Archive for the ‘Newsletters’ Category

Sexual harassment in the workplace

Sexual harassment is unfortunately still a common occurrence in the workplace. The Sex Discrimination Act 1984 (Cth) (Act) describes sexual harassment as any unwelcome conduct of a sexual nature, it also makes sexual harassment in the workplace unlawful.

There are many examples of behaviours that amount to sexual harassment. If you are an employer, you have a duty to prevent, to the best of your ability, sexual harassment occurring in your workplace. There are various things you can do to ensure you meet your responsibilities as an employer and minimise the risk of paying out compensation for sexual harassment claims.

What is ‘sexual harassment’ in the workplace?

The Australian Human Rights Commission (AHRC) has found that 72% of Australians have experienced sexual harassment in their workplace.

As mentioned above, sexual harassment involves any unwelcome or unwanted sexual conduct to an employee while they are working.

Examples of sexual harassment can include;

  • inappropriate touching or text messages;
  • sexually suggestive taunts or remarks;
  • unwanted sexual requests;
  • inappropriate questions about a person’s body.

Sexual harassment in the workplace isn’t strictly limited to a place of work, it also includes sexual harassment that occurs at work-related activities or can come from colleagues, managers or customers and clients. Acts of indecent exposure, stalking, sexual assault, obscene or threatening communications may amount to a crime and should be reported to Police.

What can I do to prevent sexual assault occurring in my workplace?

Under Workplace, Health and Safety laws (WHS) an employer must do all they reasonably can to prevent and manage the risk of sexual harassment occurring in the workplace.

The AHRC provides various guides to help employers understand and meet their legal obligations under the Sex Discrimination Act. You can find this helpful information here.

You should also have an accessible and simple complaint process available for employees to report sexual harassment informally, formally, anonymously and confidentially, including a list of information on support services available. You also cannot discriminate against or disadvantage an employee in any way for reporting sexual harassment. Having an effective complaint process can also help to identify ways to improve your workplace procedures and policies. It can also help avoid complaints to external organisations and from employees taking legal action against you.

If you want to ensure you are compliant with the procedures discussed above, we recommend you speak with one of our experienced lawyers.

Can my employee claim compensation for sexual harassment?

Yes! Employers can be ordered to pay compensation to employees who have been sexually harassed in the workplace for anxiety, depression, and other psychological effects caused by sexual harassment. Employers can also be made to pay compensation for economic loss if an employee chooses to leave their employment because of the harassment.

An employee is entitled to lodge a claim for compensation with the AHRC, within 12 months of when the harassment occurred.

The AHRC will then investigate and conciliate the employee’s complaint and determine whether the sexual harassment was unlawful. The AHRC can also arrange for the parties to attend mediation to see if a settlement can be reached.

If no agreement is reached through the AHRC, the employee has 60 days to apply for monetary compensation in the Federal Court.

The Federal Court can award damages for unlawful discrimination which includes sexual harassment. For example, in a couple of recent cases, an employee who was sexually harassed received $100,000 in compensation for the value of loss of enjoyment of life and the mental illness and distress resulting from sexual harassment and $30,000 in compensation for loss of income. In another case, an employee was awarded $120,000 in compensation for loss of income and psychological distress. A further $50,000 in compensation was awarded for aggravated damages because the employer failed to stop or prevent sexual harassment from occurring.

The above examples demonstrate the importance of having effective procedures in place that can prevent and manage sexual harassment in your workplace. If you want to minimise your risk of paying out compensation for a sexual harassment claim, we strongly recommend you speak to our experienced employment lawyers.

Conclusion

Employers have a duty to ensure they take reasonable steps to minimise the risk of sexual harassment occurring in the workplace and to have effective procedures in place to manage any sexual harassment complaints made by their employees.

Putting together effective procedures to minimise sexual harassment and handling sexual harassment claims can be a daunting and overwhelming task. This is why we recommend employers seek advice from an experienced lawyer.

This information is for general purposes only and you should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Do It Yourself Conveyancing – Should you?

