David Gawthorne is a Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Whenever someone is caught driving with a blood alcohol level in the mid-range (0.080 to 0.149) or higher, NSW Police have the power to suspend the driver’s licence on the spot until the drink driving charge is dealt with by a Magistrate. They usually use this power. Though there are some cases in which the Magistrate finds that the offence occurred without convicting the driver, in the usual case the driver is convicted and disqualified from holding a driver licence for at least 6 months… often longer.

The Road Transport Legislation provides that the police suspension partly satisfies the driver licence disqualification period. So, Magistrates have been backdating the commencement of disqualification periods to the date that the offence occurred. However, the Supreme Court decided in the recent case of RTA v. O’Sullivan that Magistrates cannot do this. Instead, NSW Roads & Maritime Services is now being notified of both the disqualification period and the police suspension, so that the suspension period can be deducted from the disqualification period. Same result, new process.

Yet, the NSW Law Society is concerned that the new process might result in the police suspension period being missed and not deducted from the disqualification period. Experienced solicitors are advising their clients to enquire with Roads & Maritime Services after receiving their penalty to ensure that this has not occurred. Though drink driving is to be condemned, the penalties are serious and any reduction could make the difference between a tough lesson learned and personal circumstances ruined.

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

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The Federal Court recently considered the duties owed by employees to employers.  In Permission Corp v Pegasus, two employees of the applicant Permission Corp (PC) set up their own company Pegasus and, without disclosing their interest in it to PC, arranged for Pegasus to enter into contracts with PC. As a result Pegasus was paid significant sums.  Further, Pegasus did not provide the service for which the payment was made. PC later became aware of the situation; obtained orders ‘freezing’ Pegasus’ bank accounts, and sued Pegasus and the employees (who, unsurprisingly, were dismissed) for damages.

The claim was effectively undefended because one of the former employees became bankrupt; the other settled the claim against him and Pegasus admitted most of the factual allegations.  Despite this, the case is instructive because the Court implicitly accepted the following propositions:

• The relationship between employee and employer is a ‘fiduciary’ relationship.
• A fiduciary is liable to account for a benefit that was obtained because the person took advantage of an opportunity that arose due to being in a fiduciary position.
• If a third party comes to own property that was obtained in breach of fiduciary duty, knowing of the breach, the third party is liable to repay as well.

The Court was satisfied that Pegasus knew the money it received from PC was received because of the breach of fiduciary duty by the two employees.  Pegasus was ordered to repay the whole of the money it had received and was ordered to pay the costs of the proceedings.

The case is a salutary reminder that all employees owe “duties of good faith” to their employer and cannot seek to make a personal profit for themselves, at the expense of their employer.

Tony Cavanagh is a Director at Mullane & Lindsay, and practises extensively in commercial and other litigation; and employment law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle office.

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

In APRA’s recently released December 2011 Quarterly Superannuation Performance publication it reported that the total estimated superannuation assets of Australians increased by $15.8 billion (1.2%) to $1.31 trillion over the 12 months to 31 December 2011.   These are big numbers and difficult to comprehend, but they clearly underline the importance of superannuation in our society today.  

The current political debate on the increase of the Superannuation Guarantee levy from 9% over time and how this is to be funded highlights the impact of superannuation in the area of Industrial Relations.  Our lawyers report that it may become relevant when advising clients on issues relating to employment contracts or termination of employment.

In Elder Law generally, and drafting wills and acting on the administration of Estates superannuation issues arise daily.    In Family and Relationships Law ascertaining the value and entitlements of superannuation and being able to advise on superannuation splits as part of a property settlement is also a necessary tool and our team undertakes regular legal education to keep abreast of the constant change in this area of the law.  

Recently we have had cause to also consider risks to clients in circumstances where a Self Managed Superannuation Fund (SMSF) may not have been administered according to law by one or both spouses prior to and after a relationship breakdown.    Possible misconduct can include making false or misleading statements to the ATO, incorrect record keeping, failing to lodge returns and documents, fraud and other criminal offences.   It is a major responsibility being a trustee of a SMSF and this can become a major issue on relationship breakdown.

