Author: Jacqui Brauman

by Jacqui Brauman Jacqui Brauman No Comments

What is Legal Literacy?

Legal literacy, or legal awareness, is sometimes also thought of as public legal education. But it essentially empowers individuals regarding issues involving the law, who are not lawyers, judges or others in the legal industry.

The goals and objectives of legal literacy is for the public to:

  1. recognise when they have an issue that has a legal resolution, or they have a legal right or obligation
  2. learn how to find relevant free resources and information that you need
  3. learn how to find and work with a lawyer who has the correct skills for what you need
  4. learning how to communicate in a way that is clear and respected by your own lawyer or even others you are negotiating with
  5. learning how to take the necessary action to avoid problems, and where possible, how to help themselves appropriately
  6. having confidence that the legal system will provide a remedy and understanding of the process enough to know when justice has been done, and
  7. even being able to hold your lawyer accountable for quality of service and effectiveness. 

Legal literacy can empower people to demand justice, accountability and effective remedies. Legal issues always have the potential to become a crisis if ignorance prevents someone from anticipating the legal troubles and getting timely information or advice. Crises clearly magnify the impact on someone’s life unnecessarily. 

Without legal literacy people can also feel intimidated and alienated from the law. This may lead people from coming into conflict with the law, having poor experiences, and not being able to obtain help when they need it.

Traditional models of trying to promote legal awareness and legal literacy has typically been boring, hard to engage with, and not used as a preventative measure. It has been provided through lectures and workshops, crash programs, short courses, books, posters, brochures, and materials distributed primarily by government organisations.

The rule of law is that everyone is subject to the law – individuals, lawmakers, corporations, governments and Kings. But without legal literacy, the concept of the rule of law doesn’t provide the protects it should, if people are giving up their rights without knowing.

Hence, education and increasing legal literacy is imperative. 

by Jacqui Brauman Jacqui Brauman No Comments

How to find the legal information I need

Finding relevant legal information that you need, in a timely manner, can be quite difficult.

Fortunately or unfortunately, there is a lot of legal blogs and free articles online – mainly published by law firms trying to get good SEO. But many of these blogs are written in language that is not clear, or it is written for another lawyer.

Also, if you did a Google search, you are likely to have to go through a number of pages of information, with the first set of information not very relevant, but being paid for. The organisation of legal information, and how Google displays relevant, does not work.

So where should you start?

The Law Handbook is a great free resource, with a lot of easy-to-read information over lots of topics, and plenty of links to further information. This is mainly Victorian based. This is published by the Fitzroy Legal Centre.

There are lots of other Community Legal Centres, if you Google for your closest one they are probably better able to steer you in the right direction than Google itself.

For those in New South Wales:

Womens’ Legal Service

NSW Legal Aid

For Victorians:

Womens’ Legal Service

Victoria Legal Aid

For Queenslanders:

Womens’ Legal Service QLD

Northern QLD Women’s Legal Service

Legal Aid QLD

For South Australians:

Women’s Legal Service SA

Legal Services Commission SA

For Tasmanians:

Women’s Legal Service Tasmania

Legal Aid Commission Tas

For Western Australians:

Women’s Legal Centre WA

Legal Aid WA

For businesses:

Small Business and Family Enterprise Ombudsman

by Jacqui Brauman Jacqui Brauman No Comments

Lending Money to Friends and Family

While you want to be generous in good times, and help a friend or family member out when you can, unfortunately money can ruin relationships.

If you’re lending money to a friend or family, they are probably going to consider it a gift. Or at very least, not think that paying you back is a priority. It will only happen when they end up with some extra money (which is usually never).

But they’re legally right to think the money is a gift. 

lending money

It comes back to contract law, and that two people entering into an agreement need to intend that it is legally binding. Friends and family members don’t usually think an agreement between them is legally binding – they think of it as a lesser obligation.

So what do you do, if you want to get paid back?

If you lend money to friends or family, you need the agreement to be put down in writing, and for both of you to sign it. Without this, the money will be considered a gift, and you will have no legal grounds to try to get it back.

When the arrangement is in writing, it confirms that you both did what the agreement to be legally binding, rather than just a gift.

What needs to be in the agreement?