Conveyancing is the legal process of transferring the ownership (title) of property (real estate) from a seller to a buyer.

For most people, buying or selling property is one of the largest financial transactions they will ever make, and the conveyancing process is usually undertaken with the assistance of a conveyancer or lawyer.

Sometimes people choose to do their own conveyancing, instead of hiring a professional. There are a few factors you should consider before you decide to undertake your own conveyancing and it is also vital to understand the conveyancing process, as it may become complex.

What you should consider before choosing DIY conveyancing

Conveyancing is often considered one of the more ‘routine’ legal services offered by a law firm. However, the complexity of a property transaction and the formalities required are often under-estimated. The process moves quickly and once a binding contract is entered, the legal ramifications for breaching the contract, whether you are buying or selling, can be significant.

DIY conveyancing kits may seem tempting as they claim that these kits make the conveyancing process easy because they can save you time and money. They may  cost anywhere from $150 to $200 and provide step by step instructions on how to carry out your conveyance. The DIY kits are available for purchase for buyers and sellers.

If you are considering using a DIY kit, you should ensure:

  • You can confidently use legal documents and understand legal terminology, including researching the property, ensuring both parties follow the law, and that all money goes where it is supposed to.
  • You have enough time to be able to complete the conveyance process on your own, especially if this is the first time you are doing this.
  • You weigh up the cost of carrying out your own conveyancing as opposed to paying a professional to do so and whether it’s worth saving that bit extra when compared to the large financial transaction you are about to make.

Why should I hire the services of a conveyancer or lawyer?

If you are not confident with legal terminology, are short on time, or have a complex property transaction, you could end up spending more money and time by attempting to undertake your own conveyancing work.

Using a professional to undertake the conveyance ensures the transaction is completed accurately and without delay. A conveyancer or lawyer can ensure that a compliant contract is prepared to begin with, that all title details are correct, and that special conditions tailored to each parties’ particular needs are included. They will also ensure the correct stamp duty and other transfer associated fees are paid, and encumbrances on the title removed prior to settlement so that the property can be properly transferred.

Whether you choose a conveyancer or property lawyer, both professions require significant study and training, and most have conducted numerous conveyancing transactions. Accordingly, you benefit from years of knowledge and expertise, which is vital when it comes to avoiding common pitfalls, carrying out due diligence on a property you are purchasing, ensuring pertinent disclosure issues are covered if you are selling, and advising on ownership interests.

Another advantage of hiring a conveyancer or lawyer is that they will have full indemnity and fidelity cover, whereas if you do your own conveyancing, you will be liable for any mistakes that are detrimental to the other party of the conveyance.

Conclusion

There is a lot more to conveyancing than filling out a few forms. If you’d rather not deal with government departments, banks, and complex legal documents, it is probably in your best interests to hire the services of a lawyer or conveyancer to process your property sale or purchase. Is it worth risking the successful conveyance of your property just for the sake of saving a few dollars?

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Moving in together? Are we now in a de facto relationship?

Just because a couple is living together it does not automatically mean they are in a de facto relationship. There are many different factors in determining whether two people are living in a de facto relationship, such as whether they share bank accounts, are in a sexual relationship, and whether they are known as a couple to family and friends.

If you are a couple who chooses to move in together with the intention of becoming ’de factos’, then you should be well acquainted with what your rights and responsibilities are under de facto relationship laws.

What is a de facto relationship?

Contrary to public opinion, there is no set time period that a couple needs to be living together before they can be considered to be in a de facto relationship. However, to be recognised as a ’de facto couple’ and have the same legal rights as a married couple, the Family Law Act generally requires a couple to have been living together for at least two years OR have at least one child from the relationship.

There is no one size fits all checklist of factors to prove that a couple is living in a de facto relationship, rather there are factors that should be taken into consideration when assessing whether a couple are in a de facto relationship. These include:

  • Are the couple living together and if so, for how long have they been living together?
  • Whether the couple has a sexual/intimate relationship.
  • Whether they share joint bank accounts or own property together.
  • Whether they share weekly living costs, such as utility bills.
  • Whether their family and friends know them to be a couple.
  • Whether they share any children.

