Everyone wants to be good neighbours and when they aren’t, life can be hell. It’s not until something goes wrong with a tree, fence, noisy dog, noisy neighbour or retaining wall that relationships can turn sour.
Fences are the No.1 cause of disputes among neighbours. The Dispute Settlement Centre of Victoria (DSCV) found that 38 per cent of the neighbourhood disputes were over fences.
A timber fence that was erected 40 years ago when the land was subdivided may now be showing signs of rot. According to the law, neighbours have to come to a solution on a “sufficient dividing fence” and pay half each.
Disagreements arise when neighbours are deciding if it should be fixed, replaced, what the colour or height should be and the cost. One neighbour may think it would be fine to fix a few palings, while the other may want the whole side replaced.
Problems also arise with agreeing to what is “sufficient”. The fence may need to be higher for one neighbour due to privacy, or to contain a pet. If one neighbour wants a fence that is more expensive, then they have to pay more than the other neighbour, which again can lead to arguments. Find out about your rights under the law and remedies with fencing –HERE
Amanda Hickey is a mediator and helps neighbours come to a resolution. She finds many fencing disputes are about where to erect them and getting a surveyor to determine the exact boundary line, which costs money that no one wants to pay.
“You find older people stay in their house for a long time. They seem to be attached to their fences and they have a whole story about why it should be in spot X but it’s in spot Y,” she says.
Noise complaints come in second place as a cause for frustration for neighbours. In NSW, 18 per cent of all neighbourhood disputes handled by the Community Justice Centre (CJC) were noise-related and of those, 57 per cent were barking dogs.
If the noise is late at night or very loud and excessive, the police can be called. But what if the dog barks every morning when the owners leave for work?
What if the neighbour’s child starts to learn the drums and plays every afternoon when the nearby baby is trying to sleep?
Power tools in the early morning and air conditioners running all night are other causes of friction. And of course there is the endless barking and carry on from some unneighbourly dogs. Find out about what you can do about neighbour noise –HERE And crazy out of control dogs –HERE
The third largest cause of friction among neighbours is trees. In Victoria, complaints concerning trees account for 17 per cent of all disputes. A jacaranda planted 15 years ago may look lovely until the branches start growing over the neighbour’s fence, blocking views.
In 2017, of all NSW tree disputes, 68 per cent were applications concerning a tree causing damage to a property or injury to a person, while 32 per cent were applications concerning a hedge severely obstructing sunlight or views. Even a beautiful jacaranda tree can cause neighbourly disputes. Also, root systems don’t adhere to property boundaries. Roots can grow under fences and disrupt the pipes of neighbouring households.
There are no simple rules about who is responsible for pruning or cutting down a tree that affects neighbours, which can cause more disagreements. Check out your legal rights and remedies concerning trees and fences –HERE
Adrian Mueller is a strata lawyer and finds the fourth, and the most difficult, dispute among neighbours is retaining walls.
The lack of legislation and the expense to fix a retaining wall means neighbours can spend a long time in court trying to come to an amicable resolution.
“They take a long time as there is a lot at stake. If it is about to collapse, one day there is a big storm and it comes crashing down,” he says. “The clock is ticking, it is not covered by insurance and no one wants to pay for it.”
If you both have a financial arrangement in place when your relationship ends, you must stick with what you have agreed to with regards to how your property and financial resources are to be distributed.
As these types of agreements are binding, it is difficult, although not impossible, to change or overturn them. There are some exceptions to this which include where the financial agreement wasn’t made with your full cooperation or where the court finds (after you have made an application to it) that the financial agreement isn’t fair and equitable.
You can make a financial agreement at any time during your relationship, even when it is coming to an end.
Having a financial agreement that you both agree on is helpful as it can speed up the finalising of your property and financial settlement, and also keep the matter from going to court.
Here’s a great video from our friends at Legal Aid:
When you don’t have a financial agreement
If you haven’t made a financial agreement or you don’t think you’ll be able to work out one, you can make an application to the court for a property settlement. (You would both normally do this with the help of your lawyers.)
