Elder abuse -lack of contact with family

Posted on March 13th, 2019

In NAD [2018] NSWCATGD 1 (a case involving the NSW Civil and Administrative Tribunal) an elderly mother diagnosed with dementia was taken to live with her son.  One of the mother’s daughters complained that as a result of this move, she was denied the ability to see her mother.  She complained that her brother had no landline at his home and if she rang to speak to her mother, she was denied telephone access.  Read the rest of this entry »

Additional support for families to recover financially after separation

Posted on March 11th, 2019

On 20 November 2018, the Australian Government announced a package of measures to improve women’s economic security – the Women’s Economic Security Package (WESP).

The WESP includes $98.4 million in new funding for family law services and initiatives, to commence in the 2019-2020 financial year.   The measures have been announced as specifically supporting women and their families, but should benefit families generally, and include: Read the rest of this entry »

Insurance Policies and Claims for Damages

Posted on March 6th, 2019

Consider this scenario:  a self-employed carpenter earns $1,000 per week.  He has income protection insurance, mainly in case he suffers a work injury.  He is injured when, whilst visiting friends, a balcony he was standing on collapses and he falls to the ground.  He is off work for 12 months.  He brings a claim against the property owners for damages for lost income.

In that situation, has the carpenter suffered any loss?  He has not been able to work, but he happens to have income protection insurance which pays him his $1,000 per week. He is, on the face of it, no worse off. Read the rest of this entry »

New statistics on marriage and divorce

Posted on February 28th, 2019

We are all touched in some way by relationships, starting and ending.  On 27 November 2018 the released the following statistics, which are of interest:

  • A total of 3,149 same-sex weddings were held in Australia between 9 December 2017, when amendments to the Marriage Act 1961 came into effect, and 30 June 2018.
  • The median age at marriage for male same-sex couples as at 30 June 2018 was 48.5 years of age, compared to 39.0 years of age for female same-sex couples.
  • There were 112,954 marriages registered in Australia in 2017, a 4.7% (5,447) decrease on marriages registered in 2016.  Whilst the number of registered marriages has slowly declined over time, the number of de facto relationships voluntarily registered is growing on an annual basis. There were 14,626 relationships registered in 2017, over double the number registered only 5 years ago in 2013 (7,281).  It is not possible to register de facto relationships in Northern Territory or Western Australia.

Read the rest of this entry »

Communicating Dismissals to your employees

Posted on February 27th, 2019

It is no surprise that emails, text messages and other communication apps are prevalent in most workplaces. Recent decisions of the Fair Work Commission have found that when it comes to communicating a dismissal with an employee, it is best practice to do so in person rather than by email or any other method of communication.

In Knutson v Chesson Pty Ltd [2018] FWC 2080, Commissioner Cambridge commented that the advice of termination of employment is a matter of such significance that basic human dignity requires the dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. He noted that unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should always be conveyed face to face. Read the rest of this entry »

The aging process –legal mental capacity

Posted on February 22nd, 2019

Can my step child contest my will?In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the couple’s assets when they died.  As a consequence the children brought legal proceedings challenging the validity of both of their parents’ last Wills.  Judge Lindsay had to consider whether “unusual behaviour” by aging parents was sufficient to legally invalidate their Wills (lack of mental capacity to make a Will).  The Judge was careful to consider the evidence of their behaviour at the time of the making of the Wills.  In the husband’s case, for example, the Judge concluded that his Will was a “rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so”.   Read the rest of this entry »

Making the rules the same for everyone

Posted on February 20th, 2019

When parties to a marriage or a de facto relationship want Court Orders to divide their property, time limits apply as to when they can bring an application.  A party to a marriage has 12 months from the date of their divorce (not separation) to ask the Court for Orders; and a party to a de facto relationship has 2 years from the date that they separate.  On the application of one party, the Court can give permission to extend this time limit in certain circumstances. Read the rest of this entry »

If you need to flee – ending a lease when there is domestic violence

Posted on February 14th, 2019

The Government recently passed a Bill amending the Residential Tenancies Act to provide some assistance to tenants who need to escape a domestic violence situation.

Those tenants will need to give their landlord/agent (and any co-tenant) a Domestic Violence Termination Notice and attach either a:

    • Certificate of conviction for the DV offence;
    • Family Law injunction;
    • Provisional, interim or final DV Order; or
    • Declaration made by a medical practitioner (form prescribed).

Read the rest of this entry »

Alert for Agents and Landlords of Residential Tenants in NSW

Posted on February 12th, 2019

All landlords and agents of residential tenancies should be aware that the Residential Tenancies Act 2010 (NSW) will be amended effective from 28 February 2019 to enable tenants to escape circumstances of domestic violence.

Tenants will be able to end their tenancy immediately and without penalty in circumstances of domestic violence. A tenant will also not be liable for any property damage to a property caused by the domestic violence. Read the rest of this entry »

Insurance Policies and Claims for Damages

Posted on February 12th, 2019

CLower than Expected Service Leads to Compensationonsider this scenario:  a self-employed carpenter earns $1,000 per week.  He has income protection insurance, mainly in case he suffers a work injury.  He is injured when, whilst visiting friends, a balcony he was standing on collapses and he falls to the ground.  He is off work for 12 months.  He brings a claim against the property owners for damages for lost income.

In that situation, has the carpenter suffered any loss?  He has not been able to work, but he happens to have income protection insurance which pays him his $1,000 per week. He is, on the face of it, no worse off. Read the rest of this entry »

Busting some Family Law misconceptions

Posted on February 5th, 2019

The emotional side of ending a relationship can leave those involved completely unprepared for financial separation – often not helped by some notions that float around (well-intentioned) back-yard barbeque and water-cooler conversations.