How do I protect my assets if I’m in a de facto relationship?

One way to protect your assets is through a Financial Agreement (often referred to as a ‘pre-nup’). A Financial Agreement sets out the assets each party has at the beginning of the relationship and how these assets will be divided if they separate. A Financial Agreement is particularly important in circumstances where one party has significantly greater assets than their partner.

If a de facto couple decide not to draw up a legally binding Financial Agreement, they should at the very minimum agree to keep all their finances separate.

This should include:

  • Keeping finances and bank accounts separate.
  • No joint ownership of any property acquired.
  • Each party remains responsible for their own debts, makes their own financial decisions and spends their money as they wish, with no accountability to the other party.
  • There should be no financial planning for the couple’s future. There should be no evidence of an intention to provide for the other party in a Will, as a beneficiary in superannuation funds or life insurance policies.
  • The party that does not own the home that the couple live in should be contributing rent/board to cover normal living expenses.

If you want to ensure that your assets are protected in the event that your de facto relationship breaks down, we recommend you seek legal advice from an experienced lawyer.

How does the law treat a de facto relationship?

The Family Law Act allows parties in a de facto relationship (for over two years), to make an application to the court for orders to be made about how their assets and liabilities should be divided following a breakup.

There are some exceptions to the two-year minimum period, where:

  • the de facto couple share a child;
  • their relationship has been registered; and
  • one party has made substantial contributions to the other party.

In the above circumstances, the parties can make an application to the court even if the relationship lasted for less than two years.

What are my rights if my de facto relationship ends?

The jurisdiction of the Family Law Act applies to de facto couples who separate and seek financial and other orders. The party making the application must prove that a de facto relationship existed for a period of at least two years and that separation occurred after 1 March 2009.

A party to a de facto relationship can only ask a court to make an order about financial matters after the breakdown of a de facto relationship.

Financial matters include:

  • property settlements
  • spousal maintenance matters
  • superannuation splits

There is a time limit of two years from the date of separation to make a property claim.

Conclusion

De facto couples generally have the same legal rights as a married couple under the Family Law Act. There is no one size fits all checklist of factors to prove that a couple is living in a de facto relationship, rather various factors are taken into consideration when assessing whether a couple are in a de facto relationship.

If you would like to protect your assets in the event your relationship breaks down and prefer to keep the Family Court out of the division of your property and assets, you may wish to consider entering into a binding Financial Agreement, especially where one party has significantly greater assets than their partner.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The risks of being an executor – commissions and personal liability

Are you an executor of a Will? Before administering the estate, you should understand that this role involves risks such as personal liability for the expenses of administering the estate.

You also should be aware that you may be entitled to commission for your ‘handy work’ in administering the deceased’s estate. It is important to understand the methods in which commission is determined to ensure you are paid a correct and fair amount.

Can an executor of a Will receive commission?

An executor of a Will is entitled to charge a reasonable commission for administering the assets of the deceased’s estate. However, executors are not automatically entitled to commission for their work and will need to make an application to the Supreme Court for commission. Alternatively, if all residual beneficiaries of the Will are adults, they can reach a unanimous agreement on the amount of commission to be paid. This agreement should be in writing and signed by all beneficiaries.

How is commission determined?

The amount of commission paid to an executor ranges from 1 – 3% of all assets less all liabilities, which is referred to as the ‘corpus’. For example, an estate is worth $1.5 million. After the sale of the property, payment of outstanding mortgage, funeral and other estate administration expenses, $1 million remains as part of the estate. This amount is referred to as the ‘corpus’.  In this scenario, the executor would be entitled to a commission of approximately $10,000 to $30,000. Additionally, an executor may earn up to 6% of income earned during the administration.

The Supreme Court may also determine the amount of commission paid to an executor by considering the following factors:

  • size of the deceased’s estate;
  • type of care and responsibilities required of the executor;
  • the amount of time an executor has invested into performing their duties;
  • the care and diligence shown by the executor in performing their duties.

