How will stamp duty changes in Victoria affect me?

Stamp duty is one of the larger costs a buyer has to settle aside from the home deposit and mortgage repayments, but many first home buyers make the simple mistake of forgetting to budget for this expense.

With the State Government recently announcing major changes to this tax, we’ve compiled a one-stop guide to equip you with everything you need to know about stamp duty in Victoria.

What is stamp duty?

Stamp duty is a state-imposed tax that pays for the transfer of property from one owner to another. This compulsory tax is levied on a number of asset purchases, but it’s most commonly known as the tax you pay when you buy a house or land.

The rate you pay varies state by state, but other factors also come into play: the type of property you’ve purchased, whether you will be living there as your primary residence and whether you are an Australian citizen.

How will stamp duty change in Victoria?

The Victorian Government 2020/21 budget released on 24 November 2020 revealed that Victoria will offer major stamp duty discounts. These measures were put in place to boost the real estate industry in its stride towards economic recovery post-lockdown.

The government is offering stamp duty waivers on homes worth up to $1 million on contracts entered until 30 June 2021.

Home buyers will save:

  • 50% in stamp duty – worth up to $27,500 (on a $1 million property) – for newly built or off-the-plan residential properties
  • 25% in stamp duty – worth up to $13,750 – when purchasing existing residential properties.

Stamp duty will be abolished for first home buyers purchasing properties valued under $600,000.

Abolishing such a large tax will encourage first home buyers to enter the property market sooner, with Treasurer Tim Pallas saying the stamp duty changes would help 25,000 Victorians purchase their first home.

How can we help?

Buying a home is a milestone event, often prompting a client’s first encounter with a lawyer. For us, it is a process that we’ve been through thousands of times before so you’re in safe hands.

With more than 35 years in practice, we know the market, the people, and the process involved in buying a home and can advise you on how to stay on top of all of the legal requirements .

Book an obligation-free, confidential consultation today or call us on 03 98785222.


What You Need to Know About the Sale of Your Business

Top 5 Tips for Selling A Business

You’ve spent countless hours working and growing your business, so it’s time to get the reward for all your hard work. It hasn’t always been easy, but hopefully your business is something you can be proud of.

Selling a business can be a very difficult and stressful process. Whether you’re planning your retirement or your next business venture, you need everything to go smoothly.

Here are five things to keep in mind when selling a business to make sure it goes smoothly.

5. Get all the paperwork in order

There is a lot of paperwork involved in selling a business, and it can be quite complicated. Some of the documents you may need include:The Contract of Sale

  • A Section 52 for small businesses
  • A transfer of Lease if there is a Lease
  • ASIC name change documents if necessary
  • A transfer of any licenses such as liquor license

The exact documents you need will depend on the nature of your business, but the most important thing is to make sure you have all the documents you need and that they’re done correctly.

Mistakes with any of these documents can be very costly and time consuming to fix. Getting the help of a lawyer for selling a business is the best way to ensure all the paperwork is done correctly.

4. Negotiate the sale

brewer supporting

Getting a good price for your business is, of course, one of your biggest concerns. This starts with valuing the business accurately. You need to do this part with your head, not your heart.

When valuing your business, you need to take into account the value of your assets, estimate future profits, and consider the value of the goodwill your business has with your customer base. Valuing your business is not an exact science, and you may need a professional to help you get an accurate valuation.

When you’re negotiating the sale with a potential buyer, there are a number of things that you will need to agree on, including the sale price, handover training, and settlement period.

As with any negotiation, you may not get everything you hoped for. Ultimately, it is up to you whether or not to sell your business for any given amount. In some cases, you may not be able to come to an agreement with a potential buyer.

3. Let your employees know

When selling a business, your employees will either transfer with the business to the new owner or end their employment with the business. In both cases, you will cease to be their employer.

Since your employees will no longer be employed by you after selling your business, you are required to give them notice of ending employment or provide payment in lieu of notice.

In most cases, it’s easier for the new business owner to keep the existing staff. However, it’s important that you keep your employees informed with what’s going on.

2. Don’t forget about tax and legal implications

baker supporting

In some cases, Capital Gains Tax (CGT) and Goods and Services Tax (GST) may apply to the sale of your business. A financial professional can help you figure out your tax implications and whether or not you are eligible for CGT concessions which apply to small businesses.

You will also need to cancel your ABN and either transfer the business name to the new owner or cancel the business name.

1. Get expert legal advice

Getting the help of a lawyer for selling a business will ensure the whole process goes as smoothly as possible. Your business lawyer can help you with every step of the process for selling a business. They will ensure that nothing gets missed or overlooked.

At Rose Lawyers, we’ve been helping our clients buy and sell businesses for over 35 years. We have a great deal of experience with business law, and we know how difficult it can be for business owners to get it right on their own.

If you need a lawyer for selling a business, call us on 03 9878 5222.


Defining Power of Attorney and All it Entails

What would happen if you were suddenly unable to make decisions on your own behalf?

Though it’s never something one plans for, is crucially important to think about who you would like to act on your behalf in case something happens which prevents you from making decisions.

Power of Attorney is a legal document that deals with circumstances such as these. Under this legal agreement, a person (the Donor) gives someone else (the Attorney) the power to make financial, legal or medical treatment decisions on their behalf. The attorney can then do anything that the Donor can do regarding finances, legal matters, medical issues or lifestyle issues.

To appoint a Power of Attorney, you need to be able to understand the implications and consequences of what you are doing. If you do not have the capacity to understand this, the appointment will not be legally valid.

Types of Powers of Attorney

There are four types of Powers of Attorney, each of which allows your nominated representative to legally make different kinds of decisions on your behalf.

General Power of Attorney is the document used to appoint someone – usually for a specific period of time – to make decisions for you for a specific time frame and/or to perform specific tasks. This document doesn’t have to be witnessed, but it also becomes void if you lose the capacity to made those decisions for yourself.

An Enduring Power of Attorney (Financial) is the document used to appoint someone to make financial or legal (but not medical) decisions for you. A Financial Power of Attorney can be enduring (having continuing effect should you lose capacity) or Limited (only applicable for certain decisions or within a certain time frame). A Limited Power of Attorney is also known as a General Power of Attorney. It is important to note that this Power of Attorney usually has immediate effect, meaning that the person you have appointed can act on your behalf immediately and does not have to wait until you have lost capacity.

An Enduring Power of Attorney (Medical Treatment) is the document used to appoint someone to make decisions about medical treatment on your behalf. Your nominated representative has the legal right to make medical decisions on your behalf in the event you lose capacity at some point in the future.

An Enduring Power of Attorney (Guardianship) is the document used to appoint someone to make lifestyle decisions for you. Examples of these kinds of decisions could include whether or not you need to be in a nursing home or retirement village, and the level of care you receive. Your Attorney can only exercise this power in the event that you lose capacity to make them for yourself. For example, if you are to develop Alzheimer’s or Dementia, or suffer from an acquired brain injury or stroke.

Deciding Who to Appoint Under Powers of Attorney

Deciding who you would like to appoint as your Power of Attorney is a huge decision and one that should ideally be made by you. If you either can’t make this decision or don’t, then VCAT can decide on your behalf.

Rather than being a legal decision, deciding who you would like to be your Power of Attorney is a deeply personal matter. Your Attorney should be someone who you trust; someone who has the capacity to make objective decisions and who also knows you well enough to make the decisions that are in line with your own wishes. For example, if you do not want to be put on life support, there is no point in appointing a Power of Attorney if you know they will not turn it off.

relaxed mature couple enjoying retirement

If you wish, you may make a joint appointment for both a General Power of Attorney and an Enduring Power of Attorney (Financial), meaning your appointed decision-makers will make decisions for you jointly. You may also choose to stipulate that both of them will have to agree for any decisions to be valid.

What Happens if You Don’t Have Powers of Attorney?

If you become incapable of making decisions and you do not have Powers of Attorney, then someone has to make an application to a type of Court called VCAT (Victorian Civil and Administrative Tribunal). VCAT is able to give an Order that allows someone to make decisions on your behalf.

This process is usually inconvenient. When there is a need to make a financial, legal, medical or lifestyle decision, the person making that decision usually needs to do so quickly and will not want to wait around for VCAT to make an Order.

On top of that, literally anyone can make the application to VCAT. This means, for example, that your neighbour could end up with control over your finances and medical decisions.

It is far better and more practical to have Powers of Attorney in place so that you can decide who will be able to make these crucial decisions for you, and to ensure that they are people that you completely trust.


A Power of Attorney is a legal document which confers authority to a chosen representative to make decisions on your behalf. This means that if you are unable to make legal, financial, medical or lifestyle decisions, someone you trust will be able to make them on your behalf.

There are four different types of Powers of Attorney, each of which gives your chosen representative the right to make certain types of decisions for you. You may also appoint more than one Power of Attorney, so that they may make joint decisions on your behalf.

Deciding who you would like to make decisions on your behalf is a huge decision. It is one that you need to think about very carefully, weighing up the trustworthiness of potential candidates, their capacity to make objective decisions, the likelihood they will make decisions that you agree with, and how well they know you personally.

Click here to speak to Rose Lawyers or for more information on Powers of Attorney.

Family Uncategorized WillandEstate

How Can I Protect My Inheritance?

Are you looking for legal ways to keep your legacy safe, or do you want to know if you have to share your inheritance with your spouse?

Now is a good time to get your facts straight and your paperwork in order – it can affect your future, for better or for worse.

This detailed article, compiled by our team of law experts, will equip you with all the facts about inheritance protection and explain your legal rights concerning your legacy so you can make informed decisions.

3 Ways to Safeguard your Inheritance.

1. Know how to keep your inheritance safe during a divorce

The quickest and easiest solution to protecting your inheritance is to discuss the matter openly with your former partner and reach an amicable agreement.

You may consider seeing a family mediation lawyer, or seek advice on signing the correct documents to ensure protection for your inheritance.

If you reach an understanding with your ex-partner, you both sign consent orders with the family court or a binding financial agreement with your lawyers.  If negotiations between you fail, and if attempts to resolve conflict through mediation are also fruitless, you can apply for property or financial orders.

A note on property and financial orders:

The Family Law Act 1975 (Cth) (the Act) explains in detail all the factors the Court considers when they decide on dividing property. Matters such as what the contributions were, and the future needs of both parties, affect the court’s decision. It is best to get legal advice when applying for property or financial orders.

Tip: Protect your property

Expert legal help can get a Court Order in place to stop your money from being spent or your property from being sold during a separation process.

Book your Free 15-Minute Consultation now.

2. Learn what the law says about your inheritance

Under the Act, your inheritance is regarded as part of your family’s pool of assets to be considered when a property settlement is negotiated. Australia’s Family Court assesses each case individually as everyone’s circumstances are different.

Your inheritance may be:

  • divided between you and your ex-partner or,
  • you could be the sole beneficiary.

For example, if you received cash as an inheritance, the Court may see it as a financial resource you could use to support yourself after separation – a benefit your ex-partner does not share. As this places you in a financially stronger position than your ex-partner, the Court will take it into account when dividing the assets.

However, the Court will also consider how long ago you received your inheritance before making a decision.

The timing of your inheritance:

If you’ve received your inheritance before or early in your marriage
If you’ve received your inheritance before, or very early during your marriage or de facto relationship, chances are it will be viewed as a personal asset you contributed to the relationship. So, if you separate, your inheritance will be part of the pool of assets shared between you and your ex-partner.

If you’ve received your inheritance during or after your relationship ended
If you were made a legacy late during your marriage or even after you have separated, your inheritance is usually not viewed as a financial contribution to the asset pool the asset pool.  However, the size of the asset pool is taken into account to ensure distribution between parties is fair:

  • If the combined family assets amount to less than your inheritance, your inheritance could be seen as part of the asset pool. The reason is that both parties contributed financially during the relationship, so it may seem unjust to divide the assets without including the inheritance.
  • For instance, if the person who has not received the inheritance made the largest financial contribution, the inheritance may be included in the asset pool to ensure a fair split.

Other points the Court will consider that will affect what happens to your inheritance during separation are:

  • The intention of the person who left the inheritance
    If the person who left you an inheritance had specific stipulations about how it should be used, it will have legal implications to how it is shared.
  • The person/s who took care of the deceased
    If the deceased lived with you and your ex-partner, for instance, and your ex-partner helped you take care of that person before they passed away, your inheritance will most likely be viewed as part of the family assets.
  • What the inheritance was used for during the relationship
    Where the inheritance was used by the family to, for instance, maintain or renovate the shared home, or for daily expenses, it will be seen as a contribution to the asset pool made by the person who received the inheritance.

3. Know your best option – a Binding Financial Agreement or Consent Orders

Binding financial agreements and consent orders are both legally binding ways to settle any property matters you may have.

Binding Financial Agreement

  • A Binding Financial Agreement is a contract between two people and operates independently from the Court or anyone else.
  • By signing a binding financial agreement, married couples or those in de facto relationships agree to manage their finances themselves during their relationship.
  • The agreement also include details on how the assets are divided and what each party’s financial obligations are in case of a breakup.
  • The terms of a binding financial agreement doesn’t have to be fair, for instance; one party may receive a more substantial settlement than the other.
  • It is an agreement that doesn’t pertain to parental matters.
  • There are formal requirements to be adhered to, and both parties need their separate lawyers to sign the binding financial agreement; otherwise, it is invalid.

Benefits of signing a binding financial agreement:

  • A binding financial agreement is helpful in all kinds of relationships, but especially if you have an inheritance, you would like to keep separate from the assets you bring into a marriage or de facto relationship.
  • It is especially popular with people entering into a second marriage or those deciding to live together. They may have experienced the negative effect of not having signed an agreement before and now want to avoid making the same mistake.
  • It provides security, peace of mind and saves a lot of time and money as couples will not need a lawyer in future, or to go to court.
  • Although it is advisable to sign a binding financial agreement before you get married or move in with your partner, you can do so at any time; during your marriage or de facto relationship and before or after separation.

Consent orders

  • Consent orders are filed in court.
  • The Court will only make orders on matters that the couple have agreed upon and if the Court deems the terms fair and just.
  • Consent orders cover financial matters, such as inheritance protection and parental issues.

Benefits of signing a consent order:

  • You can draw up consent orders as a couple, and you don’t need a lawyer as a witness, unlike a binding financial agreement.
  • By signing the consent orders, you in effect agree to the terms as set out in the document, and once the court approves it, it’s legal.
  • You don’t have to go to court to apply for consent orders.

Tip: Get a property settlement

There is a time limit to applying to the Court regarding a property settlement. If you are married, it’s within 12 months of your final divorce date, and if you are in a de facto relationship, it’s within two years of the date of final separation.

Before signing any agreement, it is always best to get legal and financial advice. Our lawyers have more than three decades of experience in dealing with family law in Melbourne.

Contact Rose Lawyers to help you with any questions you may have about whether you should be sharing your inheritance with your spouse or if you need a family lawyer to meditate a separation for you. Book your Free 15-Minute Consultation now.

Must Read WillandEstate

Can an Executor be a Beneficiary?

Ever wondered what an executor of a Will does, what their rights and responsibilities are, if they can be a beneficiary of a Will and if they charge anything?

Drawing on more than 35 years of experience and caring service to our clients, we have put together this comprehensive guide that will answer any questions you may have about executors and beneficiaries of a Will. You will learn definitions of common and complicated terms relating to Wills and Estates and our explanations will leave you with a clear understanding of where beneficiaries and executors fit into the picture.


Will beneficiary

A beneficiary of a Will is an individual, a charity or an organisation who benefits from assets of a deceased estate such as a house, car, property or any other valuable bequests in a Will.

Who are beneficiaries?

Beneficiaries are usually direct family; your spouse, children, parents and other relatives. If you don’t mention family beneficiaries in your Will, they have the right to contest an unfair Will. The court will decide if their complaint is valid or not and can order that the assets go to them, regardless of what you said in your Will. Your estate may be held liable for any subsequent costs.

What are the rights of beneficiaries?

Whether beneficiaries are left property, money or any other valuables, they don’t have the right to make any general enquiries about the Will. However, they can request feedback from the executor if matters take longer than expected to be finalised. If beneficiaries have any specific wishes regarding funeral arrangements, they can discuss it with the executor who may have information of any other preferences mentioned in the Will.

If a beneficiary is left a property in the estate that generates an income, such as rental or shares, this income is due to them from the date of the Will maker’s death. However, they are also responsible for all the property maintenance costs.

Excluding a beneficiary from your Will

If you want to exclude a specific family member from your Will, it’s best to talk to a lawyer for professional advice to manage your Will and estate affairs. You should also write a letter of explanation to inform your executor of the reasons for your decision.


Consider these points when making a Will

If the property in your Will is not paid up when you die, your beneficiaries will have to continue payments unless you have insurance to settle any outstanding amounts.

Take into account the likelihood of you still owning any stipulated assets when you die.

You have options to either combine the value of your assets and divide it as percentages or leave them behind as specifics.

Ensure cash amounts you bequeath is enough to cover any costs related to your Will.

You can establish a testamentary trust under your Will. It is managed by a trust rather than an individual and allows flexibility for how capital and income generated by those assets is distributed.

If you die without a valid Will, intestacy applies, which could cause financial distress to those left behind. Read here about the changes to intestacy laws in Victoria and how it may affect you and to make sure your Will is valid.

Adding a residuary clause to your Will sorts out anything else that may be left over in your estate and it can avoid conflict between family members or friends. Beneficiaries with a share in the residuary estate have the right to:

  •  A copy of the will, statement of assets and liabilities, and annual accounts.
  • An inspection and valuation of the assets.
  • Any costs are the for the beneficiaries’ account.


Role of the Executor

An executor of a Will is a person or trustee company identified in your Will as the entity who manages your estate after you have died.

Who can be an executor of my estate?

If your spouse or another person is the sole beneficiary in your Will, it is often appropriate to name that person as your sole executor. You can also appoint a family member or friend who is a beneficiary of your estate as executor. Other options are professional advisers or a trustee company.


tipUseful tip

It is important to know what happens to your Will after you die, so it is a good idea to have a back up or a second opinion, should your executor not work out for some reason.


Can an executor change a Will?

An executor does not have the power to change anything in your Will. They have to follow the exact instructions as set out in the Will. If a beneficiary suspects wrongdoing, they may lodge a complaint with the court who can intervene.

A Registrar of Probates may also take action if needed. An executor may be ordered by a court to act properly and promptly if the beneficiaries believe the executor is at fault.


Consider these points when choosing an executor

Ask them if they are willing to take on the role – do they have time for the responsibility?

Do you trust them to allocate the assets of your estate to your beneficiaries?

Are they equipped to deal with any technical or financial issues that could crop up?

Will they be good at mediating if any disputes arise due to asset allocations of the Will?

In the case of such disputes, the executor may need professional help, which could incur costs. Can your estate absorb these?

Consider the age of the executor. If they are much older than you, or unhealthy, they may not be suitable.

If you want a professional executor, you may need to pay them. Consider the cost implications on the estate.


Executor of Will duties

As the entity responsible for ensuring your last wishes are performed, an executor of your Will has various duties, depending on whether it is a simple or complex Will.

These duties include:

Seeing to the funeral arrangements.

Ensuring all relevant financial institutions and organisations are informed.

Identifying the extent of the estate and familiarising themselves with the beneficiaries and their expectations.

Following exact specifications in the Will, unless all adult beneficiaries agree to any changes.

Allocating assets to beneficiaries through property transfers or dividing the proceeds through the sale of assets.

Investing funds and managing the assets on behalf of beneficiaries.

Maintaining property in trust, and having it insured and covered for rates and taxes.

Resolving all liabilities and disputes, including any income tax claims.

Keeping thorough records of the estate management and allocation of assets, and distribute summaries to the beneficiaries.

Getting a Grant of Probate, if necessary.

Although the executors can delegate some of their responsibilities out to, for instance, funeral directors, lawyers and accountants, they remain ultimately responsible for the Will.

The executor must perform their duties according to the relevant state-based legislation and not distribute assets prematurely. It’s best to wait until the relevant time passes in the event of a Will being contested.

If an appointed person cannot act as executor, they can sign a renunciation. In such a case, it is best to do so before starting or completing any duties.


What is a probate and do you need it?

A probate is a document issued by the Supreme Court to confirm that your Will is valid and to recognise the executor as the person who will be looking after your estate.

In the absence of a legal Will or if an executor is unable to manage the estate, the court appoints an administrator by issuing a document called letters of administration, which is evidence of the administrator’s authority. The procedure for both is similar and your lawyer can advise you of the requirements.


Executor beneficiary

It is not uncommon for an executor of a Will to also be a beneficiary of the estate. It’s usually spouses who appoint one another as their sole executor and beneficiary.

The Will maker may also appoint another family member as executor, such as an adult child. This is common, convenient and usually successful, as children have a vested interest in finalising the estate quickly. But, there are certain instances where it may not be the best idea to have a beneficiary who is also the executor.


What are the pitfalls?

If a disagreement between family members is probable, it’s maybe better to appoint an independent party to see to your Will’s execution.

Most executors of estates are family members, not professionals, and they often don’t realise the extent of their responsibilities and may not fulfil their duties properly.


tipUseful Tip

If you are considering nominating adult children as beneficiaries, keep in mind your own family dynamics and how likely they are to perform their duties adequately and in an unbiased way.


Rose Lawyers have been Wills and Estate experts since 1977, and we are here to help you. Call us now if you need expert advice about the role and responsibilities of executors and beneficiaries. Your first 15-minute phone consultation is FREE.



Why the Family Mediation Process Works

It is traumatic when a close relationship breaks down, even more so when you and your ex-partner struggle to agree on issues such as custody and property rights. 

Today, we will show you how guidance from our expert family mediators will help you resolve disputes and find amicable solutions through mediation rather than going straight to court. 

You will understand that litigation is lengthy and expensive and only prolongs the trauma of separation, for you and the children, and that it should be avoided. 

You will know that calling us at Rose Lawyers for a free consultation is your first step to finding solutions for any family disputes.

Here’s why family mediation works:

1. The mediation process equips you with all the facts 

When a couple decides to separate, it is important to reach agreements between each other quickly. This may not be possible in all matters, but certain issues can and should be addressed straight away, such as custody and property rights.

Family mediation will help you make the right decisions about child custody arrangements, property rights and other difficult issues, set the process in motion and give things a sense of moving forward, quickly.

A note on divorce
Both you and your ex-partner have to agree on the exact date of separation as a divorce is only granted after 12 months of separation. A disagreement in this regard can also affect any property settlements and the value of the assets and liabilities. 

tip Tip: Sign an agreement confirming your date of separation
Both of you should sign a document confirming the date you separated. An email or text message between you that mentions the date is also considered proof.

Questions we can help you with now include:

  • How does spousal maintenance work? 
  • Which party remains in the family home after separation?
  • How will you be supported?
  • How will the monthly bills be divided?
  • What happens to joint bank accounts?
  • What do you do if your spouse is violent?


2. The mediation process puts the children’s well-being first 

Separation is distressing for children. Their fluctuating emotions often mirror those of their parents, and they tend to blame themselves for the break-up. Parents should talk to their children openly when they decide to separate, especially regarding interim living arrangements. 

Children first
We realise the importance of children retaining a healthy relationship with both parents, and we focus on helping to secure this bond. Every family is different, and we look at their specific needs and requirements to ensure the best parenting solution for everyone. 

Rose Lawyers treat family law issues concerning children with great consideration and put their well-being first at all times.

tip Tip: Draw up a parenting agreement
During separation, you can draw up a parenting agreement immediately, which helps to formalise responsibilities concerning the children. It also sets out child support payment details. Although not legally binding, it can serve as the basis of a legal Parenting Order should parties be unable to reach an agreement during divorce proceedings down the line.

Questions we can help you with now include:

  • Who do the children stay with now?
  • How do you manage financial child support issues?
  • Who is responsible for the day-to-day decision-making?
  • Who is the primary caretaker?
  • How does custody work?
  • What if a parent moves to a different state or leaves the country?
  • How do you reach an agreement regarding parenting plans? 
  • What about a Consent Order?


3. The mediation process helps divide assets and liabilities amicably 

It is difficult to make clear-headed decisions about dividing assets and liabilities during separation. 

Australia’s Family Law Act has stipulations in place regarding the division of marital assets, and our expert guidance will ensure we reach the best decision for everyone.

About de facto relationships
Whether you were married or was part of a de facto relationship before you decided to separate, the law regarding property settlement in the Family Law Act 1975 (Cth) or the Family Court Act (WA) is the same. However, there are certain criteria to consider regarding de facto relationships.

tip Tip: Get expert advice fast
We can guide you through the property settlement process, and prepare your documents and financial agreements to help finalise matters quickly so that you can move on.

Questions we can help you with now include:

  • What if you want to sell your property or need to transfer it to your ex-partner?
  • How will superannuation funds be divided?
  • Are your personal trust shares safe?
  • What happens to your private bank accounts and any other assets?
  • What are your rights in a de facto relationship?


4. The mediation process helps prepare you for your divorce proceedings 

The global divorce rate is expected to spike due to relationship stress caused by the Covid-19 lockdown. Australia is no exception. This is according to clinical psychologist and Relationships Australia’s NSW chief executive Elisabeth Shaw who says it is especially inequities around managing the home during this time that causes strain. 

Get your house in order
Regardless of the cause of the relationship breakdown, during the 12 months preceding the final annulment of your marriage, it is a good idea to tend to all matters regarding the property, spousal and child support.

tip Tip: Get your documents up to date
Ensure all your documentation are up to date and in order. These include your will, mortgage documents, tenanted investment properties and copies of your prenuptial agreement. Also, tie up any other loose ends that could hinder or delay the process. 

Rose Lawyers can help you identify and resolve issues as well as advise you on and prepare your divorce application.

Questions we can help you with now include:

  • Can you still sign a binding agreement after your de facto relationship ended?
  • What if your children don’t want to visit or stay with their other parent?
  • How do you obtain a Family Violence Order (FVO) or Personal Protection Order (PPO)?
  • What are the documents you have to prepare to ensure your divorce isn’t delayed?

Rose Lawyers have been family mediation experts since 1977, and we are here to help you. If you are separating and need guidance with unresolved disputes, our free consultation is your first step to reaching an amicable agreement and set you on the road of a new future.

Family Must Read

COVID-19 – Links & Resources For Victims of Domestic Violence

COVID-19 – Links & Resources For Victims Of Domestic Violence

The COVID-19 pandemic social isolation measures to ‘flatten the curve’ are reportingly causing an unprecedented and alarming surge in domestic violence reports across the world. According to Google, since the pandemic broke, there has been an increase of 75% in “domestic violence” related online searches.

At Rose Lawyers, we feel that while we are all #togetherapart, we should be just as committed to “flattening the curve” on domestic violence. As such, we have compiled a list of local support services for both the victims and for residents in our community that are using controlling behaviour.

Resources for Victims

1800 RESPECT1800 737 732
National sexual assault, domestic family violence counselling service.

Relationships Victoria1300 364 277
Professionals to help you & your family overcome challenges in your relationships.

Lifeline (24-hour crisis line) – 131 114
24/7 crisis support and suicide prevention service.

National Family Violence Prevention Legal Services
Culturally sensitive help for Aboriginal or Torres Strait Islander people who are survivors of family violence.

Rose Lawyers – Free Legal Advice On Apprehended Violence Orders (AVO)9878 5222
Free initial confidential phone consultation* with a lawyer of up to 15 minutes to get legal advice on whether filing for an Apprehended Violence Order is the right option for you. Or follow the link to read about the different types of Apprehended Violence Orders you can apply for and how they may help your personal situation.

Resources For Australians That Are Using Controlling Behaviour

Men’s Referral Service 1300 766 491
A telephone counselling, information and referral service for men who are using controlling behaviour towards a partner or family member.

Lifeline (24-hour crisis line) – 131 114
24/7 crisis support and suicide prevention service.

Sane Australia1800 187 263
Mental health charity making a real difference in the lives of people affected by complex mental health issues.

Rose Lawyers – Free Legal Advice* If An AVO Has Been Made Against You Or If You Have Breached An AVO – 9878 5222
Free initial confidential phone consultation with a lawyer of up to *15 minutes to discuss what the order means and what legal options are available to you. The discussion will provide sensible and practical legal advice to assist you with getting your life back on track.

Let’s work #togetherapart, to flatten the curve on COVID-19 and on domestic violence.

Rose Lawyers, legal caring for Melbourne residents since 1970.

Business Family Litigation Must Read Property The Next Big Thing

Rose Lawyers & Conveyancers Blooms Into A New Look

Introducing the new era of ‘legal caring’ for Melbourne residents

The launch of the new brand design and visual language represents the brand’s commitment to, legal caring for the community with a progressive approach. The outlook is unwavering in providing legal services; fighting fair, remaining transparent and to always offer a human understanding throughout the most challenging times.

The firm’s new iconography centres around the blooming of a rose; providing both literal and metaphoric interpretations of the firm’s historical values, processes, legacy and today’s positive and modern evolution.

rose stem meaningsThe Synergies of Soft and Shielded

While paying respect to the historical significance of the Rose Lawyers brand, which has been serving the Melbourne community for over the 30 years, the soft yet resilient petals of the rose remain shielded by a strong long stem adorned with protective thorns. The juxtaposing of the soft and protective elements symbolise the team’s approach to representing you – a synergy of delicate legal caring, stern professional defence and solid foundations from which to achieve your desired outcomes.

Unlike other legal firms, we don’t look or talk like solicitors, unless we’re in court, representing you. As such, we made sure our approachable softer brand design removes the intimidating stereotypes of legal firms – encouraging openness, honesty and a delicate understanding of each client’s unique circumstances.

Welcoming the Brand Identity and Visual Language – A Word from our Principal

 At Rose Lawyers and Conveyancers, the best outcome for you is the best outcome for us.

While our clients have always been our first priority, we are so excited to welcome a new era of legal caring.

Our teamwork with you to join the dots and simplify the process. We place the utmost importance on keeping our clients informed and out of the dark at all stages of the legal process. What’s more, we fight to provide you with the least invasive, cost-effective solution for your circumstances – meaning we won’t go to court if we don’t have to.

“In rebranding, we hope to strengthen the historical foundations of the firm by upholding our quality of work and maintaining positive client outcomes. We are forward-thinking, innovative and compassionate in our approach, and are committed to delivering exceptional service as part of adopting our new visual identity.” – Phillip Gallo, Principal, Rose Lawyers.

To stay tuned on Rose Lawyers and Conveyancers commitment to bringing legal caring to the Melbourne community, follow our social media updates on Linked In, Twitter Facebook, and Instagram.

Welcome to Rose Lawyers | Legal Caring


Understanding Apprehended Violence Orders

Intervention Orders are complicated

Intervention order cases are difficult and sensitive matters that often centre around emotionally charged situations between family members or others such as neighbours, stalkers, work colleagues etc. Intervention orders exist to keep people safe and the penalties for breaching them are significant.

How common are Intervention Orders?

Statistics show that across all states and territories in Australia, the number of applications for Intervention Orders are on the rise. In recent years there have even been a number of high profile cases involving intervention orders. One such example occurred in 2010, when actress Rachael Taylor filed for an apprehended domestic violence order against her then partner, Matthew Newton.

So what is an Apprehended Violence Order?

An AVO or Apprehended Violence Order is a court order to protect a person, their children and their property from another person’s behaviour. They are sometimes also referred to as restraining orders or protection orders.  The person who the AVO is for is called the “protected person” and the person the AVO is against is called “the defendant”.

What do AVO’s do?

AVO’s are Court Orders that aim to protect people from others who may be violent toward them, or cause them to fear for their or their children’s safety, or the safety of their possessions. They work by listing things that the defendant must not do such as assault, threaten, harass or intimidate the protected person. These are called conditions of the AVO.

Breaching an AVO

For breaching a Family Violence IVO, you can face up to two years imprisonment and more than $36,000 in fines or both. For breaching a Personal Safety IVO you can also face up to two years imprisonment and over $36,000 in fines or both.

Types of AVOs

There are two types of AVOs. The first is an Apprehended Domestic Violence Order (ADVO). The second is an Apprehended Personal Violence Order (APVO). Because breaches of domestic violence orders are so common, it is worth starting our discussion with them. But before we begin to understand how these orders work it is worth clarifying what constitutes family violence in the eyes of the law, as it goes beyond merely physical abuse.

What is family violence?

Family violence is harmful behaviour that is used to control, threaten, force or dominate a family member through fear. It includes:

  • Physical abuse, such as hitting or pushing a person
  • Sexual abuse, such as forcing a person to have sex
  • Emotional or psychological abuse, such as controlling who a person can see and when, or calling them names
  • Financial abuse, such as controlling a person’s money without their consent

Family violence is also behaviour that makes a family member fear for the safety of their property, another person or an animal.

If a child is around family violence in any way, they are also protected by the law. This includes if a child:

  • Helps a family member who has been abused
  • Sees damaged property in the family home
  • Is at a family violence incident when the police arrive

More domestic violence incidents are now reported

Greater awareness about domestic violence, and a more targeted approach to dealing with it as a criminal matter means that more incidents than ever before are reported to the police.

According to the Victorian Family Violence Database Volume 5: Eleven Year Trend Analysis (1999–2010) that analyses 11 years of police data, there has been an 82 per cent increase in the number of family violence incidents reported to Victoria Police, from 19,597 incident reports in 1999–2000 to 35,720 incident reports in 2009–10. There are also more intervention orders being taken out than ever before.

What is an Apprehended Domestic Violence Order (ADVO)?

An ADVO is made where the people involved are related or have had a domestic or intimate relationship. In the case of an Aboriginal or Torres Strait Islander person, ADVOs can also be made where the people involved are part of the kin or extended family. ADVOs are also available to people who are, or have been, in a dependent care arrangement with another person, including paid carers, and to people living in the same residential facility.

What is an Apprehended Personal Violence Order (APVO)?

The second type of AVO is an Apprehended Personal Violence Order (APVO). This is made where the people involved are not related or do not have a domestic or intimate relationship. This might include people like neighbours or if you are being stalked or intimidated by someone you don’t have an intimate relationship with.

What types of conditions can be put in an AVO?

If an AVO is made, three mandatory conditions are always included. They are that you must not assault or threaten the protected person, stalk, harass or intimidate the protected person or intentionally or recklessly destroy or damage the protected person’s property.

But the court can also make other orders such as prohibiting or restricting you from going near the protected person at all, going near the protected person’s home, work or other premises, going near the protected person within 12 hours after you drink alcohol or use illicit substances, or any other orders deemed necessary for the safety and protection of the protected person.  There is also usually an order preventing you from getting anyone else to do something that you are prohibited from doing.

Types of Orders

There are two types of orders made by the court –interim court orders and final orders.

Interim orders

An interim AVO is a short-term order made by the Court to put protections in place for the victim until a final AVO application can be considered by the Court. Because of the quick need for the interim order, the Respondent or Defendant will not usually be at this hearing.

Final orders

A final AVO can be made by the Court after a defended hearing, if a defendant has been served with the AVO documents but failed to appear in Court, or in cases where both parties consent to the conditions specified in the Order. The duration of a final AVO is specified by the Court and is as long as the Court deems necessary to ensure the safety of the protected person, or 12 months if there is no date specified.

At this hearing The Court looks at the reasons stated in the order including any written statements, any evidence that the protected person or others give in the witness box and any submissions made by either party. During this proceeding, anyone who has made a written statement may be cross-examined about the content f their statements. From here they will decide whether or not to make the final AVO.

Who can apply for an AVO?

You can apply for an AVO if you are aged 16 years or older, you have been the victim of physical or sexual assault, threatened with physical harm, been stalked, harassed or intimidated, and believe that this behaviour will continue.

Is an AVO a criminal charge?

An AVO is not a criminal charge. It is a civil order for your future protection. An AVO sets out specific restrictions on your behaviour, such as how you can interact with the protected person, so that person can feel safe. If the protected person also has children, the order may protect them as well.

What happens if an AVO is made against me?

If an AVO is made against you, you won’t get a criminal record. An AVO does however have the potential to affect things like your future employment and your family law case.

What happens if I breach my AVO?

Breaching an AVO is a criminal offence. You breach an AVO when you knowingly do something that the AVO says you aren’t allowed to do. This is why it is so important to know exactly the conditions of your AVO.

Need help dealing with an AVO?

We are highly skilled at negotiating sensible and practical outcomes that will allow you to get back on track with your life. Call us to discuss how we can help.


Defamation Explained

Nearly everyone has, at some stage or another, been the subject of gossip. Many of us will also have had people within our families, workplaces and friendship groups tell stories about us that are a warped version of events, or even outright lies.

They might even do these things in a public setting. But is this defamation? And if it is, what can we do about it?

Call us today on 03 9878 5222 for a complimentary consultation with one of our defamation Lawyers in Melbourne.

What is defamation?

Basically, defamation is a claim that is false and is made by someone other than the person being defamed.  Though the Defamation Act 2005 (Vic) has now abolished the distinction, technically, defamation can occur in two ways:

  1. Libel – a false statement that is written or published in printed word or picture.
  2. Slander – a false statement made in spoken word, sounds, gestures or sign language is technically called slander.

But in order to sustain a claim for defamation in the Courts, you must also show that the person’s defamation has also caused you some kind of financial damage.

Some high profile defamation cases

A number of high-profile defamation cases have arisen in Sydney and Melbourne over the last two years.

In an Australian landmark case, actress Rebel Wilson sued magazine publisher Bauer Media for a series of defamatory articles written in the magazine Women’s Day.  Her claim was that she had lost opportunities to act in certain movies because the publisher created a negative image of her that production companies did not want to be associated with.

The judge in the Wilson case initially awarded Wilson a huge $4.5 million in damages, though on later appeal that was reduced to $600,000.

Geoffrey Rush also successfully sued Rupert Murdoch’s The Daily Telegraph for defamation over a front-page report branding him “King Leer.” While another well-known actor, Craig McLachlan, brought a suit against Fairfax Media and the ABC over sexual harassment allegations they made.

Is defamation common?

A Media Entertainment and Arts Alliance (MEAA) survey of more than 300 journalists released in April of 2019 showed one in 10 journalists had received a defamation writ over the previous 24 months. In addition,  almost 30 per cent in the last year had a story they wrote pulled before it went to print due to defamation concerns.

So is defamation only for famous people?

The impact of social media on defamation

In this era of social media, defamation occurs on a fairly regular basis, and not just to famous people. In fact, the number of ordinary Australians pursuing cases is on the rise.

According to a study by Professor Peter Fray and Professor Derek Wilding at the University of Technology in Sydney, there were 609 defamation cases in Australia between 2013 and 2017. Sixteen of these defamation cases involved Facebook posts, 20 involved emails, four were about posts on Twitter and two focused on SMSs.

An increasing number of these cases involved plaintiffs who wouldn’t be considered public figures. This suggests a slow but steady rise in individuals taking action over defamatory comments posted online.

People have said hurtful things about me on-line. Is this defamation?

Critical and demeaning comments can cause others to think less of you, which is in a way the essence of defamation.  But for defamation to occur, there also needs to be some actual physical loss or damage as well.

In general, “hurt feelings” without physical damages will not be enough to sustain a claim for defamation in the Court.

What counts as damage or physical loss?

Damage might be that you have lost an opportunity because of what was said. Perhaps you didn’t get a job you applied for, or you lost the job you had. You may have been kicked out of a rental house, or even been arrested, leaving you unable to work. Damage may also have occurred if the defamatory statement led to another person making a claim against you that causes you to have to pay money.

So how do I handle an attack on social media?

If someone is making demeaning comments about you on-line, it is a good idea to do everything possible to appear proper and above board. That means being polite and level headed and not responding with counter-abuse.

In fact, often one of the most effective responses to defamatory comments is to ignore them entirely or laugh them off. This sends the message that the issue is not important.

If the attack has had more serious consequences in your life, there are certain things you need to establish to prove defamation.

Proving defamation

For a start, it is not true that someone has to mention you by name to defame you. If the nature of their comments makes it obvious they are talking about you, this can often be enough.

If you want to prove defamation you must show:

– that the claim/statement made is indeed false; AND

– that the statement has harmed you and caused you loss or damage; AND

– that the person making the claim/statement knew that it was false or did nothing to ensure it was true.

What if someone is accusing you of defamation?

There are some defences to a Defamation Action:

Truth (Justification): this defence applies where the person making the defamatory statement can prove that it is substantially true

Contextual Truth: this defence applies if the defamatory statement includes one or claims which are substantially true and the defamatory statements do not further harm the reputation of the defamed person because of the substantial truth of the other statements.

Absolute privilege: this defence applies when the statement was made or published on an occasion of absolute privilege (e.g. parliament).

Publication of public documents: this defence applies if the person making the defamatory statement proves that the statement was contained in a public document or a fair extract from a public document.

Fair report of proceedings and public concerns: this defence applies if the person making the defamatory statement can prove that the statement was or is contained in a fair report of any proceedings of public concern.

Qualified privilege: If you act reasonably and tell someone something they have an interest in knowing about, you may be protected from being sued for defamation.  For example, if you report someone to the police. Even if your allegations are false, you cannot be sued for defamation as long as you honestly believed them.  (If you repeat these allegations to other non-related people, however, that is a different matter).

Honest opinion: this applies if the person making the defamatory statement proves that the statement was an opinion rather than a statement of fact, and that the opinion was a matter of public interest and based on proper material.

Innocent dissemination: this defence applies if the person making the defamatory statement published it in the capacity as an employee or agent and they neither knew, nor ought reasonably to have known, that the matter was defamatory and their lack of knowledge was not due to any negligence on their part.

Triviality: this defence applies if the person making the defamatory statement proves that the circumstance of the publication was such that the person defamed was unlikely to sustain any harm.

What can I do if I think I have defamed someone?

If you think you have defamed someone, it is always best to apologise to the person and take the material down. If the person you defamed wants to sue you for defamation, or sends you a legal notice asking you to take down the material and apologise, you should see a lawyer for advice.

If you are worried that you have defamed someone or someone has defamed you, don’t hesitate to get in touch.


Sharing Your Inheritance With Your Spouse

When a couple divorces or separates, any communal or shared property is usually divided equitably between each party. Any property that was owned, and more importantly dealt with, separately may be retained by that owner.

When one or both people have inherited money before or during the life of their relationship, there may be questions about dividing this inheritance as part of a property settlement.

We provide straightforward guidance on how to protect your assets before, during, and after separation. Call us today on 03 9878 5222 for a free consultation with our family lawyers in Melbourne.

Understanding inheritance and separation

Here is a possible scenario where the issues of inheritance and separation intersect.

An elderly married couple have a son who may be facing divorce. They are worried that if their son inherits from them and then divorces his spouse, his ex-wife may take a portion of his inheritance in their settlement. They do not want this to take place but aren’t sure how to protect their assets.

In this instance they have three options available to them:

  • They can do nothing and hope that a Court-ordered divorce settlement will not include any inheritance their son may receive.
  • They can speak to their son about the situation and explain that they want to protect his interests, so that their son can contact a family lawyer to draw up a Financial Agreement with his spouse.
  • They can also set up a Testamentary Trust Will.

A Financial Agreement can outline that if their son inherits from them during his marriage, that this inheritance should not be included as part of any matrimonial property.

If a Financial Agreement is done properly, it will protect any inheritance from an ex-spouse and under the jurisdiction of the Family Court.

divorce couple signing papers

What happens when inheritance money has been used by both parties during a marriage?

When an inheritance is received before or during a marriage and deposited into a joint bank account and used for joint expenses, it may be considered a marital asset due to how it has been used.

  • Depositing funds into a joint account and using these funds to pay for joint expenses is known ‘commingling’.
  • Commingling can lead to an inheritance being considered joint property and potentially subject to division following a divorce.

If you think you may encounter a situation where there will be a challenge for your inheritance, it is wise to contact an experienced family lawyer for advice.

Speak to Rose Lawyers about protecting inheritance during divorce

If you are looking to protect the interests of your children or beneficiaries, it is wise to consider working with family lawyer to draw up a Financial Agreement.

Rose Lawyers are experienced in complex family law matters matters and can provide you with peace of mind. Contact us today on 03 9878 5222 to ensure that your interests are protected.


Served With An Intervention Order?

Have you been served with a Intervention Order (IVO)?

If you wish to contest an IVO or want guidance on how to appear in Court, then contact Rose Lawyers. We are experienced in working with IVO matters and can provide straightforward advice.

Call us today on 03 9878 5222 for a complimentary consultation with one of our Family Lawyers in Melbourne.

What is an IVO?

uncomfortable lady with man

An IVO is a protection Order that stops one person from doing things that might harm another person (the protected person). This may be to prevent a person damaging property, going near the protected person or threatening a protected person.

  • An interim IVO can be made without you consenting to it, but once it has been made you do have options to contest or to alter it at the IVO hearing.
  • If the IVO is against you then you are the respondent. The person who has applied for the IVO is known as the applicant. On the IVO document they may also be called the (ital.) protected person or (ital.) the affected family member.
  • The Police will ‘serve’ or deliver an application for an IVO to you if you have been named as the respondent.
  • The Police can also directly apply for an IVO in certain circumstances. The respondent will be told that this is a Police decision.

What do you need to know when served with an IVO?

An IVO can prevent you from talking to someone, from going within a certain distance of someone, from calling or contacting someone by phone or social media, and may limit the amount of contact you have with your children.

  • When Police give you the application for the IVO, this application will contain a detailed description of what the applicant says you have done.
  • If you believe an IVO has been made wrongly or maliciously, you can contest this in Court.
  • When you have been served with an IVO you will also be given a summons which has a date and time to appear in Court.

How do you respond to an IVO in Court?

When you appear in Court you will be responding to the IVO. Your response can take several forms.

  • Agreeing to the IVO – but you may be able to negotiate changes to conditions in the IVO to make it more ‘workable’ so there is less risk of breaking the order.
  • Asking the applicant (person making the IVO) to agree to an undertaking – the IVO is withdrawn and a formal written promise to the applicant is made. If an undertaking is disobeyed, the original IVO can be reinstated.
  • Consent to the IVO without making admissions – this means that you agree to the order, but you disagree with what the applicant has said in their Reasons for the Order.
  • Contesting an IVO – if you wish to fight an IVO you will need to go back to Court on another date. Significant preparation is needed when going into a Contested Hearing and legal advice is highly recommended.
  • Not showing up in Court – if you do not attend Court the matter will proceed regardless. It is important to attend Court so that you can understand the conditions of an IVO and make changes to the conditions.

