Be sure of your grounds if seeking to enforce restraint of trade clauses
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.
Maternity leave – What are your rights?
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.
6 reasons why delaying property division after separation is not a good idea
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
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?
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.