If an executor is a beneficiary under a Will, this does not mean they cannot also make a claim for commission. The Court will look at how much has been left to the executor as a beneficiary and will adjust any commission accordingly, if granted.

To ensure you receive the correct and fair amount of commission for acting as executor, we recommend you speak to one of our experienced lawyers.

Personal liability

Executors of a Will must ensure they comply with the terms of the Will and relevant legislation when administering the estate.

An executor’s duty to finalise the deceased’s tax affairs is possibly one of the most underestimated tasks. If an executor does not properly carry out their duties in this regard, they run the risk of becoming personally liable for the payment of the deceased’s tax liabilities. Therefore we strongly recommend executors obtain legal and accounting advice at an early stage.

What is usually involved in finalising a deceased’s individual tax affairs?

The executor is expected to notify the Australian Taxation Office (ATO) of the deceased’s death and arrange for any outstanding tax returns to be prepared and lodged. They must also arrange a final tax return for the deceased to be prepared and lodged and arrange payment of any tax liabilities.

An executor’s tax obligations under a Will may become more onerous if the deceased had any involvement with companies or trusts, operated a business or was the trustee or member of a self-managed superannuation fund.

Executors should also understand that the estate’s tax affairs are different from the deceased’s individual tax affairs. Estates are treated as trusts for tax purposes, so an executor should:

  • obtain a tax file number for the estate;
  • arrange and ensure that tax returns are prepared and lodged with the ATO; and
  • ensure payment of any tax liabilities.

The above can involve a substantial amount of time as the executor would need to gather information and documents in order to finalise the deceased’s individual tax affairs. This could become an onerous task especially if the deceased had a number of outstanding tax returns, did not use an accountant, or leave sufficient records and paperwork.

Therefore it is imperative for an executor to obtain appropriate accounting and legal advice either before or at an early stage of the estate administration. It will also help to reduce the risk of personal tax liabilities.

 

Conclusion

It is clear from the above discussion that it is imperative for an executor of a Will to seek legal and accounting advice to prevent becoming personally liable for the deceased’s outstanding tax debts. It will also assist the executor is administering the Will properly and efficiently.

This information is for general purposes, and you should obtain professional advice relevant to your circumstances. A lawyer who is experienced in this area will also be able to advise as to the amount of commission an executor is entitled to for their effort in administering a Will.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Technology facilitated abuse – what you need to know

Advances in technology and the use of social media have led to an increase in technology-assisted violence and abuse.

Social media, texting, email, and surveillance devices can be used by domestic violence perpetrators as methods and tools to stalk, harass, and abuse their victims. This results in the victims of this type of abuse feeling like they are unable to escape their abusers.

It is important to recognise abuse through means of technology and understand what you can do to stop it.

What is technology facilitated abuse?

Technology facilitated abuse can take many forms, such as:

  • abusive messages or calls
  • account take overs – where someone accesses your online accounts and locks you out of them
  • image-based abuse – when someone shares or threatens to share an intimate image of you without your consent
  • fake social media accounts – when fake accounts are being used to harass you or post negative comments about you online
  • being tracked through a phone or device – when tracking techniques or spyware are used to see where you are

What is online abuse?

This type of abuse includes using social media, games or other forums to make:

  • abusive, degrading, or hateful comments directed at someone
  • threats of physical or sexual violence against a person
  • repeated or unwanted sexual requests directed at someone

Accessing a person’s email or social media account to gather information or impersonate them is also considered online abuse. There have been cases where abusers have set up fake social media accounts in another person’s name in order to harass or humiliate them.

Sharing, or threatening to share, intimate images of a person is considered image-based abuse.

Spreading lies or malicious rumours about a person through social media is another form of online abuse.

What is Cyberstalking?

Cyberstalking is also a form of online abuse and these terms are often used interchangeably. It may include:

  • false accusations
  • abusive comments
  • attempts to smear someone’s reputation
  • threats of physical or sexual violence or repeated unwanted sexual requests

Stalking a person through their social media accounts, calling, and texting them can amount to cyberstalking and is often accompanied by real life stalking.

