Can material prepared for family law proceedings be used by the Police?

Posted on June 27th, 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 Sahadi and Savva the mother and father were involved in family law proceedings against each other and they were also both accused of serious criminal charges.

The trial judge had granted an application by the Commissioner of Police to release a report prepared in family law proceedings to the Police and others. The mother appealed that decision.  Read the rest of this entry »

Do I pay GST when Buying or Selling a House?

Posted on June 27th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

When buying or selling a property, it is important that you consider any GST implications under the A New Tax System (Goods and Services Tax) Act 1999 (CTH) (“the Act“).

The Act provides that the sale of a property can either be treated as a taxable supply, GST free or an input taxed supply. Each of these categories result in different treatment in relation to GST.

Generally speaking, the sale or purchase of a residential premises will be GST free. A residential premises is defined as a premises that can be occupied, is occupied or is intended to be occupied as a residence. As the sale/purchase of vacant land cannot be occupied until a residence is constructed, GST is payable on the sale/purchase of vacant land. Read the rest of this entry »

Tips for preparation for your court attendance

Posted on June 15th, 2016

by Mark Sullivan

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

What to wear: There are no rules about what to wear in court but you need to be as relaxed as your circumstances allow. The court is a formal place so you should dress neatly and respectfully. If you might not get into your local club because what you intend to wear breaches their dress code, then it will more than likely be unsuitable for court.

Children at court: Courts are not appropriate places for children for all of the obvious reasons. We want you to be focused and as relaxed as your circumstances allow.   Therefore, you will need to make other arrangements for your children’s care when you come to court.   This includes having a Plan B for getting them to and from school if it is an early start or if there is a risk of a late finish, or having them cared for the day if they are under school age. Read the rest of this entry »

What is the difference between a business name and a company name?

Posted on June 15th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

Although a relatively simple concept, the difference between a Business Name and a Company Name is not well understood.

The most important differentiating characteristic between a Business Name and a Company is that a Company is a separate legal entity and a Business Name is not. This means that a Company is, for all intents and purposes, treated like a human being in that it is able to enter into agreements or transactions in its own right. Read the rest of this entry »

Statutory wills – Part 1

Posted on June 7th, 2016

By Robert Lindsay

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

Section 18 of the Succession Act 2006 allows the Court to make a Will for a person who does not have testamentary capacity.

The case of Secretary Department of Family and Community Services v Kay (in 2014) involved the Supreme Court making an order that a Will be made on behalf of a 12 year old girl who lacked testamentary capacity. Her death was imminent. The girl was born with a severe disability and her mother had a long history of drug abuse. The identity of the father was not known. The mother had a poor record of caring for her daughter. When the girl was about 7 years of age, she was the victim of an assault by the mother’s then de facto partner, which occasioned head injuries necessitating life-saving surgery to remove a clot from her brain. As a result, the child was taken into the care of the Department of Family and Community Services. She was subsequently placed with foster parents in whose care she remained, until she died. Read the rest of this entry »

Pawsing for thought – making sure your pets are safe

Posted on June 7th, 2016

by Felicity Wardhaugh

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

It is increasingly common for a Testator (person writing their Will) to want to make sure that their pet is cared for if they die. It is not possible to leave a gift of money directly to a pet. However, it is possible to give a pet to a trusted person. It is important to make sure that this person is willing to take over the responsibility. It is also helpful to gift some funds to that person either directly or through an Executor so that vet bills and other expenses are covered. Read the rest of this entry »

Have you considered the risks involved in loaning money to family members?

Posted on June 7th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

It is common for people to loan sizable sums of money to family members from time to time. Whether it be a loan to help a family member out of a financial crisis, for the deposit on a new home or to start up a new business.

If you are in the fortunate position to be able to loan money to a family member, you should still approach the issue from a sensible and prudent standpoint. Any loan of a sizable nature should be documented appropriately in a Loan Agreement. Read the rest of this entry »

Should an inference be made against a party that fails to call a witness?

Posted on May 23rd, 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 Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called “rule in Jones and Dunkel” allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party’s case. Read the rest of this entry »

Preliminary discovery – How do you find out if you have a claim?

