Domestic Violence

There has been an increasing number of reported domestic violence (DV) cases in Queensland over the past few years, and more people (both women and men) are seeking help when they find themselves in violent relationships.

The law has recently been changed, extending protection to a wider group of people in response to the types of domestic violence that are taking place, and the broad range of relationships that exist in our society.

Our firm regularly supports the various domestic violence agencies and refuges throughout the greater Brisbane area by:

• providing free legal advice to people referred to us by these groups
• "pro bono" court appearances on applications, mentions, etc
• phone advice to coordinators and counselors at these agencies.

We coordinate our services through our specialised DV service called DVASS (Domestic Violence Advocacy Support Service). This domestic violence service is highly valued by these agencies. We receive referrals on an almost daily basis due to the large number of domestic violence incidents in the Gold Coast, Redlands and Logan areas.

The feedback being received by community groups, the Courts and Police Prosecutions has been very positive, as domestic violence matters create significant demands on their time and resources. The court support provided by us helps both the Aggrieved and Respondent spouses through the DV process, and we are often able to help both parties either reach an agreement, or address their issues in a more appropriate forum.

DVASS currently operates at the Cleveland and Wynnum Magistrates Courts.

Click here for an overview of the DVASS service.

Conveyancing & Property Law

Our firm has many years of experience in property law and conveyancing. Our staff are committed to ensuring that your property sale or purchase is dealt with promptly and efficiently, while keeping you fully informed at all points of the process. We are also experienced in property matters associated with Family Law and Estate matters. While we have attempted to answer many frequently asked questions in this web page, you are most welcome to contact us to discuss any specific issues you may have.

Things to consider when buying a property

When purchasing or selling a house or land, there are often extra expenses you discover as you approach a settlement in the conveyance. Often, items such as application fees, search fees, and other costs are hard to understand or are not explained fully. This brochure is designed to help vendors & purchasers understand the conveyancing process, and provide a simple explanation of the types of costs you may need to consider. It will help you to know what questions to ask of your real estate, the bank and your solicitor – all the people involved in your purchase!

Calculating costs

In this page we have included a list of the various costs that should be considered. Some of the search costs may not be required – check with your solicitor. Some House & Land packages include some legal costs and bank charges – make sure that you understand exactly what is included. The charges shown are estimates only.

Searches

Your financier will require certain searches to permit them to certify for settlement. These searches usually include a Rates, Land Tax, Title & Plan (CT), Contaminated Land and Main Roads Search. The financier will also usually require a Settlement Notice to be lodged prior to settlement (prepared by your solicitor). Other searches will be carried out as required by yourself for your own protection.

Stamp Duty

First Principal Place of Residence:

When purchasing your first principal place of residence, the following stamp duty concessions apply:

$80,000or less	Exempt from Stamp Duty
Greater than $80,000	1% of purchase price less rebate of $500
Greater than $150,000 but less than $155,000	1% of purchase price less rebate of $200
Greater than $155,000 but less than $160,000	1% of purchase price less rebate of $100
Greater than $160,000 but less than $250,000	1% of purchase price
Greater than $250,000	Contact solicitor for stamp duty payments

On the acquisition of a principal place of residence in any other case, duty applies at the concessional rate of 1% of the value up to $250,000. Contact your solicitor for the stamp duty amount for purchases over $250,000. Stamp duty is assessed at a higher rate if the area of the land for a principal place of residence exceeds 0.5 hectare (5,000m2).

Investment Properties:

There are no concessional entitlements. Contact your Solicitor for the appropriate stamp duty amount.

