Estate planning – requires capacity
Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
In the recent case of The Estate of Kati Tsilfidis; Stavrakakis v Tsilfidis [2015] NSWSC 1720 a 79 year old mother rewrote her Will a year before she died. The Will made no provision of any substance for her daughter. Her daughter contested the Will arguing that her mother lacked capacity when she executed it. This dispute led to court proceedings where a doctor was called to give evidence about the mother’s capacity. Ultimately the court held that the mother did have capacity to write the Will and the Will was valid.
However, the case serves as a reminder that when a Will is prepared the person making the Will (the testator) must have legal capacity. The Court discussed the legal test for capacity which is in 4 parts: the testator must understand the nature of the document they are signing, what property they have, who the members of their family are and what decisions they should make about dividing up their property. Read the rest of this entry »
Your first day in the Federal Circuit Court of Australia
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
You initiate proceedings by filing an Initiating Application setting out the final orders that you seek. These can be for property settlement, spouse support or relate to parenting. The filing fee is $320 for either a parenting or property application, and $530 for both. An affidavit always needs to be filed. A Financial Statement must be filed in proceedings of a financial nature.
Your partner/spouse needs to file their Response and supporting documents before the court appointed first return date. Their filing fee will be $320.
Bad behaviour at the work Christmas party
by Kristy Nunn
Kristy Nunn is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation.
It is the time of year in which employers hold work Christmas functions to celebrate the festive season and thank their employees for their efforts during the year. Unfortunately, some employees engage in bad behaviour at work Christmas functions. This article considers a decision of the Fair Work Commission made in July 2015 which considered whether an employee could be dismissed for misconduct during and following his work Christmas function.
Bad Behaviour at the Christmas Function
On 12 December 2014 Mr Keenan attended the official Christmas function of his employer, Leighton Boral Amey NSW Pty Ltd. In the days following the Christmas party complaints were made against him by other employees that Mr Keenan engaged in the following conduct:- Read the rest of this entry »
Interim parenting proceedings
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
If you and your spouse/partner have been unable to resolve your parenting issues through mediation it is possible to commence proceedings in the family courts, usually after receiving a s60I certificate from your mediator. You initiate proceedings by filing an Initiating Application setting out the final and interim orders that you seek. The filing fee for such an application or for a response to an application in the Federal Circuit Court of Australia is $430.
Your application or response must be accompanied by an affidavit setting out the facts upon which you rely to warrant orders being made in your favour. Interim proceedings are generally limited to 2 hours and the parties are not cross examined. Read the rest of this entry »
What is unpaid annual leave worth?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.
The Fair Work Act (FWA) provides that, on termination of employment an employer must “cash out” the value of accrued, but untaken, annual leave. Questions often arise as to how that calculation should be made – particularly where workers are eligible for overtime or bonus payments in the ordinary course of their duties.
The issue was recently considered by the Federal Court, albeit in a slightly unusual way. In Centennial Northern Mining Services Pty Limited v CFMEU (No. 2) [2015] FCA 136, Centennial had an Enterprise Agreement which provided that employees taking annual leave were to be paid on one of two alternate bases, but each one involved a payment higher than the worker’s base rate of pay. The EA also said that on termination of employment a worker was only paid out for untaken leave at an ordinary rate, plus a bonus. That was potentially less than the second alternate method of calculating annual leave if it was taken during employment. Read the rest of this entry »
Overseas members SMSF – beware
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
If a member of a Self-Managed Superannuation Fund (SMSF) spends more than two years overseas then he or she risks losing one half of their SMSF member entitlements. It is usual for the members of a SMSF to be the trustees unless the SMSF has a corporate trustee, in which event each member of the SMSF must also be a shareholder and director of the corporate trustee.
For an SMSF to be a complying fund and to receive concessional tax treatment, it must be an Australian resident fund. A real risk exists if members spend time working overseas. Residency rules apply. The residency rules provide that central management and control of the SMSF must be in Australia. If a trustee or director is absent from Australia for a continuous period of two years, then he or she may jeopardise the fund’s complying status. If however the trustee or director returns to Australia and remains for a minimum period of 28 days within the two year period, then the risk is removed. Read the rest of this entry »
Changes to the Passports legislation- parental responsibility
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
Changes were made to the Passports legislation in relation to consent for children to be issued Australian travel documents. The Passports Legislation Amendment (Integrity) Act 2015 came into force on 8 October 2015.
Section 11 of the Passports Act has been amended to align the definition of ‘parental responsibility’ more closely to that in the Family Law Act 1975 to provide more certainty as to who is required to consent to a child travel document. Persons who under a court order can ‘spend time with’ or have ‘access to’ a child, but do not otherwise have parental responsibility for the child, will no longer be required to consent to the child having an Australian travel document. Read the rest of this entry »
Exclusive use car parking by-laws
By Michael McGrath
Michael McGrath is a Director at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team.
Owners corporations have the power to grant lot owners the right to exclusive use of part of the common property in a strata scheme under what are known as ‘exclusive use by-laws’. Such by-laws are often granted in relation to car parking, which can be of significant value to the person granted the right.
An exclusive use by-law can only be granted by the passing of a special resolution which requires at least 75% support at a general meeting of the owners corporation. In granting an exclusive use by-law, the owners corporation can impose conditions including the payment of money. Once granted an exclusive use by-law can only be repealed with the consent of the lot owner or by the Tribunal, where the lot owner unreasonably withholds their consent.
A recent tribunal decision highlights the need for care to be taken when an owners corporation grants an exclusive use by-law. Read the rest of this entry »