Month: March 2016

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Representing yourself? Check out these tips first.

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If you are Self-Represented Litigant [SRL] you may still require legal advice and help with documents. “Evidence” is anything presented in support of an assertion (Wikipedia).

For example, did you know affidavits must be drafted in accordance with the rules of evidence? There is a difference between evidence and telling your story. There is a difference between what you think is unfair – and evidence. And if you do not draft the affidavit correctly, you risk some of what you have included in your affidavit to be considered irrelevant.

Even if you are representing yourself at the Family Court, we can provide you with assistance regarding your Application e.g. Affidavits, Applications, Financial Statements etc. We can check that the documents that you have drafted are completed correctly, we can explain forms to you, we can help you to understand the process and how things might proceed within the court room so that you can run your case with an understanding of the basic procedure expected from you.

We do not have to be there on the day with you. You can still represent yourself in court, however, you will be able to do so with the knowledge that you have your forms filled correctly.

Did you know that the applicant speaks first in a court case?

If you are considering SRL, speak to us. We offer the first 30 minutes of consultation free. We’ll help you identify where you may need help so that you may present your case as best you can.

Cyber Stalking – It’s not always how you imagine it.

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Before separating, a husband bought a mobile phone for his wife. Unbeknownst to her, he registered his details on the cloud – which were linked to that phone.

This enabled him to monitor every SMS, call, photo captured on the phone and internet page viewed. Because he could access all this information, easily from the cloud, he kept track of her every move and eventually her affair.

 

What to do if you believe you are being stalked

Cyber stalking is a form of domestic violence. The victim should seek legal advice for obtaining an intervention order or an injunction restraining that behaviour.

Our advice is for you to be aware of the functions enabled on your phone. Always have a password on your phone. If you suspect that someone is stalking you, stop using the phone immediately and speak with us for a range of solutions.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Know your deadlines

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Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act) is a very important piece of legislation, particularly for builders and the sub-contractors.

The Act allows for a swift resolution of payment disputes between builders and their sub-contractors, however, it also requires tight adherence to specific timeframes. If used quickly and correctly, the provisions of the Act will allow a sub-contractor to recover a payment or will allow a builder to successfully defeat a claim.

The pertinent timeframes are as follows:

(1) A payment claim is be served by a claimant (sub-contractor) on a respondent (builder) within the terms that are stated in the contract, or, if nothing is stated in the contract, then within the period of 3 months after the last batch of work was carried out.
(2) A builder (respondent) has to provide a payment schedule specifying either an amount that the respondent proposes to make, or refuse to make, the reasons for withholding a part or the whole of the payment and/or should state which amount is an excluded amount (if any). This payment schedule has to be provided to the claimant within the time required by the contract or within 10 business days after the claim is served.
(3) The claimant then has a choice depending on whether a payment schedule is served or not.

Payment schedule is served but the claimant does not agree with the amount and the reasons Payment schedule is not served
(1)        The claimant can apply for an adjudication provided that the claimant notifies the respondent within 10 business days immediately following the due date for payment of the claimant’s intention to apply for adjudication, and the respondent has been given an opportunity to provide a payment schedule within 2 business days after receiving the claimant’s notice.

 

(2)        The application can be made within 10 days of the provision of the payment schedule or if the respondent fails to pay the whole or part of the amount in the schedule and 5 days after the expiration of 2 business days after the notification of the intention to adjudicate is given to the respondent.

 

 (1)  As in (1) and (2) in the left column; OR

 

(2)  Issue a Statement of Claim in Court.  The respondent has no defence to the claim if it has not complied with the tight timeframe required by the Act.

 

There is no prescribed form for a payment claim or payment schedule, apart from the fact that both have to identify construction work that both relate to, the project they relate to and the amount of payment sought/proposed to make.

It is of a vital importance that builders who are served with a payment claim pursuant to the Act do not ignore them and prepare payment schedule within 10 business days. Failure to do so can potentially result in a situation where you are precluded from filing a Defence to a claim or an adjudicator decides against you.

It is of an equal importance that the sub-contractors who serve their payment claims understand that should they wish to proceed with an adjudication process, they need to provide a notice of intention to proceed with the adjudication within 10 business days of receipt of a payment schedule, otherwise they are precluded from taking that option.

