When a child is retained by one parent

Posted on January 22nd, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

From time to time the media will report that a child has been retained by one parent.

If the child is in Australia the parent who does not have the child can bring an application with the Family Law Courts to try and recover the child. This is known as a ‘recovery order’.

It is necessary to present any existing orders, where the child usually lives, when the child ought to have been returned, where the child could be, steps that have been taken to locate the child, why it is in the child’s best interest to be returned and the likely impact on the child if a recovery order is not made. Read the rest of this entry »

Failure to pay costs – can it be contempt?

Posted on January 15th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Most of us probably associate “contempt of Court” with things like witnesses refusing to answer questions when under oath – perhaps a product of watching too much television! However a person can also be guilty of contempt for failing to comply with costs orders.

In December 2015 the Supreme Court sentenced a Mr David Mahaffy to 10 months imprisonment for contempts which included a deliberate failure to pay costs orders made against he and his company in relation to proceedings both in the District Court and in the Supreme Court. Read the rest of this entry »

Pub fights and damages

Posted on January 15th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Mr MacDougall was assaulted by two men and seriously injured. Both men had been involved in the assault but, after Mr MacDougall had fallen to the floor, the second man kicked him savagely in the face. The assaults were intentional acts; without any lawful excuse and were not in self-defence. Mr MacDougall sued for and obtained general damages (commonly referred to as ‘pain and suffering’ or non-economic loss damages). He had also claimed “aggravated” and “exemplary” damages, but each of these claims was unsuccessful. He appealed to the Court of Appeal.

Generally speaking, ‘aggravated’ damages are compensatory in nature and are awarded for injury to a plaintiff’s feelings caused by insult, humiliation and the like, over and above what would otherwise have been awarded. It is sometimes said that where there is aggravating conduct, damages can be “topped up. The Court of Appeal held it was appropriate to do so in this case and awarded an additional $10,000.00 in favour of MacDougall for aggravated damages. Read the rest of this entry »

Misunderstood issues in dismissal claims

Posted on January 13th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

This article deals with two specific issues that arise from time to time in unfair dismissal claims. They are firstly, whether an unfair dismissal remedy can be awarded where there is a valid reason for the dismissal; and secondly, the role of a worker’s own misconduct in the calculation of any compensation that is awarded.

Each of these issues is neatly ventilated in the recent decision of Anderson v Thiess Pty Limited [2015] FWCFB 478. Briefly, Mr Anderson circulated a racially/religious offensive email on a work email system.  It was sent to a wide circulation list including a number of Thiess employees.  At least one was offended and reported it to senior management.  A workplace investigation was initiated and Mr Anderson was ultimately dismissed.  He brought an application for unfair dismissal relief.  The Deputy President who heard it at primary hearing, concluded that Thiess had a valid reason to dismiss Mr Anderson, but that it was nonetheless harsh and/or unfair.  Reinstatement was considered inappropriate, but compensation was awarded.  The compensation was reduced in part because of Mr Anderson’s own conduct. Read the rest of this entry »

When do I apply for bank refinance in a property settlement?

Posted on January 11th, 2016

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

If you want to acquire your former partner’s/spouse’s interest in your home and thereafter assume liability for the joint debt, you should start making enquiries from the bank about their requirements and your capacity to meet those requirements as early as possible – and certainly before you make your spouse an offer. There is little point in proposing such a settlement option if you cannot refinance the joint loan and fund any additional settlement payment.

When spouse parties hold a joint loan account they are liable both in their own right and jointly. This means that the bank is entitled to recover the debt from both of the parties jointly and from each of them individually. Read the rest of this entry »

Property division 20 years after separation

Posted on January 8th, 2016

by Rose Laffan

Rose Laffan is a Senior Solicitor at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law

In the recent case of Vega & Riggs the parties were married in 1979, separated in 1990 and were divorced in November 1992. In accordance with the Family Law Act any application for property division was therefore required to have been made by November 1993.

No such application was made then but in 2015 the husband commenced proceedings in relation to a property the parties still owned together.

In deciding if the application could be considered the Court stated that two questions needed to be determined: 1) whether hardship would be caused to the husband and 2) should the Court exercise its discretion to grant leave. Read the rest of this entry »

The court: the third party to your agreement

Posted on January 7th, 2016

by Ashleigh John

Ashleigh John is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises extensively in Family, Relationship and Matrimonial Law.

Usually an agreement requires only the consent of the two parties, but not so in family law matters.

In family law parenting and property matters parties are regularly invited to reach agreement and ‘determine their own fate’; however even when agreement is reached the Court must ensure that all agreements satisfy the Family Law Act, and may reject an agreement, notwithstanding that the orders may be sought by both parties.

