Enduring power of attorney or an enduring guardian…or both?

Posted on July 1st, 2014

by Lana Black

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

A power of attorney is a popular legal document.  A power of attorney enables the grantor (the person giving the power of attorney) to appoint one or more adults (the attorney/s) to have the same power as the grantor to make business or financial decisions for the grantor. It is wise to ensure a power of attorney is enduring, meaning it continues in the event the grantor suffers from unsoundness of mind. A power of attorney can commence immediately after being signed or at a future time. It can also include conditions (for example “my attorney is not empowered to sell my house”) or can be unconditional.

Read the rest of this entry »

Who can inspect the will of a deceased?

Posted on July 1st, 2014

by Lana Black

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

While you are living no one other than yourself is entitled to inspect your will; of course this does not prevent you from allowing someone to inspect your will while you are living. But what happens after you die; who can inspect your will then?

Under Section 54 of the Succession Act a person who has possession or control of your will after your death must allow anyone or more of the following persons to inspect or be given copies of the will:-

(a) any person named or referred to in the will;

(b) any person named or referred to in an earlier will as a beneficiary;

(c) your surviving spouse, de facto partner (whether of the same or the opposite sex) or child;

(d) your parent or guardian; Read the rest of this entry »

The anti-bullying provisions – Investigations Part 4

Posted on July 1st, 2014

by Tony Cavanagh

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

I have previously looked at thresholds, exclusions, the FWC’s powers and workplace policies in connection with the anti-bullying legislation that was introduced into the Fair Work Act (‘FWA’) on 1 January 2014. This article looks at aspects of the investigation of complaints.

For the reasons given in the last article, complaints really should be investigated. There is too much ‘downside risk’ for employers not to do so. Two issues that can arise with investigations are ensuring they are carried out thoroughly, and being aware that there may be a relationship between a bullying allegation and some other form of workplace claim.

  • What are some risks in investigating claims? If an employer has a policy but doesn’t follow it, either the complainant or the alleged perpetrator (or both) might be aggrieved for that reason alone. In a recent Queensland case, a worker who suffered a severe psychological injury due to a workplace bully, in circumstances where the employer did not follow its own policy and there was clear evidence of bullying, was awarded damages of nearly $240,000.00. Read the rest of this entry »

The personal property securities register

Posted on July 1st, 2014

by Lana Black

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

What is the PPSR?

The Personal Property Securities Register (PPSR) is a nation-wide online register which records security interests, such as mortgages and charges, in personal property (being any form of property other than land, buildings or fixtures).

How can this apply to me?

While the PPSR is primarily used by businesses, there are a number of common situations everyday people find themselves in which may warrant use of the PPSR, the first one which comes to mind is where there is a loan within the family.

Take the example of a mother who loans her son $20,000.00 to purchase a car. The agreement between the mother and her son is that the loan is interest free and the son is to repay the loan by weekly instalments of $200.00. It is also agreed that if the son fails to make the repayments the mother can take possession of the car and sell it to satisfy the outstanding balance of the loan. This makes the loan a charge on the car. Read the rest of this entry »

More strategic precautions on separation

Posted on July 1st, 2014

by Mark Sullivan

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

Whilst not all relationship breakdowns are acrimonious, it is not uncommon for one or both parties to behave badly on separation. This can often be destructive in more ways than seems apparent at the time.

Although divorce follows a no-fault principle, the past conduct of parties can still be an important consideration when determining disputed parenting issues. The following suggestions may seem self evident, but they are frequently breached and clients are reminded that the need to protect children from physical and emotional harm is the highest priority:

  1. Do not assault, molest, harass or abuse the other party. Defence of Apprehended Domestic Violence proceedings is costly, distracting and causes long term breakdowns in communications between parties. It diminishes confidence in parenting capacity and puts the offending parent’s attendance at schools, sporting events and changeovers of residence at risk.

  1. Do not engage in cyber bullying – whether by way of Facebook, Twitter, text or email.  Such publications usually end up attached to an affidavit.

  1. If an incident with the other parent is escalating, do not lose sight of the big picture. Ask yourself: How will my action or reaction reflect on my ability to parent; to be sensitive to the needs of my children and to be child focused? You are parents for life and there may be more to be gained by disengaging in an escalating conflict, especially if it is in the presence or hearing of the children.

