When parties with children separate they may be able to make an agreement between themselves in regard to the care and welfare and parenting arrangements of their children. For other parents, where there is disagreement in respect of parenting arrangements, the law requires them to attend family dispute resolution, which is also known as mediation. This is a compulsory requirement before parents can embark on seeking parenting orders to be made by the Family Court or Federal Circuit Court of Australia.
If the parents are able to reach consensus at mediation they may enter into a “parenting plan” which they both sign. A parenting plan can include: details such as where children are to live; both arrangements for special days and holidays; and how parents will consult with each other in regard to long term decisions affecting their children.
A parenting plan can later be made into consent orders where both parties agree to file an application for consent orders in the court. A lawyer can prepare parenting orders on your behalf.
There are some situations where mediation is unsuitable. For example, where there are safety concerns, where there is a high degree of conflict between the parties, or if there are significant concerns about children being exposed to family violence, abuse or neglect when they are in the care of the other parent. Legal advice should be sought as to whether an application to the court should be made as a matter of urgency in these circumstances.
Further, there will always be cases where parenting orders are required.
Parenting orders are legally enforceable.
A parent who intentionally fails to comply with a parenting order, or who makes no reasonable attempt to comply with such an order, can be found to have contravened the court orders. Penalties for contravening parenting orders may include a significant fine or even a period of imprisonment.
All parenting arrangements, whether imbued in a parenting plan or in court orders, must always regard the best interests of the child as the paramount consideration. All parents should do their utmost to enter into negotiations with each other with this principle firmly in mind.
At Everingham Solomons we have the expertise and experience to assist you with parenting matters and any other family law matter because Helping You is Our Business.
Prior to a recent decision by the Full Federal Court of Australia in Anglican Care v NSW Nurses’ & Midwives’ Association [2015] FCAFC 81 (5 June 2015) employers often believed that whilst an employee was not at work and receiving weekly payments of compensation, they were not entitled to accrue annual leave.
In the case that was before the Full Bench of the Federal Court, an aged care worker was not at work, but receiving weekly payments of compensation from December 2009 to May 2011. The worker had not been terminated and was still employed. The argument was whether the worker was entitled to accrue annual leave during that period, with the total value of the claim being $3,000.
The worker was represented by her union, as such the legal costs which would have far exceeded the claim, was not in issue.
The Federal Legislation, that being section 130 of the Fair Work Act 2009 (Cth), provides that an employee is not entitled to accrue annual leave if off work, unless permitted to by the State Law.
The State Legislation being section 49 of the Workers Compensation Act 1987, provides that workers are entitled to receive weekly payments of compensation, even though they are entitled to receive annual leave. It has always been thought that this meant that if you had accrued annual leave, you were entitled to take it even though you were receiving weekly payments of compensation.
Prior to going to the Full Bench, Justice Emmett of the Federal Circuit Court decided that this meant that a worker could accrue the annual leave whilst receiving weekly payments of compensation. This decision was then upheld by the Full Bench of the Federal Court.
This situation may however be reversed by Federal Legislation and there is at present an amendment to the Fair Work Act that is before the Senate.
At the moment however, workers are entitled to accrue annual leave whilst receiving weekly payments of compensation.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
If you are a rural landholder within the Liverpool Plains Council area and do not currently have a dwelling constructed on your land but you are intending to construct a dwelling in the future, please be aware that existing holding provisions under the Local Environmental Plan expire on 9 December 2016 .
The permissibility to build a house on land is set out in the Liverpool Plains Local Environmental Plan 2011 (“LEP”). Generally speaking, for land that is zoned RUI Primary Production, R5 Large Lot Residential, E3 Environmental Management and E4 Environmental Living, the LEP specifies that a house can only be built if:
The land is a minimum size;
The land is a lot from an approved subdivision of Council; or
The land comprises an existing holding.
The existing holding provisions under the LEP relate to the historic ownership of land at a certain date. There is some level of complexity surrounding whether a particular parcel of land constitutes an existing holding in part because the information required to make this assessment may be held in a number of places which requires detailed investigation and in some instances there may be insufficient information available to make a determination that a particular parcel of land constitutes an existing holding.
Information as to whether property constitutes an existing holding is available from Council by lodging an application and payment of a prescribed fee. If it is determined that property constitutes an existing holding, landholders who wish to preserve their dwelling entitlement to build a house are encouraged to submit a development application to seek consent for a ‘building envelope’ prior to 9 December 2016. This will afford landholders an additional five (5) year period in which to build. Failure to act before the December 2016 deadline could result in the loss of a dwelling entitlement if the property does not otherwise meet the minimum lot size set by the LEP or is not an approved subdivision of council.
If you are a rural landholder within the Liverpool Plains Council area please be aware that the window of opportunity to construct a house via existing holding provisions is closing. If you have questions or concerns about your rural property please contact the experienced team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Lesley McDonnell
Recover Your Debts, Enhance Your Cashflow and Improve Your Profitability
A business is operating efficiently, services are provided to customers and accounts are rendered but nevertheless the business begins experiencing cashflow problems. The unfortunate reality is, this is not a fictitious scenario. If your debt recovery procedure is deficient you may be on your way to becoming yet another business that fails due to negative cashflow.
