What do the new privacy laws mean for you?

Posted on February 23rd, 2018

As of yesterday, 22 February 2018, new mandatory data breach legislation has taken effect. This means that certain types of data breaches, known as eligible data breaches, under the Australian Privacy Principles (“APPs”) have mandatory reporting obligations.

The APPs have now been in effect for almost four years. When they first came into effect, many organisations were caught off guard in terms of new requirements, including the need to have a privacy policy in place. The obligations under the APPs have now been extended even further.

The APPs contain certain obligations in relation to personal information and its use, disclosure and protection. These principles apply to a significant number of organisations, known as APP entities, including government bodies and private organisations with a turnover of more than $3 million. Read the rest of this entry »

Seeing a parent or a social event: which one prevails?

Posted on February 21st, 2018

As children get older their priorities change, and friends and social groups become increasingly significant to them. This creates a tension between the importance of socialising children and the importance of children spending time with their parents – particularly the parent with whom they do not live.

The Family Law Act obligates a parent to do all they can to encourage children to attend with the other parent pursuant to Orders. Read the rest of this entry »

Straight up or the Sphinx: when Judges speak up

Posted on February 19th, 2018

In family law matters, judges often provide preliminary views and encourage parties to contemplate settlement.  A judge might make comments that appear to favour one of the parties over the other, or that appear to indicate a pre-judgment of an issue in dispute before the presentation of evidence.

In the case of Darley & Darley [2016], the mother sought to set aside Court Orders on the basis that she had agreed to Orders by consent because the judge had placed undue duress and influence on the parties to settle, by highlighting the benefits to each of them of reaching their own agreement. Read the rest of this entry »

You agree to end the litigation… but is it really over?

Posted on February 15th, 2018

Most family law matters resolve by agreement.  Former spouses/partners realise that there is much to be gained from ‘determining their own destiny’ instead of leaving such major decisions as parenting arrangements for their children, or division of their assets to a Judge; someone who does not know them or their children.

However, once the Terms of Settlement are signed, and the Judge formally makes the Order, is that the end?  Usually – yes.  Always – no.  Read the rest of this entry »

Who’s liable for unsafe rental premises?

Posted on January 11th, 2018

The N.S.W. Court of Appeal recently considered the respective liabilities of a landlord, managing agent and tenant arising out of the collapse of a balcony at a rental property at Collaroy, on the Northern Beaches of Sydney (Libra Collaroy Pty Limited v Bhide).

In 2005, the landlord engaged a real estate agent to manage their residential rental property pursuant to a Management Agreement. During the tenancy, the tenant raised numerous issues concerning the state of repair of the upstairs balcony. The managing agent obtained quotes for repairs and forwarded these to the landlord however these were not acted on.

In 2012, the balcony collapsed injuring 4 people, including the tenant’s daughter. The 4 injured persons commenced proceedings against the landlord and the managing agent for their injuries and the tenant also commenced proceedings against the landlord and the managing agent for psychological injury. The landlord and managing agent issued cross claims against each other and also against the tenant. Read the rest of this entry »

Buying or selling an RTO?

Posted on January 10th, 2018

If you are buying or selling a Registered Training Organisation (“RTO“) it is very important you engage a competent solicitor who has experience in dealing with RTOs.

In addition to dealing with the usual sale of business considerations, including without limitation:

  • Stock,
  • Goodwill,
  • Plant & Equipment (including discharging securities),
  • Restraints,
  • Employees,
  • Leases/Licence Agreements/Supplier Agreements/Franchise Agreements, and
  • Intellectual Property;

The sale or purchase of an RTO must also deal with the government department known as the Australian Skill Quality Authority (“ASQA”).  Read the rest of this entry »

Naming your small business start-up – what to consider

Posted on January 10th, 2018

One of the first things to do for your small business start-up is choosing a name. It is also one of the most exciting! It is a creative opportunity to come up with the name that will identify your business going forward and build your successful empire (hopefully)!

