the reason that the divorce rate in Australia has reduced. If you are thinking to get a divorce in Brisbane then Aylward Game can help you easily. Read the points below to get an idea about getting a divorce.

• Live separate lives: Before applying for a job you must separate for at least 12 months. You can get back in touch without re-starting the 12 months for about 3 months. For instance, if you have lived separated for 4 months and again got together for 3 months you will only have to live 8 months separately to complete the 12 months.
• You can live separately under one roof: You can share the same roof even when you are separated. The court will check if you are having sex, sharing meals, or sharing bank accounts. Your relatives should believe that you are separated.
• Remarrying: Don’t think to remarry until the divorce is finalized. Don’t make quick plans. You can get married once the divorce is granted.
• Property and children’s arrangement: The divorce will not resolve the property or children’s issue. You will have to file a separate case for this issue.
• Married for less time: If you are married for a small time and still demanding a divorce. Then you should visit the family counselling. Get a certificate from them and submit it to the court.

How can Aylward Game help?

Though Australia’s divorce rate has declined some issues can demand a divorce. We can help you in many ways to solve the issue.

You should take our counselling sessions before making such an important decision. The court may also ask you to take counselling sessions. These sessions play a vital role in making a decision.

We follow the collaborative practice which is an alternative to litigation. 

Mediation is a good practice. In mediation, you and your partner discuss everything openly in the presence of a mediator. The mediator is neutral and points out the issue by hearing your discussion.

Article Source : Divorce rate Australia

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