Review of the Family Law Act

Georgie Wakenshaw - Monday, June 18, 2018

Review of the Family Law System

The Federal government has commissioned the ALRC to undertake the first comprehensive review of the family law system since the commencement of the Family Law Act in 1975.

Purpose of the Review

The review will focus on supporting families to resolve their family law disputes quickly and safely by considering:

  • “appropriate early and cost-effective resolution of all family law disputes;
  • the protection of the best interests of children and their safety;
  • the best ways to inform decision makers about the best interests of children and their views;
  • family violence and child abuse, including protection for vulnerable witnesses;
  • laws in relation to parenting and property division after separation.”

Why is the review important?

Notably the review represents the first comprehensive review into the family law system since the commencement of the Act in 1976. This means that even though there have been widespread changes in Australia, both socially and to the needs of families, the family law system has not kept up with those changes.

The current system has been criticised as being:

  • costly;
  • harmful to the dignity and privacy of separating families;
  • inefficient;
  • ineffective in dealing with safety issues and interacting with other services and Courts; and
  • Adversarial in nature and providing an appropriate dispute resolution and adjudication process.

References

Australian Government, Australian Law Reform Commission, website accessed 31/05/2018 https://www.alrc.gov.au/inquiries/family-law-system.

Rae Kaspiew, “Separated parents and the family law system: What does the evidence say?”, 3 August 2016, Australian Government, Australian Institute of Family Studies, accessed 31/05/2018 https://aifs.gov.au/cfca/2016/08/03/separated-parents-and-family-law-system-what-does-evidence-say.


NATIONAL MINIMUM WAGE UPDATE

Georgie Wakenshaw - Thursday, June 14, 2018

NATIONAL MINIMUM WAGE UPDATE

The Fair Work Commission has announced a 3.5% increase to minimum wages. The increase applies from 1 July 2018.

The outcome of the Fair Work Commission’s Expert Panel’s review is that from 1 July 2018:

  • the National Minimum Wage and Modern Award minimum wages will increase by 3.5%; and
  • the National Minimum Wage will increase to $719.20 per week (up from $694.90) or $18.93 per hour (up from $18.29).

Employers who pay their employees at or close to the minimum wage rates pursuant to a Modern Award, the National Minimum Wage or other industrial instrument, will be required to increase their employees’ pay in the first pay period on or after 1 July 2018.

For further information in relation to the changes, please contact Skye Engwerda (03) 5480 6344.

 


Do you have a Will in place?

Cosgriff Lawyer - Tuesday, November 21, 2017


While many people know the importance of having a Will in place, there are an alarming number of people who not have one in place either because they see it as something that they will do when they get “older” or because they don’t see the importance of writing one.

If you pass away without a valid Will, you will have died intestate. In these cases, your assets are distributed according to the Rules of Intestacy, in a set order laid down by the law. This order probably won’t reflect your wishes.

In Victoria the Rules of Intestacy provide as follows:

  • If you leave a spouse or domestic partner, but no children, then your spouse or domestic partner will receive your whole Estate;
  • If you leave a spouse or domestic partner and children, your spouse will receive the first $100,000 and one third of the residue, while your children will receive the remaining two thirds equally;
  • If there is no spouse or domestic partner and no children, then your parents will receive your whole Estate. If your parents have predeceased you, then your Estate will pass to your siblings. If you have no siblings, the Administrator of your Will will continue to trace your family tree and collateral relatives;

New South Wales Rules of Intestacy are a little different and provide as follows:

  • If you leave a spouse or domestic partner, but no children, then your spouse or domestic partner will receive your whole Estate;
  • If you leave a spouse or domestic partner and children, and the children are your spouse's children, your spouse is entitled to the whole estate.
  • If you leave a spouse or domestic and children, but the children are not the spouse's children, the spouse is entitled to, your personal effects, $350,000.00 and half of the residue, while your children will receive the remaining one half equally.
  • If you leave no spouse but leave children, your children will share the whole estate equally.

To make a new Will or to update an existing Will please contact Zoe Broadbent at Cosgriff Lawyers (03) 5480 6344.

 

 


Is it a Loan or a Gift?

Georgie Wakenshaw - Wednesday, August 23, 2017


Loan from Parents in Family Law Property settlements- it can be a challenge!