In parenting matters a Court must be satisfied that any orders are in the “best interests of the child”. Read the rest of this entry »

When is reinstatement appropriate after dismissal?

Posted on December 22nd, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Even where the dismissal of a worker is found to be unfair, in the vast majority of cases the remedy granted is compensation. In many cases neither party wishes to resume an employment relationship. Often, it is said that trust and confidence has broken down such that resuming the relationship in not achievable.   The Full Bench recently had to consider the factors relevant to whether, or not, reinstatement was an appropriate remedy: Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198.

In this case Mr Nguyen and Mr Le had been dismissed as teachers in a Vietnamese school. The dismissals were unfair (this finding was based in part on a concession by the school that this was the case).  The FWC awarded compensation (only). The teachers appealed, seeking an order that they be reinstated. Read the rest of this entry »

New risks for business – unfair contracts

Posted on December 18th, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Under the Australian Consumer Law (previously the Trade Practices Act) there has long been capacity to set aside a “consumer contract” if it was unfair.  Broadly, consumer contracts are made with individuals; and relate to goods or services for personal or domestic use.

Historically, contracts between companies, even if they related to goods or services for domestic use, were not subject to these provisions.

The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) will change the position.  It introduces a new concept – “small business contracts”.  The category covers ‘business to business’ contracts which involve a ‘small business’ (a business or company employing less than 20 workers). If a contract falls within the definition, it is capable of being set aside if it is ‘unfair’.

Read the rest of this entry »

What is Probate and is it needed when I die?

Posted on December 18th, 2015

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.

Probate is an order of the Supreme Court formally appointing an executor under a will and authorising that person to administer the estate of a deceased person.

In order for Probate to be granted, the executor named in the Will of a deceased person must apply to the Supreme Court in NSW. This application requires the executor to prove a number of things including that the deceased person is deceased, the Will is the last will of the deceased person and the executor is the executor named in the Will. The executor must also provide additional details such as details of the beneficiaries of the Estate and the assets of the Estate. Read the rest of this entry »

Planning for a peaceful end

Posted on December 11th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

If you have been watching television or reading the newspapers lately you may have heard discussions about the fear of a prolonged but meaningless life.  Your family members might have echoed this sentiment: “switch me off if I am just a vegetable, I don’t want to linger on for the sake of it”.   How, though, does this happen legally? You cannot make your wishes known if you have already fallen into a vegetative state.

Planning for the future is the best way to deal with the possibility.  A legal document in which you appoint a family member as your guardian to speak on your behalf coupled with a direction to the guardian of the things which matter most to you will make sure your wishes are known.  Doctors will then understand what sort of person you are and will be able to act on decisions made for you by a guardian who understands your wishes. There are a number of resources to use to help you think about these issues and as part of the process of appointing a guardian we can help you locate and use these resources.

If you think you would like some help making these arrangements speak to us at Mullane & Lindsay.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in  Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

Settlement negotiations – be careful what you wish for

Posted on December 7th, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Supreme Court recently dealt with a dispute about whether a plaintiff had made an offer that was capable of being accepted.

The relevant discussion occurred between the solicitors for the plaintiff and defendant in a “slip and fall” case. The defendant had made an offer, through his solicitor, to settle the case for $50,000.00. In a later telephone call the plaintiff’s solicitor said words to the effect of “$50,000.00 might do it for [the plaintiff], but another $20,000.00 would help out me and counsel. Otherwise, there is not much left for our fees”.

The defendant’s solicitor interpreted those words as an offer to settle for $70,000.00. After taking instructions he ‘accepted’ the offer; but the plaintiff’s solicitor disputed having made an ‘offer’ to settle. The defendant then issued a Summons, presumably seeking orders ‘forcing’ the plaintiff to settle for $70,000.00. Read the rest of this entry »

Another Family Law Accredited Specialist at Mullane & Lindsay

Posted on December 3rd, 2015

by Ashley Stevens

Ashley Stevens is a Family Law Accredited Specialist at Mullane & Lindsay in Newcastle and practises exclusively in Family, Relationship and Matrimonial Law.

The Law Society of NSW operates the Specialist Accreditation Scheme to help the general public identify solicitors who have demonstrated proficiency in a particular area of law. Before gaining accreditation a solicitor must have:

  • practised full-time for at least five years
  • worked in their area of speciality for at least three years, and
  • passed rigorous assessments in communication, problem solving, client relations and the law.

Read the rest of this entry »

Estate planning – requires capacity

Posted on November 27th, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In the recent case of The Estate of Kati Tsilfidis; Stavrakakis v Tsilfidis [2015] NSWSC 1720 a 79 year old mother rewrote her Will a year before she died. The Will made no provision of any substance for her daughter. Her daughter contested the Will arguing that her mother lacked capacity when she executed it. This dispute led to court proceedings where a doctor was called to give evidence about the mother’s capacity. Ultimately the court held that the mother did have capacity to write the Will and the Will was valid.