What can you not do under an IVO?

judge holding documents

If an interim or final IVO has been made, there will be certain conditions outlined to protect the person making the application. It is vital that you understand and obey all conditions exactly as written, otherwise you may be at risk of breaking the order and face criminal charges.

  • Having an IVO against you does not mean you have a criminal record, but the Police and the Court will have this information on record.
  • If you break any of the conditions in your IVO , the matter becomes criminal and you run the risk of getting a criminal record.

What can you do under an IVO?

You are free to do anything as you would ordinarily do – provided that none of your behaviour conflicts with the conditions in your IVO. In some cases, an IVO may impact on your ability to see your children. It is possible to challenge this condition, but it is highly recommended that you seek legal advice.

  • A Court wishes to ensure that children are safe above all else. If it is alleged that your children have seen or experienced family violence, then a Magistrate may include your children on the Applicant’s IVO or make a separate IVO for your children.
  • An IVO can stop contact between you and your children, which is why immediate legal advice is so important for respondents.

What to do next?

Contact Rose Lawyers for a confidential and free discussion with one of our Family Lawyers in Melbourne. We are available to discuss your options, whether you want to contest your Order, seek an undertaking, or if you just want advice.

Call us now for a free chat on 03 9878 5222. We are experienced in working with IVO matters and are here to help.


Your Guide To The Divorce Process In Australia

Making the decision to divorce is not an easy one. Separating from a spouse is a big transition in your life, particularly if you have children together. At Rose Lawyers we are experienced Family Lawyers and we are here to provide legal advice and support during what can be a very difficult time.

This guide to the divorce process in Australia provides you with the information you need to ensure your divorce is straightforward, and as hassle-free as possible.

For confidential and candid advice on your legal matter, call us today on 03 9878 5222 for a free consultation with our Divorce Lawyers.

What exactly is a divorce?

A divorce is the name for the official end of a marriage. In legalese, it’s known as Decree Nisi. When you are separated but still married, you cannot marry another person under Australian Law. When a divorce is finalised you can marry someone else.

  • To apply for divorce, you need to have been separated for 12 months or more. You can be separated but living under the one roof and make a successful divorce application.
  • You can apply for divorce on your own (sole application), or you can apply for a divorce together (joint application).
  • If you are making a joint application, you do not need to go to Court.
  • If you are making a sole application with minors, then you must go to Court on the hearing date to answer any questions the Judge may have about the children.
  • If there are no children, or the children are independent adults, then neither party needs to attend the divorce hearing.

You do not have to divorce when you separate from your spouse, but if you do not separate there are certain areas of your life—such as financial matters and your Will and Estate—that can be affected. Keep in mind that you cannot marry anyone else in this separation period.

How do I start the divorce process?

woman signed divorce papers

The Family Court of Australia has information on divorce available on their website. If you are making a sole application, you need to arrange for your spouse to be served with a copy of the divorce application. You can personally serve documents to your ex-partner, or you can post these divorce documents to serve them by mail.

  • You can file for divorce on your own, or you can work with a Family Lawyer to assist you.
  • It is possible to apply for a divorce electronically.
  • Once the Order for Divorce is made, the official date of Divorce will be one month and one day later.

If you cannot file your divorce electronically, you can fill in a form and lodge this with the Court.

How do I manage splitting up our assets and property?

One of the biggest concerns when couples separate and consider divorce is how to divide assets. In many cases, you will own property with your spouse as joint tenants. You may also have bank accounts with joint funds, cars that are in both of your names, and a range of other assets.

  • It is in your best interests to split up your property as soon as possible.
  • If you can reach an agreement with your ex-spouse about how to divide your property, then you can make an Informal Agreement, a Financial Agreement or a Consent Order. However, we would not advise an informal agreement, as it is not legally binding.
  • If you cannot reach an agreement, you can use family Dispute Resolution services or seek the help of the Court to make a Consent Order or a Financial Order in relation to property.

If you involve the Court, the Court can order a person to pay money to someone, transfer or sell property, split superannuation, sign certain documents or pay maintenance. If you cannot reach an agreement about the family home, the Court may order that it be sold and the sale funds divided on a percentage which is decided by the Court.

How can I be sure that I will get to spend enough time with my children?

father son reading time

When you have children with an ex-partner, you may be concerned about getting to spend enough time with them. In some cases, young children will spend more time with their mother and see their father on weekends or fortnightly. In other cases, children will stay more with their father. Every family is unique, and your separation requires an individual approach based on your particular needs.

  • If you can decide on how you and your ex-partner will care for your children, you can make a Parenting Plan.
  • If you cannot choose how to care for your children, then you can apply to the Court for a Parenting Order.
  • If you or your children are experiencing family violence, then it is important to get Legal advice and guidance to ensure that you achieve the best possible outcome for you and your children.

Considering your child’s best interests is the most important thing when you are going through divorce, regardless of how you personally feel about your ex-spouse.

Call Rose Lawyers today

We are here to stand by you during your divorce, to ensure that your property and assets are divided equitably, and to make sure that your rights are protected. Whether you need advice and guidance on dividing property, making a Parenting Agreement, putting a Consent Order in place, or making the Application for Divorce, we are here to help.

When you need advice, you can trust our Divorce Lawyers, call Rose Lawyers on 03 9878 5222 for a free consultation.


Parenting Matters During Divorce

When a relationship breaks down you will have to decide how to divide any shared assets; and if there are children from your partnership, you need to work out how you are going to look after them together. While selling a house or sorting out finances is something that can happen over time, you must organise child and parenting arrangements promptly.

When you separate from your former spouse or partner, one of the most difficult matters to be resolved can be sorting out arrangements for your children.

The first question is who the children lives with and what time they spend with the other parent. These decisions will vary depending on the age of the child and where both parents are living relative to one another and many other factors.

If agreement can be reached between parents through their own negotiation or mediation, this can be documented through a parenting plan which is a written agreement signed and dated by both parents, however a parenting plan is not enforceable like court orders.

For comprehensive advice and guidance around children and parenting matters, contact Rose Lawyers Family Law experts on 03 9878 5222.

Parental Responsibility – Living with and spending time with – what does this mean?

Parental responsibility means all the duties, powers, responsibilities and authority parents have in relation to their children. It usually relates to making decisions around significant issues in the children’s life, such as where they live, where they go to school, what religion is relevant to the children, and significant health matters.

The starting position with parental responsibility is that each parent has parental responsibility for their child. A parenting plan or a Court order can allocate parental responsibility overall or for specific issues. Normally, Courts make orders for parents to have joint parental responsibility, which means they must consult each other in relation to these major issues.

In some circumstances, a parent may have sole parental responsibility such as where the other parent lives overseas and it is not practical to participate in these decisions, or where family violence or other issues of abuse have occurred.

Needing a Court to decide matters

family law victoria

Where parents are unable to agree on parenting matters, then they need to make an application to the Court seeking parenting orders. Should this be the case, we strongly recommend you seek legal advice from a lawyer specialising in family law matters, such as Rose Lawyers.

Before making a decision, a Court will hear evidence from both parents and normally from a child psychologist or social worker who has interviewed the parents and where appropriate, the child, and makes a report to the Court. This is called a Family Report.

The Court can make orders in relation to a range of issues for the child including:

  1. The allocation of parental responsibility.
  2. Who the child lives with and what time they spend with other people in their lives.
  3. How a child communicates with other people including the other parent.
  4. Financial maintenance of a child.
  5. How parents will resolve disputes in regard to the implementation of the orders.
  6. Any other aspect related to the care, welfare or development of the child.

What does the Court consider in making orders? 

child custody laws victoria

The primary consideration for the Court is the best interests of the child. To work out what is in the best interests of the child, the Court considers a range of issues.

The main issues that it considers are firstly the protection of the child from harm, both physical or psychological and being protected from abuse, neglect or family violence. The other main issue is the child maintaining a meaningful relationship with both parents.

The Court also considers a range of other issues as appropriate to the circumstances including:

  1. The views of the child, where appropriate.
  2. The relationship the child has with each parent and other significant people such as grandparents. Also the effort a parent has made (or not made) to participate in decisions for the child, spend time with the child, or communicate with the child.
  3. A parent’s efforts in maintaining the child according to their obligations.
  4. The possible effect of changing the current circumstances including separation from a parent or other significant person such as a grandparent.
  5. The practical difficulty and expense of the child spending time in communicating with a parent.
  6. The capacity of a parent to provide for the needs of the child including emotional and intellectual needs.
  7. The maturity, sex and other relevant lifestyle issues of the child or the parents.
  8. The attitude of a parent to the child and the responsibilities of parenthood.
  9. Whether a child is aboriginal or a Torres Strait Islander, that child’s right to enjoy their culture.
  10. Any family violence involving the children or family.

It is important to remember that everybody’s circumstances are different and no particular factor will be relied more or less in every situation.

If you are unsure of how to approach parenting matters, Rose Lawyers can assist you by providing you with detailed legal advice, guiding you through mediation, drafting parenting plans and orders that can be made by consent or should it be necessary, representing you when you go to Court.

Contact us today for a confidential and obligation-free discussion about parenting matters. We are here for you when you need us. Call us on 03 9878 5222 today.


Making A Life Interest Statement In Your Will

What is a Life Interest?

A Life Interest provides that property and other personal assets like shares or money in bank account are held on Trust for the benefit of a person for their lifetime. If a Life Interest is granted in a house, the benefit is usually something like being able to live in the house. If a Life Interest is granted in shares or a bank account the benefit is the interest or dividends of the asset.

A Life Interest can be granted to someone in a will. When making your Will you can insert a Life Interest Clause that outlines who is to benefit, and any conditions associated with this benefit.

  • A person who holds a Life Interest is known as a Life Tenant.
  • A Life Tenant can treat real property (that is, a house) assigned to them as if it was their own for the duration of their life.

It is common to establish obligations for a Life Tenant to abide by, such as a duty to maintain the property and to keep it insured.

When creating a Life Interest Agreement you want to ensure that you are giving someone a benefit, not a burden. If you are considering placing a Life Interest Clause in your Will it is worth thinking about the ongoing costs of property maintenance and upkeep and making allowances for these costs in some way.

Contact Rose Lawyers today on 03 9878 5222 for a free consultation about drafting or updating your Will.

When are Life Interests Used?

A common situation in which a Life Interest is used is when a person has remarried and owns a property with their spouse as tenants in common, but has children from a previous relationship. They wish to provide a home for their current spouse, but then pass their share of the property on to their children after their spouses’ death.

  • To ensure that their spouse has somewhere to live for the duration of their life, the Will maker places a Life Interest Clause in their Will which makes their spouse a Life Tenant.
  • The surviving spouse has the right to enjoy the home for their lifetime.

When the surviving spouse passes away the home is sold and distributed according to Estate of each spouse. If the property is held in joint names then neither party can leave a life interest in their share of the property, as it passes automatically to the survivor on the death of the first of them.

Other scenarios where a Life Interest may be used is where a parent owns a property and wishes to provide a secure home for one of their children for the remainder of their child’s life. Life Interests can be granted to children, as well as to any other person a Will maker sees fit. When a person is a Life Tenant their rights to property are protected.

life interest agreement

An example of a Life Interest in Property

Here is an example of a Life Interest in action:

Pat and Bob own a property as tenants in common. They have both been married and had children before, but they have no children together. Pat wants to leave her half of the house to her son, and Bob wants to leave his half of the house to his daughter, but they are worried that when the first of them dies that the deceased’s child will sell the house to get their share, and the surviving spouse will have nowhere to live.

In this instance Pat and Bob can leave their respective shares of the property to their children. However, they can also give each other a Life Interest in their property. This means that when one of them dies, the survivor will have the right to live in that property for a certain time and under certain circumstances. Assuming that they want each other to live in the property for the rest of their natural life then they grant a Life Interest in the property. This means that the deceased person’s child cannot sell the house until the survivor dies or moves on.

What happens if a surviving spouse needs to go into care?

life interest statement

One of the main reasons for creating a Life Interest is to ensure that you provide for your partner. But what happens if after your death your partner needs to go into care and can no longer live in the home where the Life Interest is provided? Can your property be sold and used to pay for nursing home accommodation, for example?

  • It is possible to tailor a Life Interest Clause to suit your needs and the potential future needs of your partner.
  • You can include conditions to ensure that a property can be sold to care for your surviving partner, with the remaining amount from the sale of property distributed as part of your Estate.

A Life Interest can be customised as much as you like to ensure that you and your spouses’ needs and wishes are met.

A Life Interest is a way to ensure that your surviving partner is cared for throughout their life while still ensuring that your share of property and/or assets passes to your children.

Create your Will with a Life Interest Clause today

We understand that implementing a Life Interest clause may be something you are interested in doing. Make sure your Will is accurate and correct by contacting Rose Lawyers today. We are experienced in working with Life Interests and can assist you in placing a Life Interest Clause in your Will.

Call Rose Lawyers today on 03 9878 5222 to find out more about how we can help with drafting your Will and helping you manage your Estate.


Can I Leave Superannuation In My Will?

Many Australians have Superannuation which is held with a Super Fund. In fact, for many people their Super is one of the largest cash assets they hold. When making a Will you go through the process of dealing with and distributing your assets, but sometimes Superannuation is overlooked.

This is due to the mistaken belief that Super is owned by the Will maker and will be distributed along with the rest of their Estate. But in fact, Superannuation is not owned by you personally – it is held on Trust by the Trustee of your Superannuation Fund to distribute to you at a specific time.

Because Super is not a simple asset like money in a bank account, there are specific things you need to do to ensure your beneficiaries receive your Superannuation as part of your Estate.

For more details on making your Super accessible after death, contact Rose Lawyers on 03 9878 5222 today.

Why can’t I leave Superannuation in my Will?

Your Will is a legal document that deals with and distributes assets that you own. Due to the way in which Superannuation schemes are set up the money in your Superannuation Account is not owned by you. It is owned by the person who holds it on Trust on your behalf. Of course, this does not mean that the Trustee can simply do as they like with this money; there is legislation in place to protect your Super.

  • Your Superannuation balance is held on Trust and can be distributed according to your wishes, but you cannot allocate your Superannuation in your Will alone.
  • When looking to leave your Superannuation to a beneficiary it is important to prepare a binding nomination with your Superannuation provider.

Superannuation does not automatically form part of your Estate and you need to ensure that you contact your Super Fund with information about your beneficiary or Estate.

superannuation in a will

Nominating a beneficiary of your Superannuation

You can nominate a beneficiary with a Binding Nomination. This stipulates that your Superannuation Fund is required to pay your benefit to the beneficiaries nominated. A Binding Nomination allows you to nominate whomever you want to receive your Superannuation – including a Legal Representative. If your Superannuation is left to your Legal Representative then any balance in your Super can be distributed in accordance with your Will.

  • A Binding Nomination with your Super Fund allows you to nominate any person you wish to receive your Super balance upon your death.
  • If you leave your Super to your Legal Representative then the balance will be managed along with your Will, in which case it is important to include a Superannuation Will Clause in your Will.

You can contact your Superannuation Fund to get the information you need to prepare a Binding Nomination.

Making a Binding Nomination with your Super Fund

You can make a Binding Nomination at any time with your Superannuation Fund. You simply need to provide the details of your chosen beneficiary to your Superannuation Fund. A Binding Nomination usually remains current for three years from the date it was last signed, amended or confirmed.

  • Binding Nominations do not take effect until they are received and accepted by the Trustee of your Super Fund.
  • Once you have made a Binding Nomination your Super Fund will pay your balance in accordance with the Binding Nomination upon your death.

To ensure your wishes are followed it is important that you update your Binding Nomination if your circumstances change, or if it has been over three years since you last provided beneficiary information to your Superannuation Fund.

Managing your Superannuation with a Will Clause

superannuation will clause

While you cannot specifically distribute your Superannuation through your Will you can choose to leave your Superannuation to your Legal Representative which means that your Superannuation will be paid to your Estate. In this case you can indicate your wishes by including a Superannuation Will Clause in your Will.

  • A Superannuation Will Clause provides information on how you wish to distribute your Superannuation upon your death.
  • You should ensure that any Binding Nominations are current and align with your Will to avoid any confusion.

The fastest and most effective way to ensure the correct allocation of your Superannuation Funds is with a Binding Nomination. A Superannuation Will Clause provides further confirmation and peace of mind that your wishes will be followed.

Ensure your Super is distributed according to your wishes

You can ensure that your Superannuation is distributed according to your wishes by notifying your Superannuation Fund with your Binding Nomination and by inserting a Superannuation Will Clause in your Will.

Rose Lawyers are experienced in working with Wills and Estates and can ensure your peace of mind with comprehensive legal advice and guidance.

Contact Rose Lawyers on 03 9878 5222 for a free phone consultation about your Will and distributing your Superannuation.


Wondering What Happens To Your Bank Account After Death?

Writing a Will is one of the most important things you can do to care for your loved ones after your death. When your financial affairs are in order, it makes finalising your Estate straightforward for your surviving partner, children and/or next of kin.

While it is natural to think about how to distribute your Estate, or about charitable bequests you wish to make when writing your Will, it is also important to consider what needs to happen to manage any bank accounts you may hold.

Wondering what happens to a Deceased Estate bank account and how it may affect your loved ones in the future? Rose Lawyers can assist with the preparation of your Will. Call us today on 03 9878 5222 to discuss your plans.

What happens to bank accounts when you die

When you die, any bank accounts you have remains active until someone notifies your bank that you have died. Anyone can notify your bank, but the responsibility for this would usually fall to the next of kin or a representative of your Estate. The person notifying the bank may need to provide identification, and an original Death Certificate will likely be required for the bank’s verification purposes. If there is a Will, this may need to be shown as well.

  • When making your Will, it is important to also make a list of any banks that you deal with and keep it in a place that is known to your Executor(s).
  • Making a list of your bank accounts make contacting your banks easier.

Making a list of bank accounts is part of putting your affairs in order, as it makes the task of contacting financial institutions and finalising your financial affairs far easier for your next of kin or Executor.

Once a bank has been notified of a death it will freeze that account. This means that no one – including a person who holds Power of Attorney – can withdraw the money from that account.

bank account after death

Paying funeral costs from your bank account

An exception to making a withdrawal transaction on a Deceased Estate bank account is a withdrawal to cover funeral costs. A bank will pay an amount from a Deceased Estate bank account to cover funeral expenses when an original funeral account or receipt is presented.

  • When you die and do not have a funeral plan in place or have money set aside specifically for your funeral, your loved ones can present a receipt for your funeral to your bank.

If the bank has not been notified of the death, then the effect of presenting the invoice for the funeral expenses is that your bank will distribute funds from your account to pay for your funeral expenses and then freeze your account.

What happens after my bank accounts have been frozen?

When a bank account has been frozen it means that no money can be taken out of this account. If you have direct debits, payments or automatic transactions set up on your account these will no longer go ahead once an account is frozen. Direct credit payments can still be accepted into a frozen bank account.

Note that if you hold any joint accounts with another person these can continue to operate after your death.

What happens to the money in my bank account?

Once the bank or financial institution is notified of a death they can release the assets of a deceased Estate bank account. The way in which funds are distributed will depend on whether or not you have a valid Will in place.

If you have a Will

When you die with a Will in place, any money you hold in bank accounts will be considered part of your Estate. Any funds you hold in bank accounts will be distributed according to your wishes. Whether you need to obtain a Grant of Probate for the bank to release the funds will depend on the size of your Estate and the willingness of the bank to release the funds.

If you do not have a Will

If you do not have a Will in place any money remaining in your bank accounts will be distributed to the Administrator of the Estate. If you Estate is small enough that your do not need to apply for Letters of Administration, then the bank may, at its discretion, release the funds to your Next of Kin.

If you have any credit card debts or personal loan debts these amounts will be paid from your bank account before being transferred to your Next of Kin or Estate Administrator.

deceased estate bank account

Make your valid Will today with Rose Lawyers

Ensure that you have considered everything and made allowances for all of your bank accounts in your Will. Rose Lawyers can assist you in writing your Will and are here to guide you through every step of the process. We want to ensure that your matters are handled according to your wishes.

Call us today on 03 9878 5222 for comprehensive legal advice on your Will. For Will and Estate Lawyers Melbourne you can trust Rose Lawyers.


How To Commence Proceedings For Legal Action

When you have a dispute you want to resolve with someone, and you cannot resolve this dispute outside of Court, you will be looking to commence legal action. Legal action (also known as a proceeding, or litigation) involves presenting your dispute to a Court and letting the justice system consider the evidence and make a decision as to an outcome.

When you take legal action it can be expensive and costly. If possible, it is usually best to try and resolve matters prior to going to Court. Sometimes, this won’t be possible and initiating Legal proceedings may be the only way forward. Whatever stage you are at in your Legal action, is important to seek Legal advice prior to engaging with a party in civil or commercial litigation.

This is a short guide to how to commence proceedings for legal action in Court, and what you need to do. If you are looking for advice on your legal matter, Rose Lawyers are experienced litigation lawyers in Melbourne who can assist you at every stage. Call us for a free phone consultation on 03 9878 5222.

I have a dispute with someone and I can’t resolve it

legal action

For some disputes, you may be able to send them a letter of demand. This letter of demand needs to do a number of things:

  • Clearly identify both partiesinvolved in the action.
  • Clearly identify the issue at hand.
  • Outline the basis on which the issue has arisen– for example, is it an issue with a contract, a vehicle collision, or the removal of property from premises?
  • State any proposed solution to the matter– for example, a payment by one party to another party, or a promise to stop doing something.

Your letter of demand also needs to include an outlined timeframethat you want to have things settled by. You should state what needs to happen if that timeframe expires with no action or settlement taken. For example, you might write: “If payment is not received within seven days of the date of this letter I reserve the right to take legal action to recover monies owed without further notice to you.

It’s important to remember that these disputes often aren’t so simple. For example, you cannot send a letter of demand in a divorce, a fencing dispute, non-payment of rent, child custody and so on.You should always contact a litigation lawyer before you commence any action.

Commencing proceedings

Once an outlined period (in this case, seven days) is up, you can commence proceedings in the relevant Court for your matter. Proceedings are usually – but not always – started off with Statement of Claim.

Statement of Claim

A Statement of Claim is a document that outlines the issue you have, and the orders you are seeking against the other party. Your Statement of Claim also needs to outline what type of payment, costs and/or injunction you are after. An injunction is where you are requesting someone to stop something. Or you might be seeking specific performance, where you request someone to do something.

For example, your Statement of Claim might outline that you are looking for Specific Performance from a neighbour to remove a dangerous tree. Or it might seek injunction relief from a neighbour to stop his dogs from digging under your fence and ruining the woodwork. On a commercial scale, an injunction might be sought against a landlord to stop them entering your property with no reason or notice.


When starting proceedings in the Supreme Court of Victoria you will need to file a Writ using a Form 5A. A Writ is a document that calls the issue to Court.

Serving a Complaint on the other party

commence proceedings

Once a Complaint has been issued, it needs to be served on the other party involved. There is then a set period of time you have to wait before any further action can be taken. The amount of time to wait depends on how and where the Complaint was served. During this period of time, the other party can respond by filing a Notice of Defence. This Notice of Defence sets out what the other party believes and why they disagree with you.

  • If a Notice of Defence is not received in the timeframe outlined then you can apply for a Default Judgement
  • A Default Judgement can be made because the other party has ‘defaulted’ on responding with their defence

Once you have applied for a Default Judgement you can begin proceedings to enforce this Order of Default Judgement. This will usually require the other party to do what you have outlined in your Statement of Claim.

If the other party files a Notice of Defence, then your matter will usually be listed for mediation or perhaps a hearing. This begins the formal process of having a Court decide your case.

Contact Rose Lawyers for advice on commencing legal proceedings

Are you looking to start proceedings against another party? It is a good idea to get legal advice to make sure you are following the correct Court procedure and meeting all the steps required to successfully start an action. Rose Lawyers are experienced litigators and can assist you at every stage. Call us today on 03 9878 5222 to speak to our Melbourne litigation lawyers about your matter.


Should you choose an Out of Court Settlement?

Taking legal action against another party is no small matter. The legal system and Court process can be very stressful. Often, someone has wronged you and you will be after some form of damages or compensation.

More often than not this means that tensions and emotions are likely to be running high – and even if you are in a great position to get a favourable outcome, your Lawyer or Barrister may suggest or even recommend that you accept to take an Out-of-Court-Settlement rather than have the matter determined by a Judge. But if you’re in a great position, why should you ever settle?

We wanted to cover some of the main reasons why it may be suggested that you settle Cut-of-Court. At Rose Lawyers we will always advocate for you and with your best interests in mind. We understand that you will probably be emotionally invested in the outcome of Court action. Part of our job is to suggest and even recommend, where appropriate, that you settle outside of Court because we are very aware of the time and money it may cost you to proceed with your claim.

You can rely on us for straightforward legal advice. Contact Rose Lawyers today on 03 9878 5222 to discuss your legal matter.

Costs of proceeding to Court

The main reason why it may be better to accept an Out-of-Court Settlement is the cost. You may may have a high likelihood of success if the matter proceeded to trial, but the cost of getting a Judge to decide your matter may become enormous and potentially be greater than the amount you would receive if you were to get a verdict in your favour. Other reasons we may suggest you settle the matter include:

  • The legal process can often take a lot of time, and when you are paying for a Lawyer and/or Barrister to represent you the costs can escalate quickly.
  • There may be expert witnesses who will need to be called in your matter – and these people will likely want to be pair for their time and their expertise.
  • You will likely be liable for Court fees along the way

out of court settlement

The alternative to proceeding to Court is to settle – but this can mean that you may not get exactly what you had hoped for. You will need to balance the potential victory with the associated costs, time and stress. You also have to be aware that there is no guarantee that you will be successful, and if you do lose the case you may be liable for your legal fees, any judgement amount and some of the other party’s costs.

Health and wellbeing costs associated with proceeding to Court

The legal process can take some time – and the mere fact of going to Court alone can be stressful and time-consuming. You may well reach a point where you do not wish to pursue the matter further and cannot expend any more emotional energy on the dispute. In this instance you may choose to settle out of Court to save yourself any further anguish.

  • The legal process will usually take time to reach a conclusion on your matter.
  • Settling does not mean walking away with nothing, or even a great deal less.
  • Accepting an Out-of-Court-Settlement can save you time and emotional energy.

Again, while you may not get what you originally wanted, you will not necessarily walk away with nothing, and may save yourself a great deal of stress and anguish in the process.

The reality of taking legal action

When you’re proceeding with legal action you’re going to be spending time and money on this issue; an issue that will likely take many months or even years to resolve. The more time you are spending in Court, or in appointments with your Lawyer and/or Barrister or speaking to experts — the less time you will be spending at work or with your family or loved ones. You will be focusing on your legal matter which takes you away from spending time and attention on other things.

  • You may lose money in wages through spending more time focusing on your legal matter and less time at work.
  • Your attention will be diverted to your legal matter which can be stressful for both you and your family.
  • If your legal matter does not resolve the way you wanted it to through the Court this can be difficult to deal with.

Ultimately, accepting or proposing a settlement of your matter is something you need to speak to your Lawyer and/or Barrister about.Your Lawyer and/or Barrister will proceed in the lawful manner in which you instruct them.

advantages of out of court settlement

Contact Rose Lawyers today

Rose Lawyers are practical and will always raise any issues around out of Court settlement – whether it is around taking a settlement that is favourable, or rejecting an offer that is not suitable. We will advocate tirelessly on your behalf and are here to provide comprehensive and straightforward legal advice at every step.

Call us today on 03 9878 5222 for confidential and candid advice on your legal matter.


Wills And Children

When you have children, you’re responsible for their care. As your children grow into young adults, they will begin to care for themselves. But what if something unexpected happens and you’re no longer around to care for them before they can look after themselves?

While it’s not easy to think about, it’s important to take the right legal steps to ensure your children will be taken care of, no matter what happens. That’s why it’s vital to update your Will to include your children so you can be sure they are supported financially.

Do you need help including your children in your Will and ensuring they will be taken care of? Contact Rose Lawyers on 03 9878 5222 for assistance and advice from our Family and Wills and Estates Lawyers Melbourne.

Wills and children

wills and children

There are two important factors to consider when it comes to Wills and children:

  1. Guardianship of your child in your Will
  2. Financial care for your child in your Will


If both you and your spouse/partner die unexpectedly, you might assume that one of your parents or siblings will be the person responsible for their primary care. But this may not be the case. That’s why it is vital that you firstly speak to your family about who will look after your child or children and secondly, to outline exactly who you want to care for your children in the event that something happens. After all, in the midst of what would be a stressful time, you’d want your children’s care to be straightforward. You can do this by selecting a legal Guardian and confirming this in your Will.

A legal Guardian is responsible for:

  • Caring for your children, in the event that you both die before they reach adulthood. For example, including medical and education decisions.
  • Making decisions about your children’s lifestyle, including, for example, religion, visitation with family, living arrangements, and healthcare.

Appointing a legal Guardian in your Will is straightforward; you simply need to list them in your Will as the person you elect to care for your children in the event that both you and your spouse die. You may also wish to leave a letter for your appointed Guardian outlining any firm wishes you may have for your child’s care.

Financial care of your child

guardianship of child in will

You can provide for your children in your Will in any manner you wish. Children under 18 years can’t legally hold most property, so if you die while they are underage, the asset they are to receive from you will be held in Trust on their bealf until they come of age or reach any other age you have directed.

Generally, your Executor will be the one who acts as Trustee and holds the asset on trust for the minor, but this doesn’t have to be the case.

You may also wish to make a Trust for your children, such as a Testamentary Trust. Setting up a Trust can be complicated, and it is important to seek legal advice from our Will and Estate Lawyers Melbourne who can help you organise the financial care of your children.

  • Your chosen Guardian may also be appointed as Trustee for any property and assets you have left to your children in your Estate.
  • A Trustee is responsible for holding any assets and property until your children reach 18 years of age or and other older age nominated by you.
  • You may wish to appoint an independent person as the Trustee of your Estate.

Commonly asked questions about Wills and children

What happens if the parents are separated and one parent dies?

If parents are separated and the primary carer with majority custody dies, the surviving parent usually has the first right to the care of any children. This can be overruled if the parent does not want to, or is not able to, care for children. It can also be overruled if that parent is a danger to children. Danger to children can exist in the form of drug or alcohol use, or physical, mental or sexual assault. If a parent is a danger to the children, concerned parties -often friends or family – must show the court that this parent is not fit to care for the children. You can still include a Guardianship clause in your will to cover the situation where the surviving parent can’t, or doesn’t want to look after the children.

What happens if both parents die?

If each parent has a Will, the parent who dies last will have the Will that takes effect in relation to Guardianship of minors. If both parents die in an accident at the same time, there is an assumption at law that the younger parent died last. This can cause problems if parents do not agree on who should look after their children.

Do I have to tell the proposed Guardian that I am naming them as a Guardian in my Will?

Absolutely. In fact, you should go one step further and have extensive discussions with that person or people. This is because the person you have chosen may feel they can’t look after your children. They may have other reasons, but whatever the case, you need to choose people who can not only look after your children, but who can accept the responsibility. It’s important to remember that just because you appoint someone as Guardian in your will, doesn’t mean they are forced to take on the job.

If you are concerned your chosen Guardian will spend the money you have put aside for your children, you can nominate an independent Executor who can manage your Estate. This way, your Guardian must approach your chosen Executor to obtain funds.

Should you consider the next generation in your Will when your children are minors?

It is important your Will is as comprehensive as possible. If, for whatever reason, you forget to change it — or if something happens and you don’t update it — you are prepared. For instance, even if your children are only school-aged, you can still include a clause that states that if something happens and your child dies before you, you would want their share to go to their children.

At Rose Lawyers, we are here to help you plan for tomorrow, whatever it may bring. Contact us today on 03 9878 5222 and speak to our friendly team at Will and Estate Lawyers Melbourne. We can help you get peace of mind knowing your children will be taken care of in your Will, no matter what.


Solicitor Vs Lawyer In Australia

When you hear the terms ‘Lawyer’ and ‘Solicitor’, it can be hard to know whether they mean the same thing. What is the key difference between them? Can you call a Solicitor a ‘Lawyer’?

Here’s a short break down of the common terms used to describe legal professionals:

  • Lawyer: A person with a certificate to practice Law. This includes Solicitors, Barristers, Judges and Corporate Counsel.
  • Solicitor: A person with a practising certificate that is not a Barrister or Judge.
  • Barrister: A Lawyer that passed the Bar Examination. They appear in Court on behalf of people and run technical arguments.

What does a Solicitor/Lawyer do?

In Australia, the term ‘Lawyer’ is used in exchange for the term ‘Solicitor’ when describing a qualified legal professional who provides advice. In order to be a practicing Lawyer, a person must have completed undergraduate or postgraduate tertiary study. Law graduates must complete Practical or Supervised Legal Training before seeking admission to the legal profession. Only then will a person hold a practicing certificate and be able to call themselves a Lawyer — and will most likely use the term Lawyer as this is what is commonly used in Australia.

A Solicitor/Lawyer:

  • Can provide legal advice to you on a range of matters.
  • Will usually work directly with you – often within an area of speciality that they focus on.
  • Can perform legal tasks and manage complex matters on your behalf.
  • Will take instructions from you and then provide legal advice and services.
  • Can negotiate on your behalf and will act in your best interests as your representative.

A Solicitor/Lawyer will, depending on the type of service required, gather information, calculate claims amounts, manage Family Law matters, and perform administration of Wills and Estates. If you have a matter that may proceed to Court, it is unlikely that your Solicitor will represent you in complicated matters. Instead, they will refer the matter to a Barrister who may act on your behalf in Court if required.

solicitor vs lawyer australia2

Other terms that fall under the ‘Lawyer’ umbrella

There are other legal professionals whose titles fall under the catch-all term ‘Lawyer’.


A Barrister is a legal professional and a Lawyer. A Barrister is known for advocacy and providing representation in court. To become a Barrister in Victoria, a person must be a practicing Lawyer and pass the entrance exam through the Victorian Bar. They must also complete an eight-week course and undergo seven months of supervised work under a mentor.

  • Many Barristers are experts in dispute resolution and are highly trained and experienced in anticipating outcomes for particular matters.
  • Barristers can provide clarity and legal guidance in complicated matters. They can often help settle matters before undertaking the unnecessary cost and worry of a trial.
  • Technically you would be correct in calling a Barrister a Lawyer, however the proper and preferred term is Barrister.

Barristers are independent and generally work in Chambers. Barristers are usually briefed by Lawyers to appear in matters.


This is a term more commonly heard in the United States of America — it is quite unusual to hear the term ‘Attorney’ when referring to a Victorian legal practitioner. Much more common is the term ‘Solicitor’, or ‘Lawyer’, as it effectively means the same thing.

Occasionally you may hear the term ‘Trademark Attorney’, which is used to refer specifically to someone who provides representation in certain matters of Intellectual Property Law. The proper name for this person in Australia is ‘Trademark Lawyer’.

Which is most commonly used in Australia?

It is common in Australia to hear someone referring to their ‘Solicitor’ when they are talking about their specialist legal practitioner. Usually, they mean ‘Lawyer’. You will approach a Lawyer when you need general legal advice on a matter, and you will require the services of a Barrister if you have a complex matter and require representation in Court. Your Lawyer is the one who will provide instructions to a Barrister.

Rose Lawyers is your trusted legal representative on a range of matters. Whether you need comprehensive advice on Business or Property Law, or if you are seeking representation for a Family Law matter, we are here for you. Call us today for help with your legal matter on 03 9878 5222.


Intervention Orders In Victoria

An Intervention Order is an Order made by the Court. It’s designed to protect someone from harm by putting limits on the behaviour of the person subject to the Intervention Order. An Intervention Order can be put in place to protect a person from physical or sexual assault, threats, damage and interference with property, harassment, and stalking.

There are Family Violence Intervention Orders that can be made against family members or people you have been in a relationship with. Personal Safety Intervention Orders can be made against people who are not family members.

Sometimes, circumstances change after an Intervention Order has been made, or the person who has the Intervention Order against them wants to contest the conditions of the Order. In this case, you must apply to the Court to have the Intervention Order amended.

Contact us now on 03 9878 5222 for a confidential discussion about your Family Law matter.

The basics of an Intervention Order

You can apply for an Intervention Order in Court if a family member or person you know is violent, threatening or abusive towards you. It sets out conditions that the person named in the Intervention Order has to follow so that they can’t harm you.

  • You can apply for an Intervention Order at your local Magistrates’ Court.
  • When applying for an Intervention Order, the party being protected is the affected family member or protected person.
  • The person the Intervention Order is being made against is the respondent.

Difference between Personal Safety Intervention Orders and Family Violence Intervention Orders

Both types of Orders can set out conditions that a respondent has to abide by. If the respondent breaks one or more of the conditions in their Intervention Order, the police have the power to arrest them.

  • A Personal Safety Intervention Order exists to protect the safety of people who have been assaulted, harassed, stalked or threatened where the respondent is not a family member.
  • A Family Violence Intervention Order exists to protect children and adults against violence from a family member or someone they have been in a relationship with.

How Intervention Orders work

intervention orders

Intervention Orders are primarily there to protect people from harm. When a Court makes a decision to set out an Intervention Order, there will be certain conditions that the respondent has to stick to. An Intervention Order might include conditions that stop the respondent from:

  • Committing violent acts against the protected person or family member
  • Contacting the protected person or family member
  • Going to an area where the protected person or family member lives
  • Getting someone else to do something that the respondent is not allowed to do under the order
  • Damaging property
  • Threatening to damage property or commit violence against the protected person or family member

Any breach of the conditions outlined in an Intervention Order may result in the respondent being arrested and charged with a criminal offence.

When you should get an Intervention Order

You can begin an application for an Intervention Order if you are in danger or if there is the threat of violence from a family member or person you know. If you are are in immediate danger, you must dial ‘000’ and ask for police. They will come to take immediate action and protect you against violence.

If you are not facing an immediate emergency, you can go to your local police station. The police can apply for an Interim Order by contacting the Magistrates’ Court. They can also request an Intervention Order on your behalf — and can do this even if you do not want them to. Police may apply on your behalf if you or your children’s safety is at risk.

How to get Intervention Orders in Victoria

intervention orders victoria

If you are over 18 when you are applying for an Intervention Order in Victoria, you need to go to the Magistrates’ Court. If you are applying on behalf of your child who is under 18, or if you are between 14 and 18 years of age, you can apply for your Intervention Order at the Children’s Court. You must have an address to consider aking out an Intervention Order.

In order to apply for an Intervention Order, you need to:

  • Call the relevant court and make a time to have your application for an Intervention Order processed.
  • Fill in an application form – you can do this at court or download it online (Magistrates’ Court).

When you are at court, you will need to:

  • Talk to the Court Registrar, who will ask you for information about what happened and why you are seeking an Intervention Order.
  • Go through information about the respondent, including information about whether they have a weapon or gun at their use.

If you are worried about your immediate safety, you may be able to get an Interim Order. This is an immediate order made by the court until your final Intervention Order is resolved. If the Court Registrar believes your immediate safety is seriously threatened, they can issue a warrant for police to arrest the respondent.

How to contest an Intervention Order

If you want to change or contest an Intervention Order, you can make an argument against the Order itself, or against the conditions in the Order. For example, your Intervention Order may state that you cannot contact your children and you may want to challenge this.

You can contest an Intervention Order as soon as you are aware that an Order has been made against you. At Rose Lawyers, our Intervention Order Lawyers can assist you in going to court to contest an Order. They can also make sure you get the best possible outcome for your circumstances.

How Rose Lawyers can help with your Intervention Order

Family violence is complicated and difficult, and it’s important to have support wherever possible. At Rose Lawyers, we can help with everything from understanding what Intervention Orders are, through to helping you lodge an application in court.

Contact Rose Lawyers now for comprehensive legal advice and to get the support you need during what can be a difficult time. Call our Family Lawyers Melbourne now on 03 9878 5222.


Conditional Gift In A Will

You spend your life working hard and saving. You gain assets, and then when you die you distribute them to your friends and family as you wish through your Will. In some cases you will have very precious assets like a family home that you built or invested a lot of time and money into maintaining, and you might want your children to be able live there but you might not want the house to be sold. So the question is, do you have any control over something once you give it to them in your Will?

This is a short piece designed to give you some more information about leaving a conditional gift in a Will and how they can work.

If you would like information and advice in leaving a conditional bequest in a Will please, contact Rose Lawyers Will and Estate Lawyers Melbourne on 03 9878 5222.

What is a conditional gift in a Will?

conditional gift in will

A conditional gift in a Will is a provision that distributes money or property to a person but only if an event takes place. For example, you might for example leave $10,000 to a grandchild but only if they graduate university.

  • A conditional gift such as leaving something to someone once they reach a certain age is relatively straightforward.
  • Conditional gifts in a Will other than age-limited gifts do need to be carefully worded, so it is important to seek legal advice if you are thinking of leaving a conditional gift in a Will.

How do I put conditions on a gift?

Including a conditional gift in your Will can be complicated depending on the type of property or asset you are leaving and the condition upon which you are gifting it. And there are some situations in which you cannot leave a conditional gift.

You might, for example, wish to leave a portion of your estate to a family member on the provision that a person does not do something with the estate, like sell it. Unfortunately, once you have given a person something, it then becomes their property and they are free to do as they wish with it.

The best way to put conditions on a gift in your Will is to get expert legal advice. Your lawyer will able to tell what kind of conditions you can include in your Will.

Is there a downside to leaving a conditional gift in my Will?

You have the ability to leave your assets to whomever you wish, on the conditions you see fit. The major problem with doing this is that you can’t foresee the future needs of your beneficiaries. Trying to control an asset after you have passed away means that your beneficiary may not be able to use the asset for something they really need.

Your children may run into financial difficulty or may need to go into a nursing home and need money for their care. The asset you have gifted conditionally is not able to be used for any purpose other than that which you have specified, which can be problematic for your beneficiaries.

Is there another way to leave an asset to someone?

conditional bequest in a will

There are other ways to leave assets to people while still having a level of control over how the assets are managed. For instance, you might like to set up a Testamentary Trust Will. A Testamentary Trust holds your assets secure and cannot be accessed by creditors or divorcing partners.

  • Testamentary Trusts are a way to protect your assets and reduce overall tax paid by your beneficiaries.
  • They are not foolproof but are an effective way to provide for your beneficiaries.

It is also worth noting that depending on the structure of the Testamentary Trust, managing the Trust may be a burden on the Trustee. But in some cases, a Testamentary Trust is a good option. We can help you work out whether a conditional gift in a Will or a Testamentary Trust may be a better choice.

Contact Rose Lawyers today for Will and Estate advice

At Rose Lawyers, we can help you work out what type of conditional bequests may be best suited for your estate. We are here to ensure that your Will is accurate, up to date and that it contains all the conditions that you want it to.

Get the peace of mind you need about your Will and contact us today on 03 9878 5222.


Making A List Of Assets For Your Will

When you are drafting your Will, it is quite natural to feel some confusion about how to go about beginning to put it together. To help to work it out, you need to make a list of what you own, either in your own name or with someone else, so that you can work out what you may distribute as part of your estate.

For example, you might own property with your partner or have shares in a company, and want to include this as a specific gift in your Will. Or perhaps you would like to leave a portion of an asset you own to an organisation, and also want to leave a bequest to a charity. This is where identifying all of your assets is vital, as it ensures that your Will is clear, valid, and accurate.

Working out the assets for distribution in your Will can be complicated, which is why it is important to seek professional advice from a Will and Estate Lawyer with experience. It is important that your Will is valid for a number of reasons – not least of all to avoid legal battles after your death.

For peace of mind call Rose Lawyers today on 03 9878 5222 for expert advice about your Will.

Make a list of assets for your Will


When making a list of assets for your Will, it is helpful to start by making a list of all your assets and debts. This should include any:

  • Assets in your name
  • Assets that you own with someone else
  • Assets that might come to you in the future
  • Debts or mortgages
  • Business interests and partnerships

If you own property with someone else, it is important to know whether you hold the asset as joint tenants or tenants in common. These are two separate legal terms which refer to how property is owned and dealt with on the death of one of the owners.

In most cases, where you purchase property with someone, you are joint tenants which means that upon your death your share of the property automatically goes to the other joint tenant. In other cases you will be tenants in common, which means that you can deal with your share of the asset in your Will. For real property, you can find the information about how the property is owned on your Certificate of Title.

Assets in your Will

Examples of assets that you can include:

Now that you’ve made your list of assets and debts, you can begin to make inclusions in your Will. You can include the following in your Will:

  • Assets that you own in your name only
  • Assets that you own as a tenant in common

Examples of assets that you cannot include:

There are some items that you cannot include in your Will. These include:

  • Compensation payments that you receive
  • Any share of assets owned as a joint tenant
  • Assets which are held in trust. You cannot leave this because it does not belong to you. Much like your neighbours car, for example.
  • Some superannuation

What you may be able to include in your list of assets for your Will:

In some cases you may need to include the following list of assets in your Will. If you have any of these assets, it is important to seek legal advice before inclusion to make sure that your Will does not miss any details or open anything to interpretation:

  • Overseas property
  • Assets with a mortgage or security on them
  • Life insurances
  • Business assets – depending on the structure
  • Superannuation benefits
  • Shares in a company or Family Trusts

What to consider when allocating an asset to someone

grandmother mother and daughter list of assets

When you are drafting your Will, you can make a specific gift of something to someone, or you can leave a portion of your entire estate. How you structure your Will is entirely up to you. When allocating certain assets, it is worth considering the following:

  • If gifting someone a particular asset, do you believe you will still own the asset upon your death?
  • Do you have debts which will need to be covered by an item?
  • If you are leaving a house or property to someone, is it going to them debt-free or will they be responsible for paying the remaining mortgage?
  • Do any of your beneficiaries have specific needs or disabilities, and if so, will they need particular care after your death?

While none of these factors necessarily preclude you from leaving an asset to someone provided you are able to do so, it is worth considering.

Contact Rose Lawyers for assistance with your Will

You can trust our Will and Estate lawyers in Melbourne for comprehensive advice and straightforward service when making your Will. Asset division can be complicated, but with us by your side, the process will be straightforward. Find out how we can help you with your Will.