Purchase costs to consider:

Professional fees (fixed fee)	$450
Stamp duty (see calculator)
COSTS & OUTLAYS:
* Rates Search	$117
Rates & Flood	$43
Town Planning Certificate	$81
* Water Meter Reading	$46
Building & Plumbing Search	$50
* Land Tax Clearance	$24
* Titles Office Search & Certificate of Plan	$25
Titles Office Registration Fees	$100
* Settlement Notice	$22
Body Corporate Records Search (units)	$44
Mining Search	$50
* Contaminated Land Search	$30
Qld Electricity Search	$25
Energex Search	$33
* Main Roads Search	$18
Qld Railways Search	$17
Bankruptcy Search (per person)	$23
** Company Search	$40
* Agency Fees (approx)	$50
Bank Charges (estimate)	$20
* Postage, Telephone & Photocopying	$40
Telco Cable Search	$55
PLUS BANK CHARGES
Building Inspection
Home Loan Application Fee
Bank's Legal Fees
Government Charges
Stamp Duty on Mortgage
Property Valuation Fee
Mortgage Insurance
TOTAL

* Usual searches required by financier

** Search required if purchasing from a company All costs quoted in this document are estimates only, and may vary without notice. We recommend that you contact your financier, solicitor and real estate agent for the latest costs. GST may need to be added to the above costs.

Your financier will require certain searches to permit them to certify for settlement. These searches usually include a Rates, Land Tax, Title & Plan (CT), Contaminated Land and Main Roads Search. The financier will also usually require a Settlement Notice to be lodged prior to settlement (prepared by your solicitor). Other searches will be carried out as required by yourself for your own protection.

PROFESSIONAL COSTS

Residential Sale	$350.00 ex GST
Residential Purchase	$450.00 ex GST

 

Mediation

Mediation is a process by which people who are in conflict can be helped to communicate with each other about what is important for them and how to make decisions about resolving their dispute. The mediators provide clients with a supportive atmosphere and a method of talking to one another, to assist them to sort out the issues and come up with acceptable solutions, and make mutually satisfactory agreements.

Mediation can be used in a wide range of situations including family law, neighbourhood, commercial and workplace disputes, parent/adolescent conflicts, problems at school and issues concerning the care of the elderly.

Go to our dedicated mediation section in our website for further information on mediation.

Migration

Smith & Associates provide immigration services to clients located in all parts of the world. Our has the expert legal skills to ensure that our clients receive the support and assistance required when seeking Australian visas.

Please visit our dedicated migration web pages for further information.

Employment

Details of this service are yet to be provided on our web site.

Please contact our Brisbane office for more information.

 

 

Wills and Estates

It is surprising how many people do not have even though there are significant problems for remaining family mebers and friends when a person dies intestate (ie. without a will).

There are many reasons why people dont have a valid will:

• some think that it is "tempting fate" to create a will
• many people dont want to think about dying
• there are many people who have either divorced or separated, and have not made changes to their old will
• the attitude of "I'll get around to it later"

A Will puts the distribution of your estate in writing and ensures your loved ones are protected at a critical time. A Power of Attorney gives someone the power to make decisions of your behalf. It is important that both documents are legally valid.

Link to Succession Law section

Wills

If you die without a Will, there is no guarantee that the most important people in your life will benefit from your estate. Under current Queensland law, your estate could pass to people who were not intended to be your beneficiaries. A Will protects your interests and your intentions. Regardless of whether your estate is complex or simple, we can provide the professional help and cost-effective advice you need now that will avoid unnecessary complications later. We will explain the implications of your decisions to you simply and clearly, to ensure that your will truly reflects your wishes.

Enduring Power of Attorney

An Enduring Power of Attorney is a document that gives someone else the power to make decisions on your behalf or when you cannot. You can choose now what powers are delegated and who will exercise them for you. We can help you draw up a document that gives clear directions in matters such as finance, health and personal issues.

Advance Health Directive

An Advance Health Directive reflects your wishes if you become ill and cannot communicate effectively with your family, friends and health professionals. We can prepare a document which makes your wishes on future health care clear at a time when critical decisions need to be made.

Administrative Law

Administrative law is one of those area of law that

 

 

 

Information Technology

 

 

Criminal Law

Smith & Associates has extensive experience in the area of criminal law, and we offer advice and advocacy for traffic violations, work licences drug offences, bail applications and criminal defence. In addition to our solicitors, we engage experienced barristers to advise on specific matters and to undertake Court appearances, ensuring that you receive the very best of representation.

The criminal law process can be very confusing, with many different parties involved, such as the police, Department of Public Prosecutions, psychologists, Court personnel and many others. Additionally, there are various Court appearances that require specific information to be provided.