What is image based abuse?

Image-based abuse is also referred to as ‘revenge porn’ and occurs when intimate, nude or sexual images or videos of a person are shared, or threatened to be shared, without that person’s consent or permission.

Image-based abuse can be used to control someone through:

  • threats to share intimate images unless a person does what an abuser requests
  • pressure to send intimate images against someone’s will
  • intimate, nude or sexual images that have been taken without someone’s permission that are then used to threaten and harass

Images can include real, photo shopped and drawn pictures and videos.

What to do if you are experiencing online abuse

The most important thing to do is to develop a safety plan and to plan for your online safety before requesting the removal of any abusive images.

A safety plan involves steps to help someone leave an abusive relationship or deal with image-based abuse from an ex-partner.

If you would like to develop a safety plan, you can call 1800RESPECT (1800 737 732) for assistance and advice. For your safety, you should use a public or friend’s phone to make the call so that the abusive person cannot track your call history.

Online safety planning

Online safety plans (OSPs) can assist people to deal with image-based abuse as part of an encompassing safety plan.

eSafety can help with OSP by:

  • The use of the online safety checklist to help you keep people safe, while living with and after leaving an abusive partner. You can request to go through this checklist with a domestic violence support worker or lawyer.
  • The social media checklist is available to help think about how people can use social media more safely.
  • People can also learn about how to make their accounts and devices more secure.

For more information on how to stay safe online, see the esafety commissioner website.

Conclusion

Although technology has its benefits, it also provides opportunities to be used to abuse or threaten people as part of domestic, family and general violence. It can also be used to stalk victims on- and offline.

There are tools to combat online abuse and help people stay safe, such as OSPs that help adults and children stay connected and prevent abusers from locating them through social media and their online accounts and devices.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

FAQs about your motor vehicle accident claim – Queensland

If you have sustained an injury as a result of a motor vehicle accident (MVA) and want to claim compensation for your injuries, it is important to be familiar with the most FAQs in relation to making a claim.

Many people think claiming compensation for MVA injuries is an easy process, however it can leave you exposed to insurance companies who have plenty of experience in defending compensation claims.

You have one shot at obtaining the best compensation outcome, so we strongly recommend you obtain legal advice from our experienced personal injury lawyers before proceeding with your claim.

What do I need to do to start a claim?

Notify the police

If you were involved in an MVA and wish to lodge a CTP insurance claim for any injuries, you must complete a Report of Traffic Incident to Police Form and submit it to a police station. You will then be provided with an accident report reference number so that you can proceed with your claim.

Obtain registration numbers

In order to lodge a claim you will also need the registration number of the vehicle who caused the crash and the registration number of any other vehicle involved in the MVA.

If you were unable to obtain the registration number for whatever reason, you may have to make a claim against the Nominal Defendant. The Nominal Defendant is a statutory body which compensates people injured in an MVA as a result of the negligent driving of unidentified or uninsured motor vehicles.

Complete a claim form

You need to complete a Notice of Accident Claim Form (Non-Fatal Injury). This form can be found on the Motor Vehicle Insurance Commission’s (MVIC) website.

You will need to include an honest account of the accident, all injuries sustained and the impact on your physical and mental well-being.

Your medical practitioner must also complete the Medical Certificate part of the claim form in order for the insurer to consider funding of treatment and rehabilitation.

You will also be required to complete a Claimant Certificate as part of lodging a Notice of Accident Claim Form.

Provide proof of identity

If you are 15 or over you need to provide a certified colour copy of an accepted document such as a driver’s licence or passport.

Law Practice Certificate

If a lawyer is representing you, your lawyer must complete a Law Practice Certificate form at the start and finalisation of your claim and lodge the certificate with the insurer.

Once you have completed the above, you can then lodge your claim.

Making an MVA claim can seem straight forward, however it can become overwhelming. This is why we recommend you seek legal advice from an experienced lawyer.