Make sure that you have a template for a payment schedule that can be sent quickly when required or speak with us today for assistance.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Baby Boomers are you ready?

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A Power of Attorney is a legal document under which a person (referred to as the ‘Principal’) who has the capacity to make decisions, may appoint another person (referred to as an ‘Attorney’) to make decisions on his/her behalf.

A new law is in place – what does this mean to you?

The Powers of Attorney Act 2014 (“the Act”) commenced on 1 September 2015. A copy of the Act can be found HERE.

The purpose of the Act is to:

  1. clarify and consolidate Victoria’s enduring Powers of Attorney laws;
  2. create the role of supportive attorney;
  3. improve the protections against abuse of the Enduring Powers of Attorney.

Powers of Attorney made prior to 1 September 2015 will remain valid. The Act does not affect Enduring Powers of Attorney (Medical Treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.

 

So what does this all mean to you?

When you appoint a Power of Attorney, you will ensure your personal, medical and financial matters are managed properly if you no longer have the physical or mental capacity to manage these issues yourself.

If no one is appointed as your Power Of Attorney, VCAT is the only authority capable of appointing someone to this role. This process can take at least six months and additional legal costs can be incurred.

To avoid a VCAT proceeding, you must ensure that the appropriate documents are prepared and executed while you (or the person you are organising Power of Attorney for) still has decision-making capacity.

The preparation of these forms should be unique to each person as individual circumstances are always different. There are a number of different types of Powers of Attorney, including:

  • Enduring Power of Attorney (EPOA);
  • Supportive Power of Attorney (SPOA);
  • Medical Power of Attorney (MPOA).

 

The best time to complete your Power of Attorney was yesterday, the second best time – is today. For further information or to receive the correct forms – speak to us.

Mediate and save

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Mediate and save!

Prior to initiating family law proceedings in relation to children, parties are obliged, in accordance with the Family Law Act 1975, to make a genuine effort to attempt to resolve their dispute through mediation/family dispute resolution which is conducted by a qualified Family Dispute Resolution Practitioner (“FDRP”).

If the parties have attempted to mediate the dispute via the FDRP and are not successful in resolving the dispute, the FDRP would issue what is known as a “section 60I certificate”. This is a certificate stating that the dispute was not resolved and the reasons why.

Sometimes the Courts may grant an exemption to the requirement of the certificate if one party (or both) is able to demonstrate that family dispute resolution is not appropriate in the circumstances, for example, when there is family violence involved.

 

Avoid the wait.

Most FDRPs operate out of large practices and often have a 5 to 6 week waiting period before the first session (there are a minimum of 3 sessions in a process: one session with each party and then a final session with both parties).

There are a number of recognised FDRPs across Melbourne. You may locate one via a Google search, or we may recommend someone to you. As a referred client of Hassall’s Litigation Services, our preferred FDRPs will prioritise your mediation so you can commence your session sooner.

Our clients have found Ms. Dianne Loveday from “Bayside Mediation” to be a very effective mediator/FDRP. Dianne is our preferred FDRP and has been able to resolve complex disagreements, which mean court proceedings cost our clients less and take less time. Visit Dianne’s website here to obtain more information on mediation:

 

Mediation for property?

Although there is no requirement to mediate in regards to a property dispute before initiating a proceeding at Court, it is advisable to attempt mediation prior to issuing an application as the mediators may be able to assist parties in respect to property division. This step may also reduce legal costs and assist the parties in coming to a resolution sooner.

If the parties are able to agree on the division of property, the mediator may draft a simple agreement with the consent of the parties, and one of the parties may engage a solicitor who would assist in the preparation of formal Consent Orders in accordance with the terms of the agreement. The formal Consent Orders would then be sent to the Family Court to be filed and approved.

Mediation may be a more economical process than negotiating with the other party via the respective solicitors.

 

No mediation? This is what it could cost you

If you are unable to resolve your dispute and have no other choice but to make an application to the Court then you would incur significant ongoing legal costs and experience lengthy waiting periods in the Court system.

 

Mediation will save you money.

Before commencing a family law proceeding in respect to parenting issues, speak to a qualified FDPR. Simply complete a Google search or contact our preferred FDRP, Dianne Loveday from Bayside Mediation or speak with us for further information.