Our firm has been involved in the provision of criminal Duty Lawyer services for a number of years in a number of Courts across Brisbane, and as such we have a good understanding of Court processes right from the first appearance in the Magistrates Court.

Smith & Associates Solicitors offer a wide range of criminal law services.

Our criminal law expertise includes:

• Assaults
• Break and Enters
• Drug Offences
• Firearms Offences
• Fraud
• Misuse of Data
• Offences against the Person
• Police Corruption/Misbehaviour
• Property Offences
• Public Order offences
• Traffic Matters
• Victims Compensation
• White Collar Crime
• Domestic violence matters

Our legal team has extensive experience in State and Commonwealth legislation, and a practical knowledge of court processes.

Smith & Associates is a Preferred Supplier for Legal Aid, and as such we are required to meet strict guidelines for reporting and levels of customer service.

 

 

Family Law

Family law matters can be very emotional and distressing. We have significant experience in dealing with such matters, and our aim is to help facilitate an appropriate outcome, while focussing carefully on issues such as the welfare of children and the preservation and adjustment of property interests. Our family law practitioners have the experience, technology and excellent support staff necessary to make parenting and property proceedings as efficient as possible.

Areas of family law in which we practice include:

• Child residence and contact
• Child Protection
• Domestic Violence
• Divorce
• Child recovery - domestic and international
• Property settlements
• Child Maintenance
• De facto relationships (cohabitation, separation, settlements)
• Pre-marriage contracts
• Restructuring and estates

Please refer to our Family Law section for further information.

 

Corporate Governance

ASIC’s increasing attention on business practices means it’s no longer business as usual, especially in the public sector. The Corporations Act requires that board members, executives, managers, audit committees and others take on a much larger responsibility related to liability in many facets of their jobs, and long-held standards in the financial and employment arena can now be in violation of the Corporations Act and related legisltation.

Our Commercial team understands these complicated and ever-changing regulations, and can advise organisations, their executives and employees on how to improve policies, ensure individual protection, or, if need be, represent them in litigation matters.

Board Directors and Officer Candidates

In light of recent corporate scandals, individuals considering accepting Board Directorships or employment as a manager or executive must critically evaluate the governance and auditing mechanisms of companies seeking their services to protect their individual interests. Smith & Associates can:

• Review the company’s Directors and Officers liability insurance policy for differences in and exclusions relevant to individual interests
• Review the company’s procedures and policies to determine the extent to which it will indemnify executives and directors in the event of litigation and claims related to their positions.
• Retain auditors to help analyse the company’s financial reporting and auditing mechanisms to ensure they meet current requirements.

Armed with this information the prospective director or executive can ask the tough questions necessary to protect themselves from future harm.

Audit Committee Members

Because the audit committee has the final responsibility to investigate allegations of violation of security laws or breach of fiduciary duty, and must be supplied with the funds necessary to hire individual counsel, Smith & Associates can represent audit committees in connection with:

• Whistleblower claims by employees or third party service providers
• Government inquiries or investigations concerning breach of fiduciary duty or securities laws violations
• Independent analysis of potential conflict of interest situations involving auditors, lawyers, board members or executives
• Representation of the audit committee or its members in securities or other litigation where they cannot be represented by the company’s in-house counsel or outside law firm.

Labor & Employment

Smith & Associates can analyse the company’s employee discipline, severance, termination and other L&E issues to prevent retaliation claims and/or allegations of wrongful termination and resulting criminal liability exposure. Smith & Associates will:

• Conduct investigations into employee misconduct and/or allegations brought against supervisors.
• Investigate whistleblower claims.
• Review employment policies and practices for compliance with Corporations Act and other state and Federal laws.

White Collar Crime Defense

Smith & Associates can represent entities and individuals in criminal investigations or administrative/civil proceedings that arise from claims of possible criminal misconduct.

• Investigations.
• Governmental investigations raising the potential for criminal prosecution.
• Civil or related litigation where criminal conduct is alleged.
• Entities and individuals in criminal proceedings.

Education Services

The law can be complex and confusing, and this is made even more difficult with the constant changes in the law. Increasingly, an understanding of the issues affecting a particular industry or work environment is critical for people at all levels of an organisation - from the senior board member to the new graduate recruit.