The written agreement can be simple, but needs to be clear. You are at least going to include:

  • the name of the person lending the money (your name)
  • the name of the person getting the money
  • how much money
  • maybe, what they are using it for
  • when they need to pay it back by
  • whether they are going to pay some instalments
  • the interest rate, if you want to charge interest
  • the date
  • both need to sign.

What do you do if they don’t pay the money back?

Just like a personal loan, you would be able to sue them for the money. But this is a bit extreme, so what options do you have first?

Well, you could talk to them first, and agree to extend the loan, if they need more time. You would have to have a written agreement of the extension.

You might be able to change the terms of the payment. Maybe they have a house that they will sell in a couple of years, or something else of value. If they agree that you can get paid when the house or the thing sells, ask them if you can put a caveat or charge on the property. 

A caveat on real estate, or a charge on personal property, makes sure it cannot be sold without you knowing. And if you know they’re selling it, then you won’t agree to removing your caveat or charge unless you are paid. 

You could also consider using a dispute resolution service. This might be free or paid mediation. Or instead of making a claim in court, you could make a small claim in your State Civil and Administrative Tribunal which can be far cheaper and easier. 

So if you’re lending money to a friend or family member, then make sure to have the agreement noted down on paper, and have them sign it.

by Jacqui Brauman Jacqui Brauman No Comments

I’m getting separated – where do I start?

I’m getting separated – where do I start?

Your marriage is nearly over, or you’ve just left or kicked him out. So you’re getting separated – where do you start?

Your first priority should always be to make sure you are safe. If you’re not, go to the police, and get the support that you need.

Being separated also means having independent finances, so make sure you have your own bank account and your wages are being paid into that. 


Neither of you should clean out any joint accounts and leave each other with nothing. If this does happen, the money will still be taken back into account later, and potentially so will the behaviour.


You do not need to get divorced straight away. If fact, you can’t get divorced until you’ve been separated for 12 months.

After being safe, your next priority will depend on whether you just need a financial settlement with your ex-partner, or whether you still have young children. 

Trying to come to an agreement about everything should always be the first step. But it’s hard to come to an agreement when you don’t know what your rights are. 

Here are some videos to start learning your rights.

You may also want an initial, one-off appointment for advice from a lawyer. There should be no ongoing obligation.


If you have children your next step is to contact a Family Dispute Resolution centre to have a mediation. Quite often, parents reach an agreement this way, and then they need to put that agreement into an enforceable format, such as Consent Orders (which a lawyer can help you with).

If you cannot come to an agreement through mediation with the Family Dispute Resolution centre, then you will be given a certificate to confirm that you have tried. Without this certificate, you cannot make an application to Court.

Court should be your last option, but sometimes it is necessary to force the other party to negotiate, or to force the other party to give you full disclosure of all their financial affairs. Even if you end up in Court, the majority of matters settle without a trial. But the road in Court can still be long and expensive.

There are also other avenues to formalise an agreement that you and your ex-partner reach, such as a Binding Financial Agreement.

Or there are also other ways to try to reach an agreement, if the Family Dispute Resolution centre doesn’t work, such as a Divorce Coach. 

Utilise whatever resources you can that are suitable for your situation. 

by Jacqui Brauman Jacqui Brauman No Comments

5 Ways to Resolve a Dispute (Out of Court)

5 Ways to Resolve a Dispute (Out of Court)


There are a lot of free services providing ways to resolve a dispute out of court.

If you have a dispute with a business is a certain industry, there is often an ombudsman who will help resolve the dispute for free:

  • aged care
  • airlines
  • banking and insurance
  • building
  • energy and water
  • privacy
  • telecommunications
  • government.

If you have a consumer complaint, your State will have a Consumer Affairs body with a dispute resolution service.

ways to resolve a dispute

If you run a small business, your State business commissioner often has a dispute resolution service. There is also the Small and Family Business Ombudsman.

Utilise any free services that you can. 


You can negotiate yourself, or you can hire someone like a lawyer to help you to negotiate. 

You need to determine what you really want, and what your next best result would be, and then the result that you’ll accept and live with but not love. 

Start the process of putting your offer to the other party, and they are likely to counter-offer.

You will go backwards and forwards with offers, hopefully narrowing the issues, or coming up with creative solutions, until you come to something that you can both agree on. 

Then sign some form of settlement agreement. 