However, the case serves as a reminder that when a Will is prepared the person making the Will (the testator) must have legal capacity. The Court discussed the legal test for capacity which is in 4 parts: the testator must understand the nature of the document they are signing, what property they have, who the members of their family are and what decisions they should make about dividing up their property. Read the rest of this entry »

Your first day in the Federal Circuit Court of Australia

Posted on November 20th, 2015

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

You initiate proceedings by filing an Initiating Application setting out the final orders that you seek.  These can be for property settlement, spouse support or relate to parenting.  The filing fee is $320 for either a parenting or property application, and $530 for both.  An affidavit always needs to be filed.  A Financial Statement must be filed in proceedings of a financial nature.

Your partner/spouse needs to file their Response and supporting documents before the court appointed first return date. Their filing fee will be $320.

Read the rest of this entry »

Bad behaviour at the work Christmas party

Posted on November 20th, 2015

by Kristy Nunn

Kristy Nunn is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation.

It is the time of year in which employers hold work Christmas functions to celebrate the festive season and thank their employees for their efforts during the year. Unfortunately, some employees engage in bad behaviour at work Christmas functions. This article considers a decision of the Fair Work Commission made in July 2015 which considered whether an employee could be dismissed for misconduct during and following his work Christmas function.

Bad Behaviour at the Christmas Function

On 12 December 2014 Mr Keenan attended the official Christmas function of his employer, Leighton Boral Amey NSW Pty Ltd. In the days following the Christmas party complaints were made against him by other employees that Mr Keenan engaged in the following conduct:- Read the rest of this entry »

Interim parenting proceedings

Posted on November 20th, 2015

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

If you and your spouse/partner have been unable to resolve your parenting issues through mediation it is possible to commence proceedings in the family courts, usually after receiving a s60I certificate from your mediator.  You initiate proceedings by filing an Initiating Application setting out the final and interim orders that you seek.  The filing fee for such an application or for a response to an application in the Federal Circuit Court of Australia is $430.

Your application or response must be accompanied by an affidavit setting out the facts upon which you rely to warrant orders being made in your favour.  Interim proceedings are generally limited to 2 hours and the parties are not cross examined.  Read the rest of this entry »

What is unpaid annual leave worth?

Posted on November 16th, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Fair Work Act (FWA) provides that, on termination of employment an employer must “cash out” the value of accrued, but untaken, annual leave. Questions often arise as to how that calculation should be made – particularly where workers are eligible for overtime or bonus payments in the ordinary course of their duties.

The issue was recently considered by the Federal Court, albeit in a slightly unusual way. In Centennial Northern Mining Services Pty Limited v CFMEU (No. 2) [2015] FCA 136, Centennial had an Enterprise Agreement which provided that employees taking annual leave were to be paid on one of two alternate bases, but each one involved a payment higher than the worker’s base rate of pay. The EA also said that on termination of employment a worker was only paid out for untaken leave at an ordinary rate, plus a bonus. That was potentially less than the second alternate method of calculating annual leave if it was taken during employment. Read the rest of this entry »

Overseas members SMSF – beware

Posted on November 13th, 2015

By Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

If a member of a Self-Managed Superannuation Fund (SMSF) spends more than two years overseas then he or she risks losing one half of their SMSF member entitlements. It is usual for the members of a SMSF to be the trustees unless the SMSF has a corporate trustee, in which event each member of the SMSF must also be a shareholder and director of the corporate trustee.

For an SMSF to be a complying fund and to receive concessional tax treatment, it must be an Australian resident fund. A real risk exists if members spend time working overseas. Residency rules apply. The residency rules provide that central management and control of the SMSF must be in Australia. If a trustee or director is absent from Australia for a continuous period of two years, then he or she may jeopardise the fund’s complying status. If however the trustee or director returns to Australia and remains for a minimum period of 28 days within the two year period, then the risk is removed. Read the rest of this entry »

Changes to the Passports legislation- parental responsibility

Posted on November 6th, 2015

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Changes were made to the Passports legislation in relation to consent for children to be issued Australian travel documents. The Passports Legislation Amendment (Integrity) Act 2015 came into force on 8 October 2015.

Section 11 of the Passports Act has been amended to align the definition of ‘parental responsibility’ more closely to that in the Family Law Act 1975 to provide more certainty as to who is required to consent to a child travel document. Persons who under a court order can ‘spend time with’ or have ‘access to’ a child, but do not otherwise have parental responsibility for the child, will no longer be required to consent to the child having an Australian travel document. Read the rest of this entry »