Guardianship and Marriage

Posted on April 24th, 2019

The Guardianship Act provides that a person (the appointor) can sign an Appointment of Enduring Guardian document appointing a person to make certain decisions for the appointor in the event that he or she cannot make those decisions. The guardian is authorised to decide where the appointor lives, what healthcare the appointor receives (including medical and dental treatment) and other decisions in relation to the health and wellbeing of the appointor. Read the rest of this entry »

Making a Will “In Contemplation of marriage” – Part 1

Posted on April 24th, 2019

Contested Will… when a claim can be madePart 1 – The Facts

This short, two part article, looks at an aspect of will making that is familiar to lawyers, but perhaps not to the general public. It relates to the effect of marriage on a will.

A long standing principle of Wills in NSW that if someone has a Will, it is automatically revoked by subsequent marriage – unless the Will was made “in contemplation” of that marriage. In 2018, the Supreme Court had to consider, in a complex factual context, the meaning of that phrase. This article is necessarily a highly simplified summary of that factual context.

Whilst still married to his first wife, Mr Grant commenced a relationship with another woman, who he later married after divorcing. As a result, when he died, he had both children and stepchildren. The de facto relationship was “on again, off again” but became stable in about 2012. Read the rest of this entry »

Termination of Lease for Demolition – Is Good Faith Required?

Posted on April 23rd, 2019

It is common for leases, particularly in shopping centres, to contain clauses allowing the landlord to terminate the lease if they have plans to demolish the building (or the part containing the leased premises). The Retail Leases Act 1994 (NSW) does however contain some statutory protection for tenants by requiring the landlord to have a genuine proposal to conduct the demolition within a reasonably practicable time before the lease can be terminated on this basis (section 35).

A recent decision of the NSW Civil and Administrative Tribunal’s Appeal Panel has considered whether a landlord could use a demolition clause to terminate a lease so that it could enter into a new lease with a more commercially advantageous tenant (Wynne Avenue Property Pty Ltd v MJHG Pty Ltd [2019]).     Read the rest of this entry »

Strategic Settlement Offers Must Be The Real Thing

Posted on April 9th, 2019

Summary

The court did not award a higher rate of costs to a defendant despite the outcome of the case being better than an early offer it had made.

Background

The plaintiff was a South African food supplements manufacturer trading under the brand name “The Real Thing”.  The Defendant acted as distributor for the plaintiff’s products in Australia.  The facts of the case are unimportant to the costs case, except to say that the plaintiff failed to make out allegations of: 1) Misleading and Deceptive Conduct; and, 2) Passing Off, and the proceedings were dismissed with costs awarded to the defendant. Read the rest of this entry »

The legal tangle of family finances

Posted on April 8th, 2019

Making a Will - beware the assets testIt is common for family members who provide financial support for each other not to put those arrangements in writing.   It is also common for lawyers to see those family members after the event when relationships have soured and for lawyers to find themselves saying to clients “if only you had put it in writing”.  There is no doubt that a written document is the best protection.  Read the rest of this entry »

Changing a Child’s Name

Posted on April 3rd, 2019

Some relationships come, and go. Children might have multiple siblings to different fathers and/or mothers, and it is not uncommon for a change to a child’s surname to be contemplated.  There can be valid arguments for and against such a change, and in the context of blended families, such matters frequently require determination by Judges in the family courts.

An order to change a child’s name is a parenting order and therefore must only be made in the child’s best interests, after taking into account considerations in Section 60CC of the Family Law Act.   Over the years, cases have also distilled a number of practical factors to be considered when considering the merits of a change.  These include: Read the rest of this entry »

Superannuation benefits – a trap for executors

Posted on April 2nd, 2019

Superannuation - who gets it when I die?Some years ago, I was involved in some litigation that arose when a man died leaving superannuation entitlements (but without nominating an intended recipient) and had nominated his partner as the executor of his Will. She personally wrote to the superannuation fund requesting the superannuation benefit be released to her on the basis that she was the deceased’s “spouse”; but she also applied for probate of the Will, which was granted. She was one, but not the only, beneficiary under the Will.

As soon as she became the Court appointed executor, she was in a position of conflict of interest. That was because she had asked the superfund to pay benefits to her personally but, as executor, she owed a duty to all beneficiaries to bring into the estate as much money as possible for their mutual benefit. She could not discharge that duty whilst simultaneously trying to obtain the superannuation benefit for herself. Read the rest of this entry »

Your update on flexible working arrangements

Posted on April 1st, 2019

From 1 December 2018, changes to modern awards requires employers to genuinely try to reach an agreement with employees in relation to flexible working arrangements.

In accordance with section 65 of the Fair Work Act 2009 (“FWA”), certain employees are eligible to request changes in their working arrangements in specific circumstances, such as if the employee is a carer; parent of a child who is school age or younger; has a disability; 55 years or older; or is experiencing family violence.

Section 65 requires employers to provide a written response to requests for flexible working arrangements within 21 days of the request being made stating whether the employer grants or refuses the request. Employers may only refuse a request on “reasonable business grounds”. Read the rest of this entry »

Separation in the age of the internet

Posted on March 27th, 2019

We undoubtedly live in a digital age. We bank and shop online and we download music, movies and television. Email and text message are prominent forms of communication.

We also socialise online. With so many people sharing so much on sites like Facebook and Twitter, it can be easy to forget that these sites are not private – they are in the public domain. And in increasing number the internet, and in particular Facebook, is implicated in the breakdown of marriages and relationships. Read the rest of this entry »

Compensation for Distressing Holidays (the Appeal)

Posted on March 21st, 2019

Some time ago I published an article about the case of Moore v Scenic Tours which involved a disappointed consumer taking proceedings against a cruise boat operator for compensation when the company did not ‘deliver’ the holiday experience it advertised (due to serious flooding on various rivers in Europe).  One of the unusual features of the case was that the claim was brought only under the Consumer Guarantee provisions of the Australian Consumer Law (‘ACL’), and not in contract.  The plaintiff was successful and, amongst other things, was awarded compensation for distress and disappointment at not receiving the holiday ‘experience’.

Scenic appealed and the NSW Court of Appeal has recently delivered a very lengthy judgment.  It is well beyond the scope of an article like this to cover all of it but, relevantly, it reversed the trial Judge’s decision to award damages for distress and disappointment. Read the rest of this entry »

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 »