Conciliation is process where an independent third person that you both agree on helps you to resolve your dispute. It is usually a person with technical experience and knowledge in the specific area that you’ve got the dispute over. 

A conciliator will usually not make a decision or judgement about the dispute, but will provide their advice and technical guidance. They will not take sides. 

This can be a voluntary process, or it could be the dispute resolution process built into a contract.


An arbitration also involves an independent third person who is appointed. They are usually appointed by a dispute resolution body, like an industry association or regulator.

An arbitrator will usually have a technical background as well, and you will submit your case to the arbitrator who will make a decision about the dispute. 

If you’re not happy with the arbitrator’s decision, there is limited circumstances where you can appeal to a court. 


A mediation is closer to a conciliation, but a mediator is usually a professionally trained mediator to help resolve disputes, and not got any technical knowledge in your particular area of dispute.

by Jacqui Brauman Jacqui Brauman No Comments

Psychology of negotiating

Psychology of negotiating

More and more often, when talking a client through a strategy to approach negotiating, I am explaining psychology to them. Even this is a new tactic that I’ve adopted myself, because I would often keep the whole reasoning to myself and just explain what the best approach would be.

Even though clients often say ‘that’s why I’m hiring you; you know best’, I am talking them through more detail. This is also part of the psychology of negotiating – to also have your client on your side and fully invested in our course of approach being the correct one. I explain every step to them, and the reason for the step, and then I explain that it’s been done and the reaction we got.


I have also had lots of clients come to me, unhappy with the result they got with another solicitor, and I wonder how much psychology that solicitor has employed in managing the expectations of their client and in employing a strategy.

Fundamental to negotiating is having an understanding of the mind and emotional state of the the other party, and often their lawyer as well. The opposing lawyer often has a lot of impact on the outcome of a negotiation, because many are emotionally and egotistically involved when they needn’t be. 

So what are the basic approaches to having a successful outcome to your negotiating?

  1. Separate people from the problem

This is really tricky, because we’re all people – even the lawyers! Like I’ve already said – choosing the right lawyer is important, because if the lawyer’s own feelings and ego get in the way, then your negotiation will be prolonged. 

So you, with encouragement and guidance from your lawyer, needs to narrow your focus down to the issues. Not how much water has passed under the bridge between the people negotiating. 

  1. Focus on interests, not positions

The key, then to move forward, is to focus on what each of the people actually want out of this negotiation. Not on the position they may have entrenched themselves into. 

What they want is psychological, not necessarily practical or financial. So, maybe this step returns to the people again, over the problem. But this is forward focused.

Most people want to move on, to retain their pride, and sometimes to inflict pain and shame on the other person. They want to feel like the winner.

  1. Invent options for mutual gain

So this is the lawyer’s job – make sure you feel like you are going to win. And also be able to convince the other party that they’re also getting a win.

Unfortunately, many in the legal industry believe that if both parties are unhappy, then it’s a fair solution. However, the aim is actually to have both parties feel like it’s fair and they’ve had a win!

Your success in negotiating a settlement or terms of an agreement often comes down to your selection of a lawyer. Choose well, and do your research first. 

by Jacqui Brauman Jacqui Brauman No Comments

How to tell your kids about your divorce

Children grow up surrounded by notions of what is “happily ever after” and what their family should look like and how they should behave. When parents fight or just don’t get along, although the child is sad, in most cases, they don’t conceptualise their parents getting divorced. 

So how do you tell them?

Remember, it is not about you! You have made the decision to change your life and that is an empowering and brave decision – telling your child is not about that – it is about their world and their fears and aspirations.

There is a plethora of articles’ on the web that give noteworthy tips on what you should do, but life is not a planned event and not everything can be controlled. So a fail safe way on how to tell your children that you are getting divorced is to be mindful of what not to do. 


Pick your moment

Telling them when they are tired, angry or sleepy is standard poor communications if you were presenting something to a seasoned adult but to do that to a child is just plain cruel. Be mindful of how your child is feeling at the time and what is happening in their lives. In other words, telling your 13year old that you are getting divorced just as she is sitting for an important assessment is sub optimal. 