Coincidentally the ATO has released a publication that provides guidance around the strategy the ATO takes when deciding whether or not to take legal action against superannuation funds, and in particular SMSFs.   A copy of the ATO guidelines are available at http://www.ato.gov.au/content/00301619.htm

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.

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

Changes to the Superannuation laws and practice affects all of our clients, but usually in the areas of employment law, business management, Elder law, wills and estates and of course Family law where superannuation entitlements represent a major asset and financial resource that might need to be adjusted on a relationship breakdown. 

On 14 February 2012, the Government released for public consultation an exposure draft and an associated explanatory memorandum in relation to the payslip reporting of superannuation contribution measures.    The Superannuation Legislation Amendment (Stronger Super and Other Measures Bill) (No. 2) Bill 2012: giving information about superannuation contributions (the Bill) will make amendments to the SIS Act.   The changes will require employers to report, on payslips, any information prescribed in the regulations about superannuation contributions.    The regulations will then be amended to require employers to report the amount of superannuation contributions, as well as the date on which the employer expects to pay the superannuation.

At present, employers are required to report accrued superannuation contributions under the Fair Work Regulations, which do not apply to all employees. These requirements will be transferred to the SIS Regulations, along with the new expected date requirement.    To complement the payslip measures, the government will also legislate to require superannuation funds to provide notices to members that contributions have been “received? or “not received?, under the Securing Super package.

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.

David Gawthorne is a Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

The recent Family Law case of Oldfield & Oldfield involved the unusual and somewhat tragic situation of grandparents suing their son and his partner to spend time with their 6 and 10 year-old grandkids. It all started after the birth of the second grandchild. At that time the grandmother made certain unflattering comments about her stepdaughter to a hairdresser. As the stepdaughter felt that the grandparents did not respect her, she decided to use her boys to exact a form of victory over the grandparents.

As the dispute worsened, each side formed an entrenched view of the other. The grandparents and the parents each accused the others of constantly favouring one of the grandchildren over the other. The father was the most concerned to put the interests of the children above the dispute between his partner and his parents. However, the mother made clear to the father that if he did not support her in the dispute then she would end their relationship. Having been made to choose, the father chose his partner and family over his parents. Eventually, the grandparents were not allowed to see the children.

The grandparents initiated a Family Law case for parenting orders, applying to spend time with the children. The parents opposed the application. A Family Consultant attached to the Court recommended on two separate occasions that the grandparents and the parents access support services and counselling offered by Lifeline or Relationships Australia, but neither side of the dispute took steps to do so. During the 18 months of the proceedings up to the final hearing, the relationship between the grandparents and the parents continued to deteriorate; not only their relationships, but relationships with extended family.

In parenting proceedings, whatever is in the best interests of the children is of utmost importance. This is so, even to the point that there is no presumption that biological parents should be preferred in the making of parenting orders. It is generally in a child’s interests to live with or spend time with their parents, as against some other person interested in a child’s welfare, but that is always subject to what is, in fact, in the child’s best interests. However, the Federal Magistrate deciding the case of Oldfield noted that where the children live with both parents and the family unit is intact, other principles operate: the need to preserve and protect the institution of marriage and the need to give the widest protection and assistance to the family unit. The family unit to be preserved was taken to be the “nuclear family” of parents and their children.

As the relationship between the parents was put at risk by the ongoing conflict with the paternal grandparents, and given the obligation of the Court to protect the family unit, the Court could not fault the decision of the parents to prevent the grandparents spending time with their children. No orders were made for the children to spend time with the grandparents.

This was not the only basis upon which the matter was determined. It was also found that it was not in the children’s best interests to continue to be exposed to the conflict between the parties. The older child was already showing some signs of psychological harm as a result of the situation that existed between his parents and grandparents. Even so, the Federal Magistrate’s reasoning from the need to protect the family unit is novel.

In the end, this is just one more reason to emphasise dispute resolution and counselling in this context. If the parties had taken the Family Consultant’s advice and contacted Lifeline or Relationships Australia, even after proceedings had been commenced, then the outcome may have been different.