Call us today on 03 9878 5222 for a friendly and professional free consultation.


What Is A Bequest In A Will?

Your Will is a legal document which outlines how you want to distribute your property when you die. No matter whether you have few assets or many, a Will is important because it means you can choose how you want your estate to be divided. If you do not have a Will, your family will receive a share of your estate according to Intestacy laws.

A Will allows you to make a gift of any possessions and money you leave behind to organisations or beneficiaries of your choosing. This kind of gift is known as a bequest. Some people choose to leave a bequest to an organisation or charity in their Will.

At Rose Lawyers, we can prepare your Will to ensure that your property is distributed according to your wishes upon your death.

Contact us today on 03 9878 5222 for a free consultation about drafting or updating your Will.

What is a bequest in a Will?

A bequest in a Will refers to the act of giving a gift of something you own to a person or organisation. The person or organisation receiving the item is the beneficiary.

  • A bequest is a gift which is made upon your death.
  • A bequest can be made through a Will.

When making a bequest in your Will, you can choose to make it in a number of different ways.

Types of bequests

couple planning bequest of property

You have a range of ways in which you can make a bequest to someone or to an organisation in your Will. You may choose to provide a fixed financial figure to gift, or you may prefer to allocate a percentage of a remaining amount.

Residual bequest

A residual bequest is a gift which is provided after the remainder of your estate has been distributed, and all taxes and debts have been settled.

  • A residual bequest can be the total amount remaining after your estate has been distributed, or it may be a percentage of the amount remaining.
  • A residual bequest is not a fixed financial sum; it automatically adjusts as the value of your estate changes.

Pecuniary bequest

This is a specific financial bequest which can be made based on a fixed sum, which you choose.

  • You can make a pecuniary bequest by detailing the person or organisation you wish to benefit from this bequest, and simply including them in your Will.
  • The person or organisation will be contacted to receive this sum by the executor of your estate after your death.

Specific bequest

You may wish for a person or organisation to have a particular item or piece of property.

  • For a specific bequestyou would outline the exact item, property, or share that you wish to gift in your Will.

There is also a range of other types of bequests available to you. If you would like to know more about bequests, we can help you understand these in more detail.

Bequest vs devise – what is the difference?

When reading about Wills, you may sometimes see the term ‘devise’ in relation to making a gift in your Will. A devise used to differ from a bequest in that it was the gift of real property.

Real property simply refers to land, and anything attached to the land, so a devise used to be the way to transfer title of property or land. Today, bequest and devise are used interchangeably and the word ‘give’ is enough to deal with all property.

Common questions about bequests

mature man planning bequest

Do I need to leave a bequest in my Will?

A bequest is a simple way to make a gift to a charity or organisation upon your death. You are under no obligation to make a bequest to anyone. If you do wish to make a bequest, you can choose to make multiple bequests to various people or organisations, or simply make one bequest to an organisation.

Can I choose how my bequest will be used?

If you want your bequest to be used in a particular way, you can make a conditional bequest. This means that they will only get the gift if they use it in the way you have specified. If this is the case, you may wish to contact the organisation you wish to make a bequest to and let them know. This will ensure that your wishes are followed.

Contact Rose Lawyers for advice

Get in touch with our friendly and professional Will and Estate Lawyers in Melbourne today. We can help you understand the different types of bequests and ensure your Will reflects your wishes. Call us on 03 9878 5222 for a free consultation with one of our lawyers.


What Is A Residuary Clause In A Will?

Everyone over the age of 18 years old should have a Will. Having a Will means that when you die, any property, assets, and money you leave behind is distributed to your beneficiaries, according to your wishes. When drafting a Will, you need to allocate who you want your assets to be distributed to when you die. But even the most comprehensive Will probably isn’t going to outline who should receive every single item you own.

This is where a Residuary Estate Clause in your Will comes in. A Residuary Clause takes care of anything that is left over from your estate after all specific gifts are accounted for. A Residuary Clause offers peace of mind because it means that everything left over in your estate, that you might not have thought of when drafting your Will or that you accumulated after preparing the Will, is allocated – which can avoid fights or conflict between family members or friends.

If you need to revise your Will to include a Residuary Estate Clause or want to draft a new Will, call our Will and Estate Lawyers Melbourne on 03 9878 5222. We are here to ensure that your Will is accurate, valid, and complete.

What is a Residuary Clause in a Will?

couple getting advice residuary clause in a will

Your Residuary Estate refers to the portion of your estate that was not specifically accounted for within your Will, because these items might have been obtained after the Will was prepared, overlooked or forgotten, or just not accounted for by name.

To avoid conflict between your family members and possible legal battles over your estate, a Residuary Estate Clause can be inserted into a Will, ensuring all these leftover items are taken care of.

  • A Residuary Clause is a vital part of your Will because it accounts for anything you might have missed, and anything you have not accounted for by name.
  • Many people acquire a large amount of property and items in their lifetime, by creating a Residuary Clause it avoids potential conflict over the distribution of smaller property.
  • A Residuary Clause can easily be inserted by your Will and Estate Lawyer.

Why do I need a Residuary Clause in my will?

The reason you need to include a Residuary Clause in your Will is so that any property that has not been specifically mentioned in your will is accounted for and properly distributed. If you do not have a Residuary Clause in your Will, there may be a risk of partial intestacy. Intestacy laws apply when a person dies without a valid Will, or when all property is not accounted for in a Will.

  • A Residuary Estate is a ‘catch all’ because it catches all assets not specifically named to a person or people
  • You can also provide for a range of outcomes within a Residuary Clause; you might state that the first $50,000 of your Residuary Estate goes to a certain person with the next $20,000 to a particular charity, and anything else remaining to particular organisations by percentages, for example.

A Residuary Clause is also necessary in case you have identified a specific beneficiary, but this person then dies before you – and you hadn’t updated your Will. The property that person would have received may become part of the Residuary Estate, instead of being allocated according to Intestacy laws.

Examples of a Residuary Clause in action

couple shopping residuary clause in a will

When drafting a Will, it is common to name specific people to receive specific items. Things like property, special jewellery, particular clothing, cherished artworks are all items which are likely to be allocated to a certain beneficiary. If you have identified an asset by name then it will not be included in your Residuary Estate.

  • A Residuary Clause is what remains of your Will after all debts, funeral expenses, testamentary expenses (expenses associated with your Will), and bequests (distribution of specific assets) have been paid.
  • A Residuary Clause means that you do not have property being distributed according to Intestacy laws.
  • A Residuary Clause can protect your family and friends from uncertainty and ensures that your property and assets are distributed according to your wishes.

A Residuary Clause saves any uncertainty and clearly allocates any items not accounted for by name in your estate to a certain person or people so that there is no confusion.

Why you need a Will and Estate Lawyer for your Will

A Will and Estate Lawyer can take you through the entire process of writing up your Will and ensuring that all items of your choosing are allocated according to your wishes. We can help you to account for a range of contingencies and can include charitable gifts and donations as part of your Will. We will discuss the importance of a Residuary Clause and can help you determine what the most effective way of providing for your beneficiaries is.

Contact the Will and Estate Lawyers at Rose today for a confidential and friendly discussion about how a Residuary Clause can easily be inserted into your new or existing Will. Call us on 03 9878 5222 for a free consultation.


Going Through Divorce With Children Involved

A divorce is the legal end to a marriage. The requirement for divorce is that you must demonstrate the ‘irretrievable breakdown’ of your marriage. You must also show that you and your partner have been separated for a 12 month period without any possibility of you getting back together. This is usually proven to the Family Court with Affidavit evidence.

You don’t necessarily need to live in a different home to your partner to show that you are separated, and some couples do live in the same home after separation while co-parenting their children.

No matter your particular situation, going through a divorce with children involved is never easy, but Rose Lawyers are here to help to ensure that at least the legal side of things is smooth.

Call our friendly and professional divorce lawyers Melbourne today on 03 9878 5222 for a 15 minute obligation free chat about what you are hoping for with divorce child custody. We are on your side and are here to make complicated decisions in divorce easy to understand.

Divorce with children involved: how does it work?

Family Law dictates that decisions about child care after separation are made with the best interests of the child in mind. The law provides that children from divorced families should continue to have supportive and caring relationships with both parents and both sides of the family wherever possible.

  • After a divorce you may be able to agree on parenting arrangements with your former partner.
  • You might have difficulty agreeing on your parenting arrangements.
  • It may be unsafe for the children continue to see your former partner.
  • Extended family members may be involved in the long-term care of your child or children.

Caring for your children – what to consider

Each family is different, but it is important to reach an agreement with your former partner about future care for your children. You might be able to decide together, or you may need the Court to intervene. When you are thinking about arranging for future parenting and care you may want to think about:

  • How old your children are.
  • Whether you want to divide care with your former partner equally, or if one parent wants to take on greater responsibility.
  • Establishing a new and consistent routine as soon as possible.
  • How much notice you need to give the other person when changing a child’s routine.
  • What kind of relationship children have with grandparents and extended family.
  • Who will look after children on holidays.

There are also a range of other factors to consider, like how to ensure your child can continue to enjoy their culture, and how to keep your children engaged in their sports and recreational activities. Also, if one parent is looking to move away following a split, it is important to confirm this before any decisions are made. The Court may need to get involved if you cannot reach an agreement about a person moving away.

custody of child after divorce

Parenting arrangements after separation

There are a number of different arrangements that can be put in place to confirm how you will care for your children after your separation. We have gone through a few key possibilities here to make it easier to understand your legal position.

You agree on parenting arrangements

In some cases, both parents can agree on how best to care for their children in the future. If this is the case, you do not need to go to Court to arrange care for your children, because you can make a parenting plan. Alternatively, you can seek a Consent Order from the Court.

Parenting plan

This is a written agreement which you can work out with your former partner.

  • You agree on how your children should be cared for in the future.
  • You can work out a plan with your former partner.
  • A parenting plan is not legally enforceable and is different from a parenting Order (which is made by a Court).
Consent Order

When you have agreed on parenting arrangements, you can put your agreement into an Application for a Consent Order and then ask the Court to make this Order. A ConsentOrder can cover not only how you will care for your children, but also how financial matters may be taken care of.

  • Any person concerned with the care and welfare of a child can apply for a parenting Order
  • An Order will be made in the best interest of a child
  • The order has legal effect which means it is legally enforceable

You do not agree on parenting arrangements

In some cases parents cannot agree about how to best care for their child or children. In this case, a Court can step in to make a parenting Order. Before you can get a parenting Order you will need to attend family mediation (unless it is unsafe to do so). Family mediation can help both parents to reach a decision that they are both happy with.

Parenting Order

This is a Court-ordered decision which outlines parenting arrangements for a child or children. A parenting Order will outline the following:

  • Who children will live with, both now and in the future.
  • How much each parent has to do to care for the children.
  • How much time children will spend with a parent they do not live with.
  • Any aspect related to the care and welfare of children.

custody divorce with children

How to start the conversation about custody

While you might be feeling a range of emotions, it is helpful if you can talk to your former partner about child parenting arrangements in a productive way.

  • Put your feelings to one side and discuss the facts. While you may be hurt, frustrated or angry, it’s likely these emotions are not going to move your child custody discussions forward.
  • Be respectful and try to avoid talking too much about what is happening with your divorce or separation on social media.
  • Put your children first when making decisions. Take the time to talk to your partner reasonably, knowing that it is likely that they also want the best for your children.
  • Write things down and take some time to work out what you would like as a best case scenario. Sometimes you can speak to your former partner about a range of issues like property settlement and child care arrangements in one go. Consider your best outcome, and what the worst possible outcome could be – and then try to meet somewhere in the middle.

Call Rose Law for legal advice on your divorce

Going through divorce with children can be difficult, and it is important to protect the rights of your children above all else. We recommend consulting with Rose Law divorce lawyers Melbourne at the early stages of your divorce. This is so you can establish your rights and responsibilities early on and manage you and your former partner’s expectations. This will hopefully lead to a smoother transition through this time.

Contact us today for a confidential and obligation-free discussion about your divorce child custody. We are here for you during what can be a difficult time. Call us on 03 9878 5222 today.


Superannuation And Divorce

When a marriage or de facto partnership ends, a couple often has to go through the process of selling and splitting up property and other assets. But what about your superannuation?

Superannuation splitting laws allow you to treat your superannuation like property, and divide it just like you would anything else.

This is some information for anyone who is going through a divorce or separation and who needs information about how their superannuation can be divided.

Divorce can be difficult. Don’t make things any harder than they need to be; speak to one of our friendly family divorce lawyers Melbourne today on 03 9878 5222. Rose Lawyers are here to ease the burden and make superannuation splitting laws straightforward.

Superannuation splitting laws

Superannuation is treated as a form of property in a separation, which means that the law allows you to value your superannuation and divide it between you and your ex-partner or spouse. In some cases one party has worked more than the other and has more superannuation, so superannuation splitting is something you may want to consider.

  • Splitting superannuation doesn’t mean you convert the balance into a cash asset.
  • You still have to adhere to superannuation laws – which means you usually have to wait until retirement to access your super.
  • Some couples put a Superannuation Agreement in place either before, during or after their relationship.

A Superannuation Agreement can form part of a broader Binding Financial Agreement and dictates how you split your superannuation. If you do not have a Superannuation Agreement, or cannot agree on one, you can seek a Court Order.

Court orders for splitting superannuation

If you can agree on how you would like to divide your property – including your superannuation – you can get a Court order to make this agreement binding. You can also get the Court’s input if you cannot agree on how you would like to divide your property.

There are two different types of Court orders:

  1. Consent Order: for couples who have agreed on how to divide property and who want to make the agreement binding. A Court will consider whether your agreement is fair before deciding to make a Consent Order official. You can make an Application for Consent Order in the Family Court accompanied by your Consent Order. Rose Lawyers can assist you in making this application.
  2. Financial order: for couples who are having trouble agreeing on how to divide property. The Court will look at a range of factors and will dictate how superannuation and other property should be divided.

You do need to keep in mind that the Court has the final say in a Consent Order, even where the parties are in agreement. This means that if it is not fair in the eyes of the law, then the Court will not make the Order.

man reviewing superannuation splitting order

How to split your superannuation

Step 1 – Find the total value of each party’s superannuation

The first thing you need to do is to find out the value of each person’s superannuation account, known as a superannuation interest. This is so you and your former partner can reach a fair agreement.

When you are going through a divorce or separation you are entitled to find out the value of your superannuation from your superannuation company provided you can show a genuine need for the information. It is likely your superannuation company will charge a fee for this service.

If the Court is making a Payment Splitting Order the Court is required to value the superannuation interest.

Step 2 – Get legal advice

If you do not have a Binding Financial Agreement in place, it is important to get legal advice so that you can work out how to divide all of your assets. Legal advice from our divorce lawyers Melbourne can help you to work out whether an agreement can be reached, or if you should apply for a Court Order so that the Court can assess how the property of the parties and the relationship should be divided.

  • Speak to your lawyer about getting a ‘payment flag’ put on both parties’ superannuation accounts. A ‘payment flag’ means that neither party can make superannuation withdrawals before a superannuation split has taken place.
  • A Court will consider how much each party contributed to the relationship when dividing superannuation. Contributions can be both financial (like earning a salary) and non-financial (like maintaining the home and family).
  • Each party’s financial position post-separation will be looked at, which may affect how superannuation is divided.

In many cases, one partner earns more than the other. Many families have one parent at home caring for the children and taking care of the home, while the other partner is working. When a couple separates, the Courts will consider much more than just the financial contribution; many other non-financial factors are taken into account.

divorcing couple ruminating of superannuation splitting order

Step 3 – Apply for a Superannuation Splitting Order

Once you have a valid financial agreement or Court order in place, you can make an Application to the Court split your superannuation. In order to split your superannuation you will need to file an Initiating Application, a Financial Statement, and an Affadavit, to the Family Court. We can assist you in making this Application.

In some cases, there is a threshold for superannuation balances, in which case couples must be separated for 12 months before their super can be split. Rose Lawyers can discuss this with you in more detail.

  • You may not be able to split your superannuation straight away – but a payment flag (like the one we mentioned above) can apply for an extended period of time until a benefit is payable.
  • You will have to wait until you reach ‘preservation age’ – the age at which you can access your superannuation – before accessing any benefit.

Consult Rose Lawyers today

Going through a separation can be tough but with Rose Lawyers on your side we can help to make things straightforward.

Speak to our divorce lawyers Melbourne today to find out about superannuation splitting laws and find out what you need to know. Call us on 03 9878 5222 for an obligation-free discussion about how we can help with dividing your superannuation.


Divorce And Child Care Rights For Fathers

Going through a separation can be emotionally difficult . When you have children from a partnership that has broken down, you will need to work out how you will care for your children in the future. This used to be called custody and is now a question of who your child ‘lives with’ and how much time they ‘spend with’ each parent.

Many fathers naturally worry that they won’t get to spend as much time as they would like with their children. While this is a common concern, the fact is that the law does not favour one parent over another, and there is no guarantee that either parent will be able to spend more time with their child or children. Both parents have an equal requirement to show that they can care for their child or children.

Although you may commonly hear of children living with their mother and spending time with their father, the fact is that every decision is unique. Just as every family is unique, and a split between modern families requires an individual approach based on your particular circumstances.

At Rose Lawyers, we are committed to helping families achieve a positive outcome from their separation, and are here to discuss child care rights for fathers in family law.

Call us today on 03 9878 5222 to speak to one of our experienced family lawyers in Melbourne.


Deciding on how to care for your children with a parenting plan

For many couples, it is possible for them to agree on a parenting plan. This is a written agreement which sets out the care arrangements you want to have in place. This plan has to be in writing, and it needs to be signed and dated by both parents.

  • A parenting plan is a signed written agreement.
  • Family dispute resolution may be able to help you make a parenting plan both parties are happy with.
  • A parenting plan is not legally enforceable but you can get a consent order which is approved by the Courts.

You have equal say in how you would like your children to be cared for. You can work with your ex-partner to try and reach an agreement on who will care for your children. You might agree that is is less disruptive to your children to live with one parent full time and to see the other parent on weekends.

Can’t decide on care?

In some cases, parents cannot agree on care arrangements for their children. In this case, the next step for parents is mediation. If you have gone through the mediation process and not reached an agreement (or if mediation is not appropriate – say in the instance of family violence) you will then apply for a parenting order which is given to you by a Family Law Court. A parenting order outlines how you will share parenting responsibilities.

Making a parenting order through the Court

There are no set rights or rules for parents in Victoria. When deciding on care for your children the Court considers two things above all else:

  1. Protecting children from physical and psychological harm – including seeing or experiencing family violence.
  2. The importance of children having a meaningful relationship with both parents.

The Court also considers the kind of relationship a child has with extended family, such as a grandmother or grandfather, and whether parents have the ability to financially support children. In making a parenting order the court will consider a number of other factors including, but not limited to:

  • Whether each parent can financially support the child.
  • How much time and communication has come from each parent.
  • The practical difficulty of a child seeing each parent and whether this affects a child’s right to a meaningful relationship with that parent.
  • Each parent’s attitude towards parenting.
  • How much each parent can provide for their child’s physical, emotional, and intellectual needs.
  • Any other considerations that the Court thinks is important.

Again, the Court will not decide in favour of a mother or father based purely on their gendered role but will look to the interests of the child and make a decision based on the child’s rights to care.

man and women settling divorce and deciding on child custody rights for fathers

Making decisions for your child

In the first instance, the Court sees each parent as having equal responsibility to make decisions about their child’s medical, religious, cultural, educational, and living matters. Equal parenting responsibility does not automatically mean you have equal parenting time or shared care. The Court may decide that one person is better equipped in all the circumstances for the child to live with them the majority of the time.

If equal parental responsibility is granted, the Court will decide whether it is in the best interest of your child to spend equal time with each parent, or whether ‘substantial and significant time’ is better.

What the Court considers when determining care of child

When you are going through a separation with your ex-partner it is important to take steps to make sure the Court can see that you are capable of caring for your child. You can do a number of things to make sure that your home and lifestyle are favourable for providing care:

  • Making sure your house is safe and adequately equipped for your child. This might include things like ensuring there is a separate bedroom for your child in your new house, and making sure your home is always clean and tidy.
  • Staying in the same school catchment zone so that your child does not have to move schools, as this can be disruptive for your child. That said, you might move to an area with a much better school than the one your child currently attends.
  • Considering a new relationship carefully. While you are not obliged to remain single or to make decisions about your partner based on your child, it is important to think about how a new relationship can affect your caregiving responsibilities. Ending one relationship and moving straight into another relationship can be very tough for a child.
  • Championing stability. Children require as much routine as possible, and a Court will consider this factor very highly when allocating care. If you have a job where you are FIFO (fly-in-fly-out), if you work shifts, or if you move house or jobs often then the Courts will consider how stable and consistent you are.
  • Hiring a lawyer who understands the nuances of family law and who can assist you. While you are the person who understands what is best for your child, Courts are complicated places where a good family lawyer can be your agent in what is almost always an emotionally fraught situation.

Call Rose Lawyers today

Remember that your child’s rights are what the Court will consider when deciding on care and the decision is made based on all the circumstances of the parties. This is not an easy decision. You can do a lot to create routine and consistency in your child’s life, and by showing the Court you can consider your child ahead of any grievance with your ex-partner can assist in your case.

When you need advice you can trust from family divorce lawyers who understand, call Rose Lawyers on 03 9878 5222. We understand child care rights for fathers in Victoria and are here to help with your care decisions.


Breaking A Commercial Lease? Read This First

When you enter into a Commercial Lease, you will usually need to sign an Agreement that outlines certain details about your Lease. Your Agreement will specify the length of time that your lease will run for and will outline the duties each party must perform. Your Agreement will also contain information about what needs to happen in the case of early termination.

If you need to prematurely end a Lease, you need to know that it can be a complicated matter that requires patience, understanding, and, in many cases, legal advice. There are some situations which allow a Commercial Lease Agreement to be terminated early, and these will be discussed along with the consequences of each.

If you are looking to break a Commercial Lease or need advice on ending a Commercial Lease early, contact us at Rose Lawyers on 03 9878 5222. We can make an assessment of your situation and provide direction on how to proceed.

When can a Commercial Lease be ended early?

There are a number of situations in which it is appropriate and necessary to end Commercial Leases before the specified end date. These include:

  • A breach of the Commercial Lease Agreement. One party might have breached a material term of the Commercial Lease Agreement, resulting in the termination of the Lease.
  • A Lease transfer. This takes place when a lessee transfers their Lease to a new party. You may need to check the terms of your Contract to make sure you have a transfer clause in your Lease Agreement, and if so, what particular duties you have to fulfil.
  • Mutual consent. This occurs where a tenant wishes to leave, and a commercial landlord grants permission for them to do so.
  • Early termination. You might have an early termination clause included in your Contract which grants you permission to end your Lease early. This clause will outline specific situations in which you can terminate your Lease early.

Other cases for early termination include: if a tenant dies, or if the premises are destroyed, or otherwise declared to be unfit for human use or habitation.

What you need to do to end Commercial Leases early

Breaking a Commercial Lease is not uncommon, however, it is important to make sure you have sound legal advice so that you are not breaching any of your obligations. When thinking of ending a Commercial Lease, you need to take a few steps to make sure you get the outcome you desire.

  • Talk to the property owner. This may be a simple solution to ending your Lease and may even result in a favourable outcome if the property owner can get someone else in to Lease your property without impacting on their income stream.
  • Give your landlord as much notice as possible. This is vital in keeping positive relations in place and to ensure that your landlord is well positioned to find a new tenant. You may even be able to help to find a new tenant for the property.
  • If you are thinking of ending a Lease because of a breach you will need to adhere to the strict legal requirements for serving a notice of a breach on the landlord or relevant party.
  • Submit notice of your intent to end your Commercial Lease and discuss any relevant compensation with your landlord.

Whatever situation you are in, it is important to get legal advice on ending your Lease early to make sure that you do not run the risk of falling foul of a Contracted obligation, and that you fulfil your duties as a lessee.

woman looking at breaking a commercial lease

Potential pitfalls when breaking a Commercial Lease early

Terminating Commercial Leases early is often seen as a potentially costly endeavour. This is because you may have to compensate your landlord for any rent lost while their property is vacant.

It is often possible to negotiate and work out a compromise with your landlord, so it is almost always best to speak to them and to provide as much notice as possible. It’s in your best interest to try and work out a compromise with your landlord, as you may experience the following pitfalls if you don’t:

  • You may continue to be liable for the rent until new tenants move in, or until your original Lease expires
  • You might have to pay advertising costs for a new tenant
  • There may be leasing fees and agents fees to pay for, which are associated with the new tenant

You do not have to pay a fixed break Lease fee in Victoria, but if you do terminate your fixed Agreement early without grounds, you will need to pay compensation for lost rental income, advertising, and letting fees. You may be able to claim severe hardship, but a tribunal may still order you to pay some form of compensation.

Wondering where you stand? Speak to our business lawyers in Melbourne on 03 9878 5222. We can provide clarity so that you can move forward in the right direction.


Franchising In Australia: What You Need To Know About Franchising Laws

If you are considering franchising in Australia, it’s vital to know where you stand with the law. There are certain franchise rights and responsibilities around entering into a contract, so it is important that you consult a legal professional as part of your due diligence before entering into a Franchise Agreement.

A lawyer can help to ensure that the contract you enter into is in your best interests, and can help you work out whether it’s a sound investment.

If you are considering buying a franchise and would like legal advice for peace of mind during this process please get in touch with Rose Law business franchise lawyers on 03 9878 5222.

What is a Franchise Agreement?

A Franchise Agreement is a contract that exists between a franchisor and a franchisee. The contract can be written, verbal, or implied. A Franchise Agreement outlines the way in which an established business (the franchisor) allows a franchisee to run a business associated with the franchise brand. The Agreement also outlines the duties each party needs to perform, and what kind of compensation each party can expect.

For example, Dominos Pizza is a franchise. Individual franchisees own their own branch and produce pizzas under the Dominos brand, and to Dominos specifications. Each franchisee pays a pre-determined portion of their income to the Dominos franchise in compensation for using their brand.

What are the laws that surround franchise agreements?

The franchise industry is regulated by the Franchising Code of Conduct (the Code). The Code is in place to regulate the conduct of parties to a franchise. The Code outlines set guidelines for how to deal with matters at all stages of the agreement, including:

  • Good faith obligations
  • Disclosure requirements
  • Methods for dispute resolution
  • A cooling-off period
  • Procedures for ending a franchise agreement

The Code is regulated by the Australian Competition and Consumer Commission (ACCC).

ACCC logoAs a business owner, you may also operate under various other laws like the Fair Work Act, the Victorian taxation laws and any relevant Victorian licensing agreements and schemes. A recent bill was passed to update the Fair Work Act, specifically with the purpose of protecting workers in franchises and to ensure they are receiving appropriate wages and working conditions. The franchisee is responsible for ensuring compliance with the Fair Work Act, but under the new bill, the owner of the franchise may also be responsible for a serious contravention of the Act.

What does each party need to do as part of the franchise agreement?

Buying a franchise is not without its risks, so it is important that you do plenty of research and consult a legal professional prior to entering into a Franchise agreement. Each party has varying responsibilities in terms of what they have to perform as part of the Franchise agreement.


The franchisor is required to provide information that is material to running their franchise business. This includes a disclosure document which has information about:

  • Business experience
  • Any relevant litigation against the franchise, a franchise director or an associate of a director
  • Any serious offences
  • Introduction fees
  • The number of existing franchises and master franchises
  • Any intellectual property and trademarks
  • Exclusivity or limitations on locations
  • Inventory levels
  • Supply of goods and services
  • Establishment costs and access to funds
  • Earnings and historical data

This must be provided to a prospective franchisee, along with an information statement which looks at some of the risks and rewards of buying a franchise.

businessmen agreeing on franchise rights


A Franchisor must provide you with specific information to help you make your decision, including a 2-page information statement, once you either express an interest in, or formally apply for, a franchised business.

If you decide to become a Franchisee, the Franchisor has to provide you with a disclosure document and a copy of the Code. You must review this disclosure document and look at what sort of flexibility and rigidity exists. For example:

  • Is there exclusive territory where the Franchisor cannot have another franchise?
  • Can the Franchisor change your territory?
  • Are there limits on selling online?
  • Do you have to make an initial capital investment?

Once you have received, read and understood the Code and the disclosure document, you must give the Franchisor a written statement stating your understanding. A Franchisor cannot enter into an Agreement with you without a written statement from an independent legal or business advisor or accountant confirming they have provided advice to you. It is important to get legal advice to avoid surprises later. It is also helpful to speak to other Franchisees if possible to find out what owning the franchise is like.

Get legal advice for your franchise agreement

As a prospective franchise owner, there are four key stages of your agreement:

    1. Pre-signing
    2. Cooling-off period
    3. During your agreement
    4. Ending your agreement

lawyer assisting with franchising in Australia

You have certain rights at each stage of your agreement, and it is important that you get professional advice before undertaking what is likely to be a significant personal and financial commitment.

For example, if you wish to end your Franchise Agreement by transferring it to another party, you have to request the franchisor’s written consent. If you have a dispute within your franchise relationship, there are certain dispute resolution steps outlined in the Code.

Legal advice is recommended at each stage of your franchise agreement to ensure positive business ownership and operation.

Looking to get started with franchising in Australia? Contact Rose Law, your franchise business lawyers. Call us on 03 9878 5222 for a complimentary 15 minute consultation about your franchise business.


How To Write A Cease And Desist Letter

A cease and desist letter (also known as a notice to stop letter, or a demand letter) is a legal document used to inform a person or party of your formal notice requesting them to stop a behaviour or activity that infringes on your legal rights.

In many cases, a cease and desist letter is the first step you will take when you want to stop an unwanted action. A cease and desist letter most often has a warning included that lets the other party know that you may take legal action if they do not ‘cease and desist’ whatever they are doing.

If you are experiencing activities that you believe to be infringing on your personal or business rights, get in touch with Rose Law on 03 9878 5222 for a complimentary 15 minute discussion about how you can take action to stop this behaviour.

When do you need a cease and desist letter?

There is a range of situations in which a cease and desist letter can be used. You can use a cease and desist letter as an individual, and businesses can also use cease and desist letters. Some of the common situations in which one can be used include:

  • Trademark or copyright infringement
  • General personal harassment, intimidation or stalking
  • Defamation
  • Circumstances when your rights are being infringed generally
  • Persons breaching a restraint of trade obligation

It can often be difficult to talk to someone if you are being harassed or defamed. A cease and desist letter can be a simple way to let someone know that their behaviour is infringing on your rights and that legal action may take place if they do not stop their actions.

In the case of business infringements, a cease and desist letter is a way to let another party know that their conduct is noted and that legal proceedings are the next step if they do not cease their actions.

cease and desist letter australia

What to include in a cease and desist letter in Australia

A simple cease and desist letter contains a range of standard features. These outline the identifying features of the parties involved and set out some guidelines. This includes:

  • The sender’s details (this will be you, or the individual or business requesting that behaviour is stopped).
  • The recipient’s details (the person or business being asked to cease behaviour).
  • A detailed description of the behaviour, as well as any of the negative effects the behaviour may have had.
  • A warning that legal action will be taken if the behaviour does not cease.
  • The deadline by which the behaviour has to stop.

Your cease and desist letter needs to needs to be detailed and include all the points listed above. Otherwise, a judge may find that your letter was insufficient if the matter goes to court.

You must also make sure that you send your cease and desist letter by registered mail to the person or business responsible for the offensive behaviour. That way, if the matter does end up in court it can be proven that the other party was notified. The registered post receipt will show exactly when the party was notified.

Will a cease and desist letter work?

A well written cease and desist letter, drafted and certified by a lawyer is a weighty document and one that the receiver will likely take seriously. Most people are aware of the cost and potential impact that legal action can take, and a cease and desist letter is often enough to stop the behaviour from further taking place.

  • If someone’s conduct is infringing on your legal rights, a cease and desist letter may be just what you need to stop it from taking place.
  • A cease and desist letter is a legal document that can be a powerful and simple way to assert your rights in life and in business.

While there is no guarantee that behaviour will cease with the presentation of your letter, many individuals and companies will see the consequence of legal action far outweighs whatever they are doing.

two people discussing a cease and desist letter australia

Do I need a lawyer to create my cease and desist letter?

While you do not need a lawyer to write your cease and desist letter, it can be very helpful to consult with a lawyer as they can help you to understand the seriousness of your matter. Without legal advice, you might miss out on an area of law that is being breached, and you can also ensure that your cease and desist letter is accurate. Putting false information in a cease and desist letter can have serious negative consequences.

  • A lawyer can write a persuasive and legally accurate letter on your behalf.
  • Legal advice can help you to see whether a cease and desist letter is the best course of action, or whether another avenue might suit your matter better.

At Rose Law, we are committed to providing advice and guidance on how to approach conduct that infringes on your personal or professional rights. Contact us today on 03 9878 5222 or get in touch online for a complimentary consultation about writing a cease and desist letter in Australia.


Separated But Living Under One Roof?

Often when people separate from one another, they may remain living together in the same house. This is not an issue until one or both parties seeks a Divorce and has to prove to the Court that they have not been part of that spousal relationship for at least a 12 month period.

If you have been living in the same home as your spouse but have been separated, this is what is known as ‘separation under one roof’.

If you and your spouse have been living in the same home for all or part of your required 12 month separation period you will need to provide evidence of your separation. This will come in the form of evidence from you and/or your spouse, as well as information from friends or others who know of your relationship status and can provide evidence.

Have you been separated but living under one roof, and want to submit an Application for Divorce? We can help. Speak to our Divorce lawyers in Melbourne today on 03 9878 5222 for a free 15 minute phone call about your options.

Do I need to provide extra information?

When the Court is making a Divorce Order, the Court must be satisfied that the parties have been separated for 12 months. This is done in three ways:

  • Both parties live apart, and both parties are aware about the end of the relationship. The Court normally accepts this as evidence of separation.
  • Both parties live under one roof, but both are aware the relationship is at an end. This is considered to be separated under one roof, and the Court requires the applicant(s) to provide an Affidavit giving further evidence of separation.
  • Part or all of the 12 month separation period has included living under one roof. The Court requires the applicant(s) to file an Affidavit providing further evidence of separation.

What documents do you need to submit to prove separation under one roof?

When submitting your Application for Divorce, you will need to support this document with an Affidavit which outlines your living situation and proves your separation.

This document will need to outline:

  • Changes to sleeping arrangements and any sexual relationship that you have with your spouse.
  • How you presented your relationship to children, family and friends.
  • Whether you and your spouse continued to socialise together.
  • Whether you and your spouse continued to provide each other with assistance in the home such as cooking for one another, doing each other’s laundry and cleaning.
  • Whether you informed government organisations (such as Centrelink) of the change of the status in your relationship.
  • Whether you outlined any clear arrangements for the care of any children.

You will also need to provide some information as to why you and your spouse continued to live under one roof.

couple separated but living under one roof discussing divorce

Who needs to submit an Affidavit to show separation under one roof?

If you are applying for a Divorce on your own, you will need to submit an Affidavit. You also need to file an Affidavit from an independent person, such as a family member or friend, who knows what your relationship is like and can answer questions similar to the above.

If you are applying for Divorce with your spouse, you will both need to file an Affidavit each. If only one of you can file an Affidavit for any reason, then you will need an independent party to file as well.

Each Affidavit must be as detailed as possible, with as much information about your relationships as possible.

Do you have to attend Court?

If you have made a sole application, and there is a child from the marriage under 18 years, then you must attend the Court hearing.

In all other cases, so long as you outline the details of your separation and file the Affidavit(s) as required by the Court, you do not normally need to attend the hearing.

Possible outcomes for your Divorce Application

If the Court considers that you and your spouse might reconcile, the Court may adjourn the hearing for the Application for Divorce and advise that you and your spouse attend family counselling. This will usually only happen if the evidence of separation that you have presented does not entirely satisfy the Court of an actual separation.

It will not be ordered if you have experienced family violence, or if you cannot locate your partner, for example.

It is not unheard of for parties to separate and live apart, and then try again to reconcile the relationship. if you have lived with your spouse again, for a period of less than three months, and only once – then you can add the time together before your separation and after you stopped living together again.

For example, you might separate from your spouse and move out of your home for five months. You may then move back in to try cohabiting again for two months only to decide to Divorce at the end of the two month period and move back out. You can apply for Divorce after only another seven months, as this equals a total of 12 months of separation.

Need some help from Divorce lawyers Melbourne? Rose Law are here to support you with experience and care. Call us on 03 9878 5222 for a free 15 minute chat about what you need for a straightforward Divorce application.


Shareholder Agreements: What You Need To Include In A Two-Director Company

Setting up a new company requires a great deal of preparation and planning, and when a company is established with two equal shareholders, there is one more step that you must take to protect each of your interests.

That is, there must be a Shareholders Agreement in place. After all, issues can arise in a shared company situation, and if there are disputes, any decisions will be in a deadlock until a compromise can be reached.

By including certain elements in Shareholder Agreements, it is possible to avoid disputes from escalating and relationships breaking down. A company created without a sufficient Shareholder Agreement in place is fraught with potential problems and legal issues.

It is vital that you do not use a generic Shareholder Agreement template. An agreement needs to be developed and tailored to your company based on the factors you need to consider.

Starting up a new company? Contact our business lawyers Melbourne on 03 9878 5222 for a confidential and free 15 minute chat about what you are considering for your Shareholder Agreement.

businessmen discussing shareholder agreements

What is a Shareholders Agreement?

A Shareholders Agreement is a contract that sets out the rights and obligations of shareholders in regards to their ownership of a company. The company itself may also be a party to a Shareholders Agreement.

A Shareholders Agreement is important because it dictates what should happen if the company changes or something happens to a director.

What does a Shareholders Agreement need to contain?

Roles and obligations

When drafting your Shareholder Agreements, it is important at a very fundamental level to include a clear description of the role and obligation for each founder of the company. That way both parties are entirely clear about their responsibilities, and can be accountable to this agreement.

You should outline:

  • Details of all arrangements between the shareholders, including areas of responsibility.
  • Hours that each partner works.
  • Obligations to meet certain standards or performance criteria.
  • Duties each party is obligated to perform.
  • How each party will be remunerated for their work.
  • How management decisions will be made outside each partner’s specific field – e.g. staffing and wages.

It is important to be very specific from the beginning when drafting Shareholder Agreements as it will save you confusion and troubles later on.

Share management and transfers

If new shares are to be issued, you will need unanimous approval. This is because if a 50% majority can call for new shares, it means that the other party runs the risk of their share in the company being diluted.

  • If one party wants to sell their shares, the other party must be given the opportunity to buy their shares first. This is known as a first right of refusal

This is particularly important when there are only two shareholders as it means that you have the opportunity to buy the other shareholder out, instead of potentially allowing a third party to buy half of your company.

Dispute resolution procedures

It is important to have dispute resolution steps outlined so that you can resolve any matters effectively and efficiently. Your Shareholders Agreement should outline how you will resolve disputes – whether through mediation, negotiation or through another type of alternative dispute resolution process.

  • Set this up prior to any disputes taking place and you will have a procedure to follow
  • Save your professional relationship with clear dispute resolution factors in place

Default, termination and restraint clause

Every Shareholders Agreement needs a clause that explains what will happen in the event of a default.

  • An example of a default might include a situation where a shareholder is incapacitated through injury or mental illness, or where a duty is breached which would bring the company into disrepute.

If a shareholder chooses to leave the company, the Shareholders Agreement needs to explain how the arrangement between the founding partners will end.

It is important to protect the interests of the other party that there is a restraint clause which prevents a shareholder from engaging in trade with a competing company or organisation, within a set distance and for a set period of time.

Event of death

The parties must come to an arrangement with regard to the unfortunate situation where one of the two shareholders either become seriously ill or dies. In general terms, this would require the parties to have an option arrangement between themselves whereby the surviving partner can exercise the right to buy the interest of the injured or deceased partner.

  • This will require the parties to plan the method of payment by the surviving party to the deceased party.
  • This could be by way of insurance policy whereby either party takes a policy on the life of the other party.

Your Shareholder Agreement checklist

At a base level, a Shareholders Agreement must contain:

  • Conditions
  • Roles and responsibilites
  • Confidentiality obligations
  • Dispute resolution procedures
  • Share management and dividend distribution
  • Company objectives
  • Rights and shares
  • Restraint of trade
  • Termination events – such as death, default or trade sales
  • Weight of votes

Of course, you will need to seek legal advice prior to drafting to ensure you have not missed anything vital. Our business lawyers understand the nuance that goes into managing a company and can work with you to outline anything important that may not have been considered.

business partners preparing shareholder agreement checklist

Common issues with Shareholders Agreements

Circumstances can change with shareholders, and it can be difficult to draft a Shareholders Agreement with all possible issues considered. Many issues can arise where circumstances change beyond what each party may consider possible.

Disputes can arise, and without a properly drafted Shareholders Agreement often the parties end up in a protracted legal battle with the only option left being to wind up the company. A comprehensive Shareholders Agreement can prevent matters escalating before they need to.

Looking to draft a new Shareholders Agreement? Call Rose Lawyers on 03 9878 5222 and speak to our business lawyers Melbourne about making sure your agreement has all the bases covered.


Issues In Divorce Settlements And How To Manage Them

Divorce is not a decision to be taken lightly. Just as the decision to get married comes with a lot of emotion and planning, so too does the process of ending a marriage.

In order to seek a divorce in Australia, the law requires that you and your spouse have been separated for 12 months and that one or both of you then make an Application for Divorce to the court.

We have a clear guide on what you need to do for a legal divorce in Australia, but there are also the less visible issues in divorce to consider – things like proving the status of your marriage if it took place overseas, or divorcing a spouse you do not physically know the whereabouts of.

Ending a marriage can be emotionally and financially draining, but it can also be hugely vindicating. Whatever you are going through, or looking to go through, Rose Lawyers are here as your divorce lawyers in Melbourne. We can help you work through your divorce issues, whatever they may be, and can provide legal guidance and counsel to ensure the most positive resolution possible.

Call us on 03 9878 5222 for a free 15 minute consultation with a divorce lawyer in Melbourne to get some clarity around how to move forward.

Common divorce settlement issues to consider

lawyer presiding for couple with divorce issues

Divorce is, on paper at least, a relatively straightforward matter, usually managed in the Court in an administrative process. If your marriage is largely typical, it is likely that you will not have many divorce issues. But there are a couple of factors that can arise to complicate matters.

For example, you may have to:

  • Provide proof of a marriage that took place overseas
  • Serve Court documents on your former partner
  • Prove that you have been separated for 12 months

If you are thinking of divorcing your spouse and you have any of the above issues to consider, it is worth seeking legal advice to make sure nothing holds your divorce up.

Marriage Certificate not in English

As part of the Application for Divorce you must provide a copy of your Marriage Certificate.

  • If this is not in English, you will need to provide a translation of your certificate by someone who is a certified translator.
  • The translator needs to swear an Affidavit annexing the certificate and the translation.

Rose Lawyers can assist you in locating a translator and also in completing the affidavit.

Separated for 12 months but living under one roof

In order to make an Application for Divorce, you and your spouse must have been separated for at least 12 months on the day that you file the application. Sometimes people separate as spouses, but keep on living in the same home.

Here’s how this works:

  • Separation under one roof occurs when you and your spouse no longer share a berooom and no longer live your lives as spouses. If this is the case for you, you will need to give evidence by an affidavit which supports your claim to separation.
  • This will also need to include supporting evidence from people who know you, and are aware of you and your spouse’s separation.

Note that if your spouse is in prison, it may be a problem to serve documents on them because no acknowledgement of service is possible. In a case like this, supporting evidence from prison staff of receipt of documents will be required for the court to accept service has occurred.

Married for less than 2 years

If you are applying for a Divorce within two years of the date of your marriage, then you will be required to attend counselling for purpose of considering reconciliation. Of course, if there are other factors involved in the divorce such as family violence or if you cannot locate your spouse, you can submit an Affidavit to avoid counselling.

  • If you do undergo the counselling, this must be conducted by a family counsellor, person or organisation nominated by a qualified mediator.
  • The person who conducts the counselling must issue the parties with a certificate which is filed with the application.

When do you need a divorce lawyer?

couple having divorce issues

If you are divorcing your spouse jointly and you have no children under 18, the process will be largely straightforward. There may be other situations in which you may have to attend Court, such as:

  • If you are seeking a divorce and have children under 18
  • If you are applying for divorce as a sole applicant

In both cases, we recommend discussing your matter with our divorce lawyers in Melbourne. We can provide guidance as to what to expect and what you need to do.

Children under 18

If you are divorcing and there are children under 18 – including adopted, foster or step-children – the Court, in making the Divorce Order, normally must be satisfied that proper custody arrangements have been made for the care, welfare and development of the children.

  • Where parents make a joint application, and give the Court enough information about the children’s care and welfare in their application, this will usually be enough and the parties will not have to attend the hearing.
  • If there are children under 18, and the application is only made by one party, then the Applicant (person making the Application for Divorce) has to attend the hearing
  • Rose Lawyers can arrange representation at this hearing. If there are no children, then neither party needs to attend the hearing in normal circumstances.

Documents served on your former spouse

If only one person in a couple is seeking a divorce, then the application for divorce has to be served on the other party.

How this process works:

  • The other party has to acknowledge receiving the documents by sending back the signed Acknowledgment of Service form.
  • This is documented in an affidavit.

Do you have divorce issues to consider with your upcoming divorce application? Call us on 03 9878 5222 for a confidential 15 minute chat with a Melbourne divorce lawyer.


What Are The Legal Obligations Of A Landlord In A Commercial Lease?

When you own a commercial property and you are the Landlord, you have a number of obligations you must meet. These obligations are drafted in a Commercial Lease, which outlines the rights and responsibilities between a commercial Landlord and the party who wishes to occupy the property.

It is vital that your Commercial Lease is drafted correctly from the start to avoid a potential conflict later on. When you engage the services of a competent and experienced legal professional you can be sure that your terms and conditions will suit and protect both parties.

This is a short guide on your legal obligations as a commercial Landlord, and some information about the common responsibilities and rights which need to be included in your Lease. Avoid conflict tomorrow and put a comprehensive Commercial Lease in place today.