Are there time limits to start a claim (and when might these be extended?)

If you are submitting a claim against a CTP Insurer, you must lodge your claim:

  • nine months after the MVA or, after the first appearance of symptoms of an injury; or
  • one month after a first consultation with a lawyer regarding the possibility of making a claim.

If you are claiming against the Nominal Defendant, you must lodge your claim:

  • within three months after the MVA or,
  • one month after your first consultation with a lawyer regarding the possibility of making a claim.

If you have not reported the MVA within the specified timeframe of the incident occurring, we strongly recommend you speak with one of our lawyers who will be able to assist you.

What’s the average time taken to finalise a claim?

This depends of the nature and complexity of your matter, generally the more complex and severe your injury, the longer it takes to finalise a claim. Also, the fact that claims are assessed individually and there may be issues about who caused the accident can impact the time taken to finalise your claim.

Our lawyers will be able to provide you with an estimated timeframe once they are familiar with the facts of your case.

What amounts might I receive?

The amount of compensation awarded is determined on a case by case basis and depends on the extent and severity of your all injuries.

According to statistics from the MAIC, the average payout for minor injuries sits at around $68,905.00, all the way up to $1,414,990.00 for severe injuries.

Our lawyers will be able to provide you with further information as to the amount of damages usually awarded for your type of injury.

Will I have to go to Court?

If the insurer denies your claim or you cannot come to a settlement agreement, you have the option of taking the matter to court where the court will decide how much compensation, if any you should be paid. We recommend you discuss this with one of our experienced personal injury lawyers as the court process can be complex.

Conclusion

Making a claim for compensation for an injury sustained as a result of an MVA can be confusing, complex and overwhelming, not to mention dealing with insurance companies who do not have your best interests at heart. This is why we strongly recommend seeking legal advice for anyone wishing to make an MVA compensation claim.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What employers need to know about new casual employment laws

The Fair Work Act (FWA) was recently amended to change workplace rights for casual employees, and places new obligations on employers.

A new definition of casual employment has been introduced, as well as a pathway for casual employees to move to permanent employment, through casual conversion or offer of permanent employment. Essentially, the laws confer a statutory entitlement for long-term casual employees to be offered, or to request permanent employment in certain circumstances.

Employers must also give a copy of the Casual Employment Information Statement (CEIS) to their casual employees.

This information is general only. If you are an employer employing casual staff, you should be aware of your obligations under these laws and obtain professional advice specific to your workplace and circumstances.

Casual Employment Information Statement

Employers are required to give every new casual employee a CEIS before or as soon as possible after they start their new job. They also need to give their existing casual employees a copy of the CEIS as soon as possible. For further information, see Casual Employment Information Statement.

Definition of a “casual employee”

Generally, a person is a casual employee if an employer makes an offer of employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work, and the person accepts the offer on that basis.

A person will be considered a casual employee on the basis of the offer and acceptance as indicated above and not on the basis of any subsequent conduct of either party that may imply otherwise

Casual conversion to permanent employment

Subject to some exceptions, employers, other than small business employers (those with less than 15 employees), must offer casual employees conversion to full or part-time (permanent) employment if:

  • the employee has worked for them for at least 12 months, and
  • during the past 6 months, the employee has worked regular and systematic hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time employee.

If the employer does not offer casual conversion, they must write to the employee within 21 days of their 12-month work anniversary, advising them of their decision not to offer them the option to convert to permanent employment and their reasons for doing so.

The employer may only base their decision to not offer the employee casual conversion on “reasonable grounds”.

Casual employees may request permanent employment from an employer

Employees may request to convert to permanent employment 21 days after their 12-month work anniversary.

To be eligible to request casual conversion, employees need to:

  • have been employed by the employer for at least 12 months;
  • worked a regular pattern of hours on an ongoing basis for at least the last 6 months of their casual employment;
  • be able to continue working these hours as a full or part-time employee without significant changes.