 However, there are some unexciting legal considerations that should also be addressed during this process. The main one is to ensure that you are not going to infringe on anyone else’s intellectual property rights when settling on your name or be accused of trying to pass off as another business with a similar name. There are some administrative headaches that can also be avoided if you put some effort into identifying the current marketplace before settling on a name.  Read the rest of this entry »

Elder abuse – a push to keep our elderly safe

Posted on January 9th, 2018

Elder abuse is an area which is becoming of greater concern to Australian society. With an aging population and increased wealth being held by the elderly, it is an unfortunate reality that elder abuse is becoming more and more common.

Elder abuse is defined as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

Elder abuse can take various forms, including:

  • physical abuse
  • psychological or emotional abuse
  • sexual abuse
  • financial abuse
  • neglect

Read the rest of this entry »

Feuding over the funeral – who has the say?

Posted on January 8th, 2018

They say death brings out the worst in people. It follows that the funeral arrangements are probably the first opportunity where disputes can erupt.

So who has the final say when it comes to your funeral arrangements?

If you die with a will, the answer is your executor. The executor appointed under your will has the right to the custody and possession of your body for the purpose of burial and is responsible for the burial. These rules date back to 1882. If you have included wishes regarding your funeral in your will, they are not binding on your executor. If however you have left a written direction that you are not to be cremated, this is binding on your executor.  Read the rest of this entry »

If I leave him something, can he still contest my will?

Posted on January 8th, 2018

The changing nature of families over recent years has presented a new concern for people in attempting to leave their estate to those they wish. With an ever increasing number of blended families and more and more competing interests of family members who may not have a close relationship with each other, people are finding it difficult to have their testamentary intentions become a reality.

A family provision claim is where someone claims they should have been left more of a deceased person’s estate than what they were left. There are only certain classes of people who are eligible to make a family provision claim, however the law has evolved over time to broaden the types of eligible persons.  Read the rest of this entry »

Thinking of amending your will by hand? Think again

Posted on January 8th, 2018

Your will is an extremely important document and governs what happens to your assets upon your death. Estate planning, and particularly drafting and interpreting wills, is a complex area of law. Although this is so, people commonly think it is straight forward.

You have spent a lifetime accumulating your wealth and the transferring of that wealth to the next generation is not necessarily a simple task. Even in situations where there is a simple family structure and relatively straight forward assets, we often see problems created by self-drafted or self-amended wills.

Obtaining legal advice regarding how best to transfer your assets upon your death and having your will professionally drafted is of great importance. For those who have gone to the effort and expense of doing so in the past, it can be tempting to make small changes to the will by hand afterward. There are however numerous rules which govern whether a will is validly amended and it is often the case that these rules are not followed when people amend their wills themselves.   Read the rest of this entry »

You need to amend your trust deed

Posted on December 15th, 2017

Recent amendments to transfer duty and land tax legislation may affect every Family/Discretionary Trust that either purchases or holds land in New South Wales.

A Family/Discretionary Trust is often used as an asset protection structure as the trustee normally has wide discretionary powers to distribute income and capital to wide classes of beneficiaries under the trust.

However, this wide discretionary power may cause a Family/Discretionary Trust to fall foul of the legislative amendments in 2016 targeted at “foreign persons” acquiring and holding land in NSW. Foreign persons are now subject to a 4% surcharge purchaser duty when acquiring residential land and a 0.75% surcharge on land tax where a foreign person holds residential land in NSW.   Read the rest of this entry »

Representing the interests of non-unionised workers

Posted on December 14th, 2017

On 13 December 2017 the High Court delivered a decision in a case of Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA55.

The central issue in dispute was whether an industrial association (such as a union, or other representative body) was entitled to represent workers who were not members of the industrial organisation.

The short facts were that Regional Express (REX) had written to a number of its pilots to the effect that if they made claims for accommodation costs during layovers, they would not be given command roles.  The Australian Federation of Air Pilots (AFAP), a representative body for commercial pilots, commenced proceedings alleging REX’s letter contravened a number of workplace rights.  None of the individuals to whom REX had written, were actually members of AFAP.  REX applied to summarily dismiss the proceedings on the basis that AFAP was not “entitled to represent the industrial interests of” individuals who were not members of its organisation. Read the rest of this entry »

Before the wedding bells ring: some considerations for same sex couples in light of the marriage act reforms

Posted on December 14th, 2017

Following the recent monumental legislative change – legalising same sex marriage – some couples have gone from a de facto couple to a married couple overnight as their marriage in overseas jurisdiction has become recognised in Australia.  Further, there is an expectation of a flurry of filing of Notices of Intention to Marry in the coming months, as same sex couples are finally able to legally marry in Australia.