If you would like to get some more information about putting together a Commercial Lease, or to speak to a professional Commercial Lease Lawyer in Melbourne, please call us today on 03 9878 5222.

The main responsibilities of a commercial Landlord

As a commercial Landlord you have a number of responsibilities to ensure your building is up to a certain standard and to make sure that your property does what the Lease says it is going to do. You also need to be aware of the type of business or industry your prospective Tenant is going to undertake in the premises and to make sure that this does not create a general nuisance.

  • Your rates and/or owner corporation fees have to be up to date when your new Lease is signed.
  • The property must suit the purposes of your Tenant. That is, if your Tenant has heavy or vibrating equipment as a normal part of their business, your premises need to handle the weight of the vibrations and any other disturbance.
  • If your Tenant has an industrial business where there is a lot of noise or air pollution you need to ensure that this does not impact on the local area.

If you are looking to Lease a property to a new Tenant and would like advice and guidance on how to draft your Commercial Lease, our commercial lawyers Melbourne can help you.

commercial lease agreement with landlord

How to minimise risks with your Commercial Lease

It is up to you to make sure you protect yourself with a comprehensive Commercial Lease that outlines all of the duties and responsibilities of both parties. You have certain rights, as does your Tenant. You can minimise risks to both parties by including key elements in your Commercial Lease. Make sure you have the following key terms and conditions outlined in your Lease:

  • It is the responsibility of the Tenant to maintain the building and the grounds around the building.
  • The Landlord is responsible for paying rates and/or body corporate fees. It is preferable that sufficient rent is charged by the Landlord so that the Landlord will make these payments without deficit.
  • The Landlord is responsible for insurance on the property, and again the Landlord should arrange that the rental incorporates a figure for insurance.
  • The Landlord to require the Tenant to insure their own fittings and have appropriate public liability insurance.
  • The Landlord must obtain an appropriate Bond for at least three months of rental.
  • There must be terms and conditions outlined, as well as a method for regular payment of rent at a specific time each month, quarter or year.
  • Regular inspections need to be performed on the premises to ensure that they remain in a good state of repair.
  • Premises must contain appropriate fire safety equipment and it is the Landlord’s responsibility for ensuring this.

Key differences between retail and non-retail Commercial Leases

There are differences between a Lease which is retail and that which is a non-retail Commercial Lease. Retail Commercial Leases are regulated by the Retail Leases Act and occur where property is used to sell goods or provide services to another party. A non-retail Commercial Lease usually applies to warehouses, offices or industrial sites. The basic distinction is the sale of goods to the public. There are key differences in the responsibilities for the commercial Landlord and the Tenant at each type of Lease.

Commercial Lease Retail Lease
  • Each party usually has to pay their own fees for the preparation of a Commercial Lease
  • Lease provisions are largely open to negotiation in many cases, unlike Retail Leases
  • Landlord must provide a Disclosure Statement before a Retail Lease is signed
  • New Disclosure Statement must be provided by Landlord whenever the Retail Lease option is exercised, or there is an agreement to amend the Lease
  • Disclosure Statement provided by the Tenant when the Retail Lease is to be transferred to a third party
  • Land tax payable by the Landlord in retail Leases

As there is a wide definition of what is considered a Retail Lease, the Landlord must determine whether the premises are retail or commercial. At first instance, the premises may not seem to be retail, however if the customers of the Tenant are retailers dealing with the public then the Landlord must know about this fact and treat the premises as retail premises.

Recent decisions in the Courts have also muddied the waters between what is a retail lease and what is not, so it is best to obtain proper legal advice to ensure that you have the right type of Lease.

small business owner in commercial lease

Get advice on your Commercial Lease today

Our business lawyers in Melbourne have a great deal of experience in working with commercial Landlords and drafting Leases. Ensure you understand your rights and obligations, and draft a Commercial Lease that favours both you and your Tenant. Contact us today for a discussion about how we can help on 03 9878 5222.


How Much Should It Cost To Make A Will?

Your Will is a document that ensures your property and assets are distributed according to your wishes when you die. Making sure you have an up to date and accurate Will in place is important. This is not only for your peace of mind, but so that anyone you are leaving property or assets to knows exactly what you meant for them to receive and so that there are no arguments over property after your death.

There are several types of Wills that you can put in place, and the types of assets and your circumstances will dictate what type of Will you require. The two most common types of Wills are Simple Wills and Complex Wills. As with most other things, something simple will usually be less expensive, and something complex will require more time, expertise and management, and so will generally cost more.

This is a short guide to explain how much it should cost to make a Will, and to explain why some Wills cost more than others. If you would like to know whether you need a Simple or Complex Will you can read more about that here, or you can call us and speak to the professionals at Rose Lawyers on 03 9878 5222.

Questions you need to ask your Will and Estate Lawyer

It is important to ask a few key questions prior to engaging a Will and Estate Lawyer to draft your Will. Legal services can be complex, and the final cost to make a Will depends on the type of Will you are getting, the services you require, and anything unexpected which may arise. That said, even the most complicated of services are straightforward in how they are priced, and your lawyer should give you a clear idea of what you will spend on a Will from the start. Remember, if you do not understand something, ask so that you are clear. Sometimes the price cannot be fixed, but a good lawyer will always give you a range.

Here are some key questions you need to ask:

  1. Is there a charge for a consultation? Finding the right lawyer is important. Some lawyers offer a free consultation which is a good way to get a feel for their services prior to committing or spending anything.
  2. How do you cost your services? Two lawyers may give you different estimates for what is essentially the same services. When you ask this question you will get an answer that may help you to decide. For example, one firm may have a lot of experience in drafting Wills, whereas another firm might have less. Experience and skill are just two reasons why prices can differ.
  3. Could my costs change? Will you let me know if they do? In some cases, circumstances do impact on what you need to spend on a Will. You may have a Complex Will that needs drafting which outlines a number of beneficiaries or trust matters. Cost changes do not always mean an increase.

We are straightforward with what it will cost to make a Will, and while we can’t give you an exact amount without knowing more about your matter, we will always be honest with our fees.

What information does your lawyer need to draft a Will?

family settling will and testaments with lawyer

When putting together your Will, a good lawyer will be able to go through what is important and will be able to ask questions about things you might not have thought about. The information your lawyer will need depends on what type of assets you have, and how you want to distribute them. When you are drafting your Will you may also want to put together your Power of Attorney and Care Directives. We can help you with this and guide you in making sure your Power of Attorney documents are binding and comprehensive. How much you spend on a Will depends on how complex your matters are, and what type of distribution you want to put in place.

Your lawyer will need to know:

  1. Do you have straightforward assets and distribution to immediate family?
  2. Who do you want to leave your assets to?
  3. Do you have any minor children, and who do you want to look after them if both you and your partner die?
  4. Do you have a pet – and do you want to make arrangements for them?
  5. Are there any gifts you want to leave to charities or other organisations?
  6. Do you have a dependant who is disabled and needs a Disability Trust in place?
  7. Is there a preference for a Testamentary Trust for your assets?

All of these factors will impact on the complexity and how much you will need to spend on a Will.

How we calculate the cost to make a Will

will and estate lawyer calculating will cost estimate

When we are putting together a Will for you, we will not only be putting in place the directions for how your assets will be distributed, but will be providing information and advice. When you get a low cost Will or a DIY Will kit, you miss out on wealth advice and information on how to distribute wealth in a sensible way. Bear in mind that a Will is just like anything else: you get what you pay for. At Rose Lawyers we provide comprehensive advice and guidance around your Will and make sure that your Will is drafted to avoid any hassles for your beneficiaries. We can advise you on long-term wealth and succession plans where necessary, and can help with advice to protect your beneficiaries in regards to tax and liabilities. You do not get this kind of care and attention with a lower cost Will provider or a DIY kit.

At Rose Lawyers we consider:

  1. The complexity or simplicity of your Will
  2. Whether you want a trust established
  3. If you have a business in place and want to manage this (including a succession plan)
  4. If you have minor dependants who require care and consideration
  5. Whether you have been married or partnered previously, and if you have dependants from these relationships

When establishing the cost to make a Will for you, we consider all possible factors and provide you with the most accurate quote possible. If things change in regards to the cost we advise you straight away so that you always know where you stand.

What can change the cost to make a Will?

The cost of your Will can change based on a range of factors, but will usually depend on the level of complexity. Whatever the case is for your circumstances, we can ensure that your Will is correctly written to protect your interests and beneficiaries.

A Will is the legal document you need to ensure your wishes are carried out after you’re gone. You do not know what the future holds, which is why it is vital to get your Will in place today. Call us on 03 9878 5222 for a comprehensive discussion with our Will and Estate Lawyers Melbourne.


Guardianship Power Of Attorney

Guardianship is something that every person over the age of 18 needs to have in place. While the hope is that it will never need to be used, the fact is that you never know what the future holds. It is far better to have a Guardian properly and legally appointed, than to risk being injured or getting sick and having decisions made for you that you do not want or would not choose.

Previously, to nominate a person to manage your personal lifestyle choices you appointed them under Guardianship Power of Attorney. Your appointed Guardian was able to make decisions about how you would live on your behalf if you were no longer able to. Recent changes to laws have shifted the way in which you appoint someone to the role of Guardianship.

  • Guardianship Power of Attorney has been incorporated into Financial Power of Attorney
  • Your Financial Power of Attorney now has the power to manage your financial and lifestyle affairs

With the new laws, your nominated Financial Power of Attorney is the person who has the ability to make decisions about your financial matters, as well as how you should live. This might be a decision around what type of care you should get and how you should live in the event that you become incapacitated. If you already have a valid Guardianship Power of Attorney in place, don’t worry – it is still a valid document and can continue to be used.

Please contact us to make sure your Guardianship Power of Attorney wishes are outlined in your Financial Power of Attorney. Learn more about your options for Power of Attorney and find out how Rose Lawyers can help you in ensuring the security of your future care today.

Set out your wishes and interests with Power of Attorney

guardianship power of attorney people with guardianship power of attorney

Even though you are appointing someone you trust to make decisions on your behalf, you absolutely can and should put limits in place to protect yourself. As an example, if you adhere to a particular religion and only wish to be placed into a nursing home or retirement village of that faith, then you can make that very clear in your Power of Attorney directions.

  • Be very clear with what you want your Power of Attorney to do on your behalf
  • Your appointed Power of Attorney does have the final say – so it is important to appoint someone you trust and who knows your wishes.

Note that while your appointed Attorney has the ability to choose what type of residential care you might receive, they do not have the ability to make medical treatment decisions for you.

Understand the difference between lifestyle decisions and medical treatment

Medical treatment decisions will still need to be managed through an appointed medical treatment authority, but lifestyle decisions will be up to the Attorney you appoint to your care. There is a difference between the two types of decisions.

  • An example of a medical treatment decision might be whether to try a particular surgery, or whether to go onto or off a particular medication.
  • An example of a lifestyle decision might be around what level of care you receive and how often you receive that care.

Medical decisions will be posed by a doctor, while a lifestyle decision is something that is up to the Attorney to choose. Note that while many of the decisions around your lifestyle and living arrangements may not be medical in nature, they will still impact on your comfort and preferences. That is why if you have particular care preferences, it is important to outline your precise wishes in your Power of Attorney documents.

Protect your loved ones with Power of Attorney

image of lady content with her power of attorney state of affairs

Having your Guardianship Power of Attorney wishes clearly outlined to your appointed Financial Power of Attorney is important not only for your care, but for your loved ones as well. The best thing that you can do to protect yourself and your loved ones is to have these documents in place.

  • If something does happen unexpectedly, your appointed person or people know what they have to do and can be there to act in your best interests.
  • Get these documents in place prior to ever needing them so that they are there if you do need them.

It is vital that you consult a legal professional when you are appointing someone to your Power of Attorney. This is so you know that your documents are valid and include all of the instructions you wish to have in place.

Set your future care in place today

Do not wait and put this off until later. Your Guardianship documents and Power of Attorney are among the most important legal documents you need to have in place. Give yourself security and peace of mind knowing that your future wishes will be followed.

For help with your Power of Attorney, please call us on 03 9878 5222 for a free consultation.


Contesting An Intervention Order

If an Application has been made against you for a Family Violence Intervention Order or a Personal Safety Intervention Order, then you need legal advice. Seeking legal advice from our Intervention Order lawyers in Melbourne will help you to understand your options. We can assist you in contesting an Intervention Order application where this is appropriate.

How you will get your Intervention Order

You will either receive a copy of the Application for Intervention Order and Interim Order in the post, or will be given a copy by the police. It will have details about what the person applying for the Order says you have done. The Application will probably also include a summons to go to Court on a certain date.

  • If you choose to attend Court, you will be called the ‘Respondent’
  • The person making the Order will be the ‘Applicant’
  • As well as the application for Intervention Order, you may also receive a Family Violence Safety Notice, an interim Order, or a final notice

Once there is an Intervention Order against you, you will have to follow the conditions outlined in the Order. An Intervention Order is a civil Order. If you break these rules, you may face criminal charges. You have the right to argue the conditions in the Order.

What are your options?

Once an Intervention Order has been ordered against you, there are five options available to you.

  1. Attend court and agree to the Intervention Order being made
  2. Agree to the Order being made but disagree with whatever the Applicant has said in their application (this is called “consenting without admissions”)
  3. Attend court and agree to an Undertaking instead of the Order
  4. Attend court and contest the Order being made
  5. Not go to court and ignore the Summons

Contesting an intervention order family court of australia

1. Agree to the Intervention Order

This option means that you go to Court and agree to the Order being made. By doing this, you are saying that you will obey the conditions and rules set out in the application for the Intervention Order. Even if you do not agree with what is said about you in the application, you can still agree to the conditions. You can agree to the Order and the allegations made against you, or you can agree to the Order, but disagree with the allegations made against you (this is called consent without admissions).

  • You do not get a criminal record by agreeing to an Intervention Order.
  • If you break the conditions or rules in your Intervention Order, it does become a criminal matter.
  • If an Intervention Order has conditions about seeing your children or living at home you should get legal advice.

This is a complicated area of law, so legal advice from our Intervention Order lawyers will help to make sure you get the best outcome possible.

2. Undertaking instead of an Intervention Order

The person who is making the Application for an Intervention Order might be willing to accept a formal written promise from you that you will follow certain rules. You make this formal promise to both the person and the Magistrate. This promise takes the place of an Intervention Order.

  • If you break the rules of an Undertaking, you will not be charged unless you have committed an offence at the same time (e.g. stalking, assault, wilful damage).
  • You can only get an Undertaking if the applicant accepts it. It is their choice whether or not to accept.
  • If the police were the ones to start the Intervention Order they are less likely to accept an Undertaking.

If the person who started the Application agrees to an Undertaking instead of an Intervention Order then the Application for an Intervention Order is withdrawn. But they can apply again in future. If you are considering submitting an Undertaking, it is best to seek legal advice from our Intervention Order lawyers. They can help you understand how to apply for an Undertaking.

3. Contesting an Intervention Order

You might not agree with the Order and want to argue against it. You will need to make your arguments against the Order or the conditions of the Order. This will not be done at the Interim Intervention Order hearing. The matter will be adjourned from that date to a final hearing date. You should get legal advice before contesting an Intervention Order in Court.

When you are in Court for your contested hearing the Magistrate will hear from the person applying for the Intervention Order first. Then they will hear from you.

If you have a contested hearing coming up, it is essential that you get legal advice from an Intervention Order lawyer. We can help you with this area of law and are here to support you in contesting an Intervention Order.

4. Ignore the Summons

You do not have to go to Court. But by not going you do not delay the Court hearing. The Magistrate can make a decision without you there and without hearing your side of the story.

Even if you do accept the Order, it is worth going to Court just so you can have your say. It is also important to go to Court so that you know what the rules of the Order are – so you do not break them, even accidentally. If you do not go to Court, you will usually receive a copy of the final Intervention Order in the mail.

For help with contesting an Intervention Order, talk to Rose Lawyers on 03 9878 5222 for a free 15 minute consultation.


Changes To Intestacy Laws In Victoria

Last year the Administration and Probate Act 1958 (Vic) underwent significant changes, following recommendations from the Victorian Law Reform Commission to better clarify and unify state and Commonwealth intestacy laws—and ensure that succession laws are administered fairly and justly.

Intestacy applies when a person dies without leaving a valid Will. In this instance, the deceased person is referred to as the intestate. Amended on the first of November 2017, these laws apply to the estate of any person whose time of death follows this date.

If your existing Will requires revision, or you have a dispute concerning intestacy, get in touch. Rose Lawyers have been providing caring service to our clients for over 30 years. Contact us about your Will.

Previous intestacy laws

Previously, if a person with a partner but no children died without leaving a valid Will (or if the deceased had children but the total value of their estate did not exceed $100,000), their partner would be solely entitled to the intestate’s estate.

If the intestate had a partner and children, the partner would be entitled to personal chattels; the first $100,000 of the estate as well as one-third of the balance of the estate. The child or children were then entitled to the remaining two-thirds of the balance of the estate. The biggest issue with this was that children could then force the sale of property where a remaining partner continued to live in, essentially leaving them homeless.

The Commission believed that this division of the estate had the potential to cause significant financial distress to the partner, so changes were made in the interest of fairness through the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.

What are the changes to intestacy laws in Victoria?

changes to intestancy laws in victoria happy family with intestant

The new intestacy laws have been implemented to provide greater security and stability to a surviving partner. As per the previous ruling, if a person dies intestate with a partner but no children, the partner receives the value of the residuary estate.

Under the new amendments, if a person with a partner and offspring—from that relationship—dies intestate, the partner is entitled to the entire estate. In order to benefit from an intestate estate, a beneficiary must survive the intestate by 30 days.

However, variations to these laws sometimes apply when children from other partnerships are involved, or when there have been multiple partners. Here are a few examples:

1. A partner and children not from that partner

If a person dies intestate with a partner and children from another person, the value of the estate dictates the distribution. If the residual estate is worth more than the statutory legacy, currently $451,909, then:

  • The partner receives all personal chattels, the statutory legacy plus any interest, and half of the balance of the residual estate.
  • The children of the deceased are entitled to the other half of the balance of the remaining estate, with equal shares for every child of the deceased.

A partner of the intestate may also elect to acquire property from the intestate’s estate at its value from the date of the intestate’s death. Certain requirements and limitations are outlined in the legislation where implementing property acquisition is concerned.

2. Multiple partners and no children

If the intestate has no children but has multiple partners, the partners are entitled to the whole of the estate. The estate will be divided in one of the following ways:

  • Under a distribution agreement
  • In line with a distribution order from the Court
  • In equal shares

3. Multiple partners and children (from one or more of those partners)

When more than one partner and a child (or other children from one or more of those partners) is concerned, the partners are entitled to the whole of the residuary estate. The estate will be divided in one of the following ways:

  • Under a distribution agreement
  • In line with a distribution order from the Court
  • In equal shares

4. Multiple partners and children not of those partners

Where an intestate has more than one partner and a child or children not of those partners:

  • The partners are entitled to share the personal chattels via agreement, distribution order, or equally.

If the residuary estate is worth less than the statutory legacy, and if the intestate had left one partner (currently $451,909), the partners receive the full amount of the residuary estate by agreement, distribution order, or equally.

However, if the residuary estate is worth more than the statutory legacy, if the intestate had left one partner:

  • The amount of the statutory legacy is payable to the partners by agreement, distribution order, or equally—plus any interest; and
  • half of the balance of the residuary estate is payable to the partners by agreement, distribution order, or equally; and
  • any children will divide the remaining half equally.

5. No partner but surviving children

If the intestate leaves no partner but has surviving children, the balance of the estate is to be shared equally among them. If any child predeceased the intestate and has children of their own, these children (the intestate’s grandchildren) will receive the share that their deceased parent would have received.

6. Other possible relationships and distributions

If an intestate has no partner and no children to inherit the estate, then the surviving parents of the intestate receive the balance of the estate.

If there are no surviving parents, the siblings of the intestate will be entitled to equal distribution of the estate. If there are no siblings, the grandparents of the intestate will receive the estate.

If there are no grandparents, the aunts and uncles are entitled to equal distribution of the intestate estate. If there is no person who is entitled to the estate of the intestate under these provisions, then the residuary estate passes to the government.

The government will fund these searches as necessary.

Organise your Will and avoid intestacy

changes to intestancy laws in victoria possible relationships and distributions

It’s ultimately a lot better to have a comprehensive and valid Will in place to avoid your assets being distributed according to intestacy law. While every attempt has been made to reflect fairness in distribution, no amount of legal ruling can account for the nuanced relationships that you enjoy in your life.

You may have a beloved friend to whom you wish to pass on a valued item, but intestacy law does not allow for this. Or, you might have a family member you do not wish to pass anything on to. Again, intestacy law does not recognise this.

Writing a valid Will is the only way to ensure your wishes will be carried out after you’re gone. We can make sure this happens.

If you need help handling an intestacy, our Will and estate lawyers can help. Call us on 03 9878 5222 for a free consultation.


Understanding Financial Power Of Attorneys

People plan for the future in many different ways. One way to plan ahead is by making a Financial Power of Attorney.

Financial Power of Attorney is a legal document that you make that lets you appoint someone, known as your ‘attorney’, to make financial and personal decisions on your behalf if you can no longer make them yourself.

You can decide whether your attorney can make all of your financial and legal decisions, like buying or selling property, or managing your business. Or your agent can have limited power, like paying bills and taking money from your account to do some shopping. The power given to your agent can be as wide or as narrow as you choose.

You can also make a Financial Power of Attorney temporarily, like for a hospital stay or a trip overseas. Or you can appoint an Enduring Power of Attorney so that your agent’s power will continue when you can no longer make decisions for yourself.

Appointing an Attorney under Power is a decision you make today to protect yourself in the future. Everyone over the age of 18 should have a Financial Power of Attorney in place so that their wishes are respected. Contact Rose Lawyers to get your Power of Attorney documents.

Choosing your Financial Power of Attorney

When choosing someone to be your Attorney, you need to pick someone you trust. This might be a family member, a close friend, a colleague, or someone else who’s reliable. It’s important to understand that your Attorney can do anything with your money that you can do. This includes spending your money in a way that you might not have done.

If your affairs are managed in a way that is inappropriate, like if they were to sell the property you live in to treat themselves to an overseas holiday, there will be legal consequences. That said, it’s far better to avoid this than to manage it once it has happened. That’s why it is important to pick someone you really trust who:

  • Knows your wishes regarding your personal values
  • Understands what you want to do financially, including with investments and property
  • Has your best interests at heart and understands your personal care directive
  • Makes good decisions about how and where you want to live
  • Understands the type of care you want, including the level of care you want to receive.

What does an attorney under a Financial Power of Attorney do?

When you appoint someone under a Financial Power of Attorney, you give them the power to manage your personal and financial affairs. A Financial Power of Attorney is made when you are well and healthy. If you don’t have this document in place, and you have a serious accident or become sick, it might be too late. But by planning ahead, you will have a financial attorney there to step in and help you to manage your affairs.

Your agent has the power to make decisions for you about:

  • Your finances, including real estate transactions
  • Any trade or business that you manage
  • Your mortgage, rates, tax, and insurance
  • Bank transactions
  • Your personal affairs
  • Your lifestyle, including daily living decisions like your diet and how you dress
  • Who you live with
  • Your access to support services

"financial power of attorney people signing document for financial power of attorney

Why should you get legal advice when getting Power of Attorney?

The person you appoint as Financial Power of Attorney will be able to control your finances – subject to any limits you put in place. A lawyer can help you to set these limits, and can make sure that your Power of Attorney covers everything that you want it to. A lawyer can make sure that you think about every area that might be important for control. Making your Financial Power of Attorney with a lawyer is also a way of making sure that it is accurate and valid.

  • By having a lawyer draft your documents, you can be sure that banks and other organisations will accept your Power of Attorney.
  • While you can make a Financial Power of Attorney using a kit, you run the risk of it being invalid, which will cause big problems if you do need to rely on it.

What happens if you do not have a Financial Power of Attorney in place?

If you do not have a Financial Power of Attorney in place and you have an accident or are otherwise not able to manage your affairs, an ‘interested party’ will have to get permission to act on your behalf. This permission comes from the Victorian Civil and Administrative Tribunal (VCAT). There are some drawbacks to this, namely:

  • VCAT can take time to set a hearing date when you might need approval fairly quickly
  • Anyone over 18 (who has the capacity) can apply to VCAT for an “Order of Administration or Guardianship” if you don’t have a Power of Attorney in place, including people like your neighbour or ex-brother-in-law.
  • In theory, someone without your best interests at heart could apply and get approved to manage your affairs.

Get your affairs in order now for peace of mind

Don’t wait until it’s too late; organise your Financial Power of Attorney now and give yourself the security of knowing that your wishes will be respected.

For help with your Power of Attorney, call us on 03 9878 5222 for a free consultation.


Your Guide To Drafting Business Terms And Conditions

No matter how prudent you are, you may need to rely on your business terms and conditions for protection at some point. Having effective terms and conditions in place can mitigate potential risks from the start.

While we do not recommend that small business owners write the terms and conditions for their business themselves, and certainly not without seeking legal advice, we do want to provide some basic information about what should be included. This is to give you greater clarity and understanding about what is needed to protect you and your consumers.

For more information on writing small business terms and conditions, get in touch with Rose Lawyers. We’re committed to the small business owners of Melbourne and greater Victoria, and are here to answer any questions you may have.

Essential terms and conditions for your small business

your guide to drafting business terms and conditions man signing terms and conditions of small business

In the hierarchy of starting a small business, outlining your terms and conditions of trade usually comes quite far down the list after more critical tasks like marketing and customer acquisition. Many business owners put off drafting the terms and conditions of their business and only consider them after there is a dispute, when it is usually too late.

Generally, your terms and conditions must include*:

  • A clear definition of your products and services, including what will be provided and any payment terms.
  • Warranty and guarantee information, including time limitations and any other limits.
  • Delivery timelines and how to query deliveries.
  • Dispute information if either party fails to deliver or pay.
  • Refunds and returns information.
  • How to manage the end of a relationship.
  • Any terms of agreement.
  • Notice periods.
  • Privacy policies.
  • Relevant laws that govern your contract.

*While these conditions are vital, they do depend on the business. Some will be relevant to particular businesses, while others won’t be. For example, delivery timelines, and refunds or returns are not applicable to all industries.

You also need to make sure that your terms of business are either specifically agreed to by your customer, or that they are at least adequately brought to their attention or available prior to a transaction taking place. Depending on your business you’ll need to tailor your terms and conditions to your particular industry or service.

For example, if you are storing products as a service you’ll want to include a clause about what happens if a customer’s items are damaged while in your care. Conversely, a term like this would not be relevant for a web application product.

How terms and conditions can protect your small business

your guide to drafting business terms and conditions young small business owner in his brewery

You can protect your small business if a dispute occurs. For example, if you don’t identify payment time frames clearly and correctly, this may cause delays with payment which may affect cash flow and the viability of your business.

  • Established terms and conditions means that parties are bound by their obligations.
  • All parties will understand their duties.
  • You can manage business relationships respectfully and clearly in line with your terms.
  • Payment information in your terms and conditions means no more waiting on invoices.
  • Clearly outlined information about how your products or services are delivered makes dispute management easier.
  • Terms and conditions deliver peace of mind to your customers.
  • Disputes are resolved more easily.

Consumer laws are there to protect your customers against unfair or misleading contracts or transactions, so you will need to be aware of this and to make sure your terms and conditions are appropriately worded. You may actually contravene consumer law or another statute with inappropriately worded terms and conditions, so it’s best to consult a legal professional to make sure you’re using correct terms.

Start thinking about small business terms and conditions

your guide to drafting business terms and conditions young business woman smiling in her store

It’s helpful for your understanding if you think about how you want your terms and conditions to look, and what you want to include. Your business structure may dictate the way your terms and conditions are drafted, so be sure to consider this as well.

  • Draft a list of everything that could go wrong with a transaction, and then identify how you would address each scenario.
  • Consider your customer when thinking about the language you want to use, and how and where you provide your terms and conditions.
  • Think about any copyright protections in place.
  • Consider including a section on managing customer satisfaction, and how you can rectify disputes to maintain business relationships.

Remember to revise and update your terms and conditions at regular intervals, and to ultimately keep them simple. You want your small business terms and conditions to be as clear and easy to understand as possible. That way if you do experience a dispute, you will find it easy to manage with your consumers. If you have technical terms that are used within your business, define them in your terms and conditions so that anyone who reads them can understand everything.

Contact us for terms and conditions help today

At Rose Lawyers, we are committed to helping small business owners to protect themselves and their consumers. Our business lawyers can help you create effective terms and conditions for your business.

Enjoy peace of mind and protection that serves you well, call us on 03 9878 5222 for advice.


What Are The Duties Of Directors In A Company?

Phillip Gallo

A director is entrusted with the ethical and lawful operation of a company. This responsibility means that there are things a director must do. But just as important, there are things a director should also avoid.

In this article, our Principal Lawyer, Phillip Gallo, will cover the responsibilities of directors as well as what actions directors should avoid to ensure they’re meeting these responsibilities.



For advice about your business and the duties of directors, speak with an expert in Australian business law.

What does a director do?

A director is someone in a company that is in charge of managing the company’s activities. The Corporations Act 2001 outlines a number of legal responsibilities and duties of directors.

The most significant include acting in good faith and in the best interests of the company, avoiding conflicts of interest, and preventing the company from trading while insolvent. In the event of insolvency, a director must assist the liquidator in winding up the company.

To meet these duties, a director should be deeply involved in the affairs of the company. A director will need to assess how certain decisions will affect the performance of the business. Gaining this understanding may also mean seeking professional advice from outside the company.

A director should also take an active role in meetings with other directors, managers and staff. This kind of activity is important so directors can accurately determine the state of affairs of the company and make informed decisions about its future.

However, under normal circumstances, it’s important to remember that directors are not personally liable for the debts of the company. This is because the company is considered a separate entity in the eyes of the law, which limits the financial liability of the company’s directors and members, provided they act responsibly.

What directors must avoid

Companies as a separate legal entity is a legal concept that protects the personal assets of company directors and members in the event the business has financial trouble. This is often referred to as the ‘corporate veil’.

However, the protection of directors can be eroded. In some cases, the actions of inexperienced or uninformed directors or company officials can ‘lift’ the corporate veil. For instance, these directors might take the following actions:

  • Sign personal guarantees permitting creditors to use the director’s assets, such as a home, as financial collateral.
  • Use the company funds for personal expenses.
  • Agree to the requirement by financiers to allow the use of personal assets as collateral for company debts.
  • Have the company give loans to directors on terms that are overly generous or do not require full repayment.
  • Have the company charge for taxes, such as GST, and not pay the same amount to the Australian Tax Office.
  • Have little or no involvement in, or knowledge of, the business and the affairs of the company.

These actions may be in breach of the legislated duties of directors. They must be avoided to ensure sound, legal and ethical corporate governance, as well as to ensure protection for directors if the company runs into financial trouble.


The risks of uninformed directors

One of the key responsibilities of directors is to know the affairs of the company. That means family members who have little or no involvement in the business should not become directors of a company.

Appointing someone who is inexperienced or uninformed of the responsibilities of directors will carry significant risks, both for the company and for the director. It could be all too easy for the company to trade while it is insolvent, for instance. Or the director may breach other duties as stated in the Corporations Act 2001 and acts of Parliament.

In those situations, a liquidator can easily cause directors to be personally liable. The protection that should be there for the director is no longer there. Even if an innocent director was well-meaning, without protection, they could face financial ruin.

company directors support image

How to be an informed director

The protection of the corporate structure that directorship creates must be properly managed. The director must always take steps that minimise or negate the possibility of personal financial exposure.

To meet the responsibilities of a director, directors must:

  • Know the affairs of the company.
  • Be familiar with any legislation which affects the company.
  • Not allow the company to trade when it cannot meet its commitments.
  • Not allow personal expenditure to be paid by the company without a proper arrangement for repayment.

Any person, such as a family member, that cannot reasonably take these steps should not be considered as a director of a company. Not only may it affect the performance of the company and its legal responsibilities, but it could also put that director at significant personal and financial risk.

Getting the right advice

Seeking expert advice is an important part of managing the responsibilities of being a director. That’s why it’s important that directors seek and obtain advice from their lawyers, accountants or other appropriate advisers when necessary.

For advice about your business and the responsibilities of directors, speak with an expert in Australian business law.


The Legal Benefits Of Marriage

The Australian 2017 postal survey returned a 61.6% majority in favour of changing the law to allow same sex couples to marry. Soon after, the Marriage Amendment (Definitions and Religious Freedoms) Act 2017 passed in Parliament on 7 December and came into force on 9 December 2017.

The effect of this law passing was that all same sex marriages conducted overseas were immediately recognised, and it meant that weddings between same sex couples could now take place in Australia. One of the strongest arguments against same sex marriage came in the form of a belief that de facto couples hold all of the same rights as married couples. But this simply isn’t the case.

What legal benefits do married couples have over de facto couples?

When a couple marries there is an immediate recognition of particular rights. On the other hand, when a couple is in a de facto relationship they often will have to prove their relationship to access the same benefits, or to provide care or financial support.

  • While de facto couples may be able to access the same rights, they often have to expend significant resources to do so.
  • Marriage provides the benefit of a nationally and internationally recognised partnership simply by producing your marriage certificate.
  • Proving a de facto partnership may involve providing information around living, childcare and financial arrangements.
  • De facto partners may need to provide personal information about their intimate relationship and their commitment to a shared life, often with verification of their relationship from friends and family.

Married people simply don’t have to provide this kind of information, and as a result can live and interact however they choose, with the knowledge that they won’t be asked to provide evidence or prove their relationship.

What is the difference between de facto and married relationships under the law?

There are different time frames and considerations to understand with de facto and married relationships, depending on whether you are accessing Family Law Courts, superannuation benefits or Centrelink assistance.

  • Centrelink considers you a de facto couple from the moment you start living together on a genuine domestic basis.
  • For Migration Law you are a de facto couple once you have been living together for 12 months, unless you have a child together.
  • Family Law has time limitations in place when filing certain orders without seeking the Court’s permission; married couples have twelve months, with an option to agree to an extension, while de facto couples have two years after a relationship ends, with no option for extension.
  • In many Australian states, marriage will nullify an existing Will, meaning that a large part of your estate may be awarded to your spouse, except if you have made your will “in contemplation of marriage”.

Entering a de facto relationship doesn’t impact on a Will the same way marriage does, but as time passes you will develop certain rights to each other’s property, and these rights may conflict with your wishes in your Will.

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In what situations would someone need to prove their relationship?

A married couple have certain automatic rights to each other’s care and treatment. However, for a de facto relationship the couple must prove their relationship to be able to make decisions regarding care when the other is ill.

  • De facto couples can manage medical treatment by having a Medical Power of Attorney document in place.
  • If your partner has passed away, you will need to prove your relationship in order to be listed as their spouse on a death certificate.
  • You will need to be listed as a de facto partner or spouse when claiming superannuation payments following the death or permanent disability of your partner.
  • If your partner has died without leaving a Will, you will need to prove your relationship in order to access certain benefits or entitlements.

It’s often when a couple is going through a traumatic or difficult time together that their relationship must be proven, which is why it’s important to have whatever necessary document is in place to prove your relationship—whether that’s a marriage certificate, a Power of Attorney document or other legal documentation.

Are de facto relationships recognised overseas?

While it is possible to register a relationship in many states and territories in Australia (excluding the Northern Territory and Western Australia), a registered de facto relationship is not reliably recognised overseas. If you need advice or information about the status of your relationship and where you are placed for international legal matters, it’s best to seek legal advice from our team of lawyers who can advise you on your rights.

Whether you’re in a same sex or heterosexual relationship, whether de facto or married, it is important to understand your rights. Contact Rose Law on 03 9878 5222 or get in touch with us online for practical, essential legal advice.


Title Insurance For Home Buyers

Buying a property is an exciting time, but there’s a lot you need to be on top of for a smooth transaction. You want to find the right property at the right price of course, then there’s conveyancing, arranging your finance, and getting building inspections done.

When making such a large financial commitment you want the peace of mind that comes from having the necessary insurance in place. Whether it’s landlord’s insurance for a tenanted investment property, or home and contents insurance for a property you’ll be living in.

But there’s another type of insurance which you might not have heard about called title insurance, and it can protect you against risks both at the time of purchase and later down the line.

What is title insurance?

Title insurance is a one-off premium that you pay to protect against risks that can arise when purchasing a property. A title insurance policy can protect you from potential financial and legal obligation from:

  • Illegal building work completed without council permits, and which you were unaware of at the time of purchasing the property.
  • Boundary issues arising from survey reports or incorrect surveying.
  • Fraud or forgery which results in you being deprived of your ownership of the land or property.
  • Outstanding rates and taxes on the property which you inherit as the new owner.

While a good conveyancer will perform the necessary checks, title insurance goes one step further in your cover and provide greater protection if that something goes wrong.

Who should get title insurance?

If you are considering buying a property, or if you already own a home, you should look into whether title insurance is right for you. Property prices are rising, which means that issues with fraud, forgery or illegal building works are likely to have a significant financial impact. With title insurance you have:

  • Access to a wider range of options if problems arise in your property transaction.
  • Greater protection against disclosed and unknown risks.
  • Protection if an illegal building structure is found to be in place on your land.
  • Financial insurance support if you ever have to defend your right to your title (plus compensation if your title cannot be defended).

Title insurance will protect you in the event your conveyancer has made a negligent mistake. If you already own a property, title insurance can provide peace of mind.

Home buyers support image

When is title insurance needed?

While we all hope that we’ll never need to use our insurance cover, the fact remains that the time may come when you will be very glad you have it. Title insurance would be essential in the following situations:

  • A third party takes out a mortgage on your property without your knowledge or consent, in which case title insurance would provide the financial support to challenge this claim.
  • You want to add an extension on your property, but upon inspection the council finds that an existing extension on your property was done without approval. A costly demolition order is given, but your title insurance offers indemnity against the order and provide support to rebuild in line with the necessary standards.
  • You receive notification of outstanding rates from the council after settlement. Your title insurance will protect you against this amount, and any further interest payable.
  • A conveyancer has made a mistake during the transfer and the purchaser now wishes to sue you. Your title insurance protects you against this risk.

For a one-off fee you are protected against these risks and others. While it may seem like these sorts of scenarios are unlikely, it is far better to be prepared for any financial risk. A simple chat with one of our team can help you to understand whether title insurance is right for you.

Can you get a title insurance policy retrospectively?

Even if you already own a property you might be a suitable candidate for title insurance. At Rose Law we recommend you to look into title insurance and whether a title insurance policy is right for you. You might want to consider title insurance for your property if you have:

  • Any type of residential or commercial property.
  • Land or a dwelling with a granny flat or extension on the property.
  • Any doubts or concerns arising from the title or transfer of your property.
  • A property which you are looking to subdivide.

Risks can arise from all sorts of things, and the single premium you pay protects you for the life of your ownership of the property, even if you have already purchased and may need cover down the line.

Rose Lawyers are here to provide you with comprehensive advice, support and guidance. If you are looking to purchase a property and would like to receive information about whether title insurance is right for you, please call us today on 03 9878 5222 or contact us online.


What To Do When Your Neighbour’s Tree Is A Nuisance

When a neighbour extends an olive branch, it’s usually a sign of peace and harmony. But when the branch extends over your fence and casts a shadow over your fledgeling veggie patch, it’s a source of neighbourly annoyance.

Trees and plants tend to ignore the invisible lines that divide you with your neighbours. And when overhanging branches or encroaching roots start to become a big problem, they can start a dispute between neighbours.

Despite being a common source of tension between local residents, there are no specific State or local laws relating to disputes between neighbours about trees in Victoria. Disputes about trees are covered by common law – the law that has been developed by the Courts over time – as well as any local or Council rules.

So if a neighbour’s overhanging tree is a nuisance, it’s important to first understand the laws, regulations or Council local laws that may apply to your situation.

The first steps to take

Don’t grab the axe just yet. The first thing you will need to do is check whether the tree is protected or subject to an environmental overlay. You can contact your Council to find this out. If it is a protected tree or subject to an environmental overlay, you will need to obtain a permit from the Council to cut it back.

There can be heavy fines for the unauthorised removal, vandalism or destruction of significant or publicly-owned trees.

If there are is no environmental overlay, then the next step is to talk with your neighbour to resolve the issue. They may not even be aware that the tree is being a nuisance to you. Schedule a convenient time to have a face to face discussion with your neighbour about the issue.

Can you cut back your neighbour’s overhanging tree?

You have the right to trim or cut back any leaves, branches or roots overhanging the boundary line if the offending tree is not protected, or if you have obtained a permit from the Council.

This is the ‘right of abatement’, which means the reduction or removal of a nuisance. However, when trimming or cutting back, you must not cause unnecessary damage or kill the tree.

You are also entitled to return branches, leaves and roots to your neighbour, as technically they remain their property. Of course, it’s best to approach this with care and consideration by first letting your neighbour know about the waste.

Remember, you are not entitled to enter your neighbour’s property without their permission, even to trim or cut back branches that encroach on your property.

What happens if a neighbour’s tree falls on your property?

Another issue may be that the tree drops leaves, barks, sticks, flowers, fruit, seeds or sap as part of its normal lifecycle. Generally speaking, this is not usually considered a significant private nuisance.

However, sometimes large branches can fall and do damage to property, especially if the tree is in poor condition. If you believe that your neighbour’s tree is unsafe, you should ask your neighbour to have an arborist assess the tree’s health. This professional will assess the cultivation and management of the tree, shrub or plant, and choose whether to cut it back or remove it.

If the tree is found to be diseased or unstable, it must be removed. If your neighbour ignores the advice, they could be liable for injury or damages to your property.

What about Council trees?

Another issue may arise if the tree that is overhanging or has encroaching roots belongs to the Council.

As a property owner, you are still entitled to cut back or trim any part of the tree that encroaches on your property. However, the best thing would be to contact your Council who may send an arborist to assess and manage the tree.

neighbour tree support image2

What else can I do about this issue?

There are cases where talking with your neighbour doesn’t resolve the issue. If you’ve taken reasonable steps to deal with the situation and it is serious, it’s possible to bring an action to the Court to force the neighbour to remove or cut back their overhanging tree.

This action is called a private nuisance. This means that another person’s act or omission substantially interferes with your use and enjoyment of your property. However, to be successful, you will need to show that the nuisance is significant and unreasonable.

In these cases, the Court will consider a number of issues, including:

  • The neighbourhood’s general environment.
  • How long the issue has been happening.
  • Whether the issue has been ongoing.
  • The impact on you and your property.
  • Whether the interference was there when you moved in.
  • What reasonable people would think of the interference.

The Court will also weigh up the inconvenience or impact of the interference on you against the cost and effect of having your neighbour modify or stop their activities. In this case, this would be the removal of branches or roots or the removal of the entire tree.

Note that going to Court can be an expensive, stressful and time-consuming option. Reaching an agreement between you and your neighbour privately will almost always be a better alternative.

Need more advice on serious neighbour disputes?

From trees, fences and noise, simple neighbourly issues can turn into big matters. When issues turn serious and other avenues have been exhausted, legal advice with a Melbourne expert may be the next step.

On your last limb? If you think you’ve exhausted your options, get a lawyer in Melbourne to review your neighbour dispute. Contact Rose Lawyers for a consultation.


What To Do About Your Noisy Neighbour

Banging. Booming. Sawing. Rattling. Loud noises from next door are a common source of neighbourly feuds. While what is considered ‘reasonable’ noise is hard to quantify, you can still approach your neighbour and come to an agreement. If no agreement is possible, there are other actions that you may be able to take.

What is noise pollution?

The Environment Protection Authority of Victoria (EPA) defines noise pollution as sound at a level which is annoying, distracting or physically harmful. However, this can still mean different things to different people.

In residential areas, what is an acceptable level of noise to one person may be unacceptable to another. What’s considered acceptable may also depend on the time of day and the activity generating the noise.

Sources of noise pollution may include:

  • General residential noise.
  • Commercial and industrial noise.
  • Construction noise.
  • Entertainment venue noise.
  • Motor vehicle, train or tram noise.

Unwanted noise can be a problem and cause severe negative effects on health and well-being. For instance, noise may lead to anxiety, stress, and loss of sleep.

When a neighbour’s noise unreasonable?

noisy neighbour

It is not always possible to totally eliminate noise, especially in dense urban areas. However, it is important to be aware of the needs of others.

What is considered unreasonable will also depend on where you live. For instance, residents living in an apartment or attached house should expect to hear the occasional noise due to normal activity in neighbouring homes.

But the Environment Protection (Residential Noise) Regulations 2008 does put limitations on certain noisy activities. For example:

  • Lawnmowers and grass cutting devices may be used Monday to Friday between 7am and 8pm.
  • Power tools, chainsaws, compressors and hammers may be used between 7am and 8pm Monday to Friday, and between 9am and 8pm on weekends and public holidays.
  • Domestic air conditioners, evaporative coolers, pumps, domestic heating equipment and vacuum cleaners may be used on weekdays between 7am and 10pm.
  • Instruments, stereos, radios, televisions, public address systems and any electrically amplified sound, may be used on Saturdays between 9am and 11pm and Sundays between 9am and 10pm.

The first steps to take

If you’re experiencing noise that you believe is unreasonable, the first step is to talk to your neighbour. Remember that your neighbour might not be aware that they’re disturbing you, so a polite and direct discussion is the best course of action.

Confronting the problem early will help your neighbour understand your point of view and clear the way for them to be more aware of their noise impact. Here are some tips for talking with your neighbour:

  • Plan what you will say – Your neighbour will be more likely to respond and hear your concerns if you approach them thoughtfully and positively.
  • Address the issue in person – While having a face-to-face conversation is more difficult than posting a letter or notice, you’ll be able to express yourself in the right tone and hear your neighbour’s response.
  • Pick the moment – Find a convenient time when you and your neighbour can discuss the issue and resolve your concern, such as the early evening or a Sunday morning.
  • Focus on the noise – Don’t focus on the activity as the issue. There may be a solution where the neighbour can continue their activity while reducing or eliminating the impact to you.
  • Suggest a reasonable action – Suggest a solution that will resolve your problem. Start by asking, ‘would you be willing to…?’.

The best outcome is when this informal approach resolves the issue. If this approach doesn’t work, there are other avenues to resolve excessive noise coming from a neighbour.