Employees will not be eligible to make a request if, in the last 6 months:

  • they have refused an offer to convert to permanent employment;
  • the employer has advised in writing that they will not be making an offer of casual conversion because there was a reasonable ground not to make the offer;
  • the employer has refused another request for casual conversion because there was a reasonable ground to refuse the request.

Casual employees eligible to become a permanent employee can make a request for casual conversion every 6 months.

Employers need to respond in writing to an employee’s request within 21 days advising whether they have accepted the request. If the employer refuses the request, they must state the reasons why in their response. The reasons for not accepting a request for casual conversion must be based on a “reasonable ground”.

A “reasonable ground” may include that within the next 12 months any of the following will occur:

  • the employee’s position will not exist;
  • the employee’s hours of work will significantly reduce;
  • the days or times of work will significantly change, and this cannot be accommodated within the employee’s available days or times for work.

Conclusion

Employers should review their employment contracts in line with these laws and the definition of a casual employee, and understand the circumstances under which a statutory right for casual employees to convert to permanent employment will arise.

Processes should be implemented to ensure that existing and future casual employees are provided a CEIS, and to deal with the conversion from casual to permanent employment.

With employment laws constantly evolving, it is important to obtain professional advice to ensure compliance with workplace laws, whilst balancing the resources and operational needs of an organisation.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Family law and crypto currency

Crypto currency consists of encrypted digital forms of currency not distributed by banks. It also goes by the name of ‘cryptocurrency’. A popular example of a crypto currency is Bitcoin.

As cryptocurrencies become more commonly used around the world, so too will their appearance in family law property settlements.

This article provides guidance on how you can ensure you receive a fair share in your family law property settlement.

Crypto currency included in the asset pool

Both spouses have an obligation to make full and frank disclosure of their financial circumstances. Cryptocurrencies are as asset that should be disclosed in the asset pool when it comes to family law property settlements.

Discovery of one party’s interest in cryptocurrencies is presenting a big challenge to family lawyers. Unlike bank accounts, ownership of a cryptocurrency is not as obvious. Bitcoin records cannot be subpoenaed, and any records of ownership are usually stored digitally in a person’s mobile or other device.

Cryptocurrencies don’t send out statements, are not usually stored on hard copy or easily accessed by other parties. However, as all cryptocurrency is initially acquired through the use of traditional currency, the ownership of bitcoin may be traced through bank records and transactions related to the acquisition of cryptocurrency. The only exception to this is if the party has been gifted cryptocurrency or paid in cryptocurrency for goods or services.

What type of cryptocurrency documents can be included as part of the discovery process?

  • Screenshots showing the current balance of each cryptocurrency in a digital wallet, exchange or cryptocurrency account and ledgers of all transactions for each crypto wallet, exchange or account.
  • Copies of bank and credit card statements reflecting transactions for each wallet, exchange or cryptocurrency account and copies of any brokerage account statements.
  • Lists of purchases of goods and/or services through the use of cryptocurrency.
  • Emails containing cryptocurrency transactions. These emails also will show a time and date stamped trail of the amount and conversion rate.

How to value Cryptocurrency for a family law settlement

Like other currency, cryptocurrency has an exchange rate which can be used to convert the cryptocurrency into dollars. The value of cryptocurrency is volatile and can fluctuate dramatically. Its value can drop by 20% in just a few hours or increase by 98% in one year. This can make valuing cryptocurrency a difficult task for the purposes of a family law settlement. Generally it is easier for crypto assets to be converted into cash first and then contributed to the asset pool. If this is not possible or desirable then the volatility of the asset value may need to be factored into consideration of the division of assets.

Conclusion

It is clear from this article that family law property settlements will become more complicated as cryptocurrency ownership becomes more common in Australia.  Regardless, the rules of discovery still apply to cryptocurrencies as they are accepted as part of the asset pool.

If you are concerned that your partner may be hiding their cryptocurrency details from you, we recommend you speak to an experienced lawyer who can help you access this information to ensure you receive a fair settlement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Rural interests in a disputed Will

All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will on the basis that they have not been given adequate provision by the testator for their proper maintenance, education and advancement in life. These are commonly known as family provision claims.