The time to stop letting debtors control the future of your business is now. If you have issued an account in which payment is due and has not been forthcoming, take immediate action to recover the debt.
There are a vast array of cost effective recovery options available depending on the circumstances of the debt owed. It is often not necessary to issue a Statement of Claim and commence expensive court proceedings to recover your outstanding debts.
The dispute resolution team at Everingham Solomons can assist you throughout all stages of the debt recovery process. We will work with you to determine the most appropriate course of action and target strategies to suit your circumstances to ensure that your debts are recovered expediently and cost effectively.
You have little to lose and everything to gain. WHAT ARE YOU WAITING FOR?
At Everingham Solomons we have the expertise & experience to assist you because Helping You is Our Business.
In certain circumstances, a change to more flexible working arrangements can be requested by employees with at least 12 months continuous service with an employer and by long term casuals who have a reasonable expectation of continuing regular and systematic work. These could include changes in hours of work, patterns of work or even location of work.
Employees with the following types of circumstances can request such a change:
those who are parents, or who have responsibility for the care of a child who is of school age or younger;
carers;
those with a disability;
those who are 55 or older;
those experiencing domestic violence, or those caring for, or supporting, an immediate family member experiencing domestic violence.
An employee’s request must be in writing, must set out the details of the change sought and the reasons for the requested change. The employer must then respond to the employee in writing within 21 days. A request can only be refused on reasonable business grounds. A refusal must include the reasons for the employer’s refusal.
The reasonable business grounds on which a request for flexible working arrangements can be refused include:
that the new arrangement would be too costly for the employer;
that there is no capacity to change other employees’ arrangements to accommodate those requested by the employee;
that it would be impracticable to change the arrangements of other employees, or recruit new employees, to accommodate those requested by the employee;
that the arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
that the arrangements requested by the employee would be likely to have a significant impact on customer service.
If an Award, enterprise agreement or, less often, an employment contract allows workplace disputes to be taken to the Fair Work Commission, an employer who refuses a request may find itself before the Commission if the employee disagrees with the refusal. Further, if an employee feels discriminated against because of a refusal, he or she may challenge the employer under relevant discrimination legislation.
At Everingham Solomons, we provide guidance to both employers and employees in managing requests for flexible working arrangements because Helping You is Our Business.
Click here for more information on Keiran Breckenridge.
Generally if you wish to change your business structure, say from a partnership to a company or trust, you must consider whether such restructure or transfer will involve a payment of capital gains tax, stamp duty and/or GST.
As a result of those taxes, many restructures do not take place and businesses operate with structures which are less than ideal for their circumstances.
A welcome Budget announcement is the proposed relief for small businesses who wish to restructure from the payment of capital gains tax.
The concession recognises that in the initial stages of a business, business owners often do not know whether their business will be successful and do not have the resources to spend on obtaining expert advice as to how their business ought to be best structured now and in the future.
You should be aware however that whilst the Budget proposal permits small businesses to restructure without incurring the cost of capital gains tax, the effects other taxes such as stamp duty and GST still need to be considered.
As always, with Budget announcements, the detail remains to be seen.
In a similar vein, the Budget also contained an announcement that small businesses that do seek professional advice when establishing their small business, will be entitled to claim an immediate deduction for professional expenses such as for legal and accounting advice.
At Everingham Solomons we have the expertise to assist you with all of your business needs including structuring and restructuring of your business because Helping You is Our Business.
With an increasing incidence of mental illness affecting a significant proportion of our ageing population, an enduring Power of Attorney is an important legal document that enables trusted friend(s) and/or family member(s) to assume the role of substitute decision maker for financial and legal matters when a person becomes incapable. By taking steps to put in place an enduring Power of Attorney today, you have the power to nominate who you want to make decisions for you if you lose capacity. Failing to make an enduring Power of Attorney means there is no guarantee that the people you want making decisions for you will be the same people appointed as your financial manager.
Sometimes the role of a substitute decision maker involves making some big decisions which can in turn effect the distribution of a deceased person’s estate when the willmaker dies. For example selling the family home to help pay for entry into a nursing home. With this in mind, a willmaker should ensure that their Will takes into account their wishes before incapacity strikes.
Ademption occurs when property that has been gifted in a Will ceases to form part of the willmaker’s estate when they die. This can lead to unfair or unexpected outcomes because the willmaker’s wishes go unfulfilled and can leave a beneficiary disappointed.
In NSW there is legislation that provides an exemption to the failure of a gift of property that has to be sold by an attorney acting as a substitute decision maker for a willmaker. This exemption applies to Powers of Attorney signed after 16 February 2004. However a better approach that creates less angst for an attorney or an executor and more certainty is for a willmaker to ensure their Will properly takes into account their wishes. The best way of ensuring this is for the willmaker to regularly review their Will and update it when their circumstances change.