If talking with your noisy neighbour doesn’t work

Neighbours must not interfere with each other’s health or well-being or make unreasonable noise. If your neighbour continues to dismiss your concerns and the noise pollution persists, then there are other options for you to explore.

Depending on the circumstances, this may involve an action by the Police, an action at the Victorian Civil & Administrative Tribunal (VCAT), or an action in the Magistrates’ Court. Here is a list of possible options if talking directly with the noisy neighbour doesn’t resolve the issue:

  • Body corporate (if applicable) – If you live in an apartment or unit complex, then raise the noise issue with your body corporate. Check if other neighbours are having the same issues with noise pollution to make a strong case to the body corporate.
  • Police and the councilContact your local Police to discuss your issue. Victoria Police and Council officers can issue a direction to your neighbour to stop unreasonable noise for 72 hours. A failure to comply may result in an on-the-spot fine.
  • Mediation – The process of mediation relies on both parties to the dispute being willing to discuss the problem in the presence of a mediator. The Dispute Settlement Centre of Victoria is an organisation that can assist in resolving neighbour noise problems.
  • VCAT or Court – If you continue to have ongoing problems with an unreasonably noisy neighbour, it may be appropriate for you to seek legal advice as to the best course of action. This course of action could include engaging VCAT or taking the matter to the Victorian Magistrate’s Court.

The next steps

For more information about dealing with a noisy neighbour, refer to the EPA’s resources on the issue.

Do you have a serious dispute and have run out of other options? Discuss your situation with a Melbourne lawyer.


What Is A Constructive Trust?

With all the endless types of Trusts that exist, it can be confusing to differentiate one from the other. You will only encounter a constructive trust in unique circumstances, but it is still essential to understand what is involved.

What is a constructive trust?

A constructive trust is a passive type of arrangement where one person holds property (whether real property, money, painting, a car, a bank account, or almost any other kind of property you can think of) as its nominal owner for the good of one or more beneficiaries.

A constructive trust is typically implied into the circumstance to prevent the person holding the property from unjustly benefiting from the property’s beneficiaries. Where there is no formal Trust Deed, the arrangement between the parties are such that an implied trust should be constructed between them.

It’s important to note that a constructive trust can be difficult to establish. Courts often look to other remedies before finding that a constructive trust exists.

The main features of a constructive trust are:

constructive law support

  • The trust is implied by a Court
  • The Court determines that the normal owner of the asset holds it as a constructive trustee for the benefit of the beneficiaries
  • There’s no formal trust document or agreement
  • Scenarios of constructive trusts

The best way to explain a constructive trust is to give examples. Just like most legal situations, constructive trusts depend on a variety of circumstances, and each case is different.

If you think you may need to settle a constructive trust, speak to Rose Lawyers on 03 9878 5222.

Constructive trust examples*

*Disclaimer: All examples included herein are entirely fictional and are to be used as a guide only. The individual circumstances of each case will differ, and the above should not be used as a basis to initiate legal proceedings. Please consult a lawyer who is experienced with constructive trusts to find the best way to handle your matter.

One of the ways a constructive trust may arise is a breach of duty. For example, a real estate agent reduces their commission on condition that the vendor pays them an upfront cash component. Using the cash component, the real estate agent purchases a property. The agent’s employer discovers what they are doing and goes to Court, seeking a declaration that the property the agent purchased was held on constructive trust for the employer because of their breach of duty to the employer.

1. Property interference

Another example is property interference. For example, an elderly mother gives her daughter the sum of $500,000 and the daughter agrees that the mother can live with her on her property until she dies or needs to move. During this time, the mother contributes to the payment of various bills and purchasing of household items. The daughter then seeks to sell the property and buy a new property where she will live without the mother. The mother may seek an order from the Court that she has an interest in the daughter’s property by way of a constructive trust because of what she has put into the property and the money she gave the daughter during her tenure.

2. Insurance funds with a Trust

Another example of a constructive trust is where the Trustee of a Trust uses trust money to purchase an insurance policy. The Trustee then dies, and the insurance company pays out the benefit to their family but excludes the beneficiaries of the Trust. The beneficiaries of the trust may go to Court to seek an order that they receive the insurance funds by a constructive trust because it was their money that was used.

3. Unjust enrichment

A more complicated scenario is unjust enrichment. This occurs when, for instance, an employer accidentally transfers $20,000 into an employee’s account. If the employer were to take the matter to Court, it might be that the Court orders that the employee holds the money in trust for the employer. This is because if they were to benefit from the funds transferred, they would be unjustly enriched.

4. Unjust enrichment

Another example would be if Party A steals $1 million from Party B and buys a house with the money. The Court can trace the house back to the funds taken from Party B and deem the house to be held in trust by a Party A for Party B. Party A must then convey the title of the house to Party B.

Can you defend a constructive trust?

Depending on the particular circumstances of the case, a constructive trust can be hard to establish. Courts will try to look at other remedies before finding that a constructive trust exists.

When it comes to your legal affairs, it is always essential to speak to a qualified lawyer to get sound advice. Rose Law has over 30 years of experience in handling legitimate claims, and our dedicated team can help to make sense of any concerns you may have regarding a constructive trust.

For a free, confidential discussion about your legal claims, please contact Rose Lawyers on 03 9878 5222.


How Do Prenups Work And Why Should I Get One?

Planning a future together, either for a wedding or de facto relationship, can be complicated. Signing a prenup, better known as a Binding Financial Agreement in Australia, is a great opportunity to get on the same page.

What is a prenup?

A prenuptial agreement (or prenup, as it is more commonly known) is an American concept. In Australia, we don’t refer to them as prenups. We call them Binding Financial Agreements. Our Binding Financial Agreements can be used at any stage of the relationship, whether before, during, or after.

prenup support image

When a Binding Financial Agreement is made before or during a relationship, it is to protect the assets of one or both parties. It will usually stipulate that both sides will retain all of the assets they individually brought into the relationship, should they separate. Any assets obtained jointly are dealt with separately.

When a Binding Financial Agreement is made after a relationship has ended, it is usually used to settle the property division between the two parties.

Should I arrange a Binding Financial Agreement?

You may choose to arrange a Binding Financial Agreement if:

  • One person in the relationship has a higher debt load than the other
  • One or both parties are small business owners or entrepreneurs
  • One party is much wealthier than the other
  • One or both parties have been married before

Talk to Rose Lawyers if you think a Binding Financial Agreement is right for your circumstances.

What is involved when putting together a Binding Financial Agreement?

The division of property or the prevention of division of property is most explicitly included. It is possible to add a spousal maintenance component as well. Depending on when the Binding Financial Agreement is made, there may be different factors to consider. If the Agreement is made before or during the relationship, the parties may want to consider what will happen if they have children or if one of them becomes seriously ill during the relationship. Where an Agreement is made once a relationship ends, it is always when the parties have agreed between themselves as to how their assets are divided.

For example, Party A has the most assets and may decide that if the relationship ends within the first five years, then Party B is to receive nothing. However, if the relationship breaks down between five to ten years, then Party B is entitled to 25%. If the relationship ends after 15 years, Party B may be entitled to 50%, and so on.

A Binding Financial Agreement may address:

  • What each party’s separate property is
  • How the parties would split their home home and other major assets in the event of separation
  • The dividing up of marital property of the relationship
  • The dividing up of debt of the relationship

A Binding Financial Agreement does not address child custody agreements.

Can a Binding Financial Agreement be challenged in court?

Binding Financial Agreements are still a relatively new invention – this may be why some lawyers prefer Consent Orders. The difference between the two is that Consent Orders can be drafted by one party or their lawyer and then submitted to the Court on behalf of both parties. The Court then decides if the division of property is just and equitable and if the Court is satisfied about this, it will make the requested Order.

A Binding Financial Agreement circumvents the Court and involves one party instructing their lawyer to prepare the agreement. The other party then takes the agreement to their own lawyer who will review the document and negotiate any necessary changes. Both clients and their respective clients sign the agreement which makes it binding.

There is a prerequisite that full disclosure is made. A Binding Financial Agreement can be overturned if it is later found out that one of the parties has hidden or withheld assets from the other.

Deciding whether to prepare a Binding Financial Agreement or Consent Order can sometimes be a difficult choice. Let Rose Lawyers help you determine the best one for your scenario, with professional and qualified advice. Contact us today on 03 9878 5222 for a free confidential discussion about your concerns.


The Difference Between Simple And Complex Wills

If you own any assets in your name and you wish to choose who receives them after your death, then you need to draw up a Will. If you choose not to, the Administration and Probate Act 1958 can dictate how your property and assets are distributed. This can create unwanted legal, financial and emotional burden on your next of kin – the best thing to do is to draw up a Will.

There are several types of Wills that you can prepare, and the right one for your circumstances will depend on a number of factors. The main types are Simple and Complex Wills.

What’s the difference between a simple Will and a Complex Will?

A Simple Will generally leaves lump sum payments to your beneficiaries. For example, if you have three children, you may want them to each receive a one-third share in your estate. On the other hand, a Complex Will has all the hallmarks of a Simple Will, except that it also has other elements, such as testamentary trusts or disability trusts.

This “one-size-fits-all” Will is applicable in all circumstances. While a Simple Will can still do the job of distributing your estate to your beneficiaries, you may need a Complex Will for other certain benefits.

A Complex Will is appropriate if:

  • You own valuable assets where estate taxes will apply
  • You want to establish a Special Disability Trust for a disabled child
  • You have a previous spouse
  • Your beneficiary is likely to receive $500,000 or more
  • You expect to add to your assets
  • You own a business
  • You want to set up a trust that allows your children to receive a certain amount of money after a certain age

simple and complex will

If you would like more clarification about what Will you require, speak to the professionals at Rose Lawyers on 03 9878 5222. We can help answer any questions you may have.

About Simple Wills – what do I need to know?

When people hear the word ‘Will,’ they may be thinking of a Simple Will. This type of legal document involves executors doing everything needed to make sure your beneficiaries get what they are entitled to under your Will.

Some of these entitlements include a part of your estate (by set figure or percentage) or bequests where you leave money to charity, or assets (such as jewellery) to a granddaughter.

A Simple Will may become Complex due to the level of detail that an individual may want in the document. For example, there may be multiple gifts or different distributions in special circumstances.

What do I need to prepare for a Simple Will?

When preparing a Simple Will, the following information is needed:

  • Who will be your executor?
  • Who do you want to leave everything to? For example, will it be your children, your spouse, your nephew, or charity?
  • If something happens to that beneficiary, then who will receive your estate?
  • If you have minor children, who will look after the children if both you and your spouse/partner die?
  • Do you have any gifts you want to give to people or charities?
  • If you have a pet, do you want to make arrangements for them?

About Complex Wills – what do I need to know?

A Complex Will has other elements such as Testamentary Trusts or Special Disability Trusts – or both. For example, in the instance of if you and your partner have a disabled child, and you may need to set up a Special Disability Trust. Note that having a business or a previous spouse does not make a Will Complex.

What do I need to prepare for a Complex Will?

The information needed to prepare a Complex Will is generally the same as what is required for a standard Will. However, there may be some additional documentation for a disability trust – for example, Centrelink documentation that is not included in the Will but is required by the Government.

Rose Lawyers can assist you with your Will preparation

Just like all legal matters, it is important to consult a lawyer when you are preparing a Will because it is a legal document that has specific requirements that need to be met to ensure that it is binding. Have your Will prepared by a professional at Rose Lawyers – with over 35 years of experience in dealing with Will and Estate matters, we can determine your wishes, direct you through any potential issues that may arise, and offer important insights.

Contact us today on 03 9878 5222 for sensitive and qualified handling of your delicate legal matters.


Your Guide To Business Structures

“No business can succeed in any great degree without being properly organised.” – J.C. Penny

One of the most important decisions you’ll make when starting your business is choosing its structure. This decision is based on the size and type of your business, your circumstances, and how much you plan to grow and expand in the first three years and the future. You’ll also need to think about the accountability of individuals who are in charge of running the business. From there, you’ll need to consider asset protection, tax liabilities, and even ongoing costs and the volume of required paperwork.

There are four main types of organisational structures in Australia that are commonly used by small businesses, which are:

  • Sole trader
  • Partnership
  • Company
  • Trust

The other types of business structures are co-operative, joint venture, and incorporated association, but they are much less frequently used. If you’re looking to start a business in Australia, you’ll need to understand the types of structures that exist before you choose your direction.

Types of business structures in Australia

Sole trader

This is the most common type of structure for those just starting their business. Also referred to as a “no business structure”, the individual trades in their name and signs all documents in their name. This means the individual takes full responsibility for their actions and has zero protection from outsiders. There are several taxation detriments that a person should be aware of – these are best discussed with a qualified accountant.

business partners2


This type of business structure is where the ‘partners’ bear equal responsibility for any issues that may occur with the company. This relationship is built on trust, open communication and mutual respect, as the partners must agree to have different responsibilities and obligations, right down to the decisions being made. Some difficulties with a partnership can arise because the decisions of one partner can effect the entire business – for example, an errant partner signing a document in the name of the business that was not anticipated by the other partner.


Trading Company

A trading company can be created to own the business and manage its affairs. In this case, the individual director is an employee of the company and can earn a salary just like any other employee. Company profits are paid to shareholders, who may also be the director or another member of their family. A significant advantage of this structure is that that the personal assets of the directors or shareholders are not affected should the company go into receivership.


This business structure includes four divisions:

1. Discretionary trust

The trust manages the business and distributes profit to those nominated potential beneficiaries described in the trust deed. These beneficiaries are usually family members or other legal entities owned and controlled by the family members. There are two major advantages to this business structure: there’s a greater flexibility to pay profits to third parties, and the shareholder’s assets are safe should the trust get liquidated.

2. Unit trust

This is where several individuals hold units in a trust to manage the business. These unit holders are paid from the profits of the trust in proportion to the units they own. One of the biggest advantages of this business structure is that the unit holders’ assets are safe should the trust get liquidated.

3. Partnership of trusts

This is similar to the unit trust, but it has the same concerns as a partnership agreement. However, each partnership in the business has the protection that trading as a corporation or trust can provide.

4. Hybrid trust

As the name suggests, this is an amalgamation of the discretionary trust and the unit trust. This structure is only chosen after close consultation with the client’s accountant.

How can I decide which business structure is right for me?

Each business and situation is unique, and all structures have benefits and faults. Don’t decide without the expert advice from Phillip Gallo and Sebastian Hong at Rose Lawyers. Together, they have accumulated many years of experience in providing sound advice to many business owners in Australia. If appropriate, they will discuss your concerns with accountants and financial advisors to make a decision.

Phillip and Sebastian both understand the problems and hardships that a new business will meet, and will try to give encouragement and timely warnings if and when the situation warrants.

When you’re ready to have a confidential, no-obligation discussion about the direction of your new business, please contact the team at Rose Lawyers on 03 9878 5222.


Selling A Franchise: What Paperwork Do I Need To Prepare?

Whether you are ready to retire or simply want to profit from your hard work, selling a franchise is an exciting step, but it may also be equally overwhelming. It’s important to do it the correct way to ensure your rights are protected as the seller and that you do not find yourself in breach of an agreement.

Just like a house purchase, selling a franchise is a complicated matter and involves many parties. At Rose Lawyers, we are here to simplify the process and make it easier for you where possible.

The paperwork you need to sell your franchise

If you are thinking of selling your franchise, you will need to provide the following documentation:

selling a franchise

Mandatory Documents

  • The Franchise Agreement. This paperwork will dictate how you sell the franchise and to whom you can sell to. Usually there will be a clause in the agreement whereby the Franchisor has to approve the purchaser before making the sale. There may also be a clause in the contract that states that the Franchisor gets the first right to purchase the franchise if you wish to sell it.
  • Contract of Sale: This paperwork sets out the terms and conditions of the sale.
  • Disclosure Document: This paperwork contains all information regarding profits and losses of the business.

Optional Documents

  • Depending on the franchise agreement, there may be manuals or advertising material that you will also need to provide. If you are renting a premises, there may be a transfer of the lease. A transfer of business registration may also be required.

Considerations when selling your franchise

Usually, there will be a franchise fee that the Franchisor will charge for the Assignment. The Franchisor will also likely need to interview the prospective purchaser and approve them. The Franchise Agreement will set out whether there is to be any training of the purchaser, and who pays for this training. You will need to make sure that you surrender all of the required items such as client lists and details, business phone and fax numbers, mobile phone numbers, emails or web page addresses, etc.

Another thing to consider is that there will usually be a clause in the Franchise Agreement that may restrain you from opening up as a competitor to the business for a set amount of time and within a certain distance. You’ll also need to pay all of your outstanding fees owed to the Franchisor before the sale. In addition to this cost, you will also need to pay for any business agent’s fees and advertising, legal fees, landlord costs, and capital gains on the eventual sale.

Finally, the Franchise Agreement may provide for a Right of First Refusal for the Franchisor. This means the Franchisee must offer the business to the Franchisor at an agreed price before selling it or offering it to be sold to another third party. In some agreements, selling to a third party may be prohibited.

How long does the process of the sale of a franchise take?

There are no hard and fast rules when it comes to the time length of the process. This is due to many factors, such as what is written in the contract, what both parties want, and how well they are organised during events.

Let Rose Lawyers assist with selling your franchise

If you intend to sell your franchise business, it is essential that you engage with qualified and experienced lawyers who can provide you with accounting and legal advice. Rose Lawyers have been helping Franchisees all over Melbourne sell their business. Our team is familiar with the documents and procedures required to successfully and lawfully sell a franchise.

If you would like to talk about selling your franchise, contact Rose Lawyers on 03 9878 5222 for a confidential, no-obligation quote and chat.

How To Choose A Lawyer For Your Small Business

As a small business owner who is working to get established, you will come across many legal issues that you may not know how to handle. Regardless of the nature of your industry or sector, there are times when you will need the help of a business lawyer to guide you through the legal red tape. Some of the common issues that may arise:

  • Deciding on the name for your business, and ensuring that no other business has registered your name
  • Registering your business with the Australian Business Register
  • Deciding on the branding of your business and if it infringes on other business’ intellectual property
  • Entering into leases if and when you are ready to move into new premises
  • Drawing up or entering into contracts relating to the sale or purchase of your goods
  • Writing up employment contracts when you are ready to hire your team
  • Seeking legal advice on the relevant laws that affect your business

To have a successful business, hiring a lawyer isn’t just a smart idea – it’s crucial. Here are five questions to consider when evaluating a lawyer.

1. Does the lawyer have experience in my industry?


2. What qualities should I look for in a lawyer?

business lawyerIn any relationship, you need trust, loyalty, and dependability. Your relationship with your lawyer shouldn’t be any different. It’s important that you are both on the same level – will they speak to you in a way that you understand? Are they honest and honourable? The right lawyer for you will:

  • Respond to your queries within a reasonable time (for example 24-48 hours)
  • Have the patience to listen to your problems and concerns
  • Initiate a meeting for you to speak to a professional who can answer any questions that may be beyond the lawyer’s competence

3. Am I confident that the lawyer has my best interests?

You don’t have to like your lawyer. However, you must have the confidence that the lawyer has your best interests at heart, and will give appropriate advice, even if it may be distressing to you or displeasing to hear.

4. Is the lawyer invested in my business as much as I am?

  • Information about the type of business structure that you are entering into
  • Lease arrangements
  • Franchise agreements (if relevant)
  • Negotiations with staff

5. Can my lawyer help me with a Plan B?

You must have a Plan B in case something goes wrong with the business. Your lawyer will need to be aware of, and help you plan for, a situation where you will need to put Plan B into action.

You must be able to recognise and then extricate yourself from the problems at a minimal financial cost, with the help of your lawyer.

Where can I find an agent that ticks all the boxes?

Right here, at Rose Lawyers. We have over 35 of experience in providing excellent business law solutions to small businesses in Melbourne.

The law is complicated – but choosing which team you want to support your decisions, is not. We’ll put your mind at ease instantly and help you navigate your way through the processes and legalities around setting up your new business. We’ll speak your language so you’ll comfortably understand the advice we are providing you.

Contact us on [phone] for more information about how our lawyers can help you start off on the right foot.


Important Questions To Ask Your Conveyancer

Buying a home or business is one of the biggest purchases you’ll ever make, so trusting a professional to take care of your investment is a huge deal. Before you employ a property conveyancer, it helps to make a few enquiries about their experience, projects worked on and servicing costs, including any hidden fees. Choosing the wrong conveyancer can be costly, so asking the right questions at the start will help you engage with a professional who is looking after your best interests.

Here are six questions to ask your conveyancer before signing any contract:

1. What are your qualifications and how long have you been a property conveyancer?

There is a vast difference between a conveyancer with skills and years of experience and a newly qualified conveyancer. Not all conveyancers are required to be licensed or hold qualifications. Some conveyancers are self-employed or work in small businesses, while others work in bigger companies and solicitors’ offices. Some offer a wider range of services than others, and they all have their fees and their business practices.

2. How much do your conveyancing services cost?

The cost of conveyancing services plays a pivotal role in your decision-making process. You will need to be able to budget, so don’t be afraid to ask this question up-front.

Your conveyancer’s quote may include their professional fees, search fees, and other disbursements fees like registration fees and stamp duty charges. Aside from asking for the breakdown of costs, make sure you know which services are out of scope, as they may incur extra fees. We all know legal advice doesn’t come cheap, but buyers and sellers can avoid unexpected and excessive costs by choosing a conveyancer that offers a comprehensive service for a flat fee. It is for this reason that flat fee conveyancing is not a very good idea.

Rose Law Couple buying house supporting

3. Are there any additional costs involved with conveyancing?

There are many costs and expenses involved in any real estate transaction. It is important that you are aware of all these issues so that you can budget for them. It can be disastrous if you do not prepare for all possible expenditure.

Expenses arise in various areas of the transaction. Some may not be obvious or may be unexpected. Some of the costs you can expect in buying a property are listed below:

  • Fees payable for obtaining any loan (mortgage)
  • Stamp duty
  • Registration fees (paid to the Lands Titles Office)
  • Search costs
  • Rates and taxes for the period that you will own the property,

Similarly, here are some of the expenses you can expect in selling a property:

  • Loan repayments
  • Fees payable to discharge any loan (mortgage)
  • Sales commission and advertising costs payable to your agent
  • Search costs
  • Rates and taxes for the period that you will own the property.

Always ask your conveyancer for details of anything which may arise in your particular transaction.

4. Do you have insurance protection?

Professional indemnity insurance protects against claims that may arise from negligence in your conveyancer’s performance of his or her professional duties. No matter how meticulous you are in choosing your conveyancer, you cannot discount the risk that something might go wrong in your conveyancing process due to your conveyancer’s negligence.

Having insurance covers you in such cases. An honest and reliable conveyancer will have insurance protection.

5. Is it in the contract?

Make sure you know what you are buying or selling, which means discussing your expectations with your conveyancer and clarifying what has been included or omitted from the contract of sale. Don’t just assume that everything that you have viewed in the property will remain following settlement. For example, you might have considered a property with a television fixed to the wall. While the bracket is on the wall, the television is not, so you do not get to keep the TV.

When buying off-the-plan, make sure you double check the schedule of fixtures and finishes in your contract. Remember, artist’s impressions, and marketing material of your yet-to-be-built property is just for show.

6. Do you take on jobs that may be a conflict of interest for other parties?

While it is legal for the seller and buyer to use the same conveyancer, most practitioners do not recommend this. A conveyancer acting for both buyer and seller must cease to work if a conflict of interest arises (for example, if both parties cannot receive the same advice). Conflicts can arise over all sorts of issues such as a delayed settlement. It is impossible to predict when this may happen. Significant delays often occur if the conveyancer must cease to act in a transaction. Ask yourself if you’re comfortable using the same person as the other party, or if you would feel better working with an independent conveyancer.

Transparent and honest conveyancing in Melbourne

Don’t be afraid to ask your property conveyancer all the important questions – after all, it’s your investment and money on the line. If you have any reservations about your conveyancer’s answers, it’s usually a good indication to continue searching for another professional – it is times like these where you should trust your instincts.

At Rose Lawyers, we aim to be transparent in everything that we do, so you can feel at ease knowing you’re in capable hands. Our staff engage in regular professional development programs to keep their skills and knowledge up-to-date, and they all offer professional service and expert advice with the assistance of our lawyers.

If you would like more information about our conveyancing services in Melbourne, call Rose Lawyers on 03 9878 5222 for a free 15 minute no-obligation phone consultation.


Why Flat Fee Conveyancing Will Cost You More Than You Think

  • If you are purchasing your first home, buying or selling an investment property or subdividing, then you should consider a conveyancer
  • Paying a flat fee for your conveyancing may sound like an ingenious idea, but a retainer agreement can be more advantageous to you
  • At Rose Lawyers, we take into account every detail before quoting, including time, out-of-pocket expenses, and any other legislative fees

As if the quest to find the perfect home isn’t stressful enough, you have to then sort out all the mountains of paperwork that goes with it. Amidst all the legal jargon and contracts, it can be quite daunting not knowing where to sign and how to transfer the ownership titles.

In some instances, you may be able to do the legwork yourself. However, buying or selling property can be the biggest transaction you’ll ever undertake, so it is important to seek professional advice. Avoid severe potential penalties by hiring a conveyancer to do it all for you.

What does a conveyancer do?

During the transfer of property, hiring a conveyancer isn’t a legal obligation but their expertise in purchasing, selling, transferring and subdividing real estate is an asset to you. Additionally, a conveyancer may:

Conveyencer Paperwork Main Support2

  • Clarify, draft and lodge all relevant legal documents, including preparing a Section 32
  • Research the title of the property and see if there any issues that the buyer should know
  • Liaise with your bank and lawyers
  • Calculate all taxes and rates
  • Act on your behalf when settling the property
  • Represent your interests when you deal with the vendor and agent

At Rose Lawyers, we have over five decades of experience in conveyancing and real estate. We can help you navigate the property transfer process with ease and swiftness. Most importantly, we don’t charge a flat fee. Here’s why:

The problem with flat fee conveyancing

As the name suggests, flat fee conveyancing is when all or most conveyancing work is performed for a set figure – this includes the pre-contract, the pre-completion, and the post completion steps.

Some businesses promote a flat fee for conveyancing, and at first glance, it admittedly does look appealing – you pay just one price for the job at hand. However, what happens when extra time is needed, or potential out-of-pocket expenses arise, and the flat fee won’t cover those additional hours or the cost of rectifying the situation? Worse still, with a flat fee, your conveyancer may be less inclined to put all their energy into fixing the issue if they know they’re being charged for just the standard rate.

The last thing you want when your invoice arrives is to read through it and discover that you are being charged for work that you didn’t agree with in the first place.

A flexible and transparent approach to conveyancing

Conveyencer Lawyer Main Support2When determining the cost of your conveyancing, we consider the following:

  1. The professional time that is likely to be spent on your matter
  2. The out-of-pocket expenses that may be necessary to undertake
  3. Any Title Office or any other legislative fees.
  4. If an issue arises on your topic that needs to be received, then we will work quickly and diligently to resolve the issue. However, on some occasions this may result in an increased cost to you.

Again, the risk of flat fee conveyancing is if a task does not fall within the normal scope of work, the flat fee will not cover the cost of rectifying the issue. In many cases, it may even become a financial burden, as the original quote did not take into account the potentially unforeseen issue.

The main benefit to you is that if more work is required than initially agreed upon, our office is more than willing and ready to undertake it – and we’ll be transparent every step of the way.

The law is complicated – the team at Rose Lawyers are not

Whether you are looking to purchase your first home, buying or selling an investment property, subdividing, or transferring a title, Rose Lawyers has the knowledge and expertise to help you. We can provide you with a no-obligation conveyancing quote and will be happy to answer any questions you may have regarding the legal processes.

Contact us today on 03 9878 5222 for more information about our conveyancing services.

Business Litigation

Business Liabilities For A Breach Of Contract

Running a business isn’t easy at the best of times. It becomes even more difficult if you need to deal with a breach of Contract.

Whether a supplier hasn’t delivered goods you’ve paid for or a customer hasn’t paid their invoice, breaches of Contract can happen to any business.

In any business Contract dispute, there are legal options you need to consider. Here’s what you need to know about breaches of Contract and business liabilities.

What constitutes a breach of Contract?

A breach of Contract occurs when one of the parties does not fulfil the obligations they agreed to under the Contract. This can take many different forms, and in some cases both parties will believe they have fulfilled their obligations and the Courts will have to determine if there has been a breach.

While breaches of Contract can take as many different forms as Contracts themselves, some situations are quite common. Some common types of Contract breaches include:

  • Money owed for goods or services – If a supplier provides goods but the customer fails to pay the invoice after receiving the goods, or if a tenant fails to leave a rental property in its original condition and the landlord must spend money to repair it.
  • Provided with faulty goods – If you purchase goods that are faulty and must be refunded, or if you buy goods for a specific function on a salesperson’s recommendation and the goods fail to perform that function.
  • Provided with faulty work – If a tradesperson does construction or other work at your home or business and the final product is inadequate, unsafe, or does not function as it should.

In each of these of these types of cases, the Contract has not been fulfilled by one of the parties. In business, the most common breaches of Contract are those which involve a transaction of some kind.

Liabilities in a breach of Contract

If you believe the other party to your Contract has breached it, you must prove that they have legal liability. This means that they are legally responsible for the breach and typically must either fulfil their obligations or pay damages for not doing so.

Proving legal liability if you believe there has been a breach of Contract usually requires some form of legal action. If someone else has breached a Contract, then you may need to sue the other party to recover any loss or damage you have suffered as a result of their breach of the Contract.

In some cases, liability insurance may cover businesses when there is a Contract dispute. However, liability insurance will not cover misconduct such as trading while insolvent or acting negligently. In some cases, a director may even be held personally liable.

Breach of Contract examples and advice

Breach of commercial lease

Commercial Property owner Supporting

“I own a commercial premises which I leased to a company who manufactures scented candles. The business turned one of the rooms of the premises into a showroom. When they vacated the premises, I found they had left considerable damage.

For instance, there is candle wax stuck all through the carpet, dark char marks on the walls, and the air conditioning system is full of candle debris. There are also scratches, dents and holes in the walls. What do I do?”

If the tenant’s bond does not cover the damage then you need to make an application firstly to the Small Business Commissioner and secondly to VCAT to resolve the matter. It is generally a term of the lease that the tenant must restore the premises to its original condition upon vacating. You must remember that VCAT is generally no costs jurisdiction which means that if you win, the other side would generally not be forced to pay any of your legal expenses.

Breach of partnership agreement

“A friend and I were partners in a cleaning business. The business had approximately 17 regular clients, six of whom were very well paying and constituted the majority of the partnership’s income. A dispute arose between us, and my partner decided to leave the partnership and start his own cleaning business, taking the six largest customers of the partnership and leaving me with a credit card debt of $25,000.”

The answer is that you need to initiate Court action in the Magistrates’ Court seeking a fair distribution of the assets (clients) and liabilities (credit card debt) of the partnership. In this case, the matter was resolved in a case conference prior to going to trial.

Shoddy workmanship

Gavel Supporting“My husband and I wanted to install an inground pool. We used a pool specialist to waterproof the pool, but when we filled it with water, the waterproofing was of substandard quality and water was leaking from the pool. We called the pool specialist, who told us he had done everything right and it must be something we have done so he is not going to assist us.”

In this kind of case, you need to take action against the pool specialist in Court. The result in this case was that negotiations failed and a case conciliation did not resolve the matter. Ultimately both parties produce evidence and call witnesses, and the Judge decides that the pool specialist is indeed at fault, awarding damages to the husband and wife.

Get expert advice for your breach of Contract dispute

At Rose Lawyers, we can help you deal with any kind of Contract dispute. Our business lawyers have a great deal of experience helping our clients through difficult situations.

We can guide you through the whole process and advise you on your legal liability and your options. If going to Court isn’t the best option for your case, we’ll tell you. Protecting your interests is our top priority.

For advice on your Contract dispute, call us on 03 9878 5222.


Insider Tips To Make Buying A Property Easy For Yourself

Buying a property can be very stressful, it’s always a big investment and there’s a lot on the line. Not only that, but the process and paperwork can be very complicated and confusing.

Everyone wants their property purchase to go smoothly, but that can be easier said than done if you don’t have a lot of property experience.

Don’t worry, there are plenty of things you can do to make things easier for yourself. Here’s what you need to know.

Tips for buying a property smoothly

If you don’t have a lot of experience with buying property, it can be a daunting task. Here are some of the things you can do to make the process simpler:

1. Inspect the property thoroughly

Make sure you check if everything works properly. Do doors and cupboards open and close properly? Does the air conditioner work? Does the stove work? Does anything look like it might need repairs in the near future? Don’t be afraid to ask questions and test everything before buying a property.

2. How is the condition of the property?House Inspection Main Support2

When buying a property, you buy it in the condition that you last inspected it in. This is why the first tip is so important.

This means if anything needs to be repaired or cleaned before you take possession, you will need a special clause in the Contract or the Vendor is not obliged to do it. They must only maintain it in the same condition as when you inspected it. A property lawyer can help you with special clauses.

3. Contract conditional on finance

If you need a home loan, make sure the Contract is conditional on getting approved for finance. That way, if you do not obtain finance, you are not still bound to the purchase. Without the Contract being conditional on finance, you may lose your deposit if you are not approved for a loan.

4. Get advice on the contract

Get an expert to look over your Contract for you. A property lawyer or conveyancer will be able to review the Contract before you sign it so that any issues are identified early and before you sign it. The peace of mind you get from knowing an expert has had a look is invaluable.

5. Let your property lawyer represent you

There are plenty of things your property lawyer can do for you to make things easier. This includes things like handling the paperwork and letting them communicate with the agent and vendor as well.

What do you need to do?

Once you’re ready to proceed with buying a property, you need to do all the paperwork and finalise the settlement. This involves quite a lot of paperwork, including the Contract of Sale, section 32 Vendor’s statement, Transfer of Land, verification of identity, and purchaser statement.

You also need to consider the details of the settlement. The length of the settlement can be negotiated and agreed upon between the parties, but the Vendor will have the final say.

You need to allow an appropriate amount of time for the settlement so that you have time to get finance approval and wait for the bank to prepare the mortgage documents. You also need to allow time for the Vendor’s bank to prepare. Your property lawyer can advise you on an appropriate settlement period.

Mistakes to avoid

If you want your property purchase to go smoothly, then you need to avoid making any mistakes. It can be pretty easy to get things wrong if you’re inexperienced, and mistakes can range from fairly minor to hugely expensive.

Here are some common mistakes that you need to keep in mind and avoid:

couple review paperwork main support

1. Getting the documents wrong

If you’re not familiar with all the documents you need or how to prepare them, it can be easy to make mistakes or use the incorrect documents. Important documents include the transfer of land, duty statement and statement of adjustments.

2. Working with a difficult Vendor

It is possible that your Vendor may take advantage of you by making unfair demands and delaying settlement. If you don’t have much experience, you may not know what is and isn’t acceptable conduct for a Vendor.

3. Releasing the deposit too early

In certain circumstances, you may be pressured into releasing the deposit in circumstances where you should not do so. Without experience or expert advice, you may not know whether it is in your best interests to release the deposit or not.

How a property lawyer can help

Your property lawyer will be able to guide you through the whole process. If there is anything that you are unsure about, your property lawyer or conveyancer can help.

If you want them to handle everything for you, you can engage your conveyancer or property lawyer before you sign the Contract. That way, they can look over the Contract and ensure everything is as it should be.

After that, they can help you with everything that needs to happen during the settlement. This includes preparing all the necessary documents and communicating with other parties such as the agent, the Vendor, your bank, and the rate and water authorities.

At Rose Lawyers, we have over 35 years of experience helping our clients with buying property. Our property lawyers can provide as much or as little help as you need to make sure everything goes smoothly.

For more information on how we can help you with buying a property, call us on 03 9878 5222.


What To Do When There’s A Breach Of Partnership Agreement

Going into business with a partner can be a successful way of running a business. However, if you have a falling out with your partner or they breach the Partnership Agreement, things can go wrong very quickly.

Here’s what you need to know if you’re dealing with a business contract breach:

  • You should always have a written Business Partnership Agreement
  • Seeking legal advice as soon as possible will help mitigate any damage to your business
  • Most business contract breaches are resolved with mediation and negotiation

Getting the right advice can help you navigate difficult legal situations.

Do you have a written Partnership Agreement?

couch partners supporting

A written Business Partnership Agreement will often include what must happen if there is a dispute, a breakdown of the relationship, or if one partner breaches the agreement. The dispute resolution process will typically include mediation and negotiation.

If you don’t have a written Partnership Agreement or if it doesn’t include dispute resolution processes then it will likely be more difficult to resolve the problem. Again, it is usually best to try mediation and negotiation first, but if that doesn’t work the matter will need to be referred to the appropriate Court for judicial determination.

What should you do first?

Seeking legal advice as soon as possible is one of the most important things to do when dealing with a breach of Partnership Agreement. Whether you have a written agreement or not, a lawyer will be able to assist you through the process.

Getting legal advice on the best course of action for your specific circumstances will help you minimise any potential damage to your business. As with any legal matter, the sooner you seek legal and advice the better. Your lawyer will be able to:

  • Advise you on your options and the best course of action for your case
  • Assist you with the mediation and negotiation process
  • Represent you in Court if necessary or organise representation for you

How are most Partnership Agreement breaches resolved?

sewing partners supporting
In most cases, a business contract breach is resolved with mediation and/or negotiation. This is almost always preferable to taking the matter to Court.

However, if mediation and negotiation fail to resolve the dispute, formal legal intervention is required and Court action must be commenced. Going to Court usually makes the dispute much more expensive and stressful.

This is one of the reasons why it is so important to have a well constructed business Partnership Agreement. It will clearly set out what each party’s obligations are and what happens if one party breaches those obligations.

Having each party’s obligations as well as dispute resolution provisions clearly laid out will help to save costs in the event of a breach.


Margaret and Heather

Margaret and Heather went into partnership in healthcare services, and their relationship broke down when Margaret ran off with a whole lot of the assets. There was no formal Partnership Agreement, and Heather had to take Margaret to the Magistrates’ Court after mediation and negotiation failed.

In the end, the Magistrates’ Court ordered that the assets Margaret took must be returned, all debts were to be paid equally, and any profits distributed equally.

Lindsay & Tobias and John & Alex

cleaning business supporting
Lindsay & Tobias decided to start a cleaning business with another couple, John & Alex. The relationship broke down, and John & Alex wanted to go their own way with certain clients, leaving Lindsay & Tobias with certain clients but also a lot of the debt on a credit card.

There was no formal Partnership Agreement, but the two couples were able to negotiate a resolution that the debts be paid equally.

Rose Lawyers can help

Whatever the circumstances of your business contract breach, we can help you through every step of the dispute resolution process. Whether you have a formal Partnership Agreement or not, we can help.

We have a great deal of experience dealing with all kinds of business law matters and have handled many Business Partnership Agreements and disputes for our clients.

For expert advice on your Business Partnership dispute, call us on 03 9878 5222.


How Much Does A Conveyancer Cost And What Do They Do?

Whether you’re buying or selling your home, a conveyancer helping you through the process will be an invaluable asset.

You probably already know that you need a conveyancer, but you may be a bit foggy on the details. You may be wondering what exactly they can help you with and how much it will all cost.

Here’s what you need to know about conveyancing costs and services.

How much does a conveyancer cost?

Different conveyancers charge for their services differently; there is no standard for conveyancing costs. A conveyancer may charge a flat fee per task or an hourly rate. In any case, the size and complexity of the purchase or sale will be the biggest determining factor of the conveyancing costs. A typical conveyance for a home purchase may take around four hours of professional time while a complex task will take longer.

Keys Contract Supporting 400

Most people choose to have their conveyancer handle everything so they know it will be done correctly.

For example, a 20 lot plan of subdivision may take eight hours of professional time, and an adverse possession matter may take ten hours.

As well as the conveyancing costs, you will also have to pay for any disbursements the conveyancer incurs on your behalf. These are any out-of-pocket fees that must be paid for things like title searches, property certificates, and bank production fees.

What does a conveyancer do?

Your conveyancer can handle a variety of tasks. Most people choose to have their conveyancer handle everything so they know it will be done correctly and they can focus on things like packing and moving.

Most people want to know exactly what is included in the conveyancing costs. The tasks they can perform for you include:

Conveyancing tasks in a sale Conveyancing tasks in a purchase
Preparing the Contract of Sale and Section 32 Checking the Contract and Section 32
Liaising with the agent and the purchaser’s representative Advising you on the release of the deposit
Communicating with your bank Communicating with your bank and the vendor’s representative
Organising the release of the deposit Preparing the Transfer of Land
Preparing government documents Organising the settlement and ensuring the correct documents are handed over
Organising the settlement and ensuring the correct documents are received Preparing the Statement of Adjustments
Notifying the Council and authorities that you have acquired a new property

As you can see, there are a lot of complex tasks involved in conveyancing. Choosing not to use a conveyancer can be very risky since you’re much more likely to make mistakes on your own.

What can go wrong if you don’t use a conveyancer?

If you’re not a legal professional or experienced in the property market, it is very easy to take a mistake if you try to do everything yourself. Some common mistakes include:

  • Special conditions – You may want to include special conditions in the Contract, such as having the vendor remove rubbish from the backyard prior to settlement. If you forget to include this in the contract, they will not be required to do it.
  • Conditional on finance – If you forget to tell the vendor that your bank has not yet approved finance by the prescribed date, the Contract becomes unconditional. This means you could lose your deposit if you don’t come up with the funds.
  • Restrictions on subdivision – Without a conveyancer, you may purchase a property planning to subdivide it without realising that there are restrictions on subdivision such as easements or a restrictive covenant.
  • Terms contract – If you are planning to pay for the property under a Terms Contract, using more than one payment, you need to make sure it is the correct type of Contract. This can be difficult if you are unfamiliar with Terms Contracts.

conveyancer handing over papers

Before you sign anything it is essential that you have your conveyancer look over all the documents

Since there are so many things that can go wrong without one, it is essential that you have your conveyancer look over all the documents before you sign anything. Conveyancing costs are a lot less expensive than making mistakes on a property purchase or sale.

Rose Lawyers and Conveyancers

Here at Rose, we are experts in all areas of property law. We have a great deal of experience and we’re familiar with the Melbourne property market.

Our conveyancers will guide you through every step of the process and make sure nothing is missed or overlooked. We’re upfront about all our conveyancing costs, so you will know what to expect.

For more information about our conveyancing services, get in touch with us on 03 9878 5222.


What Is Intestacy?

Bereavement is always difficult for friends and family. If you don’t create a will before you pass away, it could lead to an even more strenuous situation for those you’ve left behind. No matter how old you are, having a plan in place for the disposal of your estate will make this time easier for the people you care about.

When you die, your estate—all your property and assets—will need to go somewhere or to someone. Your will is a legal plan of how your estate will be distributed and managed at this time.

If someone dies without a valid will, their next of kin or another appropriate person must apply for Letters of Administration—a court order enabling them to act as the Administrator of the estate and then distribute it according to the relevant provisions of The Administration and Probate Act 1958. This process is referred to as intestacy. Unfortunately, the eventual outcome of intestacy may not reflect the true intentions of the deceased.

Do you need a lawyer to help you with intestacy? Talk to us today.

What is intestacy?

what is intestacy signing of a will image2

Intestacy is the condition of your estate if you die without a valid will. Failure to prepare a will means you have no formal arrangements in place for the disposal of your property and assets.

Intestacy laws set out the way in which an estate will be distributed when there’s no will. This process is very specific and may not reflect your personal wishes for the distribution of your estate.

Having an up-to-date and valid will is the best way to ensure that things go according to plan when you’re no longer around. It also ensures that your hard earned cash and assets are given to the people you want to receive them.

What happens someone dies without a will?

When someone dies, their will cannot be affected until the Supreme Court makes the order for a Grant of Probate. This order establishes the will is legally valid and confirms the authority of the executor.

If the deceased didn’t have a valid will, the next of kin must apply to the Supreme Court for an Order of Letters of Administration, appointing them as the Administrator and giving them the power to deal with the assets.

First, the Administrator will make a list of all the assets in the estate. This includes everything from bank accounts and investments to the house, furniture, and the silverware. The Administrator must preserve the condition of these items and assets up until the moment they can be distributed to beneficiaries.

The list of beneficiaries is determined by the intestacy laws in Victoria. The order in which a deceased estate will be distributed is:

  • Where the deceased leaves a partner but no children — the partner receives the entire estate.
  • Where the deceased leaves a partner and children of that surviving partner — the partner takes the whole of the estate.
  • If there are children from another partnership — the deceased’s spouse or partner will inherit their personal chattels; the first $451,909, called the statutory legacy, and half of the balance of the remaining estate. Any children will receive an equal share of the remaining estate.
  • If one of the deceased’s children is deceased but leaves a child or children — then that child or children will receive their grandparent’s estate.
  • If there is no spouse or domestic partner and no children — the deceased’s parents will receive their whole estate. If the deceased’s parents are also deceased, the estate will be passed on to the deceased’s siblings. If the deceased has no siblings, the estate will pass to the surviving grandparents. If there are no surviving grandparents, then the inheritance will pass to aunts and uncles and then cousins.
  • In the event that none of the above mentioned people can be found — the government will receive the entire estate.

The statutory legacy is indexed each year for movement in the Consumer Price Index, and the statutory formula for intestacy differs for every state and territory. Intestate assets are distributed according to the relevant statutory jurisdiction, which means that if the deceased had assets in both Victoria and the Northern Territory, the assets will distributed according to the intestacy laws of each state.

How does a will avoid complications?

Intestacy laws cannot account for the unique circumstances in your personal life, they can only attempt to prescribe a fair outcome in very general terms.

The reality is that most personal circumstances are not general. Only you know your unique family situation, the friends you most value, and who will appreciate certain possessions when you are gone.

Intestacy means that you will leave your friends and loved ones with no clear indication of your preferences for who-gets-what. A will provides security and structure to what could otherwise be an awkward and difficult process during an emotionally charged time.

Intestacy laws are unable to take into account the people you feel are most deserving of your estate as it only considers your next of kin. A customised will can ensure a distribution of your estate, in a manner you believe to be fair, in the event of your death.