The difficulty is that there is barely enough time to focus on issues relating to the establishment and development of the business - ensuring that the services and goods that the organisation provides are competitive and that customers are attracted and retained.

But failure to ensure compliance with legal requirements can be a key business risk, particularly in areas such as negligence, workplace relations, health and safety, and trade practices compliance. For a business to address these risks effectively and efficiently, the response to these risks needs to be "business practical".

The Education Services practice of our firm draws together the experience of our own professional team, together with specialist skills from barristers, psychologists, forensic accountants and management consultants. With proven "real world" experience, our team approachs client issues pragmatically and consultatively.

The group also provides a comprehensive range of services including:

• Awareness seminars
• Mentoring programs
• Response planning
• Management action plans
• Specialised management training
• Crisis simulations and testing
• Crisis preparedness audits
• Plan maintenance
• Media training
• Communications and strategic planning
• Senior management level counseling
• Media and government relations
• Strategic public relations
• Complex litigation support

The primary aims of this consulting work are:

• to reduce the legal and business risk
• to assist client to gain competitive advantages
• to improve our client's relationship and service to their clients
• assist clients to develop the reputation of their organisation
• to enhance the work environment for management and staff
• to provide knowledge and procedures to deal with legal issues
• to assist an organisation with its social contract matters

Further details of our services can be found via the links to the right of this page. If you require specific information, or would like to discuss how these services can benefit you and your organisation, you are most welcome to contact us.