  1. Keep a diary.

  1. Look after your physical and emotional health.

  1. Consider and take steps to arrange mediation to resolve parenting disputes if face to face consultation becomes untenable.

Mark Sullivan is a Director at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Mark Sullivan to arrange a consultation or contact our Newcastle office.

The anti bullying provisions – Workplace policies part 3

Posted on July 1st, 2014

by Tony Cavanagh

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

The last two articles in this series looked at a number of aspects of the anti-bullying legislation that was introduced into the Fair Work Act (‘FWA’) on 1 January 2014. This article looks at some reasons for having workplace anti-bullying policies.

Any applicant for an anti-bullying order is asked, in the application form, whether the employer had a bullying policy; whether a complaint had been made under the policy and, if so, what the outcome of the complaint was.

Since the focus of the anti-bullying amendments is on the prevention of future bullying, if an employer has an internal policy that enables complaints to be made; and if the employer acts on a complaint and stops any bullying behaviour that is found to the occurred (for example by counselling, internal discipline, or even termination of employment in serious cases) the Fair Work Commission (‘FWC’) is less likely to make any formal orders. That is because if the employer has already ‘nipped the problem in the bud’, an applicant is unlikely to be able to prove there is a risk of future bullying conduct. Indeed, dealing effectively with a complaint makes it less likely the FWC will be engaged at all. Read the rest of this entry »

The anti bullying amendments – When are workers ‘shut out’? Part 2

Posted on July 1st, 2014

by Tony Cavanagh

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

The last article in this series looked at the anti-bullying amendments which took effect from 1 January 2014 and particularly at some ‘tests’ that had to be met before the Fair Work Commission (‘FWC’) could make an anti-bullying order. This article looks more closely at some situations in which workers are excluded from bringing a claim for anti-bullying relief; and at the FWC’s powers.

Readers will remember that an applicant has to prove they are a ‘worker’, that they have been ‘bullied’, and that the bullying occurred ‘at work’.

  • Is there a risk of future bullying? The FWC only has power to make orders if there is a risk of future bullying. Consequently, a worker who has resigned, been made redundant, or whose employment has been terminated is very unlikely to obtain an anti-bullying order, because the risk of future bullying is remote.
 Read the rest of this entry »

New anti-bullying law – Are you ready? Part 1

Posted on July 1st, 2014

by Tony Cavanagh

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

The Fair Work Act was amended from 1 January 2014 and includes new ‘anti-bullying’ provisions. Workers can now make an application directly to the Fair Work Commission (‘FWC’) for orders to prevent future bullying behaviour. This is the first in a series of articles that look at the new provisions.

In common with much legislation, there is some ‘devil in the detail’. Just some of the issues that employers (and workers for that matter) need to consider are as follows: -

  • Is the complainant a ‘worker’? The definition in the FWA is much wider than a mere ‘employee’. It includes contractors, subcontractors, apprentices, work experience people and, in some circumstances, unpaid volunteers. Employers should not think that that it is only ‘employees’ who can make an application.

  • Has the worker been ‘bullied’? The language of the amendments clearly indicates there must be more than one episode for ‘bullying’ to occur but there are no definitions of precisely of what bullying is. One thing is clear: conduct that occurred before 1 January 2014 can be relied upon as an illustration that bullying has occurred. Employers should not think that only conduct that occurs after 1 January 2014 is relevant.
 Read the rest of this entry »

Family law and pets

Posted on June 1st, 2014

by Rose Laffan

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

Given how much people adore their pets it is no surprise that the question of who gets the pets after separation is a growing issue for family lawyers.

In some parts of the world Courts can settle disputes by setting out what days of the week pets will spend with each party, as well as issues concerning medical care and stipulations for pet day care if both parties work.

In Australia, however, such options are not available. If you cannot reach agreement it usually means one person walks away from their beloved pet. Even if an agreement can be reached between the parties it is not possible to have that agreement formalised as the Courts will not make Orders for pets.

Read the rest of this entry »

Dividing digital assets

Posted on June 1st, 2014

by Rose Laffan

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

Splitting up today means considering items beyond the pots and pans – extending to devices like phones, tablets, laptops, e-readers, cameras, and even cloud data and iTunes accounts. Some of these items only take up a small amount of space – or even only virtual space – but they can take thousands of dollars to accumulate.

Another emerging issue is how to settle virtual assets: non-physical objects purchased online for use in online communities and games but using real-world currency. In some games, players trade and sell these goods and can convert them back to real-world currency, often for a profit – for example, according to a media report a player in the multiplayer Entropia Universe sold a virtual nightclub for over US$600,000.