A properly drafted Will can make provision for contingencies such as the gift of specific property to a beneficiary but if that property has been sold then the proceeds of sale. Alternatively if the sale of that property seems likely, a willmaker may prefer to make a gift of a share of their residuary estate to a beneficiary rather than making a specific gift of property to avoid the gift failing if it is not owned by the willmaker at the date of their death.
At Everingham Solomons, we have the experience and expertise to assist you with all your Estate planning needs because Helping You is Our Business.
Click here for more information on Lesley McDonnell
People who are married or who are living in a de-facto relationship can have their property interests altered under the Family Law Act 1975.
For de-facto parties to bring an application for a property settlement, they must prove that they were in a de-facto relationship for a minimum of 2 years.
Section 4AA(2) of the Family Law Act 1975 defines a de-facto relationship. The circumstances which must be taken into account when determining whether a de-facto relationship exists may include consideration of all or some of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The recently decided Federal Circuit Court case of Kristoff & Emerson concerned a relationship which commenced in 2003 and ended in 2011. The applicant had met the other party, being the respondent in this case, in her occupation as a sex worker. The sexual relationship moved on from being a commercial arrangement when the respondent no longer paid for her services. The respondent argued the parties merely had a “friendship”.
There were no children of the relationship. The applicant had minimal assets but the respondent had almost $2 million worth of assets. She sought a payment from the respondent representing 25% of the value of his assets by way of a property settlement.
The parties never shared a fiscal relationship or financial interdependence. The parties never held a joint bank account or acquired property together, and the respondent paid for the majority of expenses. The parties however spent considerable time together and a commitment to a shared life.
The applicant also claimed that her career as a sex worker was adversely affected as she lost income because she gave up sex work for a new occupation during her relationship with the respondent.
The court was not convinced that the applicant had ceased her employment as a sex worker due to her relationship with the respondent. Ultimately, it found that it was not just or equitable to proceed with an alteration of property interests between the parties at all, because a de-facto relationship had not existed between them.
At Everingham Solomons we have the expertise and experience to assist you with de-facto relationship matters and any other family law matter because Helping You is Our Business.
Purchasing a property at auction can be an exciting and profitable experience, but, if attempted without adequate preparation, can also turn into a disaster.
The procedure of purchasing at auction is very different to purchasing through a negotiated sale.
If you are the successful bidder at an auction, you will be required to sign the contract and pay the deposit on the purchase price as soon as the hammer falls. As soon as the contract is signed, you are bound to complete the purchase. There is no cooling off period in an auction purchase, so, if you change your mind after signing the contract, there is no easy way out of the purchase.
If you are considering purchasing a property at auction then it is essential that you obtain a copy of the contract from the real estate agent some time before the auction. If you don’t understand the effect of the contract, take it to a solicitor and have them explain it to you.
The contract will reveal crucial characteristics about the property, like its zoning, any restrictions on its use, the rights of any other people to use or occupy parts of the land and the location of services, like sewer lines.
If the land has a building on it, you will also want to consider obtaining pest and building reports prior to the auction. Many purchasers have had their initial joy at purchasing at auction quickly subside at the subsequent discovery of termites in the building. Their rights to be released from the contract, or to seek any compensation for the pest infestation, in the circumstances, are very limited.
If you need to borrow money to purchase the subject property, then this too will need to be organised well before the auction. It is very unwise to head to an auction without final written approval from your lender, because if the finance falls through prior to settlement, you risk forfeiting your deposit to the vendor.
If you need some help with the purchase of property, contact us at Everingham Solomons because Helping You is Our Business.
This ANZAC Day you can play Two-Up in the region safe in the knowledge that you are not breaking the law.
In June 1998 the Minister for Racing introduced into the NSW Parliament ‘The Gambling (Two-Up) Act 1998(NSW)’.
This Act allows people in NSW to play two-up on ANZAC Day or any other designated commemorative day. Other designated Commemorative Days include Victory in the Pacific (15 August) and Remembrance Day (11 November) after 12.00 noon (presumably to ensure that the minute silence is not interrupted by exuberant punters).
If however you travel north into Queensland and join a game of two-up you will be breaking that State’s laws.
Insofar as the history of the law and two-up is concerned, prior to 1989 it was illegal to play two-up in NSW. In that year the Gaming & Betting (Two-Up) Amendment Act allowed two-up to be played on ANZAC Day. In 1992 there was a further amendment to allow two-up to be played all year round in Broken Hill. When the 1998 Act was introduced section 9 of that Act provides that certain areas in Broken Hill may hold games of two-up on the basis that it is organised by Council or the Broken Hill Council has approved the venue for the game to be held.
The 1998 Act requires that the games that are played on ANZAC Day are on a not for profit basis or if it is in a club no entrance fee is to be charged. Clubs that host the game and receive some monies must donate all proceeds to charity.
So this ANZAC Day, for all those taking a plunge in the region, good luck and come in spinner!
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
When parties with children separate they may be able to make an agreement between themselves in regard to the care and welfare and parenting arrangements of their children. For other parents, where there is disagreement in respect of parenting arrangements, the law requires them to attend family dispute resolution, which is also known as mediation. This is a compulsory requirement before parents can embark on seeking parenting orders to be made by the Family Court or Federal Circuit Court of Australia.
