We know going through a separation can be mentally straining and the toll it takes on both yourself and your family. In these situations it can be difficult to act sensibly and rationally. To assist you in your separation, and hopefully make things slightly easier, we have put together a ‘separation checklist’:
General Matters
Finances
Living and other Arrangements
Documents to Collate
Contact the Team at Chamberlains Law Firm on familylaw@chamberlains.com.au for guidance with your Family Law matter.
Interested in learning more on Family Law?
Click our recent articles below to find out more:
Setting Aside Property Settlement Orders
Timeframes for Family Law Appeals
Everyone over the age of 18 should have a Will. If you do not have a Will, your assets may end up with someone you did not want to benefit. Intestacy laws will govern the distribution of your assets – i.e. the order in which your eligible spouse or relatives will inherit your Estate.
In NSW, for example, if you die with a new partner and you have children from a previous relationship, then your Estate will be divided between your new partner and your children – even though it might have been your intention to give everything to your children.
Generally speaking, you have the right to dispose of your property as you see fit. However, the Court does have the power to intervene if an eligible person (usually, your spouse or children) makes a claim against your Estate and the Court is convinced that you did not give them adequate provision. What is sufficient in the circumstances depends on issues such as what contributions they made towards you in your lifetime, what financial need they have, the size of your Estate and the competing claims of others. The relevant factors will depend on the circumstances of the case and, as this is a technical area, it is best to seek the advice of a solicitor if you are concerned about someone contesting your Estate.
You should review your Will every 2 to 3 years or after every major life event such as:
We can help advise whether your Will is valid and whether it should be updated.
You do not need to change your Will due to a change of address.
Your superannuation is a non-estate asset and therefore does not automatically pass in accordance with your Will.
You can ensure that your superannuation benefits do pass in accordance with your Will by executing a Binding Death Nomination form in favour of your Legal Personal Representative of your Estate (your Executor). You can usually find these forms on the website of your superannuation fund. Note that these nominations often lapse every three years and need to be updated. Not all nomination forms will be binding.
There are certain assets that you control in your lifetime that you cannot pass in your Will. These are called non-estate assets.
Examples include:
Your Will only covers assets that are owned solely by you. These are assets held by you in your personal name alone, or as tenants in common with another person (as opposed to assets owned as joint tenants with another person).
Examples of estate assets are property, shares, motor vehicles and other personal items owned exclusively in your name.
Your Will needs to be witnessed by two adults that have the capacity, who are not beneficiaries under your Will. They do not need to have any particular qualification. They need to see you sign the Will and attest to that.
Your Executor does not have to be a professional and can include someone that is also a beneficiary of your Estate. Your Executor simply needs to be someone over the age of 18 or a professional trustee such as the public trustee.
Your Executor does not need to have any unique expertise or skills. They are usually assisted through the estate administration process with the help of a solicitor and/or financial professional. They simply need to be someone that you trust to carry out your wishes.
You can appoint executors together (e.g. all 3 of your children) or in cascading order.
It would be best if you always appointed back-up executors in the event that your first designated Executor is unable or unwilling to act.
An Executor is a person you appoint to carry out the terms of your Will. The Executor usually has to apply for a Grant of Probate from the Supreme Court in your State or Territory, giving them authority to deal with the assets in your Estate.
Once they have received the Grant of Probate, the Executor’s role is to gather all of your assets – e.g. getting banks to release account balances, selling/transferring property and shares. The Executor then has to distribute the assets in accordance with your Will.
Once the Estate is finalised, your Executor may also have to file a final tax return for you as the deceased individual and, potentially, even for your Estate.
Your original Will should be stored in a safe place where it can be easily located after your death. Make sure you tell your executors where the Will can be located.
Legal Requirement – Please note your Will must be witnessed by two adults who are not beneficiaries (Executors are allowed to witness, provided that they are not beneficiaries to your Will).
Please contact us if you would like to inquire about our safe custody services.
Do you have a blended family, own a business or wish to establish a trust?
If so, you require a more complex Will. Please contact our Wills & Estate Planning lawyers for more information.