Consider the following situations where intestacy laws would not deliver a satisfactory result in the event of intestacy:

De facto relationships: While intestacy laws recognise the rights of ‘domestic partners’, there are stringent tests in place to ensure that the relationship did exist. This process could be unnecessarily frustrating or humiliating for your partner. It may also run the risk of your partner missing out entirely.

Special needs children: If you have a special needs child, you need to consider a Disability Trust Will, as this ensures that they will receive their inheritance in a way that will not affect their disability pension.

Exclusion of certain family members: You may have family members who you feel are not entitled to a share of your estate. This unique family circumstance could be ignored without a will.

Friends: There may be people in your life who are not members of your family, but who you feel should be entitled to a share of your estate. This bequest will not happen without a will.

How do I make a will?

Making a good and valid will requires care and effort. There are three main options for constructing your will, namely:

  • Follow the will requirements set out in the Wills Act 1997
  • Complete a standardised ‘will kit’
  • Get a lawyer to help you prepare a will

The safest option is always to have a lawyer prepare your will. A professionally constructed will ensures that it is a valid document, so that the preferences for your estate will be carried out after your death.

A will you have prepared by yourself runs the risk of having legal errors. This will complicate matters for your loved ones when you are gone. If you prepare your own will, and it is found to be invalid, your intended beneficiaries may not receive their share.

what is intestacy happy family will and testament


Intestacy is the state of a person dying without a valid will. Intestacy laws dictate which of relatives will receive a part or all of your estate.

The arrangements made to the beneficiaries under intestacy laws likely will not reflect how you want your estate is to be divided between your friends and loved ones.

Getting a professional to prepare your will is the best way to ensure that things go according to plan once you are gone.

Do you have questions about intestacy? Call us on 03 9878 5222 to discuss your situation.



Who Should I Nominate As Power Of Attorney?

Choosing someone to nominate at a glance:

  • They will be able to make decisions on your behalf.
  • Choosing someone you trust is the most important consideration.
  • Anyone can be your Attorney under Power; they don’t need to be family or hold any formal qualification.

A Power of Attorney is a legal document which gives another person authority to act on your behalf. The person you nominate is referred to as your Attorney or agent.

Choosing your Attorney is a very important decision, and it’s not always easy. The person you choose will have a great deal of decision making power as well as difficult responsibilities.

Here is our guide to choosing someone for your Powers of Attorney.

Who should you nominate to be your Attorney under Power?

Women Tablet Coffee Main Support2The most important thing is to choose someone you trust and who shares your beliefs. People often choose their partner, a child or a sibling to be their Attorney, but it can be anyone you like.

Your Attorney doesn’t need to be related to you, and they don’t need any specific experience or qualifications. They only need to be someone you trust implicitly and who will act in the manner you want them to.

Making someone your Attorney under Power is a big responsibility for them, so make sure you discuss it with the person you choose. Make sure they understand your wishes, preferences, and beliefs ahead of time and that they are comfortable making decisions on your behalf.

You also need to consider that ideally you should have at least two Attorneys. One as a primary and one as a backup.

Enduring Power of Attorney types

There are two types of enduring Power of Attorney:

  • Financial – Gives the Attorney authority to make decisions about your finances, as well as lifestyle considerations. If you have more than one attorney, they can act jointly, separately or joint and severally.
  • Medical – Gives the Attorney authority to make decisions about your medical care and treatment. If your have more than one attorney, they must in the order of their authority.

You must completely trust the person you choose as your financial Attorney. Anyone has the potential to misuse the document for their personal gain. While there may be criminal repercussion for people who do this, it’s better to be safe than sorry. Choosing someone you trust will minimise the chance of this happening.

For your medical Attorney, you need to make sure your Attorney either shares or is aware of any beliefs or preferences you have. For example, if your religion forbids receiving blood transfusions, then your Attorney must be aware of this and be willing to make medical decisions in accordance with this belief.

Until recently, there was a third type of enduring Power of Attorney: Guardianship. Guardianship Power of Attorney related to lifestyle decisions. As of 1 September 2015, the law changed and the guardianship element is now covered in financial Power of Attorney.

Get advice from expert Power of Attorney lawyers

Once you have chosen the person you want to nominate to be your Attorney under Power, the next important step is to make sure all the documents are completed correctly.

Having a Power of Attorney Lawyer prepare the documents for you will ensure that they are correct and can be relied upon. After carefully choosing the person you want to be your Attorney, you don’t want to be let down by documents which are incorrect or invalid.

At Rose Lawyers, we have been helping our customers organise their Will and Estate matters, including Powers of Attorney, since 1977. You can trust in our expertise and that we will handle your case with care.

For help organising your Power of Attorney matters, call Rose Lawyers on 03 9878 5222.


Do You Need A Business Partnership For Husband And Wife Businesses?

Starting a business with your spouse can be extremely difficult and stressful. That’s why it’s essential that you start off on the right foot.

Having a formal Business Partnership Agreement may not be romantic, but it’s the best way to protect your relationship from the stress of running a business together.

With that in mind, here is what you need to know about having a Business Partnership with your spouse.

What is a Business Partnership?

business owners partners2A Business Partnership occurs when two or more individuals or entities decide to work together for a common commercial goal for profit for an indefinite length of time.

The Business Partnership Agreement is the document which sets out the key details of the business, including:

  • The nature of the business
  • Each partner’s capital investment
  • The role of each partner, including their rights and responsibilities
  • What happens if the partnership breaks down

When it comes to businesses run by a husband and wife, the agreement is just as important as it would be for any other business. Nobody starts a business with their spouse and plans to have problems or disagreements, but it is a very real possibility that you need to be prepared for.

Why do you need a Business Partnership with your spouse?

husband wife business partnership meetingYou should always have a formal agreement whenever you go into business with another person, even if you are husband and wife.

Just because you are a couple, that doesn’t mean that problems or disagreements won’t arise while you’re running the business together. A Business Partnership Agreement will help provide the tools to deal with disagreements in a constructive way so that they don’t negatively impact on your relationship.

The last thing you want is for problems that arise in running your business to get in the way of your relationship with your spouse. Having a formal Business Partnership can help you keep your work lives separate from your personal lives.

You also need to consider what will happen to the business if you separate from your spouse. It may not be a situation you want to think about, but it’s something you need to be prepared for when large assets and your livelihood are at stake.

How to set up a Business Partnership Agreement with your spouse

In most cases, a husband and wife Business Partnership starts without a formal agreement. However, it’s essential that you create formal agreement if you plan for the business to be a primary source of income and not just a hobby.

Your Business Partnership Agreement needs to lay out the roles and responsibilities of you and your spouse so that it is clear how the business will run from day to day.

The things you need to consider include:

  • Will all decisions be made jointly or will one or both of you have authority to make decisions for certain parts of the business?
  • How will do deal with disagreements that arise while running the business?
  • What happens if you or your spouse no longer wants to work on the business?
  • What will happen to the business if your relationship breaks down and you separate?

Once you have discussed these issues and come to an agreement with your spouse, you need to have a business lawyer create a Business Partnership Agreement.

Get the right advice

If you’re starting a business with your spouse, it’s essential that you get the right legal and financial advice to give yourselves the best chance at success.

Make sure you speak to your accountant and get the help of a business lawyer to help you set up your Business Partnership Agreement.

For help with your business partnership, call the team at Rose Lawyers on 03 9878 5222.


Preparing Complex Wills

Preparing a Will is rarely an easy process. Even a simple Will requires you to make decisions about what will happen to all your worldly belongings.

So when you have significant assets, multiple trusts, or conditional bequests, creating a Will can become a very complex and difficult process.

The best thing you can do in these circumstances is to get expert legal advice. With that in mind, here is an introduction to creating complex Wills.

What makes a Will complex?

There is a number of different factors which can make a Will more complex. Some of these include:

  • Having multiple Trusts, such as Testamentary and Disability Trusts.
  • Having complicated bequests or bequests which depend on certain things happening.
  • Having very specific or difficult requests for what happens after you pass away.

When you spend a lifetime accumulating assets, it’s only natural to want to control how they are distributed after you’re gone.

Having a complex Will allows you to decide exactly how your assets are distributed to your beneficiaries. Not only that, but distributing your assets via Trusts allows you to do so in a way that minimises tax.

If a Will is not left or not created correctly, then your estate will be divided according to the laws of intestacy and you will not be able to control how it is distributed.

How we handle complex Wills

The goal of creating a complex Will is to ensure that your estate is protected and you are able to pass it on to your loved ones with minimal tax costs and as much protection against being contested as possible.

For a lawyer to handle complex Wills effectively and accurately, they must be familiar Wills and estate law as well as highly experienced with drafting the necessary documents.

If there are any mistakes or the Will is not completed correctly, then it’s possible that it will not be valid and your estate will be treated as an intestate estate. That’s why it is essential that you choose a lawyer with a great deal of experience and expertise in the creation of complex Wills.

Trust in our experience

Here at Rose Lawyers, we are experts in handling the Will and estate matters of our clients, no matter how complex.

Our team can create a complex Will which will ensure your wishes are carried out after you are gone, minimise its potential to be contested, and pass on your assets in a tax efficient way.

Our team

Choose Rose Lawyers for your complex Will

Here at Rose Lawyers, we have the experience and expertise to handle your complex Will. We will ensure that your assets are protected and distributed in the manner of your choosing.

For help with your complex Will, call the team at Rose Lawyers on 03 9878 5222.


Transfer Of Land Checklist

There are many situations which might require you to transfer land. You could be selling your property, setting up a family trust, or giving the property as a gift.

Whatever the reason for it is, you need to make sure that the transfer goes smoothly and no mistakes are made.

Follow our Transfer of Land guide to ensure that you get everything done correctly.

Transfer of land guide – How do you transfer a title?

When dealing with such large and valuable assets, it’s essential that you get all the details of your transfer right. The steps involved in transferring land or a title are:

1. Complete the event that has prompted the transfer

Whatever the reason for it is, transferring land or a title usually comes as a result of some other event or decision. Some of these include:

  • Purchase or sale of a property
  • The death of a proprietor
  • Giving the property as a gift
  • The breakdown of a relationship
  • Establishing a family trust
  • Change of holdings on a title

Most of these events require another legal process or agreement which is separate from the transfer of land itself. Whichever event or agreement has triggered the transfer, it must be completed prior to or in conjunction with the transfer.

2. Prepare and fill out transfer of land documents with a lawyer

It is advisable that you get the help of a legal professional to ensure that you don’t make any mistakes in the process.

3. Lodge the documents at the Titles Office and pay the necessary fees

Once the application form has been completed, it must be lodged with the Titles Office. A fee will need to be paid depending on the type and value of the property.

The fee is made up of a flat fee plus a percentage of the property value. You can use the calculator on the DELWP website to find out what the fee will be for your property.

4. New Certificate of Title is issued

Once the application has been lodged and processed, a new Certificate of Title will be issued to the new owner of the property.

Transfer of land checklist – Don’t miss these details

There are a number of details that go along with transferring land or a title which must be completed either before or after the transfer is completed.

The transfer of land checklist includes:

  • Be in possession of the Certificate of Title or ensure it has been provided to Land Victoria.
  • Verify the identities of all parties.
  • A land tax Notice of Acquisition needs to be completed after the transfer.
  • Ratings bodies such as the water authority, sewerage and council must be notified of the transfer.

The best way to ensure that no important details are missed during or after the transfer process is to get the help of a lawyer or conveyancer.

Get the right legal advice

Having your transfer of land or a title go smoothly requires planning, organisation, and astute legal knowledge. The best way to get all these things is to hire a lawyer.

A property lawyer will be able to guide you through every step of the process and ensure that the right documents are filled in correctly. They can also advise you on stamp duty and capital gains tax implications.

For expert legal advice on your transfer of property, call Rose Lawyers on 03 9878 5222.

BigThing Business

The Ultimate Guide To Business Partnerships


  • Introduction
  • Why set up a Business Partnership
  • Important considerations
    • Business name
    • General or limited partnership
    • Financial registrations
    • Superannuation
    • Employees
  • How to set up a Business Partnership
  • Common mistakes to avoid
  • Set up costs
  • Case studies
  • Conclusion

business partnerships introduction


A Business Partnership Agreement is a document which formalises the rights and obligations of two or more individuals starting a Business Partnership together.

Among other things, the document outlines key details of the business, including:

  • The nature of the business
  • The capital invested by each partner
  • The rights and responsibilities of each partner
  • What happens in the event of the partnership breaking down

This guide will give you an overview of some of the key benefits of entering into a formal Business Partnership, the steps involved in setting one up, and important considerations you need to make along the way.

It is very likely that you will need the help of a legal professional to write the Business Partnership Agreement. You may also need the services of other professionals to set up the daily operations of your business. You need to be aware of and plan for the cost of these services and any other set up expenses when starting your business.

With the right planning and preparation, setting up a Business Partnership is relatively simple.

Why set up a Business Partnership?

A Business Partnership is one of several business structures which you can choose from. Each structure has different features and benefits, so the one that is most appropriate for you will depend on your situation and the type of business you are starting. Some common Business structures include:

  • Sole Trader
  • Business Partnership
  • Company
  • Joint venture
  • Trust

sole trader officeBusiness Partnerships are a business structure which allows for two or more people to go into business together for a common purpose and share responsibilities and liabilities. This makes it different to a Sole Trader which is simpler as only one person has the decision making power and a Company which has directors who run the company and members or shareholders who partly own it.

The advantage of setting up your business as a Partnership is that it allows you to collaborate with your partner or partners to achieve the goals of your business. Having a small team of decision makers can allow your business to react quickly without having to rely entirely on your own ideas.

Important considerations

There are a number of important details that you need to be aware of when setting up a Business Partnership. These details will be a part of the everyday running of your business and must be done correctly.

Important considerations include:

Business name

  • In some cases, you will need to choose a business name and ensure it is not already registered by another business. You do not need to register a business name if you are trading under your personal names, if you already have a business name, or if one or more of the partners is a business with an existing company name.

General or limited partnership

  • A limited partnership is a Consumer Affairs category which involves one or more of the partners being limited in their liability for the debts and obligations for the business. Typically, partners in a business partnership are all equally responsible for management of the business and unlimited in their liability for debts and obligations.

Financial registrations

  • The Business Partnership will need to apply for an Australian Business Number (ABN) and a business Tax File Number (TFN). You will also need to register for Goods and Services Tax (GST) if you are going to turn over more than $75,000 per annum.


  • The partnership will be responsible for paying superannuation to the partners as well as any eligible employees.


  • You will also need Pay As You Go (PAYG) tax withholding if the partnership is going to have employees and Fringe Benefits Tax (FBT) if you are going to offer benefits to your employees.

You may need to get professional advice to ensure that these details are set up correctly.

How to set up a business partnership

Setting up a business partnership is relatively simple. However, you will require the help of a lawyer to draft the Partnership Agreement. The steps for setting up a Partnership are:

  1. Determine the number of partners and the responsibilities and roles of each.
  2. Have a lawyer draw up the partnership agreement. Your lawyer will customise the agreement to match the needs of your partnership.
  3. If you have a new business name, you must register it with the Australian Securities and Investments Commission (ASIC). In some cases you do not need to register a business name with ASIC.
  4. If you are entering into a limited partnership, you need to register it with Consumer Affairs Victoria.
  5. Apply for the licenses and registrations you need, including ABN, TFN, and GST.

business partners meeting2You will need to agree with the other partners on several issues before entering into the partnership. You will need to determine how much capital each partner will invest, if any partners will have limited liability in proportion with their investment, and the level of authority each partner has to make binding decisions for the partnership.

The Partnership Agreement should formalise the role of each partner, their level of authority and the distribution of profits and assets. You will need a lawyer to write the Partnership Agreement to ensure that these details are correctly outlined.

Your Partnership Agreement also needs to outline what will happen if the partnership breaks down. Nobody enters a partnership expecting it to break down, but you still need to plan for a negative outcome.

The Agreement will determine how assets, money, and debts are divided, what will happen to the stocks, clients, and property, and whether or not one partner can continue using the business name, website and other intellectual property.

Common mistakes to avoid

The two biggest mistakes that people make with their Business Partnership Agreements are:

  1. Not having a written Agreement – While it is not required that you have a written Partnership Agreement, it will be essential for the smooth running of your business. Verbal agreements will not be adequate in complex business situations.
  2. Having a written Agreement which is incomplete – You need to make sure your Business Agreement covers everything it needs to cover. You need to formalise the negative scenarios as well as positive, such as how to resolve disputes and what will happen in the event of a breakdown of the partnership.

The best way to avoid these mistakes is to have a lawyer write the Business Partnership Agreement for you. That way, you know all your bases will be covered.

Set up costs

Every business is different, and Business Partnership Agreements can vary dramatically in terms of complexity. Hence, the costs involved in setting up a Business Partnership can also vary a lot.

Many of the steps involved in setting up a business partnership will come with a cost, either due to a professional service or a registration fee. These include:

  • Legal fees
  • Business name and company registration
  • Website creation
  • Intellectual property such as logos
  • GST registration
  • Accountant fees
  • Liquor, gambling, and tobacco licencing and health inspection if applicable

Along with professional services and registration fees, you also need to take into account the costs required to actually open the doors of your business. These will depend heavily on the type and size of your business and can include:

  • Commercial lease
  • Employee wages
  • Stock
  • Overheads
  • Property
  • Chattels such as desks or vehicles
  • Renovation or fitout

Depending on the scale of your business, setting up a business partnership can be very expensive or relatively cheap. It may be a good idea to get expert financial advice to ensure you have enough capital and that your business will be financially viable.


Mike and Dave

mike and dave

Two friends, Mike and Dave, decided to set up a Business Partnership to open a microbrewery and pub. They formalised their relationship with written Partnership Agreement which stated that the two were equal partners and would make business decisions jointly.

Mike and Dave each had different responsibilities within the business. Mike ran the brewery while Dave managed the food and beverage service in the front of house. The business was successful, but after two years, communication was beginning to break down between Mike and Dave.

Mike had been deciding on beer recipes without consulting Dave, who wanted to pass on requests from the customers. Dave also decided to stock beer from another brewery with whom Mike had a rivalry. Their relationship got so bad that the two were ready to sell the business and part ways.

Their Business Partnership Agreement stated that they must attend mediation to resolves any disputes before either partner left the business. With mediation, they were able to resolve their communication issues and get the business back on the right track.

Jennifer and Mitchel


Siblings, Jennifer and Mitchel, wanted to start an online business together making and selling jewellery. They thought that since they were family members, that they wouldn’t need a written Partnership Agreement. They simply had a verbal agreement to split profits and debts 50/50.

Their business was successful, and they both began working on it full-time after the first year of working on it as a side project. However, they started to disagree about the direction of the business. Jennifer thought there was a bigger market for a more traditional style of jewellery while Mitchel thought that their quirky and unique style was what set them apart from their competitors.

They weren’t able to come to an agreement on the direction to take the business in, and it got to the point that they no longer wanted to work together. However, they also couldn’t agree on who would get to keep their website, brand and customer information.

After a lot of arguing, they agreed to have an independent third party value their business and Jennifer bought out Mitchel’s half. Because they didn’t have a formalised dispute resolution policy, their arguments were very personal, and their relationship was badly damaged for several years afterwards.


Setting up a Business Partnership can be a very effective way of running a business. However, it is essential that your partnership is formalised with a written Business Partnership Agreement.

Having a Partnership Agreement written by a lawyer will give your business a better chance of success as everyone involved will know exactly what their rights and responsibilities are. Formalised dispute resolution policies will also be invaluable in the event of a disagreement within the Partnership.

Your Lawyer will be able to guide you through the process of setting up your Business Partnership, from writing the Partnership Agreement to advising you on any other steps you need to take.

For more information or for help with your Business Partnership Agreement, call Rose Lawyer & Conveyancers on 03 9878 5222.


What Is A Business Partnership Agreement?

If you’re thinking about starting a business with one or more other people, then a Business Partnership Agreement is likely the right business structure for you.

Here’s what you need to know before you get started with your Business Partnership.

What is a Business Partnership Agreement?

A Business Partnership Agreement is a binding document which formalises the rights and obligations of two or more people who are going into business together as partners.

Business Partnerships are a type of business structure which allows partners to share business responsibilities and decision making authority as well the profits, assets, liabilities and debts of the business.

What is included in a Business Partnership Agreement?

The document itself includes a range of important information about the how the business will be run. This includes:

  • The roles and responsibilities of each partner
  • The authority of each partner to make binding decisions for the business
  • The amount of capital invested by each partner
  • How profits and liabilities will be divided between partners
  • Provisions for dispute resolution
  • Details of how partners are to be added or removed from the partnership

Business Partnership Agreements can vary from being fairly simple to extremely complex depending on the number of partners and the nature of the business.

It’s essential that you have a lawyer write the Partnership Agreement to ensure that all the important details are covered, and there are no mistakes.

discussing over laptopWhy do you need a Business Partnership Agreement?

Setting up a business as a partnership is a very popular option for family businesses and friends starting a business together.

Because of this, people often don’t think they need a written Partnership Agreement since they trust their friends and family. However, without a written Agreement, you run the risk that business disagreements will damage your personal relationships.

A written Business Partnership Agreement will ensure that each partner knows their rights and responsibilities. It will also set up policies for resolving disputes.

Business structure advice

There are a few different business structures as well as Business Partnerships. The most appropriate one for you business will depend on your circumstances. The three most common business structures are:

shaking hands

  • Business Partnerships
  • Sole Traders
  • Companies

Many people starting a small business will set up a Business Partnership or as a Sole Trader. The biggest difference is that a Sole Trader is solely responsible for the decision making in the business while a Business Partnership will involve collaboration for decision making.

Get expert legal advice

At Rose Lawyers, we have extensive knowledge of business law and experience helping business owners with the legal needs. We can help you through the process of setting up a Business Partnership.

For more advice on starting your business, call Rose Lawyers on 03 9878 5222.


What Does A Business Lawyer Do?

Business lawyers provide invaluable services to small and medium sized business. If you’re a business owner, find out how the services of a business lawyer can help you.

What does a business lawyer do?

Business lawyers are lawyers who specialise in all legal matters that are business related, including contracts, commercial leases, business structure advice, buying and selling a business, and more.

A business lawyer will help you with any legal matters your business faces.

How a business lawyer can help you

More often than not, business owners who try to handle their own legal matters make mistakes that can be very costly.

Whatever legal matters your business needs help with, the best way to get things done properly is to use the services of a business lawyer. Some common mistakes made by business owners who try to do everything themselves include:

  • Forgetting to transfer a liquor license or initiating a health inspection prior to settlement.
  • Being unable to prepare or check the pre-settlement documents.
  • Setting up an inappropriate business structure.
  • Signing something detrimental to your business.

Your business lawyer can help you with all of these matters and anything else that is related to your business.

What does a business lawyer do handsFinding a business lawyer

Many business owners choose to use the same lawyer for all the business needs over many years. A lawyer who is familiar with your business can prepare documents faster and tailor them to your needs, saving you time and money.

Establishing a rapport with your lawyer is very important as you both need to be on the same page. This can make it difficult to find a lawyer who is the right fit for you and your business, but there’s no harm in shopping around when you’re looking for a business lawyer.


Rose Lawyers

Here at Rose Lawyers, we have a great deal of experience with all areas of business law.

We work with our clients to ensure their business interests are protected.

For help with any legal matters related to your business, call Rose Lawyers on 03 9878 5222.


When Do I Need A Will?

If you’re wondering “when do I need a Will?” or “what age do people get a Will?” then chances are you already need one. Preparing a Will ensures that your property and assets will be distributed in the manner of your choosing and you’ll likely make the process a lot easier for your loved ones.

Now is the time to start organising your Will. As the saying goes: “the best time to plant a tree was ten years ago, the second best time is right now.”

What age do people get a will?

generation of familyThere is no particular age at which people need to have a Will. Anyone over the age of 18 can have a Will and, in many cases, people put off writing a Will for far too long.

Once you have children, it’s absolutely essential that you have a Will. Even without kids, you need to have a will if you have assets that you wish to distribute in a particular way.

People are often prompted to write a Will after someone close to them has passed away, especially when they have to deal with the estate personally. But there’s no need to put off creating a Will until a significant event happens in your life, it’s always better to organise your Will sooner rather than later.

What happens if you don’t have a Will?

If you die without having prepared a Will, then your property and assets will be distributed according to the laws of intestacy. This means that your assets may not go to the people that you want them to.

For example, most spousal couples choose to leave everything to their partner and then the last surviving partner will leave the assets to any children you and your partner have. However, if you die without a Will, your partner may not receive your entire estate. Under the laws of intestacy, your partner will receive the first $100,000 of your estate and one-third of everything after that. The rest of the estate is then distributed to your children.

Not only that, but you will have no control over who gets specific items. You may have sentimental belongings that you want that you want to leave to particular people after you pass away. Having a written Will is the only way to guarantee that people will receive the items you want them to.

Common misconceptions about Wills

Many people have misconceptions about making a Will, and these are some of the reasons that people put off doing it. Some common misconception are:

  • An executor cannot be a beneficiary – This is a common myth, but it is not true. The executor is the person who carries out your final wishes and is responsible for distributing assets, but they can be a beneficiary and receive assets as well.
  • Writing a Will is ‘tempting fate’ – Many people are superstitious about creating a Will and think that it might be unlucky. But a Will really is just a practical document to have in place, and we’ve never had a client die from making a Will.
  • You should distribute your assets a certain way – People may think that there is a certain way that you are supposed to write your Will, but this is not true. You can and should distribute your hard-earned assets in the way that seems the most appropriate to you.

If you have any questions or concerns about writing a Will, the best thing you can do is talk to a lawyer to get all the information and help you need.

looking at financial assets

Other types of Wills

Get in touch with a lawyer for more information about your options.

Get the help of a lawyer

A good lawyer can guide you through the whole process of creating a Will and advise you on the type of Will that best suits your needs.

At Rose Lawyers, we can help you phrase your Will in the correct way to ensure your wishes are carried out and not misinterpreted. While it’s impossible to rule out someone challenging your Will, we can help make sure that any potential challenges are much less likely to be successful.

For help with your Will, call Rose Lawyers on 03 9878 5222.


Property Settlement After A Relationship Breakdown

People often search for “divorce lawyers for men” and “divorce lawyers for women” because they’re concerned about how the court is going to treat their case based on their gender.

Men are often concerned that their ex-partner is going to take them for half of everything they own while women may fear that their contributions to the home and family will be overlooked. In reality, the Courts consider a huge number of factors when determining how to divide marital property.

Ideally, both party will get everything that they’re entitled to when they go through a divorce. It may require compromises from both sides and legal assistances, but hopefully, everyone can come to an amicable agreement in the end.

Here is an introduction to how property is divided in a property settlement and the things that a Court will consider.

Consider your options

When you separate from your spouse or partner, there are a few different ways that you can divide your property.

There are three main ways to determine who gets what in a divorce. These are:

  1. Come to an agreement – The best option is always to come to an agreement with your former partner. This can be difficult and will require compromise and understanding from both sides, but it is by far the cheapest and fastest option. Once you have come to an agreement, you can have it formalised with a Binding Financial Agreement or Consent Orders.
  2. Get help through mediation – If you are unable to come to an agreement on your own, you and your ex-partner can attend mediation or family dispute resolution. These services can be very helpful in facilitating communication and allowing both parties to have their voices heard.
  3. Go through the Courts – Seeking property orders through the Family or Federal Circuit Court is the next option if you still cannot come to an agreement with your ex-partner. Every case is different, and the judge will consider all of the relevant information and evidence when they are deciding on a fair and just way of dividing assets.

It is always a good idea to consult with a divorce lawyer so that you understand your options and get legal support throughout the process.

What will the Court consider?

There are many different things that will impact how a judge will divide relationship assets during a property settlement; it’s not as simple as just dividing everything in half.

The goal of the Courts will be to determine a fair and just way of dividing the assets. To do this, they will consider the following:

1. The length of the relationship

The length of the relationship is very important. Is this a thirty-year relationship where the parties now have three adult children and perhaps grandchildren? Or is this a year-long relationship where the parties may have been dating longer, but have only been in cohabitation for a short period?

A long relationship where the parties are ending in similar positions may result in a fairly even split. On the other hand, a short relationship may result in each party retaining the assets they brought into the relationship and any joint assets divided evenly.

2. Contributions made by each partner

stay at home mother with babyThe Court will consider both the financial and non-financial contributions made by each partner to the family, generally speaking, most people give varying percentages of both contributions. This is often a concern for people looking for divorce lawyers for women and divorce lawyers for men since nobody wants to have their contributions overlooked.

This means that a person who has worked very hard to provide for the family financially will have their efforts taken into account. People who have stayed at home during a relationship and looked after children, cleaned, cooked and shopped for the family will have their efforts considered as well.

3. Future earning capacity and financial needs of each partner

A person’s age and future earning capacity is another factor that the Court will consider. Where one partner is substantially older than the other, it will be taken into account that you may be past retirement age and unlikely to get a job or work much longer. You are also likely to have more medical expenses in the foreseeable future.

This also applies to a younger partner if it is agreed that you will have the care and control of the children. When this is the case, the first time you will have an opportunity for full-time work or study may not be until your youngest is at High School. The Court will recognise that your earning capacity is decreased.

Health is another factor that impacts future earning capacity. What if one partner has a disability or is in poor health? This may affect their earning capacity, or mean that they have ongoing medical expenses.

4. The finances of each partner

The financial position of each party is also considered. Does one party have large amounts of wealth in superannuation, savings, and shares? Does one party have an inheritance that they have maintained entirely separately from the family? Is one party earning enough to pay tax at the maximum rate while the other party earns close to minimum wage?

Divorce lawyers for women and divorce lawyers for men will both represent their clients diligently and protect their interests.

What does this mean for you?

Every relationship is different, and so the way in which relationship assets are divided in your case will depend on the unique facts about your situation.

Getting expert legal advice is essential so that you can protect your interests during a property settlement. At Rose Lawyer, we have the experience, expertise, and understanding to handling your case. Whether you’re looking for divorce lawyers for men or divorce lawyers for women, we can help you.

For advice on property settlement for your case, call Rose Lawyers on 03 9878 5222.


What Happens To Superannuation In A Separation?

Saving for retirement should be a priority for all working Australians. Everyone wants to be able to maintain their lifestyle and enjoy their retirement. That’s why superannuation is one of the most important assets you can have.

That’s also why superannuation is often one of the biggest concerns that people have when they go through a separation.

Here is an introduction to how your superannuation is treated during a divorce and what can happen to it.

What happens to superannuation after a break up?

Superannuation is treated as part of the pool of marital assets that get divided during the property settlement.

Your superannuation may be a significant portion of your assets and, especially as people approach retirement, it is one of the most sought after assets. For this reason, it is common for a separating couple not to agree about how the superannuation and other assets should be divided.

Depending on your situation, you may need to seek advice from experts in taxation law, property law and accountancy.

What will be taken into consideration?

There are many relevant factors that will need to be taken into consideration when trying to work out a settlement.

  1. The amount of property that each party brought to the relationship.
  2. The superannuation held by each party at the start of the relationship.
  3. The property and superannuation interests held now.
  4. The contributions, both direct and indirect, which may have been made by either party during the term of the relationship.
  5. The expenditure made on behalf of either party during the term of the relationship.
  6. The obligations and responsibility of either party to any member of the family during the period of the relationship. This includes the capacity of homemaker or parent.
  7. The length of the relationship.

middle aged male cutting vegetablesThis information will be used to determine a way of splitting the superannuation in a fair and reasonable manner.

If you are able to come to an agreement with your former spouse or partner on how to split the super, then you can enter into a formal written agreement or seek Consent Orders from the Court. If you cannot agree with your former spouse or partner, then the matter will be heard before the Court.

How are marital assets divided?

If you cannot agree on how to divide your superannuation, then the process for dividing them will be much the same as that for dividing the other assets of the relationship. Although it is almost always cheaper and less stressful to come to an agreement with your former spouse or partner without going through the Courts.

Typically, you will need to attend family dispute resolution before getting property and financial orders through the Family Court or Federal Circuit. Following this, the Court will decide how to divide the assets of the relationship in a way that is just and equitable based on the evidence and unique facts about your case.

There are also some factors that are specific to superannuation that the Court will take into account. These include:

  • Whether or not you or your former spouse or partner have already retired.
  • The value of each person’s superannuation.
  • How other assets are divided, for examples, the family home.

The way in which your superannuation will be divided will depend on your situation and circumstances. Always get professional legal advice for more information about how the law applies to your situation.

Get expert legal and financial advice

middle aged woman with coffeeGoing through a separation is never easy. It can be devastating emotionally and financially. So if you separate from your spouse or partner, you need to make sure that all of your financial assets are protected so that you can enjoy your retirement.

The best way to do this is to seek expert legal and financial advice. At Rose Lawyers, we will advise you on all your legal options so that you can secure your retirement. Our family lawyers will make sure that your legal and financial interests are protected.

For more information about your options, call Rose Lawyers on 03 9878 5222.


Should You Use A Testamentary Trust Will?

Ensuring that your assets are going to be protected when you’re no longer around is an important concern for many people. Protecting your estate is one of the few things you can do to provide for your loved ones after you’re gone.

Using a Testamentary Trust Will is more complicated than an ordinary Will, but there are many benefits that your beneficiaries can take advantage of.

Here is an introduction to the features and benefits of using a Testamentary Trust Will.

What is a Testamentary Trust Will?

A Testamentary Trust Will is a type of Will that establishes a Trust or Trusts upon the death of the testator. They are designed to protect the deceased’s assets because they belong to the Trust rather than any individual. This allows flexibility for how capital and income generated by those assets is distributed.

The Trustees who decide how the income is distributed can also be beneficiaries of the Trust. However, the Trustees must act in accordance with the provisions set out in the Will for how the Trust is to be managed.

Why choose a Testamentary Trust Will?

Testamentary will mother at homeThere are many potential benefits of using a Testamentary Trust Will. Generally speaking, the Trust is set up to protect the assets that it holds. This is because the assets in the Trust generally cannot be accessed by creditors, divorcing partners, and even the beneficiaries in some cases.

The Trustee or Trustees can also choose to distribute the income generated by the Trust in a way that minimises the tax burden of the beneficiaries. Depending on the assets, a Testamentary Trust can potentially save tens or even hundreds of thousands of dollars over its lifetime.

How does it work?

There are several ways in which a Testamentary Trust can provide savings and protection to the beneficiaries. These include:

Tax Flexibility – The Trustee or Trustees can distribute the income from the Trust in a way that minimises the tax burden on the beneficiaries.

Unlike a Discretionary Trust, children under the age of 18 are eligible for tax concessions for the income they receive from a Testamentary Trust. This means they are taxed at the same rate as they would be for employment income.

Asset protection – If any of the beneficiaries have financial problems, the funds in the Trust cannot be accessed by creditors since the assets belong to Trust rather than the individuals.

As the law currently stands, spouses and partners are also unable to make a claim on the assets held in the Trust during the property settlement after separation.

Capital gains tax – When property is inherited through a standard Will, capital gains tax is payable either two years after Probate of the Will, if the deceased lived in that property, or when the property is sold, if it was an investment property.

property melbourne inheritance

If the property is held by a Testamentary Trust, then the capital gains tax can be spread out to minimise the tax in a manner similar to how the income is spread to minimise tax.

Get expert legal advice

When it comes to protecting your assets and making provisions for your loved ones, it’s essential that you get all the details right.

A Testamentary Trust Will is more complex than an simple Will, and there are more things that can go wrong if there are any mistakes in it. You need to select your Trustee or Trustees carefully and ensure that your wishes are followed.

At Rose Lawyers, we can help you through every step of the process. Our Will and Estate lawyers will help you consider all your options while setting up your Testamentary Trust Will; we’ve been doing just that for our clients for many years.

For help setting up your Testamentary Trust Will, call Rose Lawyers on 03 9878 5222.


What Happens To Your Inheritance If You Get Separated?

Whether you’re married or in a de facto relationship, separating from your partner is never easy. And when it comes to dividing the property and assets, things can go from bad to worse.

Everyone wants to protect their own interests, so disagreements about how to divide assets occur very often. When you have property that you wish to keep, such as an inheritance you have received, you need to know where you stand legally.

Every case is different, but here is our guide to what can happen to your inheritance when you separate from your partner or spouse.

Can you keep your inheritance if you get divorced?

It is possible that you will be able to keep inheritance that you received while married when you get divorced, but it will depend on your circumstances.

One way you can keep your inheritance is to come to an amicable agreement with your former spouse about how to divide the marital assets. This will likely require some negotiation and compromise from both parties, and you can formalise the agreement by applying for consent orders through the Family Court or signing a Binding Financial Agreement with lawyers.

If you cannot come to an agreement, then it will be up to the Court to determine whether or not your inheritance is considered part of the pool of marital assets to be divided or whether it is solely your property.

In most cases, only one member of a couple is named as a beneficiary of the Will of the deceased party, who is often a parent or other family member. It is also very common for the funds to be used for the betterment of the family, such as house renovations, holidays or even just bills and household expenses. When this is the case, the Court will often count the inherited asset as a contribution to the marriage made by the person who inherited it, so it would not necessarily be returned to them when the marital assets are divided.

On the other hand, if the beneficiary took steps to quarantine their inheritance from the rest of the family assets, the Court will be more likely to recognise this and allow them to keep the inheritance. This means that the inherited asset can not be used for the betterment of the family, and family assets cannot be used for the betterment or management of the inherited asset.

In the rare case where an inheritance is clearly given to both member of a couple, it is likely that the asset will be part of the general pool of assets to be divided between the parties.

assets house car divided

Is your inheritance part of your marital assets?

Whether the inheritance will be treated as part of your marital assets or separate will depend on your situation. Some of the factors that the Court may consider include:

  • Time since the inheritance – If a long time has passed between the inheritance and the separation, the asset is more likely to be treated as part of the family assets.
  • The intentions of the deceased – If the deceased had specific intentions for how the beneficiary should use the inheritance, then this may be relevant to how to how it is divided. For example, they may have intended the inheritance to benefit the whole family, not just the named beneficiary.
  • Who helped care for the deceased – If the spouse of the beneficiary also helped to care for the deceased, for example if the deceased lived with them, then it’s more likely that the assets will be treated as belonging to the family.

Every case is different, and there may be unique factors in your case that will be taken into account.

How are marital assets divided?


infant in car

Child custody arrangements will be decided by the Court if you cannot agree with your former spouse.

If you and your former spouse cannot agree on how to divide your marital assets, including inheritance you have received, you will normally need to attend family dispute resolution before Court proceedings can take place. Coming to an agreement before going to Court is the best way to minimise the emotional and financial stress involved.

If coming to an agreement is impossible, then you can apply for property orders through the Courts. There is no formula for how a judge will decide to divide the asset; they will decide what is just and equitable when all the evidence and unique facts about your case have been heard.

If your inheritance was of particular sentimental importance to you, it is possible that the judge will take this into consideration. Some of the other factors they will consider include:

  • Financial contributions to the marriage made by each party, both direct and indirect.
  • The responsibilities each party had for things like childcare and homemaking.
  • The future needs of each party, including age, health, and financial resources.

The financial order that you receive will always depend on your unique circumstances.

Get expert family law advice

Getting advice from a divorce lawyer will ensure that all your legal bases are covered.

At Rose Lawyers, we have decades of experience helping our clients protect their interests when going through a divorce. Our family lawyers will handle your case with the care and sensitivity that it requires.

For expert advice on your divorce and inheritance, call Rose Lawyers on 03 9878 5222.


What Is A Part IV Application?

Contesting a Will is never easy, but sometimes it is necessary. Here is our guide to contesting a Will with a Part IV Application.

What is a Part IV Application?

A Part IV Application is a claim for family provision made against a deceased estate. The name refers to Part IV of the Administration and Probate Act 1958 Victoria.

If you have been left out of somebody’s Will, and you feel that you are entitled to it, then you may be able to make a Part IV Application to receive adequate provision for your proper maintenance and support.

Who is eligible to make a Part IV Application?

In order to dispute an estate with a Part IV Application, you must prove that you are an eligible person in accordance with the Act. Eligibility will depend on your specific circumstances, but eligible people generally include:

  • A spouse, domestic partner, or former spouse in some circumstances.
  • Children, including adopted, step children and someone who believed that they were a child and was treated like a child.
  • Grandchildren in some circumstances.
  • A registered caring partner in some circumstances.

The need for someone to make a Part IV most commonly arises when a child has not been included in a parent’s Will or if one of the beneficiaries is disabled and their carers do not feel that adequate provision has been made for the disabled person.

For example, if three children each receive one-third of their parents’ estate, and one of those children is severely disabled, they may have a claim for a larger portion of the estate than their siblings.

Making a Part IV Application

There are a number of steps involved in making a Part IV Application, and so it is always advised that you seek expert legal advice, especially if you are not familiar with legal terms and documents.

You will need to make an application to the Supreme Court against the executor of the Will, and the matter will then proceed through the usual channels of the Court including mediation to try to resolve the dispute.

A lawyer will be able to help you with the required documentation, including affidavits, as well with other preparations such as calling witnesses. Having a Lawyer there who is an unbiased and independent third party will also assist in helping you stay rational since people are often grieving and emotional at times like this.

What the court will consider

Once you have made your application, there is a large number of issues that the Court will consider in making its decision. One of the biggest considerations for the court is how your claim will affect the amounts that the other beneficiaries will receive.

Some of the other considerations include:

  • The deceased’s Will, if they left one.
  • Evidence of the deceased’s reasons for making their decisions, if any.
  • The nature of your relationship with the deceased, including any obligations or responsibilities.
  • Any obligations or responsibilities the deceased had to other beneficiaries.
  • The size and nature of the estate, including any contribution you made to it.
  • Your financial resources and those of the other beneficiaries.
  • Any special needs that you or the other beneficiaries have.

When deciding on your application, the court will also consider whether the deceased had a moral duty to provide for you. For example, if you are financially independent and stable, then the court may find that the deceased did not have a moral duty to provide for you since you can provide for yourself.

Get expert legal advice

getting legal advice on phoneThe services of expert will and estate lawyers will ensure that your Part IV Application goes as smoothly as possible.

At Rose Lawyers, we have been helping our clients through difficult times and circumstances for decades. We will handle your matter with the sensitivity and care that it needs.

For assistance with your Part IV Application, call Rose Lawyers on 03 9878 5222.


What Happens When You Default On A Loan And Have A Guarantor?

A loan is a large and important financial commitment. When you are unable to continue meeting that commitment, there can be significant ramifications.

If you have needed a guarantor to get your loan approved, then defaulting will become even more difficult and stressful. Guarantors are often trusted family or friends, so you need to consider the best course of action for both yourself and your guarantor.

Here is our advice for dealing with a default with a guarantor.

What do you need to do first?

If you think you are going to default on a loan that has been guaranteed, you need to contact your lender immediately.

By contacting them, you may be able to make some kind of arrangement so that the guarantee is not utilised and protect your guarantor from the financial ramifications of your default.

The arrangement that you come to with the lender will depend on your circumstances and the type of lender. For example, banks commonly have hardship applications that allow you to change the amount, or the frequency of payments when you fall into times of hardship.

What are your options when you default with a guarantor?

Depending on your circumstances you may have a few options for how to proceed that will help you to protect your finances and those of your guarantor.

Hardship applications

If you are experiencing financial or other hardship, you can apply for a hardship variation to have your loan repayments reduced or deferred. Hardship circumstances include:

  • Illness
  • Unemployment
  • Changed financial circumstances

If you meet your bank’s requirements for a hardship variation, they can change your payments so that you are able to keep paying for your loan. The hardship variation could be that the loan is extended over a longer period so that the repayments are smaller, the payments could be postponed for an agreed upon period, or some other arrangement can be made.

If your application is rejected, the bank must give you a reason why. If you are unhappy with the reason, you can speak to their internal complaints department. You can also refer the matter to the bank’s external dispute resolution scheme or the Financial Services Ombudsman, if necessary.

Sell the property

If you are in such hardship that you are not able to recover and will not be able to repay the loan, then the best course of action is usually to initiate proceedings to sell your property.

The bank may be amicable to waiting for the property to sell instead of foreclosing on it, provided that you keep them informed of what is happening and do not unnecessarily delay the sale or settlement. However, the bank is usually under no obligation to do so, in accordance with the Guarantee that you have signed.

Another advantage of this is that you will likely be able to put more effort into selling the property than the bank will, so you may be able to get a better price that way.

Advice for guarantors

If you have guaranteed a loan for someone and it looks like they are going to default on it, you need to seek expert legal advice so that you can protect your interests.

It is likely that the bank will bankrupt the borrower if they are unable to repay the loan, and they will need to sell the property to pay off the bank. If there are insufficient funds from the sale of the property, then the house or property that you used to secure the loan may also need to be sold.

Because of the seriousness of a default with a guarantor, it is essential that you get expert legal advice before agreeing to guarantee a loan so that you fully understand the risks.

Getting help from a lawyer

Whether you are the borrower or the guarantor, it is essential that you get expert legal advice in the event of a default on a loan.

If you are the borrower, a Lawyer can assist in communicating with the lender. They will have a clear understanding of your options and will be able to guide you through the process. A lawyer will also be calm and rational in what is likely a time of great emotional distress for you.

At Rose Lawyers, we will handle your case with the expertise that comes with our decades of experience in property law matters. We will guide you through every step of the process and ensure that your interests are protected.

For expert advice for your situation, call Rose Lawyers on 03 9878 5222


Checklist For Lodging A Survivorship Application

Whether they are a family member or a business partner, the death of someone with whom you jointly own property is a difficult time. You will likely have a lot on your plate, and filling out legal paperwork is just one of the many things you need to deal with.

That why it’s important that you don’t overlook the survivorship application while you’re busy with any other arrangements that you may need to make.

Here is our advice to make this process as easy for you as possible so that you have more time for the important things.

What is a survivorship application?

A survivorship application transfers the ownership of property from joint parties to the remaining joint parties, or a single party, when one of the owners has passed away.

When property is jointly owned, ownership automatically transfers to the surviving party, but a survivorship application is required to amend the title so that only the surviving party is listed as the owner. This means that a survivorship application is not affected by the deceased’s will.

Survivorship application checklist

While the process for lodging a survivorship application is fairly straightforward, legal paperwork is probably the last thing you want to think about after experiencing a loss.

