Question 1

What is a cooling off period, according to Newcastle Legal and Conveyancing?

Accepted Answer

A cooling off period is the timeframe after a contract has been exchanged within which a purchaser may rescind the contract. In New South Wales the cooling off period starts at the time of exchange of contract and finishes at 5.00pm on the 5th business day. Weekends and public holidays are not counted as business days.

Question 2

What is gazumping, according to Newcastle Legal and Conveyancing?

Accepted Answer

Gazumping occurs when the property is sold to someone who makes a higher offer despite the agent or the vendor having a verbal agreement with another person to sell the property to them.

Question 3

Can I ask for an extension to the cooling off period, according to Newcastle Legal and Conveyancing?

Accepted Answer

A cooling off period is usually for a period of 5 business days from the date of the exchange of contract but it can be extended at any time before its expiration. If requested by you (The purchaser) Your lawyer can provide the vendor’s lawyer with a written request for extension of cooling off period. It is up to the vendor to accept or reject the request for an extension.

Question 4

How do I apply for a divorce, according to Newcastle Legal and Conveyancing?

Accepted Answer

We first check that you meet the legal requirements for divorce. We then prepare the application, affidavits and documents to support your application. If there are children aged under 18 years you need to attend court on your hearing date however this is usually a short hearing. If you meet the requirements the court will issue a provisional divorce which is final after one month and one day.

Question 5

Does the date of separation really matter, according to Newcastle Legal and Conveyancing?

Accepted Answer

The date of separation is important whether you were married or in a de-facto relationship. The date of separation impacts upon a number of things including: when you can file for a divorce; the time in which you can claim property settlement; or  the time from which your spousal maintenance and possibly child support obligations start to run.

Question 6

Can we apply for a divorce if we have been married for less than two years, according to Newcastle Legal and Conveyancing?

Accepted Answer

Yes, you can apply for a divorce if you have been married for less than 2 years however you and your ex-partner must first go to a counsellor to discuss the possibility of reconciliation. The counsellor must be an approved counsellor who is authorised to issue the relevant certificate that will need to be provided to the court as part of your application for divorce.

Question 7

We want to formalize our parenting arrangements by consent orders. Do we still have to go to court, according to Newcastle Legal and Conveyancing?

Accepted Answer

No. You do not need to go to court if you both agree on consent orders. You can instruct us to prepare the application and orders for you. The orders need to be in a particular form and are not easily drafted by a non-lawyer.

Question 8

Are Children protected by an ADVO, according to Newcastle Legal and Conveyancing?

Accepted Answer

The mandatory (standard) conditions included in an ADVO cover the protected person and any person they have a domestic relationship with such as a new partner and children. The police can also make a specific ADVO application on behalf of children aged under 16 years. Children aged 16 years or older can apply for their own ADVO.

Question 9

Can anyone make a will, according to Newcastle Legal and Conveyancing?

Accepted Answer

Yes anyone can make a will but the following applies: they must have legal capacity and good memory and understanding; and they must be over 18 years old. Good memory and understanding means among other things that they must not suffering from substantial dementia or a cognitive impairment that affects their judgment and understanding.

Question 10

What is enduring guardianship, according to Newcastle Legal and Conveyancing?

Accepted Answer

An enduring guardianship is a formal legal document allowing another person to make decisions about your accommodation, health, medical and dental treatment and other personal services.  An enduring guardian cannot make decisions relating to your financial matters. While an enduring guardian holds many decision-making powers they cannot make or alter your will.

Question 11

Can Newcastle Legal and Conveyancing stop probate from being granted?

Accepted Answer

If you lodge a caveat against probate being granted you can put a hold on it.  A caveat will remain in force for 6 months from the date it is lodged.  If it is found that you have no proper reason to lodge a caveat the court can strike it out.  If your caveat is struck out you may be ordered to pay the legal costs of the estate.

Question 12

I have been asked to sign a Memorandum of Understanding. Is this the same thing as a contract? If not, is it legally binding, according to Newcastle Legal and Conveyancing?

Accepted Answer

If you are being sued it is likely that the other party has legal representation and that it is in your best interests to engage us to represent you. There are rules and procedures that need to be followed when there is legal action. We will assist you in navigating the legal system and achieving the best outcome possible in the circumstances.

Question 13

What is the difference between my company name and my business name, according to Newcastle Legal and Conveyancing?