Read the rest of this entry »

What is a Will and why should I have one?

Posted on June 1st, 2014

by Lana Black

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

A will is a written legal document which is made by a person (the testator) and sets out the distribution of that person’s property after they die.  While many people believe making a will is too costly and a waste of money, the reality is that if a person dies without a will (intestate) the cost of administering the deceased’s estate can be substantially higher and the estate will be divided according to a statutory formula which may not be inline with the deceased’s wishes.

Read the rest of this entry »

Shareholder disputes in small companies

Posted on June 1st, 2014

by Tony Cavanagh

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

Although it is a long established principle of law that corporations have separate legal “personalities” to their shareholders and Directors, when shareholder disputes occur in small companies there are often parallels with partnership disputes between individuals.

The Federal Court recently considered such a case. A company was created essentially as a vehicle for money lending. There were only two shareholders, each of whom was a Director. Read the rest of this entry »

The dangers of at home will kits

Posted on June 1st, 2014

by Lana Black

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

While many people find at home will kits more convenient and cost effective than having a Solicitor prepare his/her will, the reality is that at home will kits are fraught with dangers and may ultimately cost more in the long run.

The Succession Act (the Act) provides that a document must be in writing, be signed by the testator (the person making the will) and be witnessed by two independent adults in order to be considered a will. While this criteria seems relatively straight forward, they are often not satisfied when a person prepares his/her own will using an at home will kit.

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Be sure of your grounds if seeking to enforce restraint of trade clauses

Posted on April 1st, 2014

by Tony Cavanagh

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

The NSW Supreme Court recently dismissed a claim seeking to enforce a restraint of trade (‘ROT’) clause in an employment contract.  Mr Miners held a senior position with Allied Mills.  He was ‘head-hunted’ by another firm in the same industry and accepted a job offer to work in NSW.  He went to some lengths both to inform Allied Mills that he would respect all its commercial confidences when he commenced his new role; and to arrange his new role in such a way that possible threats to Allied Mills’ commercial interests were minimised.  Despite that, Allied Mills took proceedings seeking to enforce a ROT clause in its contract with Mr Miners; and to restrain him commencing his new job.  Immediately the case was started, Mr Miners agreed, without admissions, not to take up his new position in NSW.  Soon afterwards his new employer found a separate role for him, working in New Zealand, and he started work there.

Read the rest of this entry »

Maternity leave – What are your rights?

Posted on April 1st, 2014

by Tony Cavanagh

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

The Fair Work Act 2009 Cth (‘FWA’) creates an entitlement to unpaid parental leave. That entitlement forms part of the National Employment Standards (‘NES’) and is separate from the paid parental leave scheme proposed by the present Coalition Government.

It is commonly understood that women can take up to twelve months unpaid parental leave associated with the birth of a child and that they have the right to return to work in their former position subject to complying with some notice provisions. Issues can sometimes arise as to the rights and obligations of employers and employees during and immediately after a period of unpaid parental leave. This article deals with one aspect of those entitlements.

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6 reasons why delaying property division after separation is not a good idea

Posted on April 1st, 2014

by Rose Laffan

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

Resolving property matters months or years after separation can be even more fraught with issues than resolving it soon after separation. This is because time delay can impact significantly on the practical realities:

1)  it can be hard to locate important documents – particularly if you have moved house – and many organisations, such as banks, destroy their documents after seven years so the necessary evidence may have quite literally disappeared.

2)  if more than 12 months has elapsed since you obtained a Divorce Order it will be necessary to obtain the consent of the Court to finalise your property division.

3)  often one party is left paying things like the mortgage and insurance on their own. These ‘post-separation contributions’ can be recognised in any later division but they are not always recognised ‘dollar-for-dollar’ and as such the party paying may never receive full credit or refund.

4)  one of the factors taken into account in a division are ‘future needs/future resources’ – so should one person pull ahead while the other has struggled then there may be an adjustment against the person who has done better.

5) remaining joint owners of real property (or other significant assets) can expose you to risk if loan repayments are not made – you may be solely liable for the debt and your credit rating may be affected.

6)  if you transfer your house from joint names to one party’s sole name – but do not do so in accordance with an Order or Legal Agreement – you may also miss out on valuable tax incentives such as a stamp duty exemption.