There are quite a few documents that you need to get in order so that you can submit your survivorship application. Here is a checklist of the documents you need to, hopefully, make process as easy for you as possible:

  • Provide a copy of the death certificate.
  • Complete a statutory declaration.
  • Fill out a confirmation of citizenship form, Form 62.
  • Complete a notice of acquisition.
  • Submit the survivorship application along with all of the above supporting documents.

You must sign all of these documents and lodge them at the Land Titles Office together with the original title. After the application, the title will be issued solely in your name as the surviving proprietor or in multiple names if there are multiple surviving proprietors. You may also need to notify the rating authorities that the ownership has changed.

australian home facade street view

Financial and tax implications

Each owner in a partnership is responsible for the capital gains tax for their portion of the property. This means that after a survivorship application has been completed, your tax responsibility will also have changed.

If you are unsure of what your tax responsibilities are after ownership of the shared property becomes solely yours, then you should seek the advice of an accountant or financial expert.

Simplify the survivorship application process

When you’re going through the loss of someone with whom you jointly owned property, you’ll want the survivorship application to be as easy as possible.

Engaging the services of estate lawyers for your application will allow you to focus your time and energy on other things. This may also save you a great deal of stress if you are unfamiliar with the legal terminology and documentation that is required.

At Rose Lawyers, we will handle your survivorship application with care and sensitivity. We are experts in survivorship law and have a great of experience with will and estate matters, and helping our clients through tough times.

For help with your survivorship application, call Rose Lawyers on 03 9878 5222.


Legal Advice For Property Subdivision In Victoria

Subdividing a property can be an excellent investment strategy, no matter what the scale of your planned development is. Whether you’re planning to build two homes and sell one or you’re planning a large-scale development, it’s essential that you get expert legal advice.

To get the most out of your investment, you’ll want everything to go as smoothly as possible. Your lawyer will guide you through the process and help you understand everything from your legal obligations to how to secure road access.

Here is our advice on property subdivision in Victoria and how a lawyer can help you.

What you need to consider

Subdividing your property can be very complex, there are a large number of variables that you need to consider before you begin the process. Understanding these details will give you a much better idea of how you should proceed with your subdivision.

Some of the questions that you will need to answer include:

  • Are there any state or local planning policy implications that could impact on your proposal for subdivision?
  • Can the proposed new lots be appropriately serviced by utilities and other infrastructure?
  • Can the land sustain the increased intensity of use or development following the subdivision?
  • How does the subdivision relate to and affect existing building?

rebuilding property in subdivision

It is essential that you know the answers to these questions before you begin the subdivision process. That way you can be sure that the development you’re planning will be appropriate for the land.

Understanding the applications and permits

Property subdivision laws are quite complex as there are a number of applications, permits, and documents involved.

Subdividing a property requires an application to Land Victoria under Section 22 of the Subdivision Act 1988. You will also need to obtain a planning permit from the local council for any proposed developments that you wish to undertake during and after the subdivision.

It is also likely that any restrictions or ongoing requirements by the council for the use and development of the land will be included in a Section 173 Agreement. This will ensure compliance with the conditions attached to the planning permit and will be binding on you and all subsequent owners of the property.

Common mistakes to avoid

looking at house plans on tabletIf you are a first-time developer or are unfamiliar with the subdivision process, then you need to make sure you avoid some of the mistakes that people often make.

Some common mistakes that you should avoid include:

  • Losing track of deadlines imposed by the council and letting permits lapse.
  • Confusing the subdivision process with the building and construction of the property.
  • Underestimating the scale of the job and trying to be the project manager for the entire development.

These mistakes can all be avoided with careful planning and expert legal advice from a subdivision lawyer.

How a subdivision lawyer can help

The applications and documents required for subdivision and planning permission can be very complex and confusing, especially if you are not familiar with the process. A lawyer can prepare and submit the subdivision application on your behalf and liaise with your surveyor to obtain the appropriate surveys.

Your lawyer will also be able to assist in obtaining the bank’s consent to the subdivision if there is an existing mortgage, and they can request that the bank make the original title available at the Land Titles Office to facilitate the subdivision application. Your lawyers can also help you in the negotiation process with the council and local authorities.

Get expert property law advice from Rose Lawyers.

At Rose Lawyers, we have been helping our clients with property law matters for over 35 years. We will guide through every step of the subdivision process to ensure that your development goes smoothly.

For expert property law and subdivision advice, call Rose Lawyers on 03 9878 5222.


What Is A Section 173 Agreement?

People often believe that ‘my home is my castle’, and that they can do whatever they want with their property. However, this usually is not the case.

Owning a piece of land typically comes with restrictions on what you can and cannot do with it, from what kind of developments you can build to the activities undertaken therein. Some of these restrictions are found in a Section 173 Agreement.

Here is an introduction to what a Section 173 Agreement is and what restriction they can place on your property.

What is a Section 173 Agreement?

A Section 173

A Section 173 places restrictions on how you can use the land.

A Section 173 Agreement is a Contract between the Council and a landowner that places restrictions on how you can use the land.

These agreements are named after Section 173 of the Planning and Environment Act 1987.

Section 173 Agreements tend to guide the character and development of a neighbourhood. They are also intended to ensure compliance with conditions contained in permits granted by the Council and are often used in subdivision matters.

The agreements are usually made between the Council and a landowner. However, this is not always the case, as sometimes a third party may be involved.

Generally speaking, however, when people obtain a permit they may also be required to enter into a Section 173 Agreement that provides continuous restrictions or ongoing requirements on the use or development of the land.

Section 173 Agreements tend to guide the character and development of a neighbourhood.

Common restriction of a Section 173 Agreement

Section 173 restrictions

Section 173 Agreements require you to adhere to specific building and landscaping restrictions.

A Section 173 Agreement must be entered into if and when required by the Council. The agreement binds you and all subsequent landowners until it ends after a specified event or time period outlined in the agreement.

It may require you to adhere to specific building requirements and restrictions that are meant to maintain the style or character of the area.

This can also include requirements for landscaping and the retaining, maintenance and prohibition of certain trees or plants.

Some common restriction included in a Section 173 Agreements include:

  • Preventing further subdivision of the land.
  • Continual monitoring or reporting on the activity undertaken on the land.
  • Making monetary contributions for road construction.

Section 173 disputes

Section 173 disputes

Both Landowners and the Council must agree to any changes made to a Section 173.

Since the Section 173 Agreement is a contract between the Council and a Landowner, all parties must consent for any changes to be made to it.

This means that if you do not agree with the terms of the agreement, you will need to make an application to the Council. Different Councils may have different processes for making amendments to Section 173 Agreements.

If you cannot come to an agreement with the Council on amending the agreement, you can seek a review of the decision, usually done through VCAT.


If you don’t agree with a Section 173, you will need to make an application to the Council.

Section 173 legal advice

Section 173 advice

If you want to negotiate the terms of a Section 173, a lawyer can help.

Depending on how your local Council operates, they may or may not provide a template for a Section 173 Agreement.

If they do not provide a template, having a Lawyer can help you get it right the first time which will reduce cost and stress involved in the process.

A lawyer will be able to help with drafting and negotiating the terms of the agreement, as well as in the review process with VCAT where applicable.

If you are working from the Council’s template agreement, it helps to have your lawyer review this as well since every property matter will be different.

Get expert advice from Rose Lawyers

Rose Lawyer and Conveyancers are experts in all types of property matters. Whether you need a Section 173 Agreement because of a subdivision or you want to amend the agreement for a property you have purchased, Rose Lawyers can help you out.

We have helped have helped a large number of clients navigate complex legal situations in over 35 years of practising.

For help with your Section 173 Agreement or any other property matter, call Rose Lawyers on 03 9878 5222.


What Is A Section 103 Application?

One of the most important documents you can possess is the Certificate of Title for your property. That’s why it’s essential that all the details on the title are correct and accurate.

If there are any mistakes on your title, you may need to complete a Section 103 Application, but unless you’re very familiar with property law, you may be asking “what is a Section 103?”

This is an introduction into what a Section 103 is and when you may need one.

What is a Section 103?

‘Section 103’ refers to that section of the Transfer of Land Act 1958 (Victoria). Section 103 is the part of the act that provides for the correction of errors on a property title.

A Section 103 Application allows you to apply to amend a Certificate of Title to correct any mistakes. For example, a mistake could have been made by a surveyor in the past causing the measurements on your title to be incorrect. Another possible mistake could be typos or misspellings in the document, such as a name being spelled incorrectly.

In these cases, a Section 103 Application would be required to correct the mistakes and re-establish the correct property boundaries on the title.

Why do you need to fix errors on your property title?

Errors on your property title could become very costly. If the boundary on your title is incorrect and smaller than the correct boundary, this can significantly reduce the value of your property since it may make your property appear to be smaller than it really is.

The boundary of your property, as written on the title, will also be extremely important in the event of an adverse possession dispute. If there is a mistake on your property title, you may have great difficulty in proving that a portion of the property rightfully belongs to you.

Any errors in the spelling of your name, or other errors generally in the title could also cause complications if you wish to sell or transfer your property in the future.

What is the Section 103 Application process?

looking at land plans

People commonly find out about a mistake on their title after a surveyor has inspected the property, or they see a mistake or spelling error upon reading the title. Once you have found out that there is an error on your property title, you will need to complete a Section 103 Application.

You will need the services of a property lawyer in order to complete a Section 103 Application. Your lawyer will be able to guide through the process and explain each step to you. The application itself will require very specific supporting documents which a property lawyer will be aware of.

Your Section 103 Application may require working closely with a surveyor as well as investigating when and how the original mistake on the title was made. This requires a technical understanding of property law and all of the documentation that is required.

Get advice from a property law expert

Property law can be very complicated, especially when property boundaries and title documents are involved. A skilled property lawyer or conveyancer will ensure that your Section 103 Application goes smoothly.

At Rose Lawyers, we have over 35 years of experience in dealing with property law issues. We can help you with your Section 103 Application and ensure that every aspect of your title is correct.

For help with your Section 103 Application, call Rose Lawyers on 03 9878 5222.


Section 52 Disputes And Advice

When you buy a small business, you need to know exactly what it is you’re paying for and what it’s worth. This information is disclosed in the Section 52 Statement.

A Section 52 Statement, also known as a Statement by a Vendor of a Small Business, is a document that the vendor must provide to the purchaser in the sale of a small business. It discloses all of the relevant financial information about the business.

Anyone selling a small business must provide the purchaser with a Section 52 Statement. If you fail to do so, then the purchaser has the right to void the contract within three months of signing it, provided that they have not already taken possession of the business.

With that in mind, here are two Section 52 examples with some common mistakes that you’ll want to avoid.

What happens when there is no Section 52 Statement?

“The purchaser wants the contract cancelled because there was no Section 52.”

business owners

Case study:

“My partner and I recently sold our business. We didn’t know we had to supply a Section 52 and failed to prepare the statement, although I believe all the facts about our trading were supplied.

The purchaser signed the contract and took possession of the business and commenced trading six months ago. The business was sold under vendor terms over four years, for a total of $100,000. The purchaser paid two payments and refused to continue payments as per the contract. The purchaser wants the contract cancelled because there was no Section 52. She is also that demanding her monies be refunded.

The purchaser is still in possession of the business and all its assets, and they are still trading. We are attempting to resolve the dispute, but the purchaser is stalling mediation. I know we didn’t provide the Section 52, but the purchaser has now stolen the entire business and wants to be repaid. What can we do?”

What happens when the Section 52 Statement is inaccurate?

“Not only was the business not as profitable as the Section 52 Statement made it out to be, but their plant and equipment were not as valuable as they claimed.”

inspecting equipment

Case study:

“I recently purchased a business, and now I need to cancel the contract. The vendor provided a Section 52 Statement, and the business seemed to be doing very well. However, upon performing our due diligence, we found that the statement they provided was inaccurate.

Not only was the business not as profitable as the Section 52 Statement made it out to be, but their plant and equipment were not as valuable as they claimed. Much of their equipment was outdated or in poor condition.

It has been less than three months since I signed the contract and I wish to cancel it. However, the vendor is claiming that their Section 52 Statement is accurate and that I have no right to cancel the contract. I have already made the first payment and they are refusing to refund me. What are my options?”


Get all the details right when you buy or sell a business

It’s essential that you get expert legal advice when you buy or sell a business. Getting the details rights can help you avoid the problems that others have experienced in these Section 52 examples.

Buying or selling a business is one of the largest financial agreements that you can make, so you must ensure that your interests are protected.

The talented business lawyers at Rose Lawyers can guide you through every step of buying or selling a business. We will ensure that all of the necessary documents have been provided and are correct.

For expert advice when you buy or sell a business, call Rose Lawyers on 03 9878 5222.


What Is A Disability Trust Will?

Taking care of a family member with a severe disability is a primary concern for many Australians. For some people, it even requires providing around the clock care.

No matter what the details of your situation are, you need to make provisions for the care of your disabled loved one after you pass away. If your family member is dependent upon you for their care, you need to ensure that they will be well looked after if you’re not around.

Making preparations well in advance will give you peace of mind, knowing that your loved will have access to all the care and services that they need when you’re no longer able to help them.

What is a Special Disability Trust Will?

disabled child and sisterA Special Disability Trust Will allows your disabled beneficiary to receive their inheritance from you without it affecting their income support payment, such as a disability support pension, or their health care card. On your death, the Will sets up a trust that will receive the funds you are leaving to your beneficiary and can pay for their care throughout their lifetime.

Any inheritance you leave to a disabled beneficiary under the terms of a standard Will has the potential to affect means tested benefits that they receive, such as their pension and health care card. This is why people choose to make provisions for their disabled family members in the form of a Special Disability Trust Will.

How it works

The Trust allows a disabled person to receive a set amount of funds indexed annually to pay for their care, including their accommodation, medical expenses, and private health fund membership. This means that the beneficiary will still be able to receive income support and use their health care card, potentially saving them hundreds of thousands of dollars over their lifetime.

The Trust can also pay for discretionary items not related to the care and accommodation needs of the beneficiary, up to ten thousand dollars in a financial year. For example, the trust can pay for items to improve the beneficiary’s health, wellbeing, recreation, independence, and social inclusion.

Some of the advantages of a Special Disability Trust include:

  • Means test concessions – As of 1 June 2016 the trust, the Trust can hold assets worth up to $626,000, indexed annually, without impacting on the beneficiary’s income support.
  • Maintenance and expenses of Trust properties – The trust can be used to pay for the maintenance and expenses of the Trust’s property.

Setting up a Special Disability Trust Will

family with disabled siblingYou can set up a Special Disability Trust Will in the same way that you give instructions for a standard Will. Your lawyer will walk you through the process and tell you what information they require in order to create all the necessary documents. At the time of your death, the Will document itself sets up the Special Disability Trust via its Trust Deed.

You should always use the services of a lawyer when creating or changing a standard Will, so getting the help of a lawyer is even more important when you need to set up a Special Disability Trust Will. The necessary documents can be very complex and confusing, and require an understanding of technical legal terms.

If you do not get the services of a Lawyer, you run the risk of the Trust not being set up properly and your disabled beneficiary losing their pension and their health care card.

Get advice from expert Family and Will Lawyers

At Rose Lawyers, we have over 35 years of experience in helping people with their Will and Estate matters. We understand how important providing for your disabled family member is to you, and we can help you put all the necessary provisions in place.

We handle these delicate legal matters with sensitivity and care.

For lawyers you can trust to handle your Special Disability Trust Will, call Rose Lawyers on 03 9878 5222.


How To Transfer A Commercial Lease

Your commercial lease is one of the most important documents in your business life. It’s also one of the largest financial commits you can make, so it’s essential that all the details are correct.

When you buy, sell or transfer ownership of a business, you need to make sure that the business ownership, commercial lease, and all other important documents are transferred properly. Otherwise, you could find yourself financially and legally responsible for someone else’s commercial lease.

Buying, selling or transferring a business

There are a number of different circumstances that might require you to transfer a commercial lease. Most commonly, this will be when you buy or sell a business that is operating from premises that are leased. Obviously, when a business changes hands through a purchase or sale, the lease needs to be in the name of the new tenant.

There are also times when you will need to transfer the lease when the business is not bought or sold. For example, if one or more of the business owners is leaving the business. If the intention is that the person who runs the business is also the leaseholder, then you must always ensure that the legal responsibilities for the lease are transferred correctly so that this is the case.

Why you need to transfer the lease

As a general rule, you should transfer the commercial lease whenever there is a change in the ownership of the business. This is just as important whether you are the new or outgoing tenant. If you do not transfer the lease properly, and the person who takes over the business fails to pay the rent for whatever reason, then you will be held liable for it. On the other hand, if you are the new owner and the lease is still in the name of the old owner, you will not have any control over the lease.

Of course, you don’t plan on having any problems when you take over a business, but you still need to be prepared for any eventuality.

lease agreement form

Things you need to look out for

There are a number legal considerations that you need to take into account when you are transferring a commercial lease to ensure that it is done properly.

Things you need to consider include:

  • The disclosure statement – You need to give the appropriate disclosure statement to ensure your liability for the lease is severed.
  • The time remaining on the lease – Whether you are handing over or coming into a lease, you need to consider how well the business is positioned, including the time remaining on the lease. A lease with years left on it may be more desirable than one with only six months left.
  • Other lease details – You should also consider things like whether the lease has an option to renew it, what the rental will be and whether any part of the rental will be conditional on profit or income.

You need to make sure that your decision to take over a business is properly informed, and the terms of the lease will likely influence your decision.

Why you need a lawyer

It is always a good idea to have a lawyer prepare, or at least review, the transfer of lease documents, whether you are the incoming or outgoing tenant. They will be able to make sure that the lease adequately protects your interests. You should also use a lawyer to ensure that the disclosure statement has been prepared correctly and that the right type of disclosure document has been used.

Something that a lawyer will help you with during this process that you might get wrong on your own is making sure the transfer of lease document is executed properly. This will help ensure that the transfer is legally binding on all parties.

Business law experts

Getting expert advice on business law matters will ensure that your interests are protected. Whether you are the incoming or outgoing tenant, you need to make sure that all the documents are correct.

At Rose Lawyers, we have over 35 years of experience with business law matters. We will ensure that your commercial lease transfer goes smoothly.

Get expert advice for all your business matters, call Rose Lawyers on 03 9878 5222.


What Is A Property Guarantee?

Taking out a loan is a very large and important financial commitment, and so is guaranteeing a loan for someone else. There can be significant financial ramifications for people who guarantee a loan for someone else, so it is of vital importance that you fully understand what you’re agreeing to before becoming a guarantor.

What is a property guarantee?

A property guarantee is something that a bank might ask for when someone (the “borrower”) wants to get a loan, usually a mortgage. If you don’t have enough income or cash funds for the bank to be satisfied that you can maintain the loan on your own, they may ask that you get someone else to guarantee the loan.

This means that if the you fail to make a payment or become entirely unable repay the loan, the person who agreed to guarantee for you (the “guarantor”) will become responsible for it. The bank can then chase the guarantor for any outstanding amounts on the loan.

Who guarantees a loan?

guarantor familyIn most cases, the guarantor is a family member of the borrower and the type of loan is either a mortgage or a business loan. This can be a very risky situation because the guarantor might agree to guarantee the loan out of familial obligation rather than doing what is in their best interests financially.

The reality is, people default on their loans sometimes, and nobody plans on that happening. So no matter how much a person thinks that it won’t happen to them, it is still a very real possibility. So it’s extremely important that the guarantor knows exactly what they are getting themselves into.

Understanding the risks

Before agreeing to guarantee a loan, make sure you fully understand all the risks involved. There are a number of details that you may not have considered that can be very important to the outcome of a property guarantee.

Some questions that you need to ask are:

  • What happens if they default on the loan? If the borrower defaults on it, you will become responsible for it as the guarantor. The bank can require you to pay the borrower’s outstanding debts. Depending on the size of the loan, this could be a very large sum. Consider whether you would be in a position to take on the loan yourself if the borrower defaults.
  • Is your property being used as collateral? If your property is being used as collateral for the loan and the borrower defaults, you might find yourself in a situation where the bank or lender has the ability to sell your property to recover the outstanding amount.
  • Will you be liable for an increased loan amount? With some banks, you only guarantee the initial loan amount. But in some cases, the borrower may be able to increase the amount that they have borrowed without your consent or notification, and you would be liable for the increased amount.

locked house

These are just a few of the potential issues that you could have as a guarantor, so it’s imperative that you fully understand all the legal and financial responsibilities and potential repercussions of being a guarantor.

Get expert legal advice before signing a property guarantee

Generally speaking, most banks will require you to get independent legal advice before you become a guarantor for a loan. A lawyer must sign and provide you with a certificate that confirms that you have received legal advice before they will accept you as a guarantor.

Seeking legal advice will allow you to to get answers to all of your questions. Make sure that you know all the possible outcomes of guaranteeing a loan so that you can make an informed decision.

Talk to Rose Lawyers

At Rose Lawyers, we have been advising our clients on the legal risks of all kinds of contracts for over 35 years. We can help you to understand all the potential risks of guaranteeing a loan. You’ll get real advice about your options so that if you do decide to be a guarantor, you’ll be prepared for any eventuality.

Find out everything you need to know about property guarantees, call Rose Lawyers on 03 9878 5222.


What Is Adverse Possession?

Does the physical boundary of your property match up with the title boundary? Making sure that the fence line is where it is supposed to be is an issue that’s potentially worth thousands of dollars. Whether property on your title is being encroached upon by a neighbour’s fence or you believe that you have the right to adversely possess land that isn’t on your title, it’s essential that you protect your interests.

This article will provide you with an overview of what adverse possession is and what is involved in a dispute.

What is adverse possession?

building new fenceAdverse possession is an application made to the Land Titles Office to correct a boundary because the physical boundary is different to the title boundary. When this occurs, it becomes a legal question as to who has the right to own the piece of land that is within the physical boundary but different to the title boundary.

In order for a landowner to lose the right to possess the land that is within another physical boundary, you need to show that you have had an intention to possess the land and uninterrupted possession of that area for a period of at least 15 years. If the land is part of an easement, like a sewer or drainage, the length of time needed to prove adverse possession is increased to 30 years. If the land is owned by the government, then you cannot adversely possess it.

Generally speaking, adverse possession disputes typically involves fence lines. This is because it is difficult to prove that you’ve had exclusive and uninterrupted possession of the land unless the area is fenced off.

How does adverse possession occur?

There are a number of situations that might cause the boundary in use to differ from what’s on the title. Some of these include:

  • Fence line mistake – If a fence has been built in the wrong place, it could be encroaching on somebody else’s land, or it may be that part of an easement has been fenced into somebody’s property.
  • Miscalculated survey – If the survey was misread or miscalculated, there could be a mistake on the title which causes it not to match the boundary in use.
  • Subdivision mistake – If a mistake was made in the subdivision process, there might be part of the land that was never sold.
  • Land that nobody owns – Occasionally, you might find land that has been missed and isn’t owned by anybody. This can happen if different surveyors have measured the land from different points and a portion of land has been overlooked.

What happens in an adverse possession dispute?

Disputes usually occur between neighbours because neither party will want to give up any land that they believe should belong to them. This is because if you are able to increase the size of your property, you’ll also increase its value. Depending on the size of the land in dispute, it could be worth many thousands of dollars to the overall value of the property.

The proceedings of an adverse possession dispute can be very complex and confusing, and require a great deal of paperwork. It is essential that a lawyer or experienced conveyancer helps you with this process as it requires close communication with a surveyor and looking over many old records, including plans of subdivision, plans of consolidation and title plans.

Once it has been discovered who owns the land, the appropriate statutory declarations and application for adverse possession must be prepared in order to proceed with the claim.

houses lined up

Get advice from property law experts

At Rose Lawyers, we have been helping our clients with property law disputes for over 35 years. We have the expertise and the patience to ensure that all legal avenues are explored so that the size and value of your property are protected.

Ensure your property is protected, call Rose Lawyers on 03 9878 5222.


What Type Of Lawyer Do I Need When Going To Court For Criminal Charges?

Criminal law is a very specialised and important area of law. If you are going to court for criminal charges, you could be facing imprisonment or a hefty fine, so getting the right kind of representation is vital for your case.

If you have been charged with an offence or think you are going to be charged, the best thing you can do is speak with a criminal lawyer immediately. They will be able to advise you about your situation and let you know what your next steps should be. The sooner you speak to a lawyer, the better they will be able to help you.

What kind of lawyer do you need?

Theoretically, any lawyer can represent you in a criminal case. A lawyer doesn’t need a different qualification in order to practice criminal law. However, it is important that that are familiar and comfortable with the intricacies of criminal law so that they can represent you effectively. Even if a lawyer has decades of experience, they may not have much, or any, experience with criminal law, so you should always find out exactly how much criminal law experience a lawyer has.

One option is to hire a lawyer who has become an accredited specialist in criminal law. These are lawyers who have a put a great deal of time and effort into focussing on criminal law and have been recognised by the Law Institute of Victoria. If you have been charged with a more serious offence, such as robbery or assault, you may feel more comfortable with an accredited specialist.

australian high court

As long as your lawyer has experience handling criminal law cases, they may not need to have a great deal of litigation experience. They will be able to arrange for a barrister with more experience standing up in court to represent you during the court appearances. It’s possible that this will be more cost effective than your lawyer representing you at the trial since the barrister will likely charge by the day while lawyers usually charge by the hour.

  • What does a criminal lawyer do? A criminal defense lawyer ensures their client is afforded all the protections provided by the law. This involves building a defense, developing a case strategy, investigating and researching the case, negotiating with the prosecution, handling legal motions, and they may represent you in court.
  • What does a barrister do? A barrister is a specialist advocate who has a deep understanding of both the law and the rules of the courts. They can provide expert representation in a court hearing instead of having your criminal lawyer represent you.

Finding your lawyer

litigation lawyer arms folded

The most important thing to keep in mind when you’re trying to find a lawyer is that you need to be able to trust them. Having confidence in their experience and skill will go a long way towards building trust, but it is also very important that you get along with them as an individual as well. You need to believe that they have your best interests in mind and will represent you diligently.

The best way to find out if a lawyer is right for you or not is to talk to them. Some law firms will offer a free consultation for new clients which gives you the opportunity to get to know a lawyer before having to pay for their services.

Get expert advice from Rose Criminal Lawyers

At Rose Lawyers, we have been representing clients who are facing criminal charges for over 35 years. Our criminal litigation lawyers can provide you with advice about the nature of the charges against you and the possible outcomes that you may face. We will represent you diligently and ensure that your interests are protected.

To schedule your free consultation, call Rose Lawyers on 03 9878 5222.


Selecting The Right Family Lawyer

Relationships, children, and finances are a complicated mix. This is what makes family law an area that is best handled with care and sensitivity. Finding the right family lawyer can go a long way to reducing the stress of family law matters, even if times are good.

Whether you need help mediating the breakdown of a marriage, dealing with children’s matters, or setting up a family trust, finding the right family lawyer is essential.

Finding a family lawyer you trust

When looking for a family lawyer, one of the most important factors is whether or not you feel comfortable with them. This may not be your first thought when looking for a family lawyer, but you need to be able to form a strong working relationship with any lawyer. The sensitive nature of family law makes it doubly important that you trust your lawyer and believe that are representing you diligently.

Finding a family lawyer you feel comfortable with can take some time, but you can make it easier for yourself considering a few factors about what kind of person you want to represent you. A lawyer shouldn’t take offense if they are not what you are looking for.

Some factors you should consider are:

  • Age – You may feel more comfortable with a lawyer who is older, younger or similar to your own age.
  • Gender – Depending on your circumstances, you may want either a male or female lawyer to handle your case.
  • Personality – You should get along with your lawyer which means you may want them to have a particular personality type or traits.

A good way to find out if a lawyer is right for you is to have a consultation with them. You can find a law firm that offers free consultations for new clients. This is also a good opportunity to find out about the family lawyer cost.

Experience with family law

family layer meeting familyFamily law is a delicate and specialised area of law, so it’s very important that your lawyer has the necessary experience. They will need to have knowledge of the family law arena as well as how it applies to your particular circumstances. As with any area of law, it is likely that an accredited specialist lawyer will cost more than a lawyer who is not accredited.

When do you need a family lawyer?

There are many services that a family lawyer can help you with. Here are three common examples of how a family lawyer can help you:

  1. At the beginning of a new relationship where one party has significant assets and the other does not. You should engage the services of a family lawyer to prepare a Binding Financial Agreement. This can also be done during and after the relationship.
  2. Your relationship has broken down, and you and your partner have come to an agreement about property settlement. A lawyer can assist you with preparing and submitting Consent Orders to make the agreement legally binding
  3. You have one child who primarily lives with your ex-partner. There are previous Consent Orders in place that give you access to the child every Wednesday and each alternate weekend. Your ex-partner now wants to move to interstate with your child. You should contact a family lawyer for child custody advice and potentially defend the relocation claim brought by your ex-partner.

Meet the Family Lawyers at Rose

Rose Lawyers have many years of experience helping people with their family law matters. Our family lawyers are experts in handling family matters with care and diligence.

For a free family lawyer consultation, call Rose Lawyers on 03 9878 5222.


How To Set Up A Family Trust

Family trusts can provide a great deal of financial benefits, but setting up a family trust is not entirely straightforward. You’ll likely need to seek the advice of a lawyer and an accountant, but this guide will provide you with enough information to get you started.

Family Trust

You’ll also find a glossary of the legal terms at the bottom of this article.

For help setting up your family trust, call Rose Lawyers on 03 9878 5222.

How to set up a family trust

Family trusts are also known as discretionary trusts, Inter Vivos trusts or Living trusts. They are regularly used to hold a family’s business assets.

Their aim is to provide tax protection and asset protection.

There are six steps to setting up a family trust:

  1. Select a trustee – This can be a person, a group of people or private company that has been set up to manage the trust.
  2. Draft the trust deed – This sets out the terms of the trust and will require the help of a lawyer.
  3. Settle the trust – This is done when the settlor signs the trust deed and gives the initial settlement sum.
  4. Sign the trust Deed – The trustee or trustees must agree to the terms of the trust deed and sign it.
  5. Apply for an ABN and a TFN – After the trust has been established these applications must be made.
  6. Open a bank account for the trust – The bank account is usually in the name of the trustee and the bank may require the ABN of the trust before opening the account.

Family trusts are often used to hold a family’s business assets.

Family trust benefits

There are many financial benefits of setting up a family trust. This makes family trusts an attractive option for families who have members with large incomes or own a portfolio of assets, such as company shares.

There are three key benefits of setting up a family trust:

  1. Income tax is paid by the beneficiaries rather than the trust. This means income can be distributed to minimise the overall tax paid.
  2. Trust assets cannot be challenged in the manner that a Will can be challenged.
  3. Family assets are protected, as the liabilities of any member of the family do not have to be paid from the trust assets. Family assets can be passed to any person on the list of beneficiaries or to future generations of those listed as members of the family.

What Type of Family Trust is Right for You?

Family Hybrid Trust

Hybrid trust

A hybrid trust combines the best elements of a discretionary trust and a unit trust. It has both unitholders and discretionary beneficiaries.

The trustee has the discretion to distribute income to Discretionary Beneficiaries. Unit holders have the right to receive any income and capital that has not been distributed to the Discretionary Beneficiaries.

The key benefits of a hybrid trust are:

  • There are no formal audit requirements.
  • You can stream income so that different beneficiaries receive different types of income.
  • The unitholders can claim a deduction for the interest paid on the loan for the monies needed to buy units.
  • The Hybrid trust can be used to give capital gains tax discounts.

Unit Trust

Unit trust

A unit trust is usually used as a business entity.

Unlike a family trust, there is no discretion as to the distribution of income. The income is distributed to Unit holders in the proportion of the Units that are held. Those Units can be held by family trusts, companies or individuals.

Capital is also distributed as a proportion of the Units held against all the Units in the fund.

The key benefits of a unit trust are:

  • The units can be purchased and sold.
  • There is certainty about the entitlement to income and capital from assets held by the trust deed.
  • The trust deed can include mechanisms for the transfer of units and for the determination of the price of Units.
  • Unitholders have a proprietary interest in trust property. They can lodge caveats over land held in the trust.

Glossary of Family Trust Terms

Family Trust Setup

Trust deed – trust is established under the terms of a trust deed which also confirms the powers and the obligations of the trustee of the family trust.

The settlor – This is the person that gives the trustee initial assets to hold on trust under the terms of the trust deed. The settlor rarely has any further involvement in the trust.

The trustee – The trustee holds assets under the terms of the trust deed and manages those assets in accordance with the terms of the deed.

The guardian – This is usually the senior member of the family. This person’s role is to make a change to the trustee if that ever becomes necessary.

The appointor – This is usually the senior member of the family. That person’s role is to direct the trustee as to who should receive the income (or capital) from the trust.

Family trust income – The trustee distributes income from the trust to any person who qualifies as a beneficiary. The distribution is made in a way that minimises taxation.

Rose Lawyers can help you with setting up a family trust

The above information is of a general nature and should not be interpreted as legal advice. You should obtain independent legal and accounting advice before deciding to establish a family trust or making final decisions for the management of the trust assets.

Rose Lawyers have been practicing for over 35 years and we have a great deal of experience in setting up family trusts for our clients.

Let us help you set up your family trust, call Rose Lawyers on 03 9878 5222.


Child Custody Advice

The end of a relationship is always a difficult time in a person’s life, doubly so when there are children involved. In these cases, it’s important to come to an agreement about the custody arrangement quickly and with as little stress to the children and parents as possible.

Here are our tips for making your child custody matter as stress-free as possible.

What are your options?

There are three different options when it comes to deciding on a custody arrangement. Your options are:

talking on phone to ex partner

  1. An informal agreement – If you still get on well with your ex-partner, it may seem like a good idea to have an informal custody agreement. But it’s important to note that these kinds of agreements are not binding on the parties. Just because you get along with your ex-partner now doesn’t mean you always will. There could be problems down the road in the event of re-partnering or having children with another partner.
  2. Consent Orders – If you can come to an amicable agreement with your ex-partner, it is better to have the agreement formalised so that it’s binding and you know your ex-partner will have to stick to it in the future. Consent Orders are agreements that have been formally approved (sealed) by the Court, making them legally binding on the parties. If your ex-partner refuses to obey, the matter can be brought before a judge to make them comply, just remember that this applies to you too.
  3. Court Order – If you and your ex-partner cannot agree on child custody arrangements, then you will need a Court to make the decision for you. This can be a long, expensive and emotionally draining process and you may not get your desired outcome.

The best option is always to come to an agreement with your ex-partner and have it formalised in a Consent Order. This can be done with or without the help of a lawyer, but you may find it quicker and easier to engage the services of a lawyer if you are not familiar with the process.

When should you act?

mother and daughter

It is best to start discussing child custody arrangements as soon as you separate from your partner. Depending on the nature of your relationship, it may be difficult to come to an agreement, but it is important to remember that coming to a quick and amicable solution is in everyone’s best interests. You may also need to discuss property settlement matters at the same time.

In some circumstances, you may not be able to avoid going to court over a child custody dispute. If this is the case, find a lawyer who you feel comfortable with, someone who will do everything they can to ensure that the process is as smooth as possible to reduce the emotional strain on you and child.

Why Choose Rose Lawyers?

Not only do Rose Lawyers have the legal expertise to handle your child custody case, we understand that this can be a very difficult experience for you.

We care about all our clients, regardless of their situation, and we always strive to make their legal matters easy and straight forward while also getting the best outcome possible in the circumstances.

For legal advice and support with your child custody matter, contact Rose Lawyers on 03 9878 5222.


What Is Mediation In Law?

Whether it’s a financial dispute with a family member or civil dispute with a neighbour, there are many ways in which legal disputes can arise. Regardless of the nature of the dispute, mediation is an option that is almost always worth trying. With the right legal advice, mediation could save you a lot of time and money.

What is mediation in law?

Mediation is an alternative dispute resolution method that can be used instead of a court trial. The process of mediation is a structured negotiation run by an independent and impartial person, known as a mediator, who is trained and accredited. The mediator assists the parties in identifying and negotiating potential solutions to their disagreement.

Some advantages of mediation include:

  • Cost – Mediation can save the cost of preparing and running a trial if the dispute can be resolved. It is also worth noting that the unsuccessful party in a court trial may be ordered to pay the legal expenses of the successful party.
  • Time – The process of mediation is typically much faster than that of a court trial so a resolution can be reached sooner.
  • Flexibility – Mediation is less formal than a court trial and the mediator can arrange a mediation process which is customised to your specific needs.

mediation discussion

When do you need mediation?

Mediation can be used as an alternative to a court trial in almost all civil cases, regardless of the topic of the dispute or the details of the case. There are, however, a number of factors that make mediation more appropriate for a particular dispute. These factors include:

  • A willingness of both parties to participate in mediation
  • The need for the parties to find a way to to preserve their relationship
  • The potential for a negotiated outcome that satisfies the needs and interests of both parties better than a judge’s decision

What happens at mediation?

The mediator will consider the best process for mediating your particular dispute before the session commences, taking suggestions from all parties where possible. Mediation then commences with an explanation of the process and a discussion about the background of the matter and the issues in dispute.

mediation meeting blurred

The proceeding in your mediation session will depend on your circumstances. Since the process is flexible, rather than fixed, and the mediator will assist in the ways that they think will best facilitate a resolution. Some of the ways that a mediator may assist your negotiations are:

  • Asking questions
  • Encouraging open discussion
  • Offering different perspectives
  • Expressing issues in alternative ways

Parties will also be encouraged to consider the consequences of possible solutions to find out if a possible solution is acceptable. In some cases, a mediator will meet with the parties separately and jointly and further mediation sessions can be scheduled if a resolution is not reached in the first session.

What are the outcomes of mediation?

If the parties can come to an agreement on how to resolve their dispute, the mediator will record the details of the agreement and it will be signed by all parties. At this point, the case is closed and will not proceed to a court trial.

If an agreement cannot be reached, the case will then be prepared for a trial. Mediation may not have completely failed even if the case is not settled, the issues at the heart of the dispute are often clarified which may enable faster proceeding of the court trial.

There are many ways that litigation lawyer can help you resolve your dispute through mediation. A litigation lawyer will represent you during the mediation session as well as help you with a number of things that you need to consider. To get the most out of mediation, you should consider:

  • Identifying the core issues and facts that are the source of the conflict
  • What is important to you in the resolution of the dispute
  • How best to communicate this information to the other party and the mediator
  • The possible costs and benefits of a trial if mediation is unsuccessful

At Rose Lawyers, we often encourage our clients to seek mediation rather than a court trial. This is because we have your interests in mind and we know that mediation can save you the time and expense of going to court while still receiving a favourable outcome.

For mediation advice and representation, call Rose Lawyers on 03 9878 5222.


What You Need To Know When Facing Criminal Charges

If you’re facing criminal charges, it means that the State or Commonwealth has brought an action against you. Seeking immediate legal advice is the most important thing you can do if you have been charged with an offence or expect to be charged. You could be facing potential imprisonment, a fine or both, but a good criminal lawyer will do everything they can to mitigate any charges against you and protect your interests, regardless of the case details.

Here’s our guide to seeking legal advice when you’re facing criminal charges.

When do you need a criminal lawyer?

It is always important to get legal advice whenever you are dealing with legal matters, whether it’s a contract dispute, setting up a will or buying or selling a business. When it comes to criminal matters, it’s even more important to get legal representation since there can be a lot more at stake. Here are the different types of offences and what you need to know about them:

Summary Offences

Summary offences are cases in which the outcome is determined only by a judge; no jury is present. Most criminal cases are summary offences, all of which are heard in the Magistrates’ Court. Summary offences are often fairly minor and common examples include:

  • Road traffic offences
  • Minor assaults
  • Property damage

Indictable Offences

Indictable offences are more serious crimes that are heard before a judge and a jury. These cases may be

  • Sexual assault
  • Treason
  • Murder

Indictable Offences Heard Summarily

There are also some indictable offences that the accused can choose to have heard summarily, without a jury. The advantage of having your case heard summarily is that it will likely proceed through the courts much faster but it is essential that you get legal advice before making this decision. Indictable offences that can be heard summarily include:

  • Burglary
  • Theft
  • Causing serious injury recklessly

What type of lawyer do you need for criminal charges?

supreme court australia

When you are facing criminal charges, you need a lawyer who is familiar with both the court system and criminal law. It is important to remember that just because a lawyer has been practising for many years, it doesn’t mean that they are experienced with criminal law. A lawyer with fewer years of experience might have spent more time dealing with the courts and criminal cases than a lawyer who has been practising for decades. Always ask your lawyer what past experience they have.

Specialist Lawyers

It is also worth considering finding a lawyer who specialises in criminal law. Some lawyers choose to focus their career around one particular part of the law field, such as criminal law, and become an Accredited Specialist in that field. An Accredited Specialist in criminal law would be considered an expert among experts when it comes to the ins-and-outs of the court system and the intricacies of criminal law like precedents and sentencing.

If your case is particularly complex, a specialist lawyer may have the extra expertise that you need. However, Accredited Specialists may cost more than regular criminal lawyers.

Finding the right criminal lawyer

Experience and expertise aren’t the only things that you should consider when you need a criminal lawyer. It is just as important that you are able to trust your lawyer and believe that they will do everything they can to protect your interests. Consider whether you would be more comfortable with a male or female lawyer or a lawyer of a particular age.

The right criminal lawyer for you and your case will be able to be able to give you sound advice on how to proceed with your case. You may not always be able to “walk away” after a criminal case, but a lawyer who represents you effectively will ensure that the prosecutor has an uphill battle when it comes to proving their case against you.

Rose Lawyers

Seeking immediate legal advice is the best thing you when you have been charged with an offence, the sooner we get involved, the greater our ability to help you. At Rose Lawyers, we always represent our clients’ interests diligently, regardless of the type of case. We will give you honest advice about your situation, provide a clear course of action and do everything possible to mitigate any charges against you.

For more information about criminal litigation, call Rose Lawyers on 03 9878 5222 to schedule a free 15 minute phone consultation.


What Is A Litigation Lawyer?

A beginner’s guide to litigation

Dealing with legal disputes and litigation can often be a difficult and stressful time in a person’s life. But the right lawyer will make the litigation process as simple and easy as possible, as well as doing their best to get a favourable outcome for your case.

Here’s our guide to what you need to know and consider when it comes to litigation and finding the right lawyer for you.

What does a litigation lawyer do?

litigation lawyerA litigation lawyer is someone who will represent and protect your interests when there is a dispute, whether it is a commercial, civil or criminal matter.

Commercial and Civil Cases

In a commercial or civil case, a litigation lawyer will present your side of the dispute in a way that maximises the chance of getting a favourable outcome, regardless of whether you are bringing or defending the claim. This may be done in a court hearing or through other dispute resolution mechanisms such as negotiation and mediation.

Criminal Cases

A criminal case, however, is one that is brought against you by the State or Commonwealth in which you face potential imprisonment, a fine or both. The process of criminal litigation is different, but the principle that a litigation lawyer will protect your best interests is the same.

How can a litigation lawyer help you?

A litigation lawyer is your guide for navigating through all the Latin phrases and complex jargon you’ll find in legal matters. This is one of the reasons why a litigation lawyer can be so helpful and important when it comes to handling a legal dispute.

Assistance with Documents

Your lawyer will help you with the following documents and will know the timeframe that each one should be completed in:

  • Complaints
  • Affidavits
  • Defences
  • Discovery
  • Interrogatories
  • Further and Better Particulars


A litigation lawyer will also represent you in court, arrange a barrister to represent you in court or prepare you for self-representation, depending on your needs and circumstances.

Finding your litigation lawyer


Finding the right lawyer for you can be tricky as you need to consider factors such as their expertise and personality. Experience is very important, of course, but litigation experience is different from other kinds of legal experience. A lawyer who has been practicing law for only a few years might have more litigation experience than a lawyer who has been practicing for decades.

Be sure to find out how much litigation experience a lawyer has, not just how many years they have been practicing. This way, you’ll know that your litigation lawyer is familiar with the courts and will be able to represent you effectively.


Phillip Gallo litigationThe most important factor when finding a litigation lawyer is trust. You need to feel comfortable with your lawyer and believe that are doing everything they can to get the best outcome possible for you. Consider whether you would be more comfortable with a male or female lawyer or a lawyer of a certain age.


There are many fees associated with litigation that you may not have considered. There will be professional fees for your lawyer as well as court fees such as application fees, filing fees and possibly Barrister’s fees. There may also be costs involved in getting expert advice, opinion or report, valuations, supervision or travel. Fees other than your lawyer’s professional fees are known as “disbursements”.

Rose Lawyers

Litigation can be a costly process and can sometimes even cost more than any potential benefit that you might gain from successful litigation. This is another reason why it’s so important to find the right lawyer, at Rose Lawyers, we will always tell you if the cost of litigation outways the potential benefit and suggest alternative dispute resolution methods such as mediation.

Our goal is always to represent your best interests diligently, not to maximise our fees with unnecessary litigation.

For more information about litigation, Call Rose Lawyers on 03 9878 5222 to schedule a free 15 minute phone consultation.


Tips To Finding A Good Home Loan

Landing in the property market can be a challenging task. There are many moving parts when it comes to purchasing property, and the checklist can seem long and daunting.

With so many lenders and options available, one of the biggest hurdles on this list is finding the right home loan. A mortgage is a long-term financial commitment, so making sure that you are set up with finance that is matched to your needs to an essential part in making the transiting into the property market as smooth as possible.

But getting a home loan can be a particularly challenge task if your credit history is less-than-perfect. A bad credit history can stay on your records for years, and that means that past financial outcomes now impact on your ability to plan for the future and build wealth and security.

So if you’re having difficultly finding finance, then here are some tips on what to work towards—and what to avoid—so that you have the best chances of securing a home loan ideal for your needs.

What not to do.

  • ‘Spam’ lenders. Over-applying for loans with multiple lenders can have a negative effect on your credit history.
  • Be dishonest. Lenders will thoroughly check loan applications, so always be honest with your application.
  • Apply with poor quality lenders. Be cautious of any lender with an offer that seems ‘too good to be true’, especially if they are not an established or reputable business.

What to do instead.