However, as many same sex couples have been in a committed relationship for many years; they have set up their affairs and finances in a specific manner, which may now need to be reviewed and re-considered in light of their changed – or impending change of – marital status.

So, before the cake is ordered, the celebrant booked, and the wedding bells ring, consider:  Read the rest of this entry »

Don’t drink and dial…

Posted on December 14th, 2017

The Christmas and New Year period is a time when spirits are high, drinks are flowing and the consequences of actions are not always considered. Even the simple action of making a phone call or sending a text message can have serious consequences.

It is a criminal offence under Australian law to use a mobile telephone in a way that is menacing, harassing or offensive. This can include the method of use, the content of the communication, or both. Repeated, unwanted calls can amount to harassment under this law.  Read the rest of this entry »

Parenting management hearings – filling the gap

Posted on December 14th, 2017

In addition to the Family Law Review currently underway, the Attorney-General has presented to Parliament a Bill to institute Parenting Management Hearings for family law disputes.

Parenting Management Hearings are intended to fill a gap between Family Dispute Resolution (mediation) and contested Court proceedings in parenting matters.  They are intended to provide self-represented litigants with an alternative to the Court process for resolving parenting disputes.

Unlike the current Court process, where two opposing sides present their case, Parenting Management Hearings will be conducted by a Panel who will undertake inquiries and gather information before reaching a decision.  The Panel will direct the lines of enquiry and the focus of the hearing; and questions will be asked by Panel members, rather than traditional cross-examination.  Read the rest of this entry »

Review of family law system rolls forward

Posted on December 8th, 2017

On 27 September 2017 Attorney-General Brandis QC commissioned the Australian Law Reform Commission to undertake a comprehensive review of the family law system.  Prof Helen Rhoades leads the review.  Further appointments of qualified persons has followed.

The ALRC’s focus is to be on ensuring the family law system prioritises the best interests of children, addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden.  The Family Law Amendment (Parenting Management Hearings) Bill 2017 and the Family Law Amendment (Family Violence and Other Measures) Bill 2017 have recently been introduced.  Read the rest of this entry »

Latest ABS figures on marriage – as we used to know it

Posted on November 30th, 2017

The age of couples marrying for the first time has risen over the past 20 years:

Year                Bride                                     Groom

1996                 25.7 years                                 27.8 years

2016                 28.7 years                                 30.3 years.

Statistics do not show trends in who pays for the wedding. In 2016 64% of couples lived together prior to marrying.  This increased to 80% in 2016.

 

Read the rest of this entry »

National Domestic Violence Scheme commences

Posted on November 29th, 2017

Each State and Territory has passed model amendments to existing domestic violence legislation to enable the consistent recognition of  interstate orders. The terminology and laws remain unique to each jurisdiction, as do the conditions in the orders.  The key elements of the Scheme include:

  • A domestic violence order (DVO) made in any Australian State or Territory on or after 25 November 2017, is automatically recognised and enforceable in each other State and Territory. They include final and interim orders.
  • Applications to vary a nationally recognised order can be made in any State or Territory.  Read the rest of this entry »

Is it time to enroll your child in school?

Posted on November 14th, 2017

Starting primary school or high school can be a daunting prospect for children.  It can also be a daunting prospect for separated parents, as they need to work together to determine the most appropriate school for their child to attend.

This is a decision of parental responsibility.

This is quite straight forward while parents remain in a relationship together, and can properly discuss the pros and cons of different schools and reach agreement.  The complexity arises, however, when parents are unable to have respectful conversation – be that verbal or in writing, such as text messages or Facebook – about which school their child should attend.  Read the rest of this entry »