When seeking a decision from the court, the date of your separation is important. You must lodge your application for a property settlement with the court no more than two years from the date of your separation. After this time you need the court’s permission to apply.
It is also an important date because the court can assess the assets, liabilities and financial resources as at that date.
On this point about the end date…
♦ If you have a registered relationship and you have made application to end it, once the 90 day cooling off period is over, the Registrar will officially revoke your relationship.
♦ If you haven’t got a registered relationship don’t worry, but it is advisable that you keep a clear record of the date of separation even if it is by way of email, SMS or even a social media post. And when you make a statement this way keep it very matter of fact as nasty comments can later be submitted to a court particularly when parenting issues are being worked out. Alternately, you could simply advise a lawyer.
What happens if we go to court?
You can generally make a claim for the court to divide property within two years of the relationship breaking down, and sometimes you can even bring a claim if more than two years have passed.
Before the court can determine your financial dispute, you must satisfy the court of all of the following:
◊ You were in a genuine de facto relationship (either registered or not) with your former partner, which has broken down
AND…
◊ You meet ONE of the following four criteria:
• That the period for the de facto relationship is at least 2 years
• That there is a child in the de facto relationship
• That the relationship is or was registered under a prescribed law of a State or Territory
• You’ve made substantial financial or personal contributions which you won’t be adequately compensated for unless the court makes an order.
AND…
◊ You have a geographical connection to the court handling the matter. This means that it’s important (but not essential) that the court be in the State you currently live in, or where your relationship was based.
AND FINALLY…
◊ Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although in some cases you might be able to apply to the courts if your relationship broke down prior to these dates.
Double check with a lawyer as to whether you fit these criteria before applying to the court.
When a court divides property it takes into account both people’s financial and non-financial contributions to the relationship.
And by non-financial I mean it will look at how you divided up household chores, property maintenance and even the contributions you’ve made as parents.
For de facto couples in particular, it will also take into account the amount of money both you and your former partner earned and will consider any differences in your future earning capacity AND your obligations to care for the children.
Take a look at the fact sheet from Relationships Australia, When De facto Relationships Breakdown, which provides more information about whether you are eligible to make an application for financial matters in the Family Court or Federal Circuit Court.
And what can the court do?
The Family Law Court or Federal Circuit Court can order a division of any property that you both own, either separately or together with each other. This includes superannuation (see the section underneath about super splitting) and spouse maintenance.
………
What about my superannuation?
It never fails to surprise me how many people believe that their super is theirs alone and can never be touched even when divorce or the end of a relationship is near. However, when it comes to property settlements, it’s about getting an equitable division of ALL the assets. In a nutshell, everything is on the table.
When it comes to super you do have the option of sorting out how the division or ‘split’ of your super should occur. Couples who have separated are able to make an agreement – known as a superannuation agreement – about how any superannuation that either party will receive is to be split.
(WA is exception here, with de facto couples in Western Australia not being subject to the superannuation splitting laws.)
By the way, if you don’t get legal advice the super agreement won’t be binding on the trustee of the superannuation fund.
You can both make a superannuation agreement either before or duringyour de facto relationship, which states how any superannuation will be split onthe relationship breakdown.Because superannuation is different to other property, there are special rules about what a superannuation agreement must say. Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding.
And when it is binding, the trustee of a superannuation fund must by law implement your agreement. And binding also means the court is not able to make any orders about superannuation.
What does my payment splitting agreement have to say?
The payment splitting agreement has to say how the superannuation interest is to be split in order for it to operate effectively. Generally, a payment splitting agreement must specify:
• An amount- known as the ‘base amount’.
• A method for calculating the base amount, or a percentage that is to apply to all splittable payments made in respect of the superannuation interest.
(And your entitlement under any payment splitting agreement depends on what the agreement says.)
What if we can’t agree on super splitting?