WHAT IS BANKRUPTCY? Bankruptcy is a process of law, governed by the Bankruptcy Act, 1966, which involves an orderly administration of an individual's affairs to provide a fair and equitable return to creditors. Bankruptcy is a legitimate and just way to solve debt problems. Back to Top WHY CHOOSE BANKRUPTCY? The Bankruptcy Laws have been developed for the protection of both debtors and creditors. As a bankrupt, a person is protected from being hounded by his or her creditors and, at the conclusion of the bankruptcy, the debtor is released from his or her debts and can start their lives afresh. Bankruptcy protects the interests of creditors by providing for a third party to control and investigate the affairs of the bankrupt and oversee the distribution of the bankrupt's assets. Back to Top HOW DOES A PERSON BECOME A BANKRUPT? A person may become bankrupt on their own application by completing both a petition and a declaration of financial position, known as a Statement of Affairs, and filing them with the Registrar in Bankruptcy. This process is referred to as a Debtor's Petition. Alternatively, a person may become bankrupt on the application of a creditor, or Creditor's Petition as it is called. To proceed in this way usually a creditor must have obtained a Judgement of the Court and then serve a Bankruptcy Notice on the debtor. If the Bankruptcy Notice is not satisfied the creditor can apply to the Court to make a Sequestration Order bankrupting the debtor. Bankruptcy Notices and Bankruptcy Petitions must be served on the debtor in person, unless the Court orders otherwise. Back to Top WHO ADMINISTERS A BANKRUPT ESTATE? When a person is made bankrupt a Trustee is appointed to administer the bankrupt's affairs. The Trustee is an appropriately qualified Specialist Accountant who is an Officer of the Court, or a public servant. It is the Trustee's job to determine and administer the assets of the bankrupt, keep accounts and records to ensure accountability during the administration, and to declare and distribute in a timely manner a dividend to creditors. Back to Top WHAT ARE THE TRUSTEE'S POWERS? At the start of a bankruptcy the Trustee will require the bankrupt to have completed a statement of financial position, known as a Statement of Affairs. The Trustee has the power to investigate and examine the affairs of the bankrupt, including examining the bankrupt under oath. Generally, the Trustee is empowered to exercise all of the rights, powers and obligations of the bankrupt and is entrusted to deal with and realise the property, assets, debts, claims and business of the bankrupt. Back to Top CAN A DEBTOR BE MADE BANKRUPT IF THEIR ASSETS EXCEED THEIR DEBTS? Yes, if you are unable to pay your debts as and when they fall due you are insolvent. If a debtor owns sufficient assets to cover his debts, but is unable to liquidate them in order to pay those debts, he is liable to be made a bankrupt by a creditor. Back to Top HOW DOES BANKRUPTCY EFFECT A DEBTOR? From the time a person is made a bankrupt they will be referred to as an undischarged bankrupt and from there on:- can't act as a company director; can't trade under a registered business name without first advising that they are bankrupt; can't incur credit over $3000 (indexed) without first advising that they are bankrupt; must surrender his or her Passport to their Trustee; and if required, must make available all books and records, including those of associated entities such as companies and trusts, to their Trustee. Back to Top WHAT IS THE EFFECT OF BANKRUPTCY ON CREDITORS? At the time a person is made bankrupt his or her creditors exchange their right to enforce their claims against the bankrupt or his or her property for a right to prove in the bankrupt estate for a dividend. Secured creditors are able to enforce their rights under the charges or securities that they may hold. Only creditors whose claims relate to debts or liabilities, which are present or future, certain or contingent, at the date of bankruptcy can participate in the administration for a dividend. Back to Top HOW DOES BANKRUPTCY EFFECT PROPERTY? When a person is made a bankrupt, all of their property vests or passes to the control of their Trustee. The Bankruptcy Act defines property very broadly to include all property of the bankrupt at the commencement of the bankruptcy, all property devolving on the bankrupt after the date of bankruptcy but before discharge. In the case of real property, i.e.. land, the Trustee will register his legal title over the property. Back to Top IS ALL PROPERTY SOLD TO PAY CREDITORS? Not all of the property which falls under the control of the Trustee at the outset of a bankruptcy can be used to pay creditors. Divisible property, i.e.. property that can be divided amongst creditors, does not include the following items:- Necessary apparel and household items, including furnishings; Tools of trade to a maximum market value of $2600; A motor vehicle to a market value of $5,500; Life assurance or endowment policies (subject to some limitations); Certain damages and compensation payments; Superannuation payments (subject to certain limitations); The Trustee will determine what is "necessary" but it is certain that collectibles, artworks, antiques, etc., will be sold for the benefit of creditors. Back to Top CAN THE TRUSTEE RECLAIM PROPERTY THAT HAS BEEN SOLD BEFORE THE DEBTOR BECAME A BANKRUPT? The Trustee will look at any sales or transfers or other settlements of property that have occurred within the preceding five (5) years. If these transactions appear improper, or to have defrauded creditors, the property or its value may be recovered. The Trustee may also recover from creditors who may have received payment in the six (6) months immediately preceding the bankruptcy, any sums which they would not otherwise have received as a dividend from the bankruptcy. Such payments are commonly referred to as preferential or preference payments. Back to Top CAN A BANKRUPT CONTINUE TO EARN INCOME? Yes, a bankrupt may continue to earn income. If however, the income of a bankrupt exceeds certain limits, the Trustee will assess and recover liability for a contribution from that income to be paid into the bankrupt's estate. The size of the contribution is assessed on a formula, taking into