Plan your moment

There is no need to choreograph your news like a wedding but there is merit in having a plan of what you want to say. Have an agenda in mind and a general flow of things that you should cover. Again, remember, it’s not about you – it’s about them. Yes, you can start with the statement that you are getting divorced but then shift the focus on issues that will affect the child, for example how it will affect their living arrangements and how often they will see the other parent. Redefine the perception of the family unit i.e. just because you are no longer going to be living together does not mean that they are no longer part of a healthy and functioning family. Remind them that this is your decision and not a reflection of anything that they may have done. 

Managing responses

Your children may surprise you and say that they knew that it was coming or they may burst into tears. Whatever the response is, a good way of keeping communications flowing is to be respectful that there is no right or wrong way to react. The right or wrong way is in how you respond. Children are vulnerable as well as ego centric and as such, their responses are clues on underlying concerns or fears. The news you are giving has many implications – know the implications to your child and you can prepare for the reactions. Tune into what they are saying, ask questions and respond to their underlying issues. You know your child best and you will have an idea if they are not satisfied with your responses. 

Keep an open dialogue

So you have told your children that you are getting divorced and it went well – at the time. After the talk about getting divorced, comes the reality of the divorce i.e. the change in living arrangements, dinner times, family get together, to name a few. Each change in event will come with a new set of challenges the child has never faced before. Let them know that the discussion of “we are getting divorced” is never over and if need be, they can talk about it and raise questions as they arise. Most of all, if you don’t know and don’t have an answer to something, be brave enough to be honest and say you don’t know. You were in a family together – you can deal with the implications of a divorce together. 

by Jacqui Brauman Jacqui Brauman No Comments

Structuring your business

Take control of your business from the outset and have the right business structure. The right structure for you could depend on a lot of different factors: your goals, your current business size, the size of business that you want to have, how many owners there are, and what stage of business you are at. 

As a small business, there are tax concessions that can be used to change your business structure later. So you could start with a simple structure to begin with, and move the business into a more complex structure for growth and bringing in new owners later.

business structure

These are the main structures that you can run a business in Australia:

Sole Trader

A sole trader is when you own and run the business by yourself. You have an ABN personally, and there is no legal distinction between you personally and your business. You receive all the profits, and are personally liable for all losses, debts and taxes incurred by the business.

You can have a business name in the form of a trading name registered with ASIC.


This is cheap to set up and run – simplest business structure to have. You have total control, you don’t have to answer to anyone, or share with anyone, and you have access to capital gains tax concessions.


Once your business grows and earns a reasonable profit, your income tax is at marginal rates, so you get taxed at a maximum of 46.5%. You have no asset protection, except by insurance, so your creditors can sell anything you own to recover money owed to them, whether it’s a business asset or not. The business also dies with you, and your family will only be able to recoup the equipment and stock value.


A partnership is usually formed by an agreement between two people to run a business together – so you and your friend decide to go into business. You register for an ABN as partners. You both share the profits and losses of the partnership. There is no legal distinction between the business and the individual partners, so together and individually you would be liable for the debts and taxes of the partnership. The partnership does not pay income tax directly. The profits are divided between partners and the income tax is paid in your personal income tax return.

Again, you can register a business name for your partnership; also a pretty simple business structure.

You should have a formal partnership agreement between you both, and the partnership agreement should include a buy/sell component to determine what happens if one of you wants to leave, or if one of you has to leave due to injury or illness.


A partnership can be nearly as cheap as a sole trader arrangement to set up, but the running costs are slightly higher because an extra tax return needs to be done every year. The beauty of a partnership is that it can be as flexible as the partners, and a good partnership agreement can solve most problems and be altered when things change as the business grows. 


Similar to a sole trader arrangement, in a partnership you are taxed on the income in your own tax return, so you are taxed at marginal rates at a maximum of 46.5%. Again, there is no asset protection except insurance, and creditors can target either or both partners’ personal assets to recover debts. The partnership also ceases on the death of one of the partners, so a partnership agreement that provides for the spouse or family of a dead partner is crucial. 

Limited partnership

This is an interesting form of partnership that could be used for investment, for example. One partner has full control and the other partners is limited and passive. The limited partner’s liability for the business debts is also limited up to the amount of their investment.

These can be registered with your relevant State government authority, such as Consumer Affairs.

Joint Ventures

A joint venture is like a partnership between companies. Separate companies come together under an agreement to work towards a single goal or project. The partnership can be unincorporated, or a new company can be formed to incorporate the partnership, and each of the parties to the joint venture own shares in the new joint venture company.