Over the course of a relationship, the amount of superannuation that a couple have is likely to change. Based on various factors such as employment, leave, and the type of super fund, the amount that you have in your superannuation account may be different from your partner.
While super may sometimes be regarded as a long-term account that isn’t readily accessible prior to retirement, it can be an essential asset to consider during the breakdown of a marriage or de facto relationship. In this sense, a super fund is regarded as an asset such as an investment property or savings account and maybe split between parties to the relationship pursuant to the Family Law Act 1975.
When considering how to adjust superannuation entitlements between parties upon separation, there are a few important things to note:
Family Law outcomes are diverse, and the Family Law Courts have broad discretion in the kind of orders that can be made regarding property and superannuation adjustment between separated parties.
If you are interested in a superannuation split, or would like to discuss the treatment of superannuation in a property settlement further, please contact our Family Law team at familylaw@chamberlains.com.au
A woman who underwent surgery to avoid falling pregnant has recently been awarded more than $400,000 for medical negligence after she unexpectedly conceived another child.
The 39-year-old, referred to by the pseudonym Jodie Lee, commenced proceedings against her obstetrician and gynecologist over the elective tubal ligation surgery she performed in 2014.
Facts
At trial, the Plaintiff was 39 years old. She is the mother of four children. On 1 March 2016, her fourth child, who was the subject of the proceedings, was born by means at the Wagga Wagga Referral Hospital.
In April 2014, plaintiff’s family doctor who was also her longstanding treating general practitioner obstetrician, referred her for an elective tubal ligation procedure to occlude her fallopian tubes with the aim of preventing further pregnancies.
The procedure was supposed to permanently block, the plaintiff’s fallopian tubes using Filshie clips, a 14-millimetre-long titanium medical devices which lock into place using a hinge.
However, within a year of the procedure, the plaintiff began experiencing nausea, vomiting and sensitivity to food smells. In July 2015, she was confirmed to be pregnant.
Decision
The District Court Judge Levy awarded $408,700 plus costs to plaintiff. Judge Levy noted there was no doubt the child at the centre of the case was “loved and cherished”.
However, the pregnancy and birth had “significant adverse effects on the plaintiff’s life, on the amenity of her life, on her emotional wellbeing, and on her capacity to work”. The Court also found that the psychological impact continues to effect the plaintiff.
A skier injured by their ski instructor at Perisher Blue has been denied compensation by the New South Wales District Court. This was despite the Court finding that the collision was caused by the negligence of the ski instructor. The Judge stated said if he was wrong about the defence argued by Perisher, he would have awarded the plaintiff $651,801.17.
The plaintiff was skiing the slopes of Perisher Blue when a Perisher Blue ski instructor collided with her. The plaintiff suffered significant injuries as a result. The ski instructor was employed by the defendant, Perisher Blue Pty Limited and was acting in the course of his employment, although he was not supervising to the plaintiff at the time.
Interestingly, despite the Supreme Court of NSW finding that the collision was caused by the negligence of the ski instructor, the Court ruled in favour of the defendant, Perisher Blue Pty Limited.
Justice Cavanagh ruled that skiing is a ‘dangerous recreational activity’ that falls within the scope of section 5K of the Civil Liability Act (2002) NSW. Accordingly, Perisher Blue Pty Limited had established a full defence under section 5L of the Civil Liability Act. His Honour found “there may be a significant risk of physical harm even if the risk of the harm materialising is low but the potential harm is catastrophic”.
Further, the Court found when assessing whether there was an “obvious risk” in this case, it was to be framed generally as a risk of collision between skiers, rather than a risk of a competent and experienced skier colliding with an instructor.
If you or someone you know would like to discuss a claim or has any questions please contact Alison McNamara on alison.mcnamara@chamberlains.com.au or Jon May jon.may@chamberlains.com.au from Chamberlains injury compensation team to see how we can help.
Interested in learning more about Injury & Compensation?
Liability Waivers in High-Risk Activities
When Accidents are caused by Negligence
Shopping centre slip and fall comes up short on appeal
A recent New South Wales Court of Appeal matter has highlighted the difficulties many plaintiffs face after suffering injuries. The duty owed by shopping centre operators as well as retailer’s to prevent slips and falls is a high one. However, this case highlights that without video cameras or reliable testimonies from the Plaintiff, a detailed incident report from the Defendant provides a strong defence.