account a broad definition of income which will include, amongst other things, personal income, certain benefits provided by third parties and income from superannuation or trusts. The level of income assessed is reduced by consideration of income tax payable on the income and certain child support payments. An adjustment is also made for the number of dependents that the bankrupt is supporting. Refer to the Worrell Whitehill Contribution Calculator for a quick assessment of your likely contribution level. The liability to pay this contribution to the estate survives beyond the discharge of the bankruptcy and can be enforced by the Trustee by the use of a garnishee or other means. Back to Top WHEN DOES BANKRUPTCY END? The bankruptcy period normally runs for three (3) years from the date on which the bankrupt files his or her Statement of Affairs. A bankrupt may be discharged after only six (6) months if there are no other assets to distribute, debts are not more than one and a half times the income of the previous year, income contributions are not required and the bankruptcy will serve no useful purpose. A bankruptcy may be extended for between five (5) to eight (8) years if the bankrupt fails to co-operate with the Trustee, leaves Australia, manages a company without the leave of the Court to do so, or engages in misleading conduct in relation to an amount of over $3,000. On discharge, but not before, the bankrupt is released from all provable debts, that is debts which are entitled to prove for a dividend in the bankrupt estate. There are some debts which are not released by virtue of the discharge. These debts include liabilities under a Maintenance Order of the Family Court and Child Support Agency liabilities. Back to Top HOW DOES BANKRUPTCY EFFECT JOINTLY OWNED PROPERTY? The Trustee of a bankrupt estate is entitled to have his name entered on the Title Deed. The Trustee inevitably will invite the co-owner of the property to either buy the bankrupt's interest or join with the Trustee in selling the property and splitting the proceeds. However, if it becomes necessary the Trustee can force the sale of joint property. Back to Top CAN BANKRUPTCY EFFECT A FAMILY TRUST? A Trustee may recover property that a bankrupt has given or sold to a Trust at less than its true value. The Trustee will also endeavour to recover any monies that may be owed to the bankrupt by a Trust in the form of a loan. Back to Top WHAT IS AN ANNULMENT OF BANKRUPTCY? The effect of an annulment is to abolish the bankruptcy and to reinstate matters as if no bankruptcy had occurred. An annulment can be obtained by:- an Order of the Court that the bankruptcy should not have occurred; where the bankrupt's debts and the costs of the administration have been paid in full; or when a proposal under Section 73 has been accepted. Back to Top WHAT IS A SECTION 73 PROPOSAL? It is a proposal a bankrupt puts forward to his creditors seeking to have his bankruptcy annulled. What is contained in the proposal is dependent upon the facts and circumstances of each case. Back to Top WHAT SHOULD THE PROPOSAL OFFER CREDITORS? Generally speaking, the purpose of a proposal is to provide funds to the bankrupt estate that would not otherwise be available or some other arrangement with creditors so that creditors can expect to receive a dividend greater than what they would otherwise receive if the bankruptcy were to continue. Back to Top HOW IS A PROPOSAL ACCEPTED? The proposal is considered by creditors at a meeting called for that purpose. At that meeting, creditors present, either in person or by proxy, vote as to whether to accept or reject the proposal. The resolution required to accept the proposal needs to be passed as a special resolution. Should a special resolution be passed then all creditors, whether they attended the meeting or not, are bound by that decision. Back to Top WHEN IS THE BANKRUPTCY ANNULLED? It is annulled upon the passing of the special resolution. The Trustee must as soon as possible after the date of the meeting give to the Registrar in Bankruptcy a certificate setting out the date of the annulment and the Registrar must enter into the Court's records the fact that the bankruptcy has been annulled. Back to Top WHAT IS THE EFFECT OF A SECTION 73 ANNULLMENT? In general terms, acceptance of a proposal is binding on all creditors who have provable debts in the bankrupt estate, except those debts that would not otherwise be released on discharge from bankruptcy. Back to Top CAN A SECTION 73 ANNULMENT BE CANCELLED? Yes, if there is default on the agreement, or the Court thinks it appropriate to do so. When the Court is involved in cancelling a Section 73 Annulment, it may also make the debtor bankrupt again. Back to Top DISCLAIMER The enclosed information is of necessity a brief overview and it is not intended that readers should rely wholly on the information contained herein. No warranty express or implied is given in respect of the information provided and accordingly no responsibility is taken by Debt Free Agencies or any member of the firm for any loss resulting from any error or omission contained within this brochure. Back to Top

Veterans Affairs

Smith & Associates Solicitors has a special interest in veterans’ matters. We assist Veterans and their dependents with their Department of Veterans’ Affairs Disability Pension claims, Service Pension claims and Military Compensation and Rehabilitation Scheme claims.

We further assist veterans and their dependents in any appeals to the Veterans’ Review Board (VRB), the Administrative Appeals Tribunal (AAT) and the Federal Court.

We are preferred suppliers of legal aid in Queensland and, in the majority of cases, can obtain a grant of aid to assist clients in their AAT and Federal Court appeals.

Rob Martin heads up the Veterans Branch within the practice. Rob had 30 years military service, both regular and reserve, including a tour of operational duty with an infantry battalion in Vietnam. He is able to use his military experience and legal training to optimise benefits for his veterans clients.

Noel Payne acts as a consultant to the firm in a case management capacity. He has significant experience in veterans' affairs matters, and continues to act as an educator in this specialist area of consulting and law.