  • Budget & save. Make sure that your financial habits look as healthy as possible. Stick to a budget, structure your finances and save up a good deposit.
  • Improve your stability. Lenders like stability in both your employment and place of address. A career change and home loan application do not go hand in hand!
  • Get help. If you’re struggling to get loan approval, or don’t know how to assess your options, then there are home loan experts such as uno Home Loans and finance brokers who can help.
  • Factor in Costs. Remember with your loan application to factor in one off relocation costs such as removalists, vacate cleans and packaging boxes.

first home owners banner

What is a finance broker?

A respectable and highly-recommended finance broker can take your financial circumstances – including your income, past credit history and financial stability – and recommend a suitable finance option.

If your situation is less than ideal, a good finance broker should be able to look at your situation and be an advocate for your application by emphasising the positive aspects of your situation.

BCP Finance is a leader in discovering finance options for property investors, particularly those who have had trouble finding finance in the past. The team at BCP will assess your financial situation and match you with the right lender.

A good conveyancer completes the property picture.

good conveyancer with couple

Finance is only one part of the property puzzle. A conveyancer is a property expert who can help you assemble the picture with minimal amounts of stress and frustration.

While many practising conveyancers aren’t legally trained, our conveyancers will be able to assist and advise you throughout the process with the backing of lawyers and legal resources.

For more information on conveyancing – or if you are in need of conveyancing services – call Rose Lawyers on 03 9878 5222.


Purchasing A Business Checklist

10 Things that are important when purchasing a business:

Purchasing a business is a difficult and sometimes daunting task. There are many things to consider before you sign on the dotted line so a helpful way to make this job easier is to come up with ‘purchasing a business checklist’ to keep track of everything you need to do.

Rose Lawyers have over 35 years of experience in commercial law and have helped countless clients through process of purchasing a business. We can help you navigate the potential risks and benefits, ensuring you get the best possible return on your investment. Here’s our list of tips for purchasing a business.

Please note that this is general advice only, and not tailored to your particular needs. For legal advice for your specific circumstances, Call Rose Lawyers today on 03 9878 5222 for a free phone consultation.

Checklist Item # 1: Feel confident that you can handle the type of business that you are purchasing.

If you are purchasing a business, you must have either experience in the field, or know that you have employees upon whom you can rely to provide experience. A Trial Period and an Assistance Period is always a good idea to get to know the business and how it is run.

manager looking at factory

Checklist Item # 2: Do a proper due diligence.

When you are purchasing a business, you must find out what is happening in the immediate area surrounding the premises. You need to know what, if any, competition is around which may severely affect your business. You must also check with the Council to see whether any planning permits have been lodged for nearby properties.

Checklist Item # 3: Your due diligence for purchasing a business must include a trial.

If you see large purchases being made then be suspicious. Question everything. The Pareto Principle tells us that 20% or your customers will produce 80% of your sales. However, if one or two customers are producing an extremely disproportionate and high proportion of sales, then be very concerned. The loss of one such customer who may be loyal to your vendor will create severe problems for your business.

Checklist Item # 4: Check all equipment that is being purchased to ensure that it is sound and in working order.

Once the Contract is signed, it is too late. Before purchasing a business, don’t be afraid to test machinery and equipment to ensure that you are getting what you pay for.

testing machinery

Checklist Item # 5: Get to know the main suppliers and all the important customers.

You will inevitably need to build a rapport with your new clients after purchasing a business. Being introduced to them from the beginning can help ensure that they remain with you. If necessary, you should make it a special condition of the Contract that the Vendor introduce you to such people or entities.

Checklist Item # 6: Never believe what you are told by your vendor when purchasing a business.

The Vendor wants to sell their business. They are looking after their best interests (including obtaining the best possible price), not yours. You should always check what the Vendor tells you – do your due diligence and use your trial and/or assistance period to verify as much information as possible.

Checklist Item # 7: If you are in a food business get the food handling certificate as quickly as possible.

You do not want to be in the situation where you have settled, but cannot run the business because you do not have the appropriate certificate. It will also show future customers, suppliers and the mortgagee (if relevant) that you are serious about the business.

food store owner

Checklist Item # 8: If your business involves service of alcohol then get your Responsible Service of Alcohol (RSA) Certificate as soon as possible.

Again, you do not want to be in the situation where you have settled, but cannot serve alcohol because you are not qualified. The sale of alcohol is often a great source of income and you want to make sure everything is in order for when the time comes for you to take over.

bar owner with rsa

Checklist Item # 9: Obtain very good accounting and legal advice for how you are going to structure your business.

When purchasing a business, the advice you receive could reduce your tax burden and improve your cash flow. You also want to ensure that the business structure provides you with as much protection against liability as possible.

Checklist Item # 10: Get legal advice for the Sale of Business Contract.

Your Lawyer will check to see whether there is a Mortgage over the property that the business is running from, and whether there are any charges on the Principal Properties and Securities Register over any of the goods. Your Lawyer can also ensure that there is an appropriate restraint clause for the Vendor to prevent them opening a similar shop down the road.

Checklist Summary

So there it is, a quick checklist that will save you time and money. In order to get the most out of your business purchase, it is important that you have clear goals and are check all the details thoroughly. Our list of business purchasing tips is a good place to start but it is important to make your own checklist to make sure you don’t miss anything.

Better yet, get expert commercial law advice from Rose Lawyers. We will help you with everything you need to do to purchase your business, ensuring the best possible terms and return on investment.

Talk to a commercial lawyer about purchasing a business today, call Rose Lawyers on 03 9878 5222 to schedule your free phone consultation.

Litigation Property

Tenant And Landlord Disputes

Renting? Here are some common problems and how to solve them

We all dream of our ideal renting world: the Tenant who always pays on time, or the Landlord who is always happy to help. The Tenant/Landlord relationship, however, can be a tricky one to manage. In the real world, things are not always so simple – in some cases this relationship can turn ugly.

Late rent and destruction of property are just some of the situations you may have to deal with as a Landlord. For Tenants, you may experience everything from a lazy Landlord to an outright hostile one. The renting world can be a minefield for both sides to navigate.

However, both sides have rules and protections to help achieve a fair outcome if a dispute arises. But sometimes the path forward is not always clear. In some cases, simply sitting down with the other party and negotiating a solution is the best course of action. Other serious cases can go all the way to the Court.

At Rose Lawyers, we work to ensure you get a positive outcome without breaking the bank. We first aim to get a fair outcome through negotiation and mediation, before the dispute gets serious. We can, however, represent you if the dispute escalates to litigation.

To talk to a legal expert about your options, call 03 9878 5222 to schedule a free phone consultation with Rose Lawyers.

tenant disputes house fw01

Common Disputes with a Landlord

As a Tenant, there is an endless list of potential problems you could have with your Landlord. Things like pet ownership are usually pretty straight forward. In some cases, it can be hard to know where the responsibility lies when things break or are in need of repair. In other cases, your Landlord may be giving you a headache over the bond.

Here are just some of the potential disputes Tenants can have with their Landlord:

Example Disputes with a Landlord

Structural damage

“I lease a building that is a fairly old, and I have recently noticed massive cracks coming down the walls. I have told the Landlord and he keeps telling me he will get around to fixing it, but he never does. The cracks have become so big that I can feel air blowing through them!”

Bond disputes

“I just moved out of a rental property. When I moved out I made sure that the property was spotless. I even steam cleaned the carpet and washed the walls. There was nothing wrong with the property when I left, but the landlord is refusing to give me my bond back.”

Fencing disputes

“The back fence is falling down. The neighbour came around to ask me whether I would agree to fix the fence. I told her that it was not my property and gave her my Landlord’s details. The Landlord is now angry at me because he says his details are confidential …and now my neighbour is mad at me because the Landlord is ignoring all her calls!”

Tenant FAQs

landlord tenant disputes 01The above examples are just some of the many scenarios where a dispute can arise between you, the Tenant, the Landlord and, in some cases, another party. They all demonstrate the awkward and uncomfortable nature of being in a dispute with your Landlord.

The following FAQs offer some answers to some of the more common questions asked by Tenants, in relation to Landlord disputes:

  1. “Is it true that I have to repaint the walls every 5 years?” 

    This is often a clause in the Lease document that the Tenant is to repaint the walls every 3-5 years to maintain their appearance, particularly in Commercial Leases. Check your Lease – it will tell you whether or not this is a requirement.

  2. “I have just moved my business to a different suburb. I did some fit outs at my old premises to make it appropriate for my business and the Landlord approved these changes. Do I have to pay to make the building what it used to be?” 

    Yes. When you leave a property you must leave it in the same state which you first rented it. If you completed a fit out and the Landlord wants you to return the property to the original state, then generally speaking you must do so.

  3. “I have recently noticed that there is a huge crack in the bathroom mirror. I have told the Landlord about the problem and he says I have to pay to get it fixed. Is this true?” 

    Yes. Generally speaking, your Landlord is responsible for all structural defects – but they not responsible for everything on the premises, such as a bathroom mirror.

landlord disputes 01

Common Disputes with a Tenant

Renting can be a headache for the Landlord as well; an unstable or irritating Tenant can be a regular and potent source of anxiety. Everything from property damage to Tenants on-the-run – the list of potential problems is just as long!

Here are just some example scenarios of disputes with your Tenant:

Example Disputes with a Tenant

Excessive property damage

“My Tenant has left the place as an absolute pigsty, there is damage everywhere and the bond will not cover it.”

Neighbour Complaints

“I am getting complaints from the neighbour of a premises I am renting. My Tenant uses large industrial machinery and the neighbours are complaining that this is happening at ridiculous hours of the day and night”

Troublesome Tenants

“My Tenant is really irritating. He always pays the rent late. He has not damaged the premises, but it looks messy and my wife keeps nagging me that I need to get someone more responsible. The end of the term of the Lease is almost up. The Lease says that the Tenant has the option to renew and he has sent me a letter telling me he wants to renew the Lease. I would rather get rid of him and put in a new Tenant.”

Whatever your dispute, your first step should always try to negotiate a fair outcome with the other party.

Landlord FAQs

So, what are you to do if you have a troublesome Tenant? Before you go calling a reporter for Today Tonight, read the following FAQs and find the answers to some of the more common problems for Landlords:

  1. “My Tenant has bailed, but they still owe outstanding rent. Can I take the rent out of the bond?” 

    You cannot touch the bond without the consent of the tenant or an order from VCAT (or another Court). The bond should be held with the appropriate authority and there is a specific consent form that must be signed by both tenant and landlord before the bond can be released.

  2. “My old Tenant has left personal items at the premises. Can I sell these or throw them out?” 

    This is called distress for rent and is prohibited in Victoria unless you follow a specific procedure provided by in the legislation. You must first give notice to the Tenant that they must collect the chattels, otherwise stating that if they are not collected then you will dispose of them. You must also give them a prescribed amount of time in which to respond. If they do not respond, you may sell the goods by public auction. You may use the funds to recover any costs you have incurred in storing and selling the goods.

  3. “I did an inspection and I can see that the old Tenant has done significant damage to the property. What can I do?” 

    The Tenant must return the property to you in the state in which it was rented. It may become necessary to sue your Tenant for the cost of rectifying any damage they have left. If this becomes necessary, you will likely have to go to VCAT or potentially the Magistrates Court to resolve the matter.

  4. “My Tenant has told me they want to renew the Lease. They haven’t done anything wrong, but I do not want to give them another Lease. Do I have to?” 

    Yes. Under the terms of the Lease, if you have granted your Tenant an option to renew the Lease then you must do so when they exercise their option. They must exercise their option correctly by giving you notice within the prescribed period of time. Assuming that this has been done correctly, then you must provide them with a Lease for the prescribed period on the same terms and conditions as the previous Lease.

How to deal with a dispute

landlord disputes come to comprimiseWhatever your dispute, your first step should always try to negotiate a fair outcome with the other party. If you’re the Landlord, get in contact with the Tenant and try to hear their side of the story. Likewise, if you’re the Tenant, try to call or meet your Landlord and discuss the situation. If you can both come to an agreement before a disagreement turns into a dispute, you could save yourself a lot of time, money and stress.

Unfortunately, however, not every dispute can be so easily resolved. A dodgy Tenant may dodge your efforts to contact them, or a uncompromising Landlord may dig their heels in. There are steps to take when a dispute gets ugly, including mediation and litigation.

The primary legal bodies for these kind of disputes are:

  • The Victorian Civil and Administrative Tribunal (VCAT)
  • The Victorian Small Business Commissioner (VSBC)
  • The Law Institute of Victoria (LIV)
  • The Real Estate Institute of Victoria (REIV)

Depending on your circumstances you may need to engage the services of the VSBC, the LIV or the REIV. These organisations can assist you in facilitating mediation with the other party.

If the mediation is unsuccessful, then the mediator will issue a Certificate of Unsuccessful Mediation, which will allow you to take the matter to VCAT. However, if your claim is for rent then it may not be necessary to go to VSBC or VCAT; there are circumstances in which you can initiate the matter immediately to the Magistrates Court.

Every renting dispute is different. If informal negotiations have failed, it is best to seek the advice of a legal professional early to discuss your options and the next steps to take.

landlord disputes apartments

Avoid costly litigation where possible

The choice whether or not to go to litigation may boil down to a financial one. There is no point in perusing litigation if the costs outweigh any outstanding claims you may have, such as rent in arrears.

As a Tenant, always make sure that you take photos of the premises and any defects you notice before you move in. As a Landlord, make sure you do background checks on potential Tenants, and keep an open line of communication with your Tenant so that you are aware of any potential issues early.

If issues do arise, then it pays to get legal advice early to avoid costly, time-consuming and stressful litigation. At Rose Lawyers, we can help you with both mediation and litigation matters relating to your Tenant or Landlord.

To talk to a legal professional, call Rose Lawyers ton 03 9878 5222 to schedule your phone consultation.

Litigation Property

Fencing Disputes

The humble fence can be the source of a lot of neighbourly tension. A shared row of wooden palings or sheet metal can turn a simple backyard disagreement into an ugly Courtroom dispute. But whatever side of the fence you sit—whether it’s advocating for a much needed replacement or resisting unnecessary construction—there are avenues you can take to ensure a fair outcome.

Where you can, you should always try and settle a neighbour dispute the easiest the cheapest way: by meeting with your neighbour and trying to come to a mutual agreement. However, in some cases this is not always possible. In these instances, Rose Lawyers can help you settle the matter—even before it is taken to Court.

Take action before you fencing dispute gets worse. Call Rose Lawyers today on 03 9878 5222 to schedule a free 15 minute phone consultation.

neighbour fenceline roselaw

What’s in a fence?

A dividing fence will usually act as the boundary between two pieces of land—it’s where your property ends and your neighbours’ start. But a fence is much more than just a marker for your property’s boundary. There are a number of requirements a dividing fence must meet, and these are outlined in Section 6 of the Fences Act 1968, including:

  • The fence must meet its purpose. The purpose of a fence is how the owners of the adjoining land use their land, or intend to use their land.
  • The fence must provide privacy. The fence must provide a reasonable level of privacy for the owners of the adjoining land.

Different fences will have different purposes and privacy needs. For example, a fence on a cattle farm will need to meet a different set of requirements compared to a fence in a private suburban backyard.

Your fence. Shared responsibilities.

neighbourhood scope roselawFences must not only meet the requirements and obligations in the Fences Act 1968, they must also satisfy other legislation requirements outlined in the Buildings Regulations 2006 (Vic), the Property Law Act 1958 (2006) as well as any specific Local Planning Schemes.

It should be clear that, according to law, fences are an important part of defining the boundary of you and your neighbour’s property. A fence is a shared piece of property, so you cannot undertake any fencing work unless you;

  • Have an agreement with the adjoining land owner
  • Have a Court Order
  • The land owner of the adjoining land cannot be located

What is a Fencing Dispute?

As a property owner, you share equal responsibly of your fence with your neighbour. However, your neighbour may have a different view about the purpose and relative condition of the fence. If you and your neighbour are in disagreement over the purpose and condition of your fence, then you have a fencing dispute.

A fencing dispute can sometimes be easily resolved through negotiations with your neighbour—you both may come to an agreement which satisfies both of your concerns and expectations. However, it is possible that you and your neighbour become locked in disagreement, which may require the intervention of the courts to resolve the matter.

Examples of common fencing disputes

A fence in need of replacement

old fence needing replacement roselaw

“My fence is at least as old as my house, which was built 30 years ago. The fence is looking pretty decrepit and is falling down in a number of places. It needs to be replaced. I have spoken to my neighbour and he says the fence is fine and there is no need for a new one. He had already said he will not pay to have the fence replaced.”

A fence in need of repair

broken damaged fencing repair roselaw

“Our next door neighbours have three Great Danes that keep digging holes trying to get under the dividing fence. Although this section of the fence is relatively new, they are big dogs and have caused damage to the fence, which means they can now easily get into my backyard. I like dogs, but I do not want three Great Danes roaming unsupervised near my young children. I tried talking to my neighbour, but he says the hole in the fence is not the problem and that the dogs must be escaping on their own. He is refusing to pay to have the fence fixed.”

Personal privacy concerns

“The next door neighbours have renovated their house and it is now double storey. They are a young couple and frequently throw parties at their house. I am concerned because now their lounge room is located on the second storey and they can see directly into my bedroom and bathroom windows, which means I have no privacy. I have spoken to the neighbours and they tell me they’re not looking across to my house, so there is no need to increase the height of the fence to give me more privacy. I still feel very uncomfortable, especially when they have parties.”

Raising a fencing dispute

farming fenceThe first thing to do is to talk to your neighbour. To make the process of negotiating with your neighbour easier, you may want to get a number of quotes and have a discussion about the options.

If your neighbour still refuses to pay any of their mandated contribution then you can issue a Notice to Fence. This is a written document that is made in accordance to the Fences Act, and includes details such as the boundary to be fenced, the proposed fencing and the kind of fence to be constructed.

Once you have issued to Notice to Fence, your neighbour will have 30 days to respond. If they do not respond, or do not respond adequately, you will need to make an Application to the Magistrates Court to resolve the matter.

Dealing with a Notice to Fence

On the other hand, you may have to deal with neighbours looking to replace a fence, which you feel is unnecessary. In cases where the fence is in fine condition and fit for its purpose, you may disagree that the fence needs replacing and that you should share this cost.

In this case, you should refuse to get the fence replaced. This may end up with your neighbours serving you with a Notice to Fence. If this happens, you will have 30 days to respond to the Notice. If you respond, but do not agree to replace the fence, then the matter may proceed further to Court or mediation as a way to come to an agreement.

notice to fence roselaw

Avoid the cost of going to Court

It is always best, if you can, to works things out amicably rather than serving a Notice and potentially having to go to Court. A legal dispute with neighbours can be costly, time-consuming, and stressful.

If you cannot come to an appropriate agreement with your neighbour, Rose Lawyers can help negotiate to try and settle the fencing dispute outside the courtroom to minimise the time, cost and stress to you and your family.

To talk to a neighbour dispute lawyer, call Rose Lawyers today on 03 9878 5222 to schedule your phone consultation.


Neighbour Disputes

Everybody needs good neighbours. But sometimes, a barking dog or rogue recycling bin can be enough to ignite Ramsay Street-style drama.

Squabbles on the street can get ugly, and can be enough to make even the sanest person seriously consider moving to a cabin atop Mount Kosciuszko. And when coupled with a clash of personalities, many disputes with neighbours even make it as far as the courts.

While a legal dispute with your neighbours is something to avoid wherever possible, it’s still important to note that there are legal measures in place to protect yourself from nuisance or negligent neighbours.

As neighbour dispute lawyers, there are a few common disputes we see that regulalry escalate into legal proceedings against neighbours. Here are some of the legal disputes with neighbours we hear most frequently, as well as some general information on the laws that cover them…

Fence repairs

broken-fence.jpgCommon complaint: “The fence at the back of my property is falling apart and needs to be replaced, but my neighbour doesn’t agree and won’t pay anything towards getting a new one.”

Your neighbour generally has an obligation to contribute to fence repair and/or replacement. Your rights and obligations are set out in the Fences Act 1986 (Vic). If your neighbour does not agree to contribute, then there are steps you must take to force them to comply.

Overhanging trees

overhanging-tree.jpgCommon complaint: “My neighbour has a huge gum tree in their backyard that has a couple of big branches that hang over the fence. During the last storm some of the smaller branches fell off and caused some damage to my shed. I’m worried that if one of the big ones fall, it will damage my house.”

It is every landowner’s responsibility to make sure that nothing escapes from their land onto a neighbour’s land. If there are branches hanging over the fence and onto your property from a neighbour’s tree, you may prune the branches back to the fence line and place the branches on your neighbour’s side of the fence, unless the tree is a ‘significant tree’. You cannot kill the tree under any circumstances.

Nuisance pets

barking-dog.jpgCommon complaint: “My neighbour has just bought these two little yappy dogs. They bark constantly when they are outside, and my neighbours don’t get home until late to let them in. They are driving me crazy.”

The Domestic Animals Act 1994 (Vic) gives local Councils the power to order that the owner pay a fine, or even take them to Court if they do not resolve the problem. Alternatively, you may have a claim for nuisance against your neighbour.

Noisy renovations

noisy-renovation-drilling.jpgCommon complaint: “My neighbour is renovating his house. Every day this week he had tradespeople come in and start work at 6am, even on the weekend! They say that they have to start really early because we are in the middle of a heatwave and it gets really hot during the day.”

The Environment Protection (Residential Noise) Regulation 2008 (Vic) sets out when certain noises, such as construction noises can be made. Generally, construction noises cannot be made before 7am and 8pm on a weekday, or before 9am and after 8pm on weekends and public holidays. You can contact the Police or the Council if the construction workers do not adhere to these regulations.

Factors to consider before taking any legal action

While neighbour dispute lawyers and the courts are available to help settle disputes, there are many important considerations when disputing an issue with neighbours:

You’re their neighbour too

You may be upset with your neighbour’s behaviour but remember you are their neighbour too – your actions may also be upsetting them without you even realising.

So forget about who cast the first stone and instead, approach the dispute with reaching a resolution in mind.

Common courtesy

Manners cost nothing and even if you’re at your wits’ end, it’s always best to approach disputes in a calm and collected manner. Breathe deeply and don’t approach any discussions with preconceptions about your neighbour’s character – especially if you haven’t spoken much in the past.


Perhaps the neighbour whose tree is overhanging the fence line is elderly and can’t reach the branches to trim them. Maybe the yappy dogs are in training and will quiet down once they’re used to their new surroundings.

A civil conversation with your neighbour could reveal any number of factors you hadn’t considered – while pointing the finger can put them on the back foot and cause matters to escalate.

friendly neighbour roselaw

Avoid legal action wherever possible

A legal dispute with neighbours can be costly, time-consuming, and stressful; legal fees can run into the thousands and can place a huge strain on you and your family.

You should do everything you can to settle any disputes without the assistance of the courts. If an impasse is reached, Rose Lawyers can help negotiate to try and settle the matter outside the courtroom. Taking the matter to court should be the last option once you’ve exhausted every other available avenue.

To talk to a neighbour dispute lawyer, call Rose Lawyers today on 03 9878 5222 to schedule your phone consultation.


How To Find The Best Business Lawyer For You

“It’s the vibe of the thing, your Honour.”

When Darryl Kerrigan — the hero of the movie ‘The Castle’ — travels to the High Court to fight the compulsory acquisition of his home, he hires his conveyancer Dennis Denuto to represent him. Despite Darryl’s positive outlook, Dennis’ argument that the eviction goes against ‘the vibe’ of the Australian Constitution is not well received in court. The tide turns for Darryl and Dennis when they accidentally befriend a retired Queen’s Council.

In real life, however, legal matters are best not left to chance. Getting a good lawyer from the get-go is the best way to ensure a positive outcome for you and your business.

So when it comes to finding and hiring the best business lawyer for your needs, it’s always wise to do your research. Here are some of the biggest factors to take into account when you are looking to hire a business lawyer in Melbourne. Bare in mind that a specialised business accountant may be appropriate if your needs revolve around the financial side of things.

Firm Size

lawfirm size

Is bigger always better? Not when it comes to finding a business lawyer.

Large legal firms have the benefit of being well resourced and are often highly specialised. Being so large, however, means that they may not offer a personalised approach to their services. They can also be expensive, which locks out many smaller businesses.

Individual law practices or partnerships can offer a more personalised service as you are usually directly dealing with one of the partners of the firm. The downside is that these small practices have limited resources and may not be experienced in more complex legal matters.

Ideally, you want to get the best of both worlds. Try to find a personable and well-resourced law practice with the specific skills to deal with a range of personal, commercial and litigation matters.

Reputation & Experience

lawyer reputation

When finding the best business lawyer for you, it’s better to consider reputation rather than size. It can take many years of hard work for a good business lawyer to establish their reputation in the field of commercial law.

Experience is also one of the best indicators of a good law practice. Experience means that the business lawyer and their firm have had time to make connections and relationships with useful parties, as well as having the opportunity to become intimately familiar with the law and the legal process.

Ideally, a good business lawyer should have experience in setting up, buying and selling businesses as well as expert insights into contracts, leases, franchising and commercial litigation.


Family, Business, Commercial, Property or Criminal – no matter the legal niche, there are lawyers specifically trained for the job.

But the law is as deep as it is wide. In this regard, the practice of law can be compared to medicine; some practitioners will specalise in only one area, whilst others deal with the law in general. When it comes to finding a business lawyer, you need to make sure that they are intimately versed in legal matters relevant to your business.

Specialist accreditation is a visible sign as to whether your lawyer is an expert in their field. An Accredited Specialist is a lawyer recognised by the Law Institute of Victoria as being an expert in their area of law.

law institute logo

You can search the Law Institute of Victoria to check for a Melbourne lawyers’ specialist accreditation. At Rose Lawyers, our accredited specialist in Commercial and Business Law is Principal Phillip Gallo.

Customer Service (Call them up!)

The final test? Give them a call!

If possible, ask for a consultation over the phone. Great customer service is an indicator that they are a good communicator, have intimate knowledge of the law and care about their clients. You may also be able to gauge whether you personally like the lawyer or the firm — essential if you are to establish a close working relationship.

Some questions to consider asking:

  • What is your level of experience?
  • When can you begin work?
  • What are the legal steps?
  • How will you keep me informed?
  • What are the likely legal outcomes?
  • What information do I need to provide?

Asking these questions should reveal whether or not the lawyer is right for you and your business. A business lawyer is a big investment in your time and money. It is worth doing research and spending the time to find the best business lawyer for you.

Begin your search today. Call Rose Lawyers on 03 9878 5222 to schedule a free 15 minute phone consultation.


Contesting A Will


A Will is the legal document that states what you want to happen with your assets in the event of your death.

Your Will contains your final wishes. However, sometimes your family may not like what you have chosen to do. They may think that they are entitled to more, and others to less.

The law therefore recognises some instances where the terms in a Will can be successfully contested.

Need to talk to an estate lawyer? Call 03 9878 5222 to schedule a free 15 minute consultation.

Why would someone contest a Will?

partner looking at pictureA Will can be contested if someone believes the terms of the Will do not treat them fairly.

This could be a person who has not received what they believe to be a fair share of the deceased person’s Estate, or because someone else has been left more than them.

In other cases, a person may have been omitted from the Will entirely. Even though the deceased person may have done that on purpose, the person who is missing out may believe they are deserving of a share of the Estate.

Who can contest a will?

In Victoria, the legislation which deals with the administration of Wills is the Administration and Probate Act 1958. Part IV of this Act is the relevant section in relation to contesting a Will.

In the past, many people had the right to contest a Will, including neighbours, friends and acquaintances.

The law has recently changed, narrowing down the list of who can contest a Will. It now only includes:

  • A spouse or domestic partner
  • A child, step child or grandchild
  • A former spouse or domestic partner
  • A registered carer

There are some instances when contesting a Will may be more complicated. A Will may also be contested by:

  • A person who believed that the deceased person was their parent
  • A spouse or domestic partner of a deceased child, provided that the child of the deceased had died within one year of the deceased
  • A person who was, or who soon would have been, a member of the deceased’s household

What happens when a Will is contested?

lawyersAn application must be made to the Victorian Supreme Court under Part IV of the Administration and Probate Act 1958.

Probate is the legal process that establishes the validity of your Will. When a Will is contested, a caveat may be lodged against the Probate, which shows that someone else is interested in the Estate.

The matter will then often proceed to a stage of mediation, in an attempt to resolve all parties’ claims without going to court.

If mediation is unsuccessful, the matter will go to trial and the application will be heard and dealt with before the court.

Example Scenarios

Contesting a Will can get complicated. Here are some example scenarios where a person may have a valid claim to contest a Will. The names and characters in these examples are fictional.


“My mother has two children – myself, and my brother. My brother was always mum’s favourite and mum always bent over backwards to help him.

I spent the last three years of my mother’s life living with her and taking care of her 24/7.

“She has now died and I have just found out that my brother is to receive 70% of my mother’s Estate, while I will only receive 30%. This isn’t fair.”


“My mother and father divorced shortly after my wife and I had our first son, about 10 years ago. After that, I know that my father was going leave his Estate to his three children equally.

My father worked hard his whole life and his estate is quite large. About a year before he died, my father met this woman, who was about 30 years younger than him.

Slowly over the year she cut my father off from us, and discouraged him from seeing us and his grand-children. He couldn’t answer the phone or leave the house without her.

Now that my father has died, my siblings and I found out that a month before he died this woman took him to see her lawyer and he changed his will to leave everything to her.

She must have talked him into this because there’s no way he would have done this on his own.”

Rose Lawyers have been helping clients contest Wills for many years. Our knowledge and experience in this area means that this process is a smooth and stress free as possible.


“My wife and I have had a strained relationship for the past 15 years. I don’t know what happened, but I know we drifted apart.

We sometimes talked about separating, but really neither of us wanted to do that – we do love each other and wanted to make the best of things. Three weeks ago my wife had a stroke and died.

Now I have just found out that she changed her Will about three years ago, and is now leaving all her assets to a stranger – a man who claims that he was my wife’s lover.

We have a few properties and three are in her name. We had it set up like this for tax purposes. I don’t want this man to receive the benefits of the hard work that my wife and I did.”


“My husband died recently, he was only young – we were both in our early forties. About six months before my husband died, his mother died.

He was very close to his mother and was an only child. When she died, he found out that she had not left him anything in her will – she left everything to charity. My husband was devastated. He lost all the things that would remind him of his mother and the family home.

Now that he has died, I need to think of what is best for my children and I. My husband and I both have Wills, and he leaves everything to me and the children, and vice versa.

If his mother had left him her Estate, then that would now be going to my children. I really need the extra money.”


looking at a willSome people may feel that the terms in someone else’s Will do not treat them fairly. If they meet the conditions outlined in the Administration and Probate Act 1958, they may apply to contest the Will.

These conditions have been recently updated and narrowed to exclude some people such as neighbors or friends.

If a Will is to be contested, an application must be made to the Victorian Supreme Court. The matter will then likely proceed to a stage of mediation. If a resolution is not achieved during mediation, the matter will go before a court to decide.

Rose Lawyers have been helping clients contest Wills for many years. Our knowledge and experience in this area means that this process is a smooth and stress free as possible.

Are you looking to contest a Will? Call us on 03 9878 5222 to schedule a free 15 minute phone consultation.


Going Through Divorce

The process of Divorce is not a simple matter of filling out a form and getting on with your life.

In addition to being separated with your spouse for over 12 months, an Application of Divorce must be completed and sent to the Court. Depending on your circumstances, you may or may not need to be present at the hearing.

Although a lawyer is not necessary for this process, they can make sure that a Divorce goes smoothly and without unnecessary complications.

The following article will outline the steps involved in applying for Divorce and receiving a Divorce Order.

Are you looking at getting a Divorce? Call us on 03 9878 5222 for a free 15 minute phone consultation to discuss your options.

The steps in a Divorce


Before the court will accept an Application of Divorce, you and your partner must have been separated for more than 12 months.

Being separated does not require that you and your spouse must be living in separate houses. The law allows for ‘separation under one roof’. This is where it’s possible for a couple to have completely separate lives, even if they are married and live in the same house.

Completing a Divorce Application

The first step in a Divorce is to make a Divorce Application. These papers can be completed with the help of a Lawyer, or accessed from the Family Law Court website.

You can apply for a Divorce with your spouse in a joint Divorce Application, or complete one by yourself in a sole application. Once you have completed the Application you have to send it to the Court with the Application fee. This is called ‘filing’ the document. The Court will stamp and return a copy to you. This is called ‘sealing’the document.

If you complete a Divorce Application by yourself, then you are the sole applicant and your spouse is the respondent. Your spouse must then be served a sealed copy of the Divorce Application.

If they are served this Application by post, then an Affidavit Acknowledging Service must be sent along with the Application. They should keep the Application, but sign and return the Acknowledgement of Service, assuming they are happy to do so. You will then need to sign an Affidavit proving signature to say that you recognise the signature on the Acknowledgement of Service as being your spouse’s and return all documents to the two Affidavits to the Court

divorce lawyer

Attending court

Once the Application has been filed with the Court, you and your partner will both receive stamped copies which list the date of the Court hearing. The hearing is usually scheduled a couple of months after the court received the Application.

If there are no minor children of the marriage, then generally neither party will need to attend the Court hearing.

If there are children under 18, then either you or your spouse will need to attend the court hearing. This is to answer some questions about the current health and well-being of the child or children.

Order of Divorce

After the court date, the court will send out the Order of Divorce, which can take up to 4 – 8 weeks after the court hearing.

Frequently asked Questions about Divorce

How much does it cost?

You will need to pay a mandatory fee, in addition to any Lawyer’s fees.

Is a Lawyer required?

No, a Lawyer is not required. Application for Divorce Kits can be accessed online from the Family Law Court website.

A Divorce can be an emotionally draining and stressful process. The most likely reason that an application for Divorce will not be accepted by the court is if the Application has not been properly completed or has not been appropriately served to the respondent.

A Lawyer guarantees that this process does not run into any complications. A Lawyer will make sure that Applications have been completed and served correctly, as well as ensure you attend the Court hearing, if required.

How long does it take?

At least a few months.

If you have already been separated for one year, or can prove ‘separation under one roof’, then the process of completing an Application for Divorce, receiving a Court hearing date and finally receiving the Order of Divorce can take an additional 3 – 4 months.

What happens if I want to get divorced, but my spouse does not?

You can make still make the Application for Divorce.

The Family Law Act 1975 established the principle of ‘no-fault’ Divorce. This means that no one can force you to remain married and the court does not consider why the marriage ended.

If your spouse contests the application, then you both need to attend the Court hearing. It is unlikely, however, that the court will refuse an Order of Divorce.

What happens to my property and children?

dependent childThe Divorce only relates to the dissolution of marriage. It does not decide on issues regarding property or parenting.

A Property Order can occur at any time after separation. A property settlement may go through the court, but it is not necessarily required.

If there are minor children, then arrangements will have to be made for their care, and this will have to go through the Court by contest or consent.

Obtaining legal advice is always recommended when it comes to reaching agreements for financial assets or the care of children, so that you understand your legal rights and responsibilities.


You and your spouse need have been separated for over one year before the court will file your Application for Divorce.

If there are no children under the age of 18 from the relationship, and both parties sign the Divorce Application, then there is generally no need for either party to attend the court hearing. The Divorce Order will be received around 4 – 8 weeks after the court hearing.

If there are children, or a spouse wishes to contest the Application, then at least one of the parties need to attend the court hearing.

However it is rare that a Divorce Order will be refused, unless the Application was not completed correctly.

A Divorce is already complicated enough, let’s help you untangle it. Contact our friendly team and make the first step.


What Is A Simple Will?

A Will is Your Legacy.

Have you ever considered what will happen when you are gone? Who will attend your funeral and what might they say about you?

Those are things you will never know, but there are some things you can control after your death. These items are outlined in the terms of your Will.

It is important to have a valid and up-to-date Will to ensure that your final wishes are fulfilled. Read on to find out what is included in a Simple Will, and what is involved in producing and maintaining this important document.

Need a to talk to an estate lawyer? Call us on 03 9878 5222 to schedule a free 15 minute phone consultation.

Types of Will

Not all Wills are the same. In fact, there are four types of Will, the most common being a Simple Will. A Testamentary Trust Will, Disability Trust Will and a Living Will are more complicated types which cover special circumstances.

Simple Will

This is the type of will most people are familiar with. Put simply, it is the legal document that states what you want to happen with your assets in the event of your death.

Testamentary Trust Will

This is a complicated type of Will. Instead of leaving the inheritance to a beneficiary in a lump sum, this document creates a Trust and leaves the inheritance to the Trust. The beneficiary has complete control over their Trust and can use its fund any way they seem fit. This type of Will has asset protection and taxation advantages, but because of it’s cost, is generally only recommended to those who are leaving a substantial inheritance to their beneficiaries.

Disability Trust Will

This is a complicated Will that makes special provision for when you want to leave part of your estate to someone who has a disability. By leaving the inheritance to them in this way, you do not affect their pension.

Living Will

This is a special type of Will which can be made by the Victorian Civil and Administrative Tribunal. It applies in certain circumstances where a person does not have the capacity to produce a Will on their own.

The basics of a Simple Will.

insert key into lockAt a basic level, a simple Will outlines what you want to happen to your assets and possessions when you die. In Victoria, a Simple Will must meet the legal requirements outlined in the Wills Act 1997.

The Simple Will allows you to gift certain assets to specific beneficiaries. This could include family members or a nominated charity. The Will also outlines what happens to the Residue. This is the net asset amount after specific gifts have been considered.

A common misconception is that every asset must be listed in the Will. All your bank accounts and super funds are automatically considered as part of your estate, and will be covered in the Residue.

A Will is the necessary document required for Probate. Probate declares that a Will is valid and affirms the authority of of the Executor. The Executor is the nominated person to be in charge of distributing the estate. The Executor will access all the assets in the estate, including bank accounts, shares, bonds, vehicles and property.

There can be other decisions to make when preparing your Will. Who will be guardians of your children? Do you want to donate your organs? What will happen to the family trust? A lawyer can help you navigate through these considerations.

It is important to have a valid and up-to-date Will to ensure that your final wishes are fulfilled.

We also recommend letting your friends and family know about your intentions, so everyone knows what to expect when the time comes.

grandfather grandchildren

What happens if I don’t have a Will?

‘Intestacy’ occurs when a person dies without a Will. If you die intestate, the law will prescribe who will receive inheritance, according to rules outlined in the Administration and Probate Act 1958.

The law dictates that you estate pass in a very specific manner, and only to your next of kin. As the law is general, your true intentions when it comes to the distribution of your estate may not be reflected in outcome mandated by legislation.

Find out more about Intestacy here.

How do I get a Will?

A Will can be a simple document, as long as it complies with the requirements outlined in the Wills Act 1997. A Will does not need to be executed by a lawyer and DIY ‘Will Packs’ are available.

However, to be confident that your Will is valid it is strongly recommended that you hire a lawyer. This is the best way to ensure that the distribution of your estate will not run into any unintended complications and your nominated beneficiaries receive exactly what you intended.

If you prepare your own Will and it is found to be invalid, this can cause expensive legal issues in the distribution of your estate.

A professionally produced Will avoids more expensive legal complications later down the track.

Contact Rose Law to get your Will sorted.

How often should I update my Will?

wedding beachWhen your family goes through a major change, there will be a lot of things on your mind. Marriage, divorce and death in the family are always intensely emotional life events. It is understandable that your Will may be one of the last things you think about.

However, in such events it is important that you make plans to amend this document as soon as possible. Families are dynamic, so your Will should be too. Reviewing your Will after these big family events will ensure that your plans are still relevant to what you want.

Even if there has been no major change in your circumstances, it is always a good idea to regularly review your Will. Our preferences change as we get older. As a general rule, you should review your Will every 5 – 10 years.

Storing Your Will

Your Will is an important document, so it must be kept safe from both theft and natural disasters. The most common places that people store their wills are the following:

  • At home. If you keep your Will at home, it should be kept in a fireproof safe. This may not be the most safe option against theft, or others finding out the combination.
  • At a bank. Safety deposit boxes are a secure way to store your Will, safe from fire and theft. However there are ongoing fees for this method of storage.
  • With your lawyer. At Rose Law, we have dedicated Will storage available for our clients. They are safely and securely stored in a fireproof safe, free of charge.

safety deposit boxes

A Will is your final plan. Make it a good one.

The best thing about a Will is that it you can customise it as much as you wish. Your estate is a lifetime of hard work, so you should be in charge of who can benefit from it.

If you do not want to leave inheritance to certain family members, or not in equal parts, that is your decision. It is recommended that an appropriate clause is included in the Will to reduce the likelihood of a person contesting your decision.

Getting a lawyer to produce your Will is the best way to ensure that things go according to plan after your death.

Make sure things go to plan. Call 03 9878 5222 and ask us about a free phone consultation.


Purchase Of Land FAQs

If You’re Not Sure Where to Start, Start With Us.

Buying property is exciting. The best way to make this process an enjoyable one is to be prepared.

There are many things to think about during the process of purchasing land. We have complied a list of commonly asked questions by property buyers. Whether this is your first home, or fourth, it’s always important to get familiar with the basics.

Of course, your own situation is unique. If you need to discuss your own situation in detail, why not give us a call for a free 15 minute phone consultation?

We can identify and explain any tax implications, restrictive covenants, easements, and building considerations. We can also help with obtaining finance, communicating with Estate Agents and dealing with mortgagees.

We leave no garden stone unturned. Call us today!

Purchase of Land FAQ

Not familiar with some of these words? Check out our glossary of common terms used during the Transfer of Land.

What are some things I should consider before purchasing a property?

  • Property price and access to finance. Will you sell your current home? Will you get a mortgage?
  • Does the property meet legal requirements? Is the pool fenced properly? Was there a permit for the extension or for the removal of trees?
  • Does the property comply with a Restrictive Covenant on the land?
  • Is there an Easement, such as sewage and water pipes, and where are they located?
  • Are the fence lines the same as the boundaries on the plan – you can get a surveyor to do this for you.
  • Is there a Caveat on the property?
  • Will this be an investment property or your Principal Place of Residence (PPR)?
  • Does everything work? – always check doors, lights, even the garage remote.
  • Are there visible renovations or extensions?
  • Is the garden in a reasonable condition?
  • Is it an area prone to certain insects like termites? You might consider a pest inspection, so you don’t get a nasty surprise when you move in.

What are some things should be contained in a Vendor’s Statement (Section 32)?

The Vendor’s Statement must contain all information that will enable the purchaser to make an informed decision about whether they should purchase the property. Detailed information about Vendor’s Statements can be accessed here.

Do I pay rates before Settlement?

No. Things like rates, water charges (drains and sewage) and rental will all be adjusted at Settlement. The actual purchase price may vary slightly depending on what needs to be adjusted.

The Vendor pays these rates and charges up to and including the day of Settlement. You are responsible for payment after Settlement. Paying rates before will complicate matters.

What arrangements need to be made with my bank?

If you are obtaining a mortgage to finance the purchase, then you will need to obtain formal finance approval to cover the cost of the purchase. This is paperwork that we can assist you with. If you require a mortgage to finance the purchase, you should make sure it is a condition in the Contract that the sale is Subject to Finance.

If the purchase is Subject To Finance, then you must advise us if you have been formally approved (not conditionally) by the due date. If you do not tell us before the due date, then it is presumed that you have been successful and the contract becomes unconditional. This means that you will be held liable for the purchase monies.

If you do not need a mortgage to finance the purchase in whole or in part, then you do not need to make any arrangements with your bank.

What about the Vendor’s bank?

We ensure that the appropriate paperwork has been completed prior to Settlement for the Vendor’s mortgage to be discharged.

Our service will obtain the mortgage repayment amount from your Vendor’s conveyancer or Lawyer so that the Vendor’s bank receives the correct amount from you at Settlement. If this is not done, then the Vendor’s bank will not hand over the title to you or your bank and Settlement will not go ahead.

What information do I need to give to you?

The most important things are the Contract and the Section 32 Vendor’s Statement.

You also need to let us know:

  • If you are obtaining finance
  • If this is your first home purchase
  • Whether it will be a rental property or your Principal Place of Residence
  • If you have any government concessions

What is your process for preparing documents for Settlement?

  • Ensuring that the conditions of the Contract have all been met.
  • Ensuring that all the cheques are in order.
  • Making arrangements for the Transfer of Land document and Goods Statement.
  • Preparing the Statement of Adjustments.
  • Ensuring Stamp Duty will be paid in time to avoid penalty interest.
  • Preparing and sending a Notice of Acquisition. This document notifies the proper authorities that you are the new owner of the property.

I signed the Contract yesterday, but I didn’t tell my partner. We discussed the property over the weekend and now we don’t want to buy. Am I stuck?

No. You have a “Cooling Off Period” of 3 business days after signing the contract. You can change your mind in this period if you decide you don’t want to go through with the purchase.

You must tell the vendor that you are cooling off within that period otherwise the contract becomes unconditional.

Where do I need to go for Settlement?

Settlement will usually occur at the Bank’s office. If there is no bank involved, the Vendor will usually nominate a place of Settlement, such as their office or at a Settlement Centre.

As part of our service, you do not need to attend Settlement. Our agent will attend the Settlement for you.

Where do I get the keys?

You can usually collect keys from the agent once you have been notified that the Settlement has taken place.

If there is no agent, then it depends on the alternative arrangements which have been made. You may need to collect them from our office, or the vendor’s conveyancer’s office.

handing over house keys

The garden is all overgrown and looks like it hasn’t been touched in years. Can I make the Vendor clean it before Settlement?

Generally, you purchase the property “as is”. If the backyard was a jungle when you signed the Contract, then it’s time to put on the gardening gloves!

In some cases, however, a Special Condition negotiated in the Contract may force the Vendor to do this for you.

The air conditioner doesn’t work. Make the Vendor fix it.

The vendor has an obligation to maintain the premises up to the day of Settlement.

Much like the garden, this means that if the air-conditioner wasn’t working at the time you signed the Contract, then it’s up to you to repair or replace the appliance.

The best way to avoid this is to check all appliances before signing to ensure everything is in working order. The golden rule: when inspecting the property, don’t be afraid to test everything!

Our Property Lawyers Services

Must Read Property

Conveyancing Glossary Of Terms

There is A Lot To Know. We Make It Easy For You.

To help you during this process, we have complied a list of the most common (and often confusing) terms you may come across when selling or purchasing land.