If despite all opportunities to negotiate both between yourselves and your lawyers you are both unable to agree, then the court is able to make an order about super as part of any property settlement order. This will state how any superannuation is to be split and that order is binding on the trustee of a superannuation fund who must comply with it.
Take a look at what the court considers when it has to make an order because you can’t agree on super (and other property matters).
Pets
Pets can often enter the negotiation when property arrangements are being worked through. It is possible to organise formal custody agreements and/or visitation rights so time spent with Fido or Miss Whiskers is fairly divided. It is best to draft an agreement between yourselves as these matters are seldom heard in what are already congested family courts.
Oh and don’t forget, you should also advise all relevant government agencies (eg Centrelink, Medicare) of any separation as this could be relevant to any benefits you might be entitled to and child support.
There’s a saying about divorces…they can get messy.
The breakdown of a marriage is often a time of anxiety and mistrust, where composed negotiation with your soon to be ex-spouse can often take a back seat. But if you take a moment early in the separation process to pause and remain calm, reaching an early financial agreement with your spouse can have many advantages.
Sitting down and working out how you will divide your assets allows you both to:
♥ Make your own decisions ♥ Reduce the financial and emotional costs of legal proceedings ♥ Keep on a good footing your continuing relationship as parents (if you have children) ♥ Move forward and make a new life for yourself ♥ Improve communication with your former partner so you can better resolve disputes in the future.
Financial Agreements
Having a financial agreement means knowing exactly what each of you will get, whereas, by going to court, there is uncertainty in waiting for a judicial officer to decide for you. Plus, court proceedings can be long, stressful and costly for both of you.
(However, if you feel that you’re not going to get a fair deal out of this sort of approach, then have a chat with a lawyer or seek some legal advice from Family Relationships Australia on1800 050 321)
I will be frank and say that when couples are fighting over assets, lawyers get big paydays. Try and be reasonable in any early negotiation over assets and give ground where necessary as a long winded legal battle will set you back 10s of thousands of dollars…each!
One property fight in 2018 left the two parties with bills of near a quarter of a million.
Who needs that?
The Family Law Act allows you to make financial arrangements:
• before marriage (or de facto relationship) sometimes known as a “pre-nup”;
• during marriage (or de facto relationship), and before separation;
• during marriage, and after separation; or
• after divorce (or the end of a de facto relationship).
Needless to say, you should always get legal advice before entering into ANY financial agreement.
It’s important to understand that there is a maximum time limit for organising a property settlement once your divorce has been granted.
There must be an Application to the Court for property settlement filed with either the Federal Circuit Court or the Family Court within one year of your Divorce becoming “absolute”.
Your divorce becomes “absolute” when the Court issues you both with a Certificate of Divorce. This normally happens 1 month and 1 day after the Divorce hearing.
(Please note you don’t actually have to attend any hearing, all the divorces are granted in a simple administrative process by the court.)
If you haven’t done your property application it within that timeframe you can make an application to the court for an extension of time by applying for “Leave to Proceed”. This is an application to the court with an affidavit explaining why you are running late.
However, you must have a good reason for wanting an extension, as leave to proceed with a property settlement outside the time limit is only be granted in limited circumstances.
What Can financial Agreements Cover?
Financial agreements cover things like:
♦ How, in the event of the breakdown of the marriage, all or any of the property or financial resources (including superannuation entitlements) of either or both of you is to be dealt with upon separation and/or divorce.
(See the section underneath about ‘super splitting’.)
♦The maintenance (financial support) of either of you after divorce.
♦ And even issues like who gets to keep the treasured pets.
These agreements need to be signed by both of you, and it’s important that you both have separate legal and financial advice before signing.
The government is strengthening the laws (as of Mar 2016) to make it more difficult to challenge financial agreements. Take care to ensure any financial agreement is well thought through, based on legal advice and reflects what both of you want.