Accepted Answer

A company is an independent legal entity with its own rights and responsibilities.  Your company name gives you exclusive rights to that name in Australia. A business name is simply a name which a person or entity conducts its business under. It is not a legal entity and cannot be sue or be sued.

Question 14

How do I dissolve a partnership, according to Newcastle Legal and Conveyancing?

Accepted Answer

A partnership can be dissolved by: a partner making a statement that the partnership is dissolved effective from a date; it has become illegal; a partner dies or becomes bankrupt; a court order has been given to end the partnership; or the lifetime of the partnership has expired.

Question 15

Can I set up a trust to avoid paying tax, according to Newcastle Legal and Conveyancing?

Accepted Answer

The purpose of establishing a trust should not be characterised in this way. Trusts cannot be set up for the purpose of avoiding income tax.  Trusts can be established for the purposes of managing your wealth and tax planning.  Generally it will be up to the courts to establish whether the trust was for legitimate purposes or not.

Question 16

My license was taken off me by police when they breath tested me. Can I get it back before the court hearing, according to Newcastle Legal and Conveyancing?

Accepted Answer

There are very limited grounds on which you can seek to have a police suspension lifted before the matter is dealt with in court.  In these circumstances you should consult a lawyer to discuss the matter.  The fact that you need a license for work would not be sufficient grounds to overturn the suspension.

Question 17

Are the police allowed to search me for drugs, according to Newcastle Legal and Conveyancing?

Accepted Answer

If you are under arrest the police are allowed to search you. If you are not under arrest the police do not have the right search you unless: you consent or they have a warrant.

Question 18

Will an AVO show up on a criminal record check, according to Newcastle Legal and Conveyancing?

Accepted Answer

When an AVO is made you are not given a criminal record. A criminal record check will not bring up an AVO.

Question 19

What is meant by ‘exchange of contracts’, according to Newcastle Legal and Conveyancing?

Accepted Answer

The exchange of contracts occurs when the contract signed by the purchaser and the contract signed by the vendor are dated at the office of the vendor’s solicitor or conveyancer. Both contracts must be identical. The purchaser is usually required to pay a deposit at the time of exchange of contracts. The normal deposit is 10% of the purchase price.

Question 20

Can one person oppose an application for divorce, according to Newcastle Legal and Conveyancing?

Accepted Answer

Yes, you can oppose an application for divorce however there are limited grounds for doing so and most applications fail. In Australian divorce law is a ‘no fault’ system of law. This means that the court is not interested in why the relationship broke down or whether or not both people want a divorce. It will simply consider the application against the legal requirements for granting a divorce.

Question 21

What is the 4 step process a court goes through when deciding a property settlement, according to Newcastle Legal and Conveyancing?

Accepted Answer

Step 1: Identifying and valuing the asset pool – all assets including superannuation and liabilities (debts). Step 2: Assessing the financial and other contributions, direct and indirect (e.g. homemaking) made by each party. Step 3: Assessing the future needs of the parties, including age, income and illnesses. Step 4: Considering if on the whole the proposed division is fair on both parties.

Question 22

If my relationship breaks down in the future, how can I be sure I won’t be better off if I make a claim under the Family Law Act, according to Newcastle Legal and Conveyancing?

Accepted Answer

You cannot be certain as no one knows what the future holds.  If you are together for a long time there may be many unforeseen circumstances. You can discuss any issues with us and provide for reviews of the agreement over time.  You can be certain that a BFA will be less expensive than a Family Court dispute about property interests that may take months or years to resolve.

Question 23

Where is a family provision claim made, according to Newcastle Legal and Conveyancing?

Accepted Answer

The NSW Supreme Court has the power to hear and decide matters relating to family provision claims.  Court rules, legislation and regulations prescribe the types of documents to be used and the procedure for claims.  Initiating documents (the legal documents that start the claim) must be filed in the court’s registry and served on the executor of the estate.

Question 24

What is ‘assault and battery’? Are they the same thing, according to Newcastle Legal and Conveyancing?

Accepted Answer

The phrase ‘assault and battery’ refers to the old English legal terms which give us the modern offences relating to assault and grievous bodily harm.  Assault was creating the fear of violence in the victim and battery was the actual force or touching of the victim. These old legal principles have since been replaced. The term ‘assault’ now includes both of the old ‘assault and battery’ concepts.

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