Determining if a payment from a friend or a family member is a gift or a loan is a common challenge in family law property settlements. Pursuant to section 79 of the Family Law Act 1975 (Cth) if the payment is classed as a loan, it will be regarded as a liability and reduce the value of the property pool available for distribution. A gift however is considered as an indirect contribution and as such, will not form part of the property pool.

Is it a loan or a gift?

 Factors that the Court will take into account when determining whether a payment is a loan or a gift are:

  • Whether there is any formal loan documentation between the parties and when this was created?
  • What evidence is there of the loan being repaid? eg. Bank statements.
  • Whether any interest or principal payments have been made during the relationship on the loan?
  • Whether a caveat/charge or other security has been provided for the loan?
  • How long the loan has been outstanding?
  • What is the likelihood that the debt will be enforced?.

Has a parent said ‘it is a gift because we want to help you out’? Bear in mind that the Court will also take into consideration informal factors such as conversations about the nature of the loan.

Case examples

In Pelly v Nolan [2011] FMCA a father loaned his son $250,000 to help his son buy a property. After the property was sold, the father loaned a further $70,000 which the son used to purchase a new property. The son did not pay back any of the loan nor had been charged any interest, although the father had prepared a loan agreement. The Court found that even though no money or interest had been repaid, on the balance of probabilities, it was likely that the son would have repaid the loan. Therefore the sum of $320,000 was considered a liability of the marriage and was paid out of the matrimonial pool. The Court first considered the formality of the loan and how it was documented. E.g. there was a formal agreement allowing for interest and a repayment date, and the parties had begun to make some repayments. The Court is likely to view the loan as a liability given that the parties had the intention to repay the loan.

In Maddock & Anor (No.2) [2011] FMCAfam 1340 a father gave the parties $240,000 towards the cost of buying and building a house. The Court found that there had been no formality, no term of repayment, no demand for repayment until the family law settlement and no capacity to pay. On the evidence given to the Court it was decided that if the parties had not separated, the father would never have asked for repayment of the funds. Therefore, the sum of $240,000 was considered a gift and was not required to be repaid. There was no formal agreement or demand for the repayment of the loan prior to separation. The Court held that had the parties not separated, the parent would never have called on the loan to be repaid and as such considered the money to be a gift.

If you have separated or are thinking of separating from your spouse/partner, contact Ashlyn McCurdy at Cosgriff Lawyers to find out more or to arrange an appointment on (03) 5480 6344 or ashlynm@cosgriff.lawyer.


Drinking and driving: Know your limits

Georgie Wakenshaw - Wednesday, August 23, 2017

 

Drinking and driving: Know your limits

Drivers who hold a learner or probationary licence must have a zero blood alcohol concentration (BAC) at all times whilst driving, whereas a full licence holder is permitted to have a BAC up to 0.05.

Victoria

Have you ever had an open alcoholic drink whilst driving? Section 49B of the Road Safety Act 1986 (the Act) provides that drivers are not permitted to drink alcohol whilst driving or in charge of a vehicle and section 49C of the Act prevents passengers from drinking alcohol whilst supervising Learner drivers. Did you know that you would be breaking the law if you were drinking in your car while stationary, as you would be deemed to be ‘in charge’ of the vehicle at the time?

Minimum loss of licence periods for drink driving

Victoria hasmandatory sentencing when it comes to most drink drive offences. When you combine these strict liability offences with mandatory sentencing, you will be off the road for some time!

BAC reading First offenders
0.00 to less than 0.05 (learner or probationary licence holders) 3 months
0.05 to less than 0.07 (learner or probationary licence holders) 6 months
0.05 or more but less than 0.10 (all drivers) 6 months
0.10 or more but less than 0.11 (all drivers) 10 months
0.11 or more but less than 0.12 (all drivers) 11 months
0.12 or more but less than 0.13 (all drivers) 12 months

As you can see, for every 0.01 over the BAC limit, your loss of licence increases by one month.

New South Wales

 Rule 298-1of the Road Rules 2014 NSW (the Rules) states that all drivers are prevented from drinking alcohol while driving. Interestingly, the Rules do not make any mention of passengers also being restricted from drinking even when supervising a Learner driver. The supervisor must, however, be under the legal alcohol limit of 0.05 just as if they were the driver of the vehicle.