Here’s a great video from our friends at Legal Aid, explaining what you should know about your property and financial matters, what to expect from a property settlement and how to make dividing your property less stressful.
I am sure many of you are thinking that this all looks very calm and collected and a bit unreal when you both might be unhappy with each other.
But try to make an effort to sit down and work out who gets what and how maintenance and child support are going to be organised. It is definitely a better option than going to court. Because financial agreements are private documents between you and your spouse, the court does not need to know about them.
However, some couples choose to get the court’s stamp of approval by filing their financial agreement with the court by getting what are called consent orders.
Consent Orders
You and your former spouse can apply for consent orders to be made in the Family Court without going to court. Consent Orders are normally drafted by both of you in consultation with your lawyers.
These orders deal with things like – spousal maintenance, splitting of superannuation and the transfer or sale of property. (The order can also include child maintenance)
You won’t have to go to court if you both have agreed on the drafted orders. Once the court approves them, they have the same strength as a court order made by a judge or magistrate after a court hearing. Any breaches of the consent order is taken very seriously by the court who may require you to appear before it and explain why the order was not followed.
It’s also important to note that you must apply for this order within 12 months of your divorce order taking effect. After this time, you’ll need the Court’s permission to apply.
What if we can’t agree on financial and property or maintenance?
As I mentioned, divorce can lead to difficulties in sorting things out and where it’s become impossible to get an agreement or one that is fair you can organise with a solicitor to apply to the court for orders. These orders will be different to the Consent Orders because they are prepared because there was no mutual consent or agreement between the two of you.
Now it’s important to know that the court would rather you both work things out than have to drag your financial and other disagreements through the court, adding more time and cost.
So where there are disagreements, before any application can be prepared, you both must make a genuine effort to resolve your differences on finance and maintenance through family dispute resolution.
The Family Court requires people applying for financial orders to follow pre-action procedures including dispute resolution before being able to file an application. In the Federal Circuit Court people are encouraged to resolve issues they don’t agree about before filing any applications. In many cases parties will be ordered to attend dispute resolution before they file with the Court.
(The same applies for couples who want a ‘Parenting Order’, because they can’t agree on how the post separation/divorce parenting will be done)
You can’t avoid this family dispute resolution. It is part of a process you both must go through to see if things can be worked out before any orders are drafted by your solicitors.
If things still don’t get resolved you can ask for financial orders from the court.
Before your case is heard in court
There is a much emphasis placed by the family law courts on resolving financial agreements BEFORE having a court hearing, which can end up being costly and emotionally draining.
The first thing that happens is that the court will ask for a case assessment conference. There are certain documents you must bring. The conference provides you both with an opportunity to reach an agreement, with the help of a registrar.
Registrars are experienced family lawyers who work for the court. They are appointed to perform certain tasks such as grant divorces, sign consent orders and determine the next step to take in unresolved financial disputes. They’re not there to give either of you legal advice, but can talk with you about the legal principles that are applied in deciding a case.
If you still can’t reach an agreement the registrar will either recommend you have further mediation or advise what will happen next, which could be a conciliation conference or progression of your dispute to a court hearing.
Where an order has been made for a conciliation conference by the court, attendance by all parties involved is compulsory. Here’s some information on conciliation conferences.
At the conciliation conference, the registrar will again look at the case from both sides and help you explore options for settling your case without further legal action.
What financial orders can you ask for?
Now if after all that negotiating you still can’t resolve your dispute you ask the court to consider your matter and make decisions. Here’s some information about preparing for court.
You can apply for orders relating to:
♦ Property – to say how your property, income, financial resources and debts should be shared between the two of you. ♦ Maintenance – to provide financial support for a (former) husband or wife, or (former) de facto partner ♦ Child support – but in certain circumstances. (These applications are generally dealt with by the Federal Circuit Court.)