Property held by one person at separation is theirs
Under the Family Law Act 1975 all assets and liabilities go into the “asset pool” – they don’t have to be in joint names. This can include an interest in assets owned with another person and an interest in assets held by a Trust. Read the rest of this entry »

New Fair Work Regulation addresses casual “double dipping”

Posted on February 4th, 2019

Since the decision of the Full Court of the Federal Court of Australia in Workpac v Skene [2018] FLAFC 131 (“Skene“), employers have been concerned that in addition to paying casual employees a casual loading, they may also be responsible for back pay entitlements under the National Employment Standards (“NES”) in circumstances where an employee has been incorrectly classified as a casual employee instead of a full time or part-time employee.

In Skene, the Full Court upheld the decision of the Federal Court which found that an employee who was classified as a casual employee by his employer but who worked a regular roster set a year in advance was not a casual employee but was a permanent employee. As a consequence, the employee was entitled to annual leave under the NES and the Enterprise Agreement which applied to his employment. Read the rest of this entry »

Am I in a de facto relationship? Part 2

Posted on January 31st, 2019

Section 4AA(2) of the Family Law Act lists factors to be considered in the determination of whether or not a couple are or have been living together on a genuine domestic basis. These factors can be any, or all, of the following:

  • the duration of the relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support between them
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
  • the care and support of children
  • the reputation and public aspects of the relationship.

Read the rest of this entry »

A Shift in Calculating Personal/Carer’s Leave

Posted on January 24th, 2019

A Shift in Calculating Personal/Carer's LeaveThe Fair Work Commission (“FWC”) recently handed down its decision in AWU v AstraZeneca Pty Ltd [2018] FWC 4660. The case is being described as a landmark decision on personal/carer’s leave for shift workers.

A dispute arose between AstraZeneca Pty Ltd (“the Company”) and the Australian Workers Union (“AWU”) in relation to how shift workers employed by the Company accrued personal /carer’s leave and whether the Company’s current practice of calculating personal/carer’s leave of shift workers was in accordance with the Fair Work Act 2009 (“FWA”).   Read the rest of this entry »

Am I in a de facto relationship? Part 1

Posted on January 23rd, 2019

Am i in a de facto relationship - part 1People often seek an answer to this question because it has a financial impact on them. Family courts have jurisdiction to make orders in respect to maintenance and property settlement between persons living in de facto relationships if they are satisfied that there is a de facto relationship, and the total of the periods of that relationship are at least 2 years; or that there is a child of the de facto relationship; or that the claimant has made direct or indirect financial and/or non-financial and/or homemaking  contributions to their property and a failure to make an order would result in serious injustice to the claimant.

You cannot be in a de facto relationship with another person if you are married to that person, or if you are the child or adopted child or descendant of the other person; or you have a parent in common, who may be an adoptive parent of either or both of you.   Read the rest of this entry »

Can a retaining wall be a dividing fence?

Posted on January 22nd, 2019

Can a Retaining Wall be a Dividing Fence?Nham & anor v Hayes & anor [2018] NSWCATCD 17

NCAT looked at several issues in this Dividing Fences application, the most interesting one involved retaining walls.

In short, the applicants had served a Fencing Notice under section 11 of the Dividing Fences Act 1991 (NSW) (the Act), which was not agreed to by the neighbours. At the same time the respondents began an action in the Supreme Court of New South Wales substantially in negligence and trespass. Read the rest of this entry »

Superannuation….. Who gets it when I die?

Posted on January 18th, 2019

Superannuation - who gets it when I die?It comes as a surprise to many people to learn that they do not own their superannuation and therefore cannot include their superannuation as an asset to be disposed of by Will. After the death of a member of a superannuation fund, the superannuation entitlement of the deceased person is paid at the discretion of the trustee of the superannuation fund of which the deceased person was a member unless that deceased person has filed with the trustee a Binding Death Benefit Nomination (BDBN). If the trust deed governing the superannuation fund provides for the filing of a BDBN and if a BDBN has been filed (and assuming it is correctly completed and executed then the trustee of the superannuation fund is bound to abide by that BDBN and pay the superannuation in accordance with it. Effectively the BDBN can be an extension of the Will in that it can bind the trustee to pay the superannuation in accordance with the wishes of the deceased person. It is advisable for a member of a superannuation fund to file a BDBN (if possible) however advice from an accountant should be obtained to ensure that the superannuation is disposed of in the most tax effective way and if not, that the member of the superannuation fund is aware of the consequences of his or her action. Read the rest of this entry »

Exceptions to the rule – Who’s listening?

Posted on January 17th, 2019

Exceptions to the rule - who's listening?S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.

In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions.  They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property. Read the rest of this entry »

What a difference a (leap) year makes

Posted on January 16th, 2019

What a difference a (leap) year makesWe have all heard jokes about people born on 29 February in a leap year, claiming to be younger than they really are because technically they only have a birthday every 4 years. However the ACT Supreme Court has had to grapple with the implications of a leap year birthday in somewhat different circumstances.

The plaintiff in the proceedings was born on 29 February 2000. She was charged with committing criminal offences on 28 February 2018. Depending on whether the plaintiff was an adult or a child on the date of the offences, she would be dealt with either as an adult or in a Children’s Court.

A Magistrate in the Children’s Court had decided the plaintiff was an adult and that the case must be sent to the Magistrate’s Court (the equivalent of the NSW Local Court) where the plaintiff would be dealt with as an adult. The plaintiff appealed that decision to the Supreme Court. Read the rest of this entry »

Charity in Wills – Don’t waste the gift

Posted on January 15th, 2019

What executors need to knowWills are ambulatory. The circumstances existing on the death of the will-maker apply.  This poses difficulties since most people cannot help but write Wills with “today” in mind.

A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change. Read the rest of this entry »