FACTS
The plaintiff was a 40-year-old disability support pensioner. She slipped and fell outside the women’s toilets at the Neeta City Shopping Centre and fractured her patella. Within a minute or two of the accident, the cleaner on duty in the area contacted his immediate supervisor, who attended the scene.
The cleaner took a thorough incident report due to their being no video camera footage of the incident. The cleaners did not detect any water or other spillage on the ground where the plaintiff slipped.
KEY ISSUES
The Shopping Centre delegated cleaning to a contract cleaner, which it required to inspect bathroom areas at least every 20 minutes. At trial, the plaintiff accepted this was a reasonable system and that the area had in fact been inspected 12 minutes beforehand. Further, the plaintiff failed to raise any water spillage during her oral evidence. These facts were looked on in favour of the defendant by both the District Court and in the Court of Appeal.
The plaintiff’s claim proceeded on the basis that she slipped on water. Further, in reliance on an expert report from a Mr Burn, that the centre should have replaced the terrazzo tiles because they were slippery when wet.
DECISION
The Court of Appeal found the judge was entitled to reject the claim that there was water on the floor. She was also entitled to reject the claim, as she did, on the basis that if there were water on the floor, it was not a result of a breach of duty on the part of the Defendant.
The Judges also agreed with the expert testimony of the defendants which argued that the terrazzo tiles, despite their slipperiness, were within the regulatory standards as long as they were inspected every 20 minutes.
If you have suffered an injury after a fall please contact our Injury Compensation Team on 02 6188 3600
It’s silly season, which means it’s that time of the year when we let our hair down at the Christmas party and celebrate making it through another year. But be warned. With vigorous dancing, excessive alcohol, games and activities, Christmas parties are also a haven for potential injuries.
We often get asked during this period whether there is anything we can do to assist an employee injured during a Christmas party. It’s important to first ask: “Is my Christmas party injury covered by the Workers Compensation Act?”
Generally speaking, injuries sustained at work Christmas parties will be covered by a worker’s compensation policy as they are considered to be work events, even if they’re held at an offsite venue and attendance is optional and after hours. Effectively, the Christmas party is an extension of the workplace (perhaps a lot more fun), with the same obligations and entitlements applicable as your usual workplace.
Claims may be accepted for common Christmas party injuries, including slipping on spilt drinks, falling off a stage and, of course, falling over while dancing. In some cases, a claim may also be accepted for an injury on the way to the Christmas party.
Depending on the circumstances of your injury, your employer may also be considered negligent, for example, where the employer does not ensure there is a responsible service of alcohol, or if the employer fails to enforce workplace policies, including bullying and harassment policies.
It is also important to know when a claim will not be accepted.
Once employees leave the official function and move onto another venue, any injury will often not be covered.
Similarly, if you are disobeying direct orders from your employer or engage in risky or illegal activities you will not have much luck with your claim.
For example, an employee who crashed her car on the way home from a Christmas party was not covered because the employee was found to be under the influence of alcohol and had disobeyed a direction from her employer not to drive home intoxicated.
In another case, an employee who suffered injuries when he slipped and fell over a balcony railing, 25 metres to the ground, was not covered as the court found that the after party was not a work function and the employees had already left the original Christmas function.
If you have been injured in the course of your employment, Christmas festivities or not, contact us for a free first consultation with one of our injury compensation experts to discuss your claim and your legal rights.
In today’s episode, Chamberlains’ Director Jon May is joined by Canberra Costing Consultants Duncan Harrington & James Hall, to discuss all things legal costs & party costs, in the ACT.
As with all Chamberlains Lawcast episodes, the information provided cannot be considered as legal advice, if you have any questions in relation to any information presented, please contact our office on 02 6188 3600 or visit our website at chamberlains.com.au
Presented by; Jon May ft. Duncan Harrington James Hall.
Date; 01/12/2020
at Chamberlains Law Firm, Canberra.