Posted on May 23rd, 2016

by Tony Cavanagh

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

People sometimes suspect they have legal rights but just aren’t sure – and the only documents that may help them decide, are held by the prospective defendant. Many Courts allow for “preliminary discovery”, that is, for orders requiring a potential (not actual) defendant to produce documents and records to help the potential plaintiff work out whether they have a case or not. However it is not an easy process. To obtain preliminary discovery an applicant must show, amongst other things, that it was ‘otherwise unable’ to obtain sufficient information to decide whether or not to sue

An insurer (RealCover) sold policies through a broker (Gallagher). RealCover provided Gallagher with information such as client lists and renewal dates to facilitate that process. The agency arrangement came to an end early in 2015 and RealCover appointed a new broker; however it suffered a sharp decline in its business. It suspected Gallagher may have been using its confidential information to “target” RealCover customers. Gallagher denied this was the case and said that it contacted potential customers on the basis of other (non – confidential) information in its possession. Read the rest of this entry »

Dismissal whilst absent when ill

Posted on May 9th, 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 Byrne was employed with a mine. He approached his supervisor and requested two days annual leave but was refused. He made a statement to the effect that, despite the refusal, he would obtain a medical certificate and ‘would not’ attend work on the days in question. The manager responded that if Mr Byrne did so, there was likely to be a disciplinary process. Mr Byrne in fact consulted his doctor, was certified as unfit to attend work and did not attend work on the relevant days. There was a subsequent disciplinary process and he was dismissed. His union challenged that dismissal and, at trial, the judge made a positive finding after hearing evidence from the GP that on the days in question Mr Byrne had in fact been ill. The dismissal was nonetheless said to have been valid. That finding was appealed to the Full Court but failed. Read the rest of this entry »

Victorian Royal Commission into Family Violence

Posted on May 9th, 2016

by Rose Laffan

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

The Report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016.

The Report contains 227 recommendations including:

  • New laws to establish a Central Information Point to funnel information about perpetrators;
  • Support and safety hubs throughout the State;
  • A ‘blitz’ to rehouse women and children who have fled family violence;
  • An immediate funding boost to services that support victims and a dedicated funding stream for preventing family violence – including an investment in respectful relationships education at schools and family violence training in key workforces (such as hospitals and schools);
  • An expanded investigative capacity for police – including a trial of body-worn cameras;
  • More specialist family violence Courts that can deal with the criminal, civil and family law matters at the same time; and
  • An independent Family Violence Agency to review government policy and action.

Read the rest of this entry »

Sham contracting arrangements

Posted on May 9th, 2016

by Tony Cavanagh

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

Section 357 of the Fair Work Act prohibit the making of claims that a person is a contractor if they are, in truth an employee. Employers are liable to a civil penalty if they breach the section.

Quest South Perth Holdings Pty Ltd operated a serviced apartment building. It employed housekeepers. It subsequently entered an arrangement with a labour hire business, Contracting Solutions Pty Ltd, to supply housekeepers to it. Quest’s previously employed housekeepers were, in effect, “transferred” to Contracting Solutions and then “hired back” to Quest. They continued to provide fundamentally the same housekeeping services. It was alleged Quest had “represented”, that the housekeepers were independent contractors in breach of s357. Read the rest of this entry »

Contributory negligence in motor accident claims

Posted on April 20th, 2016

by Tony Cavanagh

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

In March 2007 Ms Chadwick was rendered paraplegic in a motor accident. She had been a passenger in a vehicle driven by Mr Allen who had a blood alcohol reading of 0.229. It was clear the manner of his driving caused the crash and Ms Chadwick’s injuries. Mr Allen and a friend had been drinking over an extended period of time. In the early hours of the morning Allen, Chadwick and the friend went for the drive looking for cigarettes. Ms Chadwick was initially driving because she had not been drinking as she was pregnant. However during the trip she stopped and left the driver’s seat briefly. When she returned Allen had moved to the driver’s position and refused to vacate it. Chadwick got in and the crash occurred soon after. She was not wearing a seatbelt at the time.

