Trusts – No Place to Hide from Family Law
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
In a recent Family Law case of AC and Ors & VC and Anor, the wife commenced proceedings for property settlement against the husband, together with orders affecting his mother as the person in control of a discretionary trust. The gross value of the trust was $6,565,391. The trial judge used the Court’s third party powers to make the trustee realise the capital of the trust, allocate $338,000 to the husband’s mother, and to distribute the balance to five specified beneficiaries including the husband and wife, as to a gross sum of $1,245,478 each. The Family Court Appeals Division confirmed that these powers can be used in this way. However, they overturned the trial judge’s decision, because the husband’s mother had not been given sufficient opportunity to respond to the orders before they were made.
It had previously been thought that the Court’s third party powers did not expand the pool of property available for distribution between spouses, beyond that which each of them personally own. As property available for division, in this case, was held to include property of a trust that could be made to vest despite the trustee’s wishes, this does expand the pool beyond the marital property of the spouses. Therefore, where a Family Law Court considers employing its third party powers in relation to a discretionary trust, it will not only be principles of ownership that determine the case, but whether or not correct procedures have been followed to determine that such an order is “proper”. Proper notice and due process will need to given to other parties who may be affected by the Court’s orders.
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.
Swimming Pools Registration
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
The NSW State Government passed the Swimming Pools Amendment Act 2012 late last year. The Act requires that all pool owners must register their swimming pool by 29 October 2013. When doing so, it is necessary for the pool owner to indicate to the best of his or her knowledge, that the Swimming Pool complies with the applicable safety standards.
If a person owns a pool and they fail to register by 29 October 2013 then the owner of the pool risks a fine.
After 29 April 2014 if a property with a swimming pool is sold then the Contract for Sale must include a valid certificate of compliance issued under the Swimming Pools Act 1992 or a relevant Occupation Certificate within the meaning of the Environmental Planning & Assessment Act 1979 and evidence that the swimming pool is registered under Part 3A of the Swimming Pools Act. A certificate of compliance under the Swimming Pools Act will only issue in respect of a swimming pool if it is registered and if the swimming pool complies with the requirements of the Swimming Pools Act. Naturally, a certificate of compliance will only issue if the swimming pool complies in all respects with the Swimming Pools Act. Therefore, before a property can be sold, the swimming pool must be registered and it must comply with the provisions of the Swimming Pools Act.
If the Vendor of a property fails to annex the relevant Certificate to the Contract, then a right of rescission exists in favour of the Purchaser.
Robert Lindsay is a Director at Mullane & Lindsay, and practises extensively in Commercial Law, Property Law and Wills & Estate Planning. If you require any assistance in this area please contact Robert Lindsay to arrange a consultation or contact our Newcastle office.
No Will – At your Peril
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
The Succession Amendment (Intestacy Act 2009) commenced on 1 March 2010. The Act details who is eligible to inherit the property of a person who has died without a Will. Interestingly, the Act now provides for the concept of multiple spouses. If a person dies without a Will and dies with a spouse and a domestic partner but has no children and if the spouse and domestic partner survive 30 days after the death of the deceased, then they will share the whole of the estate either;
- In equal shares; or
- Under a distribution agreement; or
- Under a distribution order. Read the rest of this entry »
Union Picket if Dismissed but Reinstated
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
In CMFEU v BHP Coal Pty Limited (No. 3) [2012] FCA 1218 the Federal Court recently dealt with the dismissal of a Queensland mine worker for holding up a particular sign at a series of protest meetings held outside the mine gate. At the time, the CMFEU was negotiating a new Enterprise Agreement for the mine. BHP contended the worker’s conduct was a breach of the workplace agreement. The CMFEU said the dismissal was because the worker was a union official directly involved in the enterprise bargaining negotiations.
The Court held the dismissal was “adverse action” under the Fair Work Act. When such a finding is made, unless the employer can show the true reason for dismissal was other than one of the prohibited reasons under the Act, the dismissal is liable to be set aside.
The case involved a consideration of numerous arguments as to, for example, whether the worker was in fact a union official. It is beyond the scope of this article to consider them all. The Court did however find, ultimately, that although the sign (referring in particular to the word “scab”) was offensive and intended to offend; it was displayed at a lawful protest meeting organised by an industrial organisation and was advancing the views and interests of an industrial association. Because one of the reasons for his dismissal was that conduct, the dismissal contravened the Fair Work Act. Read the rest of this entry »