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

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

The Child Support Agency (CSA) has established a Special Investigation Unit to target employers who fail to pass on child support payments which they have deducted from employee’s wages.  

The Minister for Human Services, Tanya Plibersek, recently reported that the CSA’s Special Investigations Unit’s actions have lead to fines being imposed on employers of up to $30,000 and $500,000 has been recovered in unpaid child support.   Further, there have been prosecutions arising from the failure by employers to obtain information and employment details about an employee for the purpose of collecting child support.  

An on line guide titled: Family Separation: A guide for Teens  has been developed in consultation with teenagers, parents and CSA stakeholders.  The guide is aimed to help teenagers cope with family separation and change. It provides hints and tips to help teens understand and cope with what is going on around them and contact details to a range of support services.   

This guide complements the story and activity book made for early primary school aged children who are affected by separation, which is also available online.   Both books will also help the children’s parent, grandparent, carer or trusted adult provide the right support through the difficult time asscoated with relationship breakdown. 

The CSA’s website is: www.csa.gov.au.

 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.

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

A correctly prepared and executed Power of Attorney confers on the Attorney the authority to do on behalf of the grantor (i.e. the person giving the Power of Attorney) anything that the grantor may lawfully authorise an Attorney to do (subject to compliance with any conditions or limitations specified in the Power of Attorney). In respect of an Enduring Power of Attorney, authority to act as the Attorney of the grantor is not conferred until the Attorney accepts the appointment by signing the Power of Attorney.

Not with standing the above information, Section 52 of the Powers of Attorney Act provides that a Conveyance, Deed, dealing or other instrument (e.g. a Transfer) affecting land and which is signed by an Attorney under the terms of a Power of Attorney, has no effect unless the Power of Attorney has been registered. This means that if an Attorney proposes to sign a document affecting land owned by the grantor or in which the grantor has an interest, then the Attorney must arrange for the Power of Attorney to be registered. Registration takes place at the office of Land and Property Information atMacquarie Street,Sydney.

As a safeguard, Section 52(2) of the Powers of Attorney Act provides that if the Power of Attorney is registered after execution of the Conveyance, Deed, dealing or other instrument affecting the grantor’s interest in the land, then the Conveyance, Deed, dealing or other instrument has effect as if the Power of Attorney had been registered before the date of the Conveyance, Deed, dealing or other instrument. In other words, registration has a retrospective effect.

The requirement that the Power of Attorney be registered does not apply in respect of a Lease for a term of 3 years or less.

In summary, a Power of Attorney can be used by the Attorney to make business decisions on behalf of the grantor (subject to the terms and conditions of the Power of Attorney) but if the Attorney proposes to execute a document as Attorney for the grantor which affects land (apart from a Lease for a term of 3 years or less) then the Power of Attorney must be registered.

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.

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Often, a person creating a Power of Attorney (“the grantor”) decides to appoint two or more people to be his or her Attorneys. If so, the grantor must decide whether the Attorneys will be appointed jointly, jointly and severally or severally.

If the Attorneys are appointed jointly, then they must act jointly. They cannot act independently of each other and all decisions as Attorneys for the grantor must be joint. If the Attorneys are appointed severally or jointly and severally, then each Attorney can act independently of the other Attorney. The Attorneys are not bound to consult each other. The grantor is often tempted to appoint the Attorneys jointly to ensure proper consultation before a decision is made. However, Section 46(1) of the Powers of Attorney Act 2003 provides that if the Power of Attorney appoints two or more persons as joint Attorneys, the Power of Attorney is terminated if the office of one or more of the Attorneys becomes vacant. The Act provides that there is a vacancy in the office of an Attorney if:

1. The Appointment of the Attorney is revoked; or
2. The Attorney renounce the power; or
3. The Attorney dies; or
4. The Attorney becomes bankrupt; or
5. Where the Attorney is a corporation, the corporation is dissolved; or
6. The Attorney ceases to have mental or physical capacity to continue to act as an Attorney.