As summarised by the High Court with respect to the interpretation of contracts in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 (“Electricity Generation Corporation”), at [35] per French CJ, Hayne, Crennan and Kiefel JJ:
“…The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context…”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties… intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience.”
The above principles espoused in Electricity Generation Corporation were adopted in the NSW Court of Appeal decision of Cherry v Steele-Park (2017) 96 NSWLR 54; [2017] NSWCA 295 (“Cherry”). In Cherry, Leeming JA (with whom Gleeson and White JJA agreed) confirmed that there was no requirement to first identify any ambiguity in a contract before considering evidence of surrounding circumstances.
His Honour Leeming JA commented on two recent decisions of the High Court of Australia that strengthened the proposition that “ambiguity” is a conclusion and not a precondition to considering evidence of surrounding circumstances. The first decision referred to was Victoria v Tatts Group Ltd [2016] HCA 5. This case considered the legal meaning of the term a “new gaming operator’s licence” noting that “Gaming Operator’s Licence” was defined by referring to a licence issued under the Gaming Machine Control Act 1991 (Vic).
In this instance, the Court had regard to the context, including new legislation governing gambling to consider whether the undefined term was ambiguous or whether it bore a plain meaning. The High Court looked at the text, purpose and context to determine that the terms were narrower than that which had been held by the Victorian Court of Appeal.
The second case referred to is Simic v New South Wales Land and Housing Corporation [2016] HCA 47, where Gageler, Nettle and Gordon JJ stated at [78] that:
“The proper construction of each Undertaking is to be determined objectively by reference to its text, context and purpose.”
French CJ observed at [18] that construction of a contract:
“Involves determination of the meaning of the words of the contract defined by reference to its text, context and purpose. Resort to extrinsic circumstances and things external to the contract may be necessary to identify its purpose and in determining the proper construction where there is a constructional choice.”
It has been seen time and time again that there is no need for ambiguity before objective matters, external to a contract, are considered by the Courts, and the above judgments are a reminder of this.
**Assisted by; Nina Vasiljevic**
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency lawyers today.
Following recent changes to the Land Tax Act 1956 (NSW) and the Duties Act 1997 (NSW) a trustee recently had to approach the Supreme Court of New South Wales to make sure the tax affairs of the trust were adequately dealt with. The decision of Re Dion Investments Pty Limited [2020] NSWSC 1661 may have implications for any trust whose property includes residential land in New South Wales. In 1973 a trust was settled. The trust corpus included residential property in New South Wales.
Recently, amendments were made to the Land Tax Act and Duties Act with the effect that surcharge tax will not be charged if a trust comprising assets, including residential property has no potential or existing foreign beneficiaries. In short: If the relevant trust has current or potential foreign beneficiaries, it means a hefty tax bill.
The trustee approached the Court for judicial advice (s63 of the Trustee Act 1925 (NSW)) and for orders (s81 of the Trustee Act) with the effect, in essence, of releasing the trustee from any obligation to pay a beneficiary for as long as they are a “foreign person” for tax purposes.
In relation to the first limb of s63 advice, the trustee would not be justified in surrendering the trusts relating to foreign beneficiaries as the trust deed gives no power to do that, noting the relevant power to distribute to foreign beneficiaries is a “power coupled with a duty” which it would be a breach to release.
Regarding the second limb, the trustee could disclaim its powers concerning current beneficiaries. Still, as the class remains open to “issue” there may be future foreign beneficiaries, meaning the tax requirements would not be satisfied even if the current beneficiaries were disclaimed.
And for the third limb, the power to revoke trusts (which was granted in the trust deed to specific people) does not pass on to the executors of the estates of those people. However, despite the problematic outcome of the s63 judicial advice, the Court considered s81 which allows the Court to make orders granting trustees power to undertake transactions which are expedient for the trust. The existence of a tax advantage (to the tune of $100K per year) was found to be expedient.
The Court granted the trustee the power to release or surrender any trusts which might benefit a foreign beneficiary pursuant to s81. The trust advantage was, therefore secured.
https://www.caselaw.nsw.gov.au/decision/175f26f188ceca3d8343f366