The group was on a driving holiday and the incident occurred on the darkened outskirts of an unfamiliar town. Ms Chadwick gave evidence she was disoriented; thought she was much further from the town than she in fact was and that there was no safe way of returning to the town (where her children were asleep at a motel) except by getting back into the car. Read the rest of this entry »

Hands off my documents! – Confidentiality of third party information in family law matters

Posted on April 20th, 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.

It is common practice in family law matters for a Subpoena to be issued to third parties seeking copies of their notes or personal documents. This creates a conflict between the rights of the third party to confidentiality of their information, and the rights of justice to the litigant.

This issue was recently considered by the Full Court of the Family Court in circumstances where the husband to family law proceedings sought the production by the wife’s mother and brothers of details of the wife’s late father’s estate, including the will and list of assets and liabilities of the estate.

The family argued that the Court could not guarantee that their private information would not be leaked into the public domain as a result of their compliance with the Subpoena. Read the rest of this entry »

Why not cap your warranties?

Posted on April 20th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

We all know that warranties play a significant part of negotiating sale transactions.

The usual dance involves the Purchaser seeking extensive warranties and the Vendor resisting with the end result somewhere in between.

There are a couple of techniques that may assist a Vendor/Vendor’s Solicitor in negotiating warranties that are not too onerous on the Vendor without derailing the transaction altogether. Read the rest of this entry »

Agency agreements and contractual traps

Posted on April 20th, 2016

by Tony Cavanagh

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

Mentmore Pty Ltd wanted to import some goods. It obtained finance from a lender, Moneytech Services Pty Ltd to do so. Moneytech was named as the purchaser of the goods, pending payment by Mentmore. Under specific provisions of The Customs Act an ‘owner’ of goods can appoint a customs agent to act for him. “Owner” is defined to include someone claiming an interest in the goods. Technically, in these circumstances, Moneytech was an ‘owner’; and it appointed Megatop as its customs agent to receive the import. Read the rest of this entry »

Choosing the right words to motivate clients to use you

Posted on April 8th, 2016

by Felicity Wardhaugh

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

Elizabeth Stokoe from the University of Loughborough conducted some research into how using the right words on the telephone could motivate the public to engage in mediation.  Her observations are useful for any service marketing to the public.  Her research article is published as: Elisabeth Stokoe, “Overcoming barriers to mediation in intake calls to services: Research-based strategies for mediators”, 2013 (29) (3) Negotiation Journal 289.  A UK marketing guide for mediation practices https://www.gov.uk/government applies the research and makes some practical suggestions.  The study involved transcripts from 200 intake calls to 5 mediation services in the UK.   Read the rest of this entry »

“Off the plan” contracts – Developers rights to rescind under sunset clauses

Posted on April 8th, 2016

By Michael McGrath

Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.

As of 2 November 2015, the Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW) came into force and applies to off-the-plan contracts for sale of residential lots and restricts a developer from automatically rescinding an off-the-plan contract under a sunset date clause.

The government had expressed concern that developers were intentionally delaying the registration of plans past the sunset dates provided for in contracts, with the result that they could rescind and resell at higher prices in rising markets. Read the rest of this entry »

Buying a Business? Beware the GST Trap!

Posted on April 8th, 2016

by Lachlan Page

Lachlan Page is a Solicitor at Mullane & Lindsay and is part of our Commercial, Property & Estates Law team.

When purchasing a business in Australia you are usually able to take advantage of a GST exemption under the A New Tax System (Goods and Services Tax) Act 1999 (‘the GST Act‘).

The exemption is known as the ‘sale of a going concern’ exemption. In order to satisfy the sale of a going concern exemption the Purchaser ‘must receive all of the things that are necessary for the continued operation of the enterprise [business].’ Read the rest of this entry »

Have you ever wondered how to help a friend during separation?

Posted on April 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

Most of us know someone who is currently going through a separation or who has gone through one in the past but do you know what to say to them to help them through this often difficult time?

Family law is such a multifaceted jurisdiction that obtaining expert legal advice is a necessity. With the complexities of modern life – with everything from stepfamilies to intricate family trusts – the days of armchair advice may be over. Read the rest of this entry »