You could form a company for your business structure. Companies in Australia can be public (shares are traded on the stock market) or proprietary (private). A proprietary company is the type you would consider for a small business, and it would include “Pty” in its name for “proprietary”. 

A proprietary company can have one shareholder and a single director, or it can have multiple shareholders and directors. It will have a constitution that controls the governance of the company, and you should have a shareholder agreement between any shareholders. 

Most proprietary companies are also limited, so they have “Ltd” in their name. This means that the shareholders’ liability to creditors of the company is limited to the shareholder’s original investment (which is often a $2 share!).

A registered company is given an ACN (Australia company number) and will also needs its own ABN. A company is a separate entity or legal personality from its owners and managers. 


A company is taxed at a flat rate of 30% on profits. Profits can stay in the company, or they can be paid out to shareholders, and the shareholders get the benefit of receiving money with tax partially paid (franked credit). Shareholders and directors have their personal assets protected because the company is a separate entity and liability is limited – to make sure directors liability doesn’t increase, be careful not to give personal guarantees or trade while insolvent! The company also doesn’t die when the directors or shareholders die, but these can be transferred in a Will to the next generation, or to someone buying the business from you.


The set up and running costs are more than the previous structures. A company doesn’t get some of the capital gains tax concessions that sole traders and partnerships get, but they still get some, particularly if a small business. 


A trust is a complex legal relationship which arises when a person (trustee) holds property for the benefits of someone else, or a group of people (beneficiaries). A business can be carried on by a trust where a trustee (which is often a company rather than an individual) owns asset and carries on the trading activities of the business on behalf of the beneficiaries of the trust. This is often in the form of a family trust; so the family trustee would run the business for the benefit of the parents and children of the family. 

There are various types of trusts, and the way the trust works is all determined by the trust deed. Here are the most common forms of trust:

 Unit Trust

A unit trust is a good way of business partners coming together to own a flexible business structure. The share or each partner in the unit trust is determined by the units that each person owns (like shares in a company). 

The unit trust is not as regulated as a company, and the whole governance is dictated by the unit trust deed that the individuals set up and agree too themselves, and can alter at any time. Business losses are also trapped in the trust, which is usually a good thing. The trust can offer good asset protection, depending on the wording in the trust deed. A trust is usually limited to 80 years, which should be sufficient for most businesses, and the succession of the business is all determined through the trust deed. 

The main downside is the set up and running costs, particularly if you want a company as the trustee, so you might be looking at a couple of thousand dollars a year to do all the tax returns, financial statements and other compliance issues. 

Discretionary (family) Trust

Unlike a unit trust, where the unitholders’ interest in the trust is determined by their units, the interests of the beneficiaries in this trust are all at the complete discretion of the trustee. (So the family will want to also control the trustee!)

This is the most flexible way to split income between multiple family members. It has good asset protection, if the trust deed is drawn up right. If your business is a family business, and you can afford the extra running costs, a structure that includes a family discretionary trust is one of the best structures you can choose. 

More on business structure.

by Jacqui Brauman Jacqui Brauman No Comments

Superannuation succession for blended families

Mark and Jenny are married. Both of them had previous marriages, and Mark has no children from his previous marriage, Cara and Chris who are now both adults. Jenny has a son, Lachlan, who is 12 years old and lives with her and Mark. They have no children together.

After his first divorce, Mark has very few assets. He was able to retain his superannuation with AustralianSuper, an industry super fund. He and Jenny have bought a house together, jointly owned, and mortgaged up to 70% of its value.


Mark has $600,000 in his superannuation fund, and has life and total permanent disability insurance cover for a further $750,000. He would like to divide his superannuation benefit between Jenny 60%, Cara 20% and Chris 20%. Remember, superannuation is not an estate asset that can be dealt with under a Will, unless Mark makes a binding nomination that all his death benefit goes to his estate.

Without a binding nomination to AustralianSuper, the trustee of the super fund is likely to determine to leave the majority of the superannuation (if not all) to Jenny and Lachlan (as a financial dependent and step-child). If Mark wants to ensure Cara and Chris get some of the benefit, he will need to make a binding death benefit nomination. It is important to find out from AustralianSuper whether the binding nomination can be non-lapsing, or whether it lapses every 3 years and Mark needs to remember to redo it. There is a risk that the binding nomination would lapse if Mark forgets to redo the nomination, and his own children could miss out. 