Rose Laffan is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Rose Laffan to arrange a consultation or contact our Newcastle office.

Family law in the age of the internet

Posted on April 1st, 2014

by Rose Laffan

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

We undoubtedly live in a digital age. Around the world over 800 million people actively use Facebook – over 55% of the Australian population has a Facebook profile. Twitter has over 500 million registered users generating over 340 million tweets daily.

In increasing numbers the internet, and in particular social networking sites like Facebook and Twitter, are implicated in the breakdown of marriages and relationships.

A UK study indicated that one-third of divorce cases in England implicated Facebook. The 5,000 people polled cited three grounds: inappropriate messages sent to another person prior to separation, friends disclosing a spouse’s behaviour (either prior to or after separation), and negative comments about each other posted after separation.

A study by the American Academy of Matrimonial Lawyers found that in the past 5 years 80% of divorce matters included social media posts, mostly from Facebook.

So is there a way to combine family law and social networking? The guidepost might be to consider “How would I feel receiving this message?” And then there is what to avoid – negative comments, sarcasm, personal remarks, and threats. But perhaps it might be better to remember that family law is an intensely private and personal matter and maybe instead it would be better to think carefully about whether you need to say anything at all on social media. If you do feel the need to say something it would be worth considering whether this would be better sent to them privately.

Rose Laffan is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Rose Laffan to arrange a consultation or contact our Newcastle office.

No enduring guardian – What will happen?

Posted on April 1st, 2014

by Lana Black

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

If a person loses his or her capacity to make decisions and does not have an enduring guardian appointed, the Guardianship Tribunal may, if requested to do so, appoint a guardian for that person. This procedure can be costly and time consuming. It is far easier and cheaper to appoint an enduring guardian.

The Guardianship Tribunal can appoint guardians for adults who:-

a)      are incapable of making their own lifestyle decisions because of a disability; and
b)      need someone with legal authority to make important life style decisions on their behalf.

The Tribunal will only appoint a guardian if a person’s lifestyle decisions cannot be made informally in the best interests of the person.

Essentially a guardian is a legally appointed substitute decision maker.

A family member or friend can be appointed guardian or the Tribunal can appoint the public guardian.

In most cases the Tribunal appoints guardians with specific functions such as:-

a)      accommodation – to decide where the person should live;
b)      health care – to decide what medical and dental treatment the person should receive;
c)      services – to authorise others to provide personal services to the person (usually to assist them to remain in their home).

While a failure to appoint an enduring guardian does not mean lifestyle and medical decisions cannot be made for a person if they lose their capacity to make those decisions for themselves, it does mean both time and money will be required to have a guardian appointed for the person.

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in residential and commercial property transactions and estate planning and administration.  If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

Commercial Property Law Alert #1 2014: Five key questions you need answered about the PPSR

Posted on March 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and works primarily in our Commercial & Property Law team.

What is the PPSR?

The Personal Property Securities Register (PPSR) is a nation-wide online register which records security interests in personal property. The PPSR was created under and is governed by the Personal Property Securities Act (the Act).

Personal property is defined as any form of property other than land, buildings or fixtures. Some examples of personal property are cars, machinery, artworks and intellectual property.

Under the Act there are a variety of security interests in personal property which are capable of registration on the PPSR, including:

  • Mortgages and charges;
  • Retention of title clauses in sales agreements;
  • Financing or operational leases for a term exceeding 12 months (or three months for cars, boats or aircraft);
  • The interest of a factor in an account; and
  • Consignment arrangements.

How does the PPSR assist in enforcing security interests?

In order for a security interest to be enforceable against the grantor, it must have ‘attached’ to personal property, being the collateral. Attachment occurs where a grantor, who has rights in the collateral, accepts money or does some other act by which the security interest arises. It is important to note that as a general rule, in order for a security interest to be enforceable against a third party the security agreement must be in writing and signed by the grantor. Read the rest of this entry »

Appointing a financial manager

Posted on February 1st, 2014

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and works primarily in our Commercial & Property Law team.

The Guardianship Tribunal has the power to make a Financial Management Order (FMO) which appoints a financial manager for a person who is incapable of managing their own financial affairs. Financial affairs include things such as operating bank accounts, investing money, paying bills, dealing with property and instructing solicitors in legal matters.

Similar to an attorney or guardian, a financial manager is a substitute decision maker.

Read the rest of this entry »