Minimum loss of licence periods for drink driving

In NSW all drink driving offences will require you to attend at the Local Court. The minimum suspension period that can be ordered is legislated, but Magistrate does have the option to order a lesser suspension period if you can convince them to do so.

BAC reading First offenders
0.05 or more but less than 0.079 (all drivers) 6 months
0.08 or more but less than 0.149 (all drivers) 12 months
Over 0.15 (all drivers)

3 years

A very common question we are asked is “if I lose my licence in NSW, can I still drive in Victoria?”. As a result of mutual recognition provisions between Australian states, an order for a loss of licence in New South Wales will be placed onto a national database, which may be accessed by Victoria licensing authorities. It is therefore important that you do not drive at all during any disqualification period.

If you have been charged with drink driving, contact Ashlyn McCurdy at Cosgriff Lawyers to find out more or to arrange an appointment on (03) 5480 6344 or ashlynm@cosgriff.lawyer.

 


Capital gains withholding: Impacts on foreign and Australian residents

Georgie Wakenshaw - Tuesday, August 01, 2017


Capital gains withholding: Impacts on foreign and Australian residents

Foreign Resident Capital Gains Withholding (“FRCGW”) first applied to vendors disposing of certain taxable Australian property under contracts entered into from 1 July 2016.

From 1 July 2017 new rules for FRCGW apply to contracts entered into after that date. The changes will apply to real property disposals where the contract price $750,000 and above (previously $2 million) and the FRCGW withholding rate will be 12.5% (previously 10%). The existing threshold and rate will apply for any contracts that are entered into from 1 July 2016 and before 1 July 2017, even if they are not due to settle until after 1 July 2017.

What this means for you:

Australian resident vendors can avoid the 12.5% withholding by providing a clearance certificate obtained from the ATO to the purchaser prior to settlement. Your lawyer will arrange this for you.

Foreign resident vendors may apply for a variation of the withholding rate or make a declaration that a membership interest is not an indirect interest and therefore not subject to withholding.

Purchasers must pay the amount withheld at settlement to the Commissioner of Taxation.

For further information on FRCGW and whether it affects you please do not hesitate to contact Zoe Broadbent at Cosgriff Lawyers.

 


Increase to Minimum Wages and new Penalty Rates from 1 July 2017

Georgie Wakenshaw - Monday, July 17, 2017

 

3.3% increase to Minimum Wages and new Penalty Rates from 1 July 2017

 The Fair Work Commission has conducted its Annual Wage Review and the decision has been made to increase the minimum wage by 3.3 per cent.

The increase will apply from the first full pay period starting on or after 1 July 2017.

The 3.3 per cent increase applies to employees who are covered by an award and employees to whom the minimum wage applies.

The increase does not affect employees who are already getting paid more than the new minimum wage or above the new award rates.

Employers should also note that from 1 July 2017 certain penalty rate provisions in some awards for the hospitality, restaurant and retail industries will be varied.

The changes are different for each award, so they affect employers and employer differently depending on the award they are covered by.

For further information in relation to changes and how they affect your business, please contact Skye Engwerda and Zoe Broadbent.

 


Industrial and warehousing leases and the Retail Leases Act

Georgie Wakenshaw - Thursday, March 23, 2017


The recent decision in CB Cold Storage Pty Ltd v IMCC Group Pty Ltd [2017] VSC 23 (CB Cold Storage) could mean that landlords leasing premises to industrial or warehousing business in Victoria may no longer be able to recover land tax from a tenant and market rent reviews that do not allow the rent to decreased may be void.


Under the Retail Leases Act 2003 (Vic) (RLA) landlords are liable for the payment land tax and any provision of a retail lease that makes the tenant liable to pay land tax is void. There is also a prohibition against provisions in retail leases that do not allow for a decrease of rent after a market rent review.


Until recently, it has been commonly accepted that the RLA does not apply to industrial and warehousing leases. However, CB Cold Storage follows a line of recent cases which have the effect of broadening the application of the RLA. In CB Cold Storage, Croft J determined that the lease in question was in fact a retail lease and thus covered by the RLA. The tenant’s business in CB Cold Storage provided cold storage services to individuals and companies out of the landlord’s warehouse.


The decision in CB Cold Storage used the ‘ultimate consumer’ test to characterise the lease and after considering the nature of the services provided by the tenant to the ‘ultimate consumer or user’, the Supreme Court concluded that the Tenant’s business was ‘retail’.