Out of Jenny, Cara and Chris, only Jenny would be within the definition of a death benefit dependent for tax purposes. Cara and Chris would need to pay part of the benefit that they receive as tax, at the income tax rate that they otherwise earn. They may not each receive an equal amount after tax. 

If Jenny died before Mark, Mark would like to have Lachlan receive part of the superannuation. But if Jenny was dead, then Lachlan would no longer be a ‘child’ of Mark (as he was only a step-child under the definition whilst his mother was alive). However, if Lachlan is still a minor and still living with Mark, then Lachlan would likely fall within the definition of a financial dependent instead, so Mark could nomination Lachlan in that situation.

Mark has given Jenny a power of attorney if he loses capacity. If he loses capacity, he could be entitled to the insurance cover associated with his benefit. Jenny, as his attorney, could withdraw from his fund on his behalf prior to his death. This would render the binding nomination either useless (depending on how much was withdrawn), or would significantly deplete the amount of money that his children would inherit. This would either be a risk that Mark would have to take, or he could prepare a Will with a specific gift clause that tracks any superannuation and ensures it is equalised between his children.

For more on money or estate planning.

by Jacqui Brauman Jacqui Brauman No Comments

Common parenting mistakes to avoid following a separation

Parenting is challenging for those that enjoy a successful relationship and there is an added level of complexity when parents are separated. Whilst a separation brings with it emotional turmoil and adjustment, if not mindful, parents can make mistakes which can end up causing their children significant distress. These are some of the most common mistakes separated parents make and we hope that recognising them will assist you in avoiding them. 


1. Showcasing the worst of the worst conflict to the children 

Children that have to witness the awful scenes where spouses insult, threaten, belittle, and even resort to physical violence can suffer from a lack of security. Criticising the other parent can cause the child to feel guilty for loving that parent. Children also may start to believe that there is something wrong with them, since they are related to the person being criticised. Moving forward, children may have anxiety disorders, sleep issues, and even problems forming stable relationships themselves. Parents should also be mindful that such emotional abuse constitutes child abuse and when reported, the Department of Human Services is duty bound to investigate. 

mistakes parents make


2. Using the Children like ‘Messenger’

A common follow on from a separation is the unwillingness to communicate with your ex-partner. The alternative of asking your children to act as go between for messages translates to asking your child to do something you and your partner could not handle doing yourselves. 

Using your child as a quasi ‘MSN’ is a mistake, frankly, and it can lead to the alienation of the other parent over time. Partners should instead use email or text messages, and these can serve as record in case where one party is not complying with court orders.  


3. Your Child is NOT a ‘Stand-in’ for your ex-partner 

A separation of partners does not mean that now the boy becomes the man of the house and the girl does not turn into the woman of the house. The responsibilities of parenthood are not a child’s burden to bear. It is important that parents don’t cheat their children of their childhood by making them the ‘man of the house’/woman of the house. 

4. A Spanish Inquisition post weekend with the other parent


When your children return home after their weekend with your partner, they should never be interrogated. It is not a child’s role to act as an umpire whilst parents are engaged in mortal combat. Such a burden is another example of emotional abuse and can lead to long term emotional damage. The opposite of the Spanish inquisition is to prevent a child from mentioning their time with their other parent. So, don’t interrogate your children and don’t pretend like the time with their other parent is a taboo discussion. Instead focus on asking fun questions and restrain yourself from giving a commentary on their experiences. 


5. Your child is not part of the asset pool nor are they part of a contract

Don’t discuss property settlements, parenting time and primary care in front of your children. If you are discussing such matters, be mindful of the ‘little ears’. To you its just a discussion about the ‘nitty gritty’ of property and parenting but to a child it feels like they are just part of a business deal and that they are a burden on one or both parents. 

What if I have already made these mistakes?

If you recognise that you have made any of these mistakes, you can repair the damage caused by doing the following:

  1. Identify your mistake in detail and have a conversation about why it was wrong;
  2. Say sorry;
  3. Commit to changing your behaviour from that moment on.
  4. Permit your child to tell you if and when you inadvertently make that mistake again.

For more information on family and separation click here.