The court has a 4 step process for assessing any financial settlement application:
Step 1 – Identifying and valuing the assets, liabilities and financial resources of both of you
This includes all assets, liabilities and financial resources, whenever and however acquired. In many cases this is a simple part of the process. However, in some cases, particularly those involving businesses, the valuation exercise can be quite complex and require the involvement of specialist experts.
Step 2 – Assessing both of your contributions
This involves the assessment of the contributions made by you and your former spouse during the relationship.
This might include:
∗Direct and indirect financial contributions to the property of the parties
∗Direct and indirect non-financial contributions to the property of the parties; and
∗Contributions to the welfare of the family including contributions in the capacity of homemaker or parent.
Step 3 – Assessing the future needs of each of you
Which will include such things as:
♦The age and state of health of each of the parties; ♦The income, property and financial resources of each of the parties and their capacity for employment; ♦Who has the care of your kids that are under the age of 18 years;
♦Any particular commitments necessary to enable a party to support him or herself (or any other person that party has to maintain)
♦The eligibility of either party for a pension superannuation; ♦The standard of living that is reasonable in the circumstances; ♦The extent to which the earning capacity of a party has been affected by the relationship.
The Court considers the above points and any other relevant facts and then decides if there ought to be an adjustment from a 50-50 position (both parties receiving equal shares) to favouring one of the parties to compensate for any difference in their future circumstances.
Step 4 – Is the proposed division of property fair to both parties?
The court, after those first 3 steps, then decides if the proposed division of assets is fair to each of the parties. This assessment is done by taking into consideration all the circumstances of your case.
Planning to file for financial orders but also need urgent child support?
Regarding child support, you should seek legal advice or contact the Department of Human Services (Child Support) on131272 before making an application in the Federal Circuit Court.
It never fails to surprise me how many people believe that their super is theirs alone and can never be touched, even when divorce or the end of a relationship is near. However, when it comes to property settlements, it’s all about getting an equitable or fair division of ALL the assets. This means that a spouse may receive some of their partner’s super.
In a nutshell, when it comes to your assets, everything is on the table.
When it comes to super you do have the option of sorting out how the division or ‘split’ of your super should occur. Couples who have separated are able to make an agreement – known as a superannuation agreement – about how any superannuation that either party will receive is to be split.
(WA is exception here, with de facto couples in Western Australia not being subject to the superannuation splitting laws.)
By the way, if you don’t get legal advice the agreement won’t be binding on the trustee of the superannuation fund.
If you are a de facto couple, you can both make a superannuation agreement either before or during your relationship about how any superannuation will be split on the relationship breakdown. Because superannuation is different to other property, there are special rules about what a superannuation agreement has to say. Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding.
And when it is binding, the trustee of a superannuation fund must by law implement your agreement and the court is not able to make an order about superannuation.
What does my payment splitting agreement have to say?
The payment splitting agreement has to say how the superannuation interest is to be split in order for it to operate effectively. Generally, a payment splitting agreement must specify:
• An amount – known as the ‘base amount’.
• A method for calculating the base amount, or a percentage that is to apply to all splittable payments made in respect of the superannuation interest.
And your entitlement under any payment splitting agreement depends on what the agreement says.
What if we can’t agree on super splitting?
Once again, if you are both unable to agree, then the court is able to make an order, as part of a property settlement order, about how any superannuation is to be split and that order is binding on the trustee of a superannuation fund who must comply with it.
Take a look at what the court considers when it has to make an order for divorcing couples because you can’t agree on super (and other property matters). And for de facto relationships HERE.
Pets
Pets can often enter the negotiation when property arrangements are being worked through.
It is possible to organise formal custody agreements and/or visitation rights so time spent with Fido or Miss Whiskers is fairly divided.
It is best to draft an agreement between yourselves, as these matters are seldom heard or allowed in what are already congested family courts.
If you are having difficulty coming to any financial agreements then it is best to sit down with your lawyers and get them to help work out something that is mutually acceptable.
Also, root systems don’t adhere to property boundaries. Roots can grow under fences and disrupt the pipes of neighbouring households.