Given this characterisation of the tenant’s business other industrial and warehousing leases could also be subject to the RLA. Parties cannot contract out of the RLA and its effect is retrospective from the start of the lease. Therefore a tenant may be entitled to be refunded any land tax or incorrect rent paid.


If you consider you may be affected as landlord or tenant by the CB Cold Storage case, please contact Cosgriff Lawyers on (03) 5480 6344.


Purchasing Your First Home

Georgie Wakenshaw - Wednesday, March 08, 2017


Purchasing Your First Home

It’s natural to be a little nervous when purchasing your first home. There’s no denying it’s a big commitment, but it doesn’t have to be daunting. You only buy your first home once and it’s something you’ve looked forward to for years so we think it should fun, exciting and rewarding.

Cosgriff Lawyers is here to guide you through the whole process and to make it as simple for you as possible. Here are a couple of incentives to help you get your first home sooner.

First Home Owner Grant

The First Home Owner Grant (FHOG) is a government initiative to help first homebuyers into the property market. It’s a genuine, one-time grant that never has to be repaid. In both Victoria and NSW, a FHOG of $10,000 may be available for first home buyers who are building or purchasing a new home, to the value of $750,000. This includes off the plan homes or newly built homes that have not been previously occupied.

You may qualify for the FHOG if you meet the following criteria:

  • 18 years old or over;
  • Australian citizen or permanent resident;
  • You are intending to live in the home for a continuous period of at least six months within 12 months of settlement;
  • You have never owned a residential property in any State or Territory in Australia;
  • Have never received a FHOG in any state or territory in Australia.

From 1 July 2017

In an attempt to boost entry into the housing market, the Victorian Government has just announced that it will increase the FHOG from $10,000 to $20,000 for first home buyers building their homes in regional Victoria. The increased Grant will apply to Contracts entered into from 1 July 2017 until 30 June 2020. The same eligibility criteria listed above apply.

Stamp Duty Concession

In Victoria, stamp duty concessions may also available for first home buyers for homes with a purchase price of up to $600,000 and in NSW stamp duty concessions may be available for first home buyers for homes with a purchase price of up to $650,000. The reduced stamp duty amount will depend on the purchase price.

From 1 July 2017

Further to increasing the FHOG to $20,000 the Victorian Government also announced that the stamp duty will be abolished for first home buyers of properties valued up to $600,000 providing a saving of up to $15,000. Duty will be phased in for properties valued between $600,001 to $750,000.

For more information on purchasing your first home please contact Zoe Broadbent at Cosgriff Lawyers on 5480 6344.

 


Bullying in the Workplace

Georgie Wakenshaw - Monday, March 06, 2017
Bullying in the Workplace (Now a Crime Punishable by up to 10 Years Imprisonment) – Employers Must Have a Bullying Policy in Place


What if I am being bullied?

Anyone can be subjected to bullying in the workplace, regardless of their position, salary or seniority.

The Fair Work Commission (FWC) have released an Anti-Bullying Benchbook and has provided the following examples of what constitutes bullying in the workplace:

  1. Belittling or humiliating comments;
  2. Spreading malicious rumours;
  3. Exclusion from work related events; and
  4. Unreasonable work expectations.

At Cosgriff Lawyers our employment lawyers can help you quickly and discretely put a stop to bullying and protect your rights if you are suffering from bullying.

What if I am accused of being a bully?

We also understand that sometimes an employer or employee can be unfairly accused of bullying for reasonable management actions or where there are personality clashes in the workplace.

If you are accused of bullying we can assist you work through the process in an effort to minimise conflict and issues with your employment.

What must all employers do?

At a bare minimum, employers must have a bullying policy in place and provide training to their employees around that policy.

We can draft the policy and attend at your workplace to provide training for your staff.

Bullying can expose employers to legal liability. There are a number of legal actions that can and are being brought against employers arising from workplace bullying. Examples of potential legal actions are:

  • claims for breach of the implied term of good faith in the contract of employment;
  • unfair dismissal claims;
  • unfair contract claims; and
  • criminal charges.

How can bullying be prevented in the workplace?

  • Performance reviews and feedback
  • Providing staff education as to what is and isn’t bullying
  • Early intervention and conducting an investigation into bullying if claims are being made.

Please call or email our office to make an appointment.