Am I in a de facto relationship? Part 2
Section 4AA(2) of the Family Law Act lists factors to be considered in the determination of whether or not a couple are or have been living together on a genuine domestic basis. These factors can be any, or all, of the following:
- the duration of the relationship
- the nature and extent of their common residence
- whether a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support between them
- the ownership, use and acquisition of their property
- the degree of mutual commitment to a shared life
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
- the care and support of children
- the reputation and public aspects of the relationship.
A Shift in Calculating Personal/Carer’s Leave
The Fair Work Commission (“FWC”) recently handed down its decision in AWU v AstraZeneca Pty Ltd [2018] FWC 4660. The case is being described as a landmark decision on personal/carer’s leave for shift workers.
A dispute arose between AstraZeneca Pty Ltd (“the Company”) and the Australian Workers Union (“AWU”) in relation to how shift workers employed by the Company accrued personal /carer’s leave and whether the Company’s current practice of calculating personal/carer’s leave of shift workers was in accordance with the Fair Work Act 2009 (“FWA”). Read the rest of this entry »
Am I in a de facto relationship? Part 1
People often seek an answer to this question because it has a financial impact on them. Family courts have jurisdiction to make orders in respect to maintenance and property settlement between persons living in de facto relationships if they are satisfied that there is a de facto relationship, and the total of the periods of that relationship are at least 2 years; or that there is a child of the de facto relationship; or that the claimant has made direct or indirect financial and/or non-financial and/or homemaking contributions to their property and a failure to make an order would result in serious injustice to the claimant.
You cannot be in a de facto relationship with another person if you are married to that person, or if you are the child or adopted child or descendant of the other person; or you have a parent in common, who may be an adoptive parent of either or both of you. Read the rest of this entry »
Can a retaining wall be a dividing fence?
Nham & anor v Hayes & anor [2018] NSWCATCD 17
NCAT looked at several issues in this Dividing Fences application, the most interesting one involved retaining walls.
In short, the applicants had served a Fencing Notice under section 11 of the Dividing Fences Act 1991 (NSW) (the Act), which was not agreed to by the neighbours. At the same time the respondents began an action in the Supreme Court of New South Wales substantially in negligence and trespass. Read the rest of this entry »
Superannuation….. Who gets it when I die?
It comes as a surprise to many people to learn that they do not own their superannuation and therefore cannot include their superannuation as an asset to be disposed of by Will. After the death of a member of a superannuation fund, the superannuation entitlement of the deceased person is paid at the discretion of the trustee of the superannuation fund of which the deceased person was a member unless that deceased person has filed with the trustee a Binding Death Benefit Nomination (BDBN). If the trust deed governing the superannuation fund provides for the filing of a BDBN and if a BDBN has been filed (and assuming it is correctly completed and executed then the trustee of the superannuation fund is bound to abide by that BDBN and pay the superannuation in accordance with it. Effectively the BDBN can be an extension of the Will in that it can bind the trustee to pay the superannuation in accordance with the wishes of the deceased person. It is advisable for a member of a superannuation fund to file a BDBN (if possible) however advice from an accountant should be obtained to ensure that the superannuation is disposed of in the most tax effective way and if not, that the member of the superannuation fund is aware of the consequences of his or her action. Read the rest of this entry »
Exceptions to the rule – Who’s listening?
S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.
In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions. They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property. Read the rest of this entry »
What a difference a (leap) year makes
We have all heard jokes about people born on 29 February in a leap year, claiming to be younger than they really are because technically they only have a birthday every 4 years. However the ACT Supreme Court has had to grapple with the implications of a leap year birthday in somewhat different circumstances.
The plaintiff in the proceedings was born on 29 February 2000. She was charged with committing criminal offences on 28 February 2018. Depending on whether the plaintiff was an adult or a child on the date of the offences, she would be dealt with either as an adult or in a Children’s Court.
A Magistrate in the Children’s Court had decided the plaintiff was an adult and that the case must be sent to the Magistrate’s Court (the equivalent of the NSW Local Court) where the plaintiff would be dealt with as an adult. The plaintiff appealed that decision to the Supreme Court. Read the rest of this entry »
Charity in Wills – Don’t waste the gift
Wills are ambulatory. The circumstances existing on the death of the will-maker apply. This poses difficulties since most people cannot help but write Wills with “today” in mind.
A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change. Read the rest of this entry »
My Health Record: Are your children at risk?
In 2012 the Australian Government commenced a digital health record system known as My Health Record. In May 2017, the Government announced that the system would transition into an ‘opt-out’ basis, rather than ‘opt-in’ due to a lack of uptake. This means that unless they opt out by 31 January 2019, every Australian (including children) now has a My Health Record. This includes your health information such as healthcare providers you have seen, treatments you have received, and medicines you have been prescribed. Read the rest of this entry »