On the other hand, if two or more Attorneys are appointed severally, then a vacancy in the office of one or more of the Attorneys does not operate to terminate the Power of Attorney in relation to the remaining Attorney(s). It is important to give careful consideration when appointing Attorneys as to whether they will be appointed jointly or severally. Of course, if there are two Attorneys appointed jointly and one of them dies, then the grantor can sign a fresh Power of Attorney. If however, the grantor no longer has the capacity to do so (e.g. if he or she is suffering from dementia) then the grantor may be left without a Power of Attorney for the remainder of his or her life.

Often, by way of compromise, a grantor who is tempted to appoint three or more Attorneys jointly may compromise and appoint the Attorneys severally and then add a condition to the Power of Attorney to the effect that any decisions pursuant to the Power of Attorney must be made by at least two of the Attorneys notwithstanding that they have been appointed severally.

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.

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

A common reason why a person appoints another person to be his or her Attorney is the fear by the grantor (i.e. the person making the Power of Attorney) that he or she may be unable to manage his or her affairs due to illness causing lack of mental capacity (such as dementia). If that is the reason for the creation of the Power of Attorney then it is important the Power of Attorney is an Enduring Power of Attorney. Section 19 of the Powers of Attorney Act 2003 provides that an Enduring Power of Attorney is created if: 

• The Power of Attorney is expressed to be given with the intention that it will continue to be effective, even if the grantor lacks capacity through loss of mental capacity after the excution of the instrument; and
• Execution of the Power of Attorney by the grantor is witnessed by a Solicitor, Barrister, employee of the NSW Trustee and Guardian or any other person referred to in Section 19(2) of the Powers of Attorney Act; and
• The witness to the Power of Attorney is not an Attorney appointed under the Power of Attorney; and
• There is included in the Power of Attorney, a Certificate by the person who witnessed the Power of Attorney stating that: 
• The person explained the effect of the Power of Attorney to the grantor before it was signed; and
• The grantor appeared to understand the effect of the Power of Attorney; and
• The person is a witness as provided for in Section 19(2) of the Powers of Attorney Act; and
• The person is not an Attorney under the Power of Attorney; and
• The person witnessed the signing of the Power of Attorney by the grantor. 

If the grantor of the Power of Attorney wants an Enduring Power of Attorney, then it is important that the conditions set down in Section 19 of the Powers of Attorney Act be adhered to.

An Enduring Power of Attorney does not confer authority on an Attorney (to act as the Attorney) until the Attorney has signed the Power of Attorney by way of acceptance. If more than one Attorney is appointed, then the Power of Attorney operates to confer authority only in relation to such of the Attorneys who accept their appointment. Acceptance by the Attorney can be at any time after the Power of Attorney is signed by the grantor.

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.

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Section 12(1) of the Powers of Attorney Act 2003 provides that an Attorney appointed pursuant to a Power of Attorney cannot confer a benefit on himself or herself unless the Power of Attorney expressly allows the Attorney to do so. The Attorney is bound to act in the best interests of the person granting the Power of Attorney. However, circumstances can arise where it is appropriate that an Attorney is in a position to benefit himself or herself. Consider the scenario where a couple own their home. The husband develops dementia and is placed in care, a distance from their home. The wife decides to sell their home to be closer to her husband. In doing so, she acts as Attorney for her husband who lacks contractual capacity. She signs the Contract and Transfer as his Attorney. After selling, she would like to buy another home to live in, close to her husband so that she can visit him frequently. Unless the Power of Attorney (by the husband in favour of his wife) includes a Clause under Section 12(2) of the Powers of Attorney Act, authorising the wife to confer benefits on herself to meet her reasonable living and medical expenses, then she is precluded from using her husband’s one half share of the proceeds of sale when purchasing a replacement home.

This can be a real issue, particularly if the marriage between the husband and wife is a second marriage, and the husband has children from the first marriage. They may well be concerned if any subsequent property is in their step-mother’s name only which may have ramifications for them when their father dies. If the Power of Attorney has a Clause pursuant to Section 12(2)(b) then the wife can purchase a home in her sole name, using the whole of the proceeds of sale of the previous property. If not, then she may be precluded from doing so.

A Power of Attorney is an important document and in some circumstances, a powerful document.

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.