An eligible person generally includes the spouse or de facto partner of the deceased, a child of the deceased, or certain persons who were dependant on the deceased.

If a family provision claim is successful, the Court has the power to determine the appropriate provision for the claimant and to order an adjustment from the deceased’s estate. The result is that one or more beneficiary’s interests under the Will are reduced to satisfy the claim.

Will disputes and rural properties

Family provision claims where the main assets of an estate are tied up in rural interests such as a family farm can be complex. Often there are insufficient ‘non-farming’ assets to satisfy a successful claim and a major beneficiary may need to raise sufficient funds to pay out the claimant, or be forced to sell all or part of the farming enterprise.

Whilst a provision ordered for a worthy claimant may be morally justified, the disposal of one or more properties used in the farming enterprise can have a significant impact on its viability and on the main beneficiary’s financial future.

A claim may arise where a testator provides equally for his or her children despite only one of those children having worked continuously on the farm for many years. This child may have undertaken study or training specific to the management of the farm whilst the other children pursued other careers. The likely claim could be framed on grounds that there was an expectation by that child that he or she would inherit the family farm or a greater share than the other children.

Alternatively, the claim may be the result of a testator leaving the family farm to the child (or children) who worked the farm whilst other children left. The testator may wish to reward the child who, through his or her labour (and often with little remuneration) contributed substantially to the farm’s continuance. The farm usually constitutes the bulk of the estate and when left to only one child, results in an unequal division between the children.

Such was the case in Salmon v Osmond [2015] NSWCA 42 which involved an appeal from the original Court’s decision to award one of two family provision claimants (daughters of the deceased) further provision from the estate.

The estate comprised mainly grazing properties, the subject of a farming enterprise. Survived by his wife and seven children, the deceased left the bulk of his estate to his widow and one son (aged 48).

The successful claimant (in the original decision) was left $10,000 under the Will which was increased by further provision of $200,000. The payment was to come out of the son’s share which may have required that he sell one or more of the grazing properties forming part of the farming enterprise. The decision was appealed.

The testator’s Will included an explanation regarding any perceived preference shown towards the son. It indicated that the son had assisted in the farm’s operations for many years and for little reward and that such assistance had allowed the testator to amass the assets acquired over his lifetime. Further, the testator stated that the other children had been assisted over the years and had ‘benefited as close to equal as possible in monetary value’ in the distribution of his assets.

The original decision was overturned by reducing the claimant’s award of $200,000 to $50,000. The claimant was also required to pay her own costs in the proceedings.

Factors in considering a contested Will – the rural issues

In deciding a family provision claim, the Court considers a range of factors including the financial position of the claimant, the circumstances, the financial position and needs of other beneficiaries, the size of the estate and the relationship between the deceased person and the claimant.

Where a dispute concerns rural assets, consideration of these factors might encompass:

  • The statements made in a Will, which will be admissible and relevant in explaining how a testator came to a decision on the disposition of assets, however are not determinative if it is found that a claimant was not left with adequate provision.

 

  • The Court’s reluctance to re-write a Will and to make orders that do not uphold the wishes of the testator.

 

  • The lifelong efforts and contributions made to a farming enterprise which will be given considerable weight – in this case the son was the only one of seven children who remained on the farm and continued working on it for little remuneration. His efforts over several years contributed significantly to the testator’s ability to continue running the farm and acquire assets.

 

  • The competing financial interests of the claimant and the beneficiaries. In this case, although the claimant was in a very modest financial position the son’s financial future was likely dependent upon the profitability of the farming enterprise. The Court will acknowledge a moral right to inherit the farm, emanating from several years’ contribution to its viability at the cost of pursuing other paths.

If a family provision claim is successful, the Court will try to avoid disturbing a farming enterprise by making provision from other estate assets. However, if a claimant’s needs outweigh those of the beneficiaries inheriting the farm, and other provision is not possible, there is no rule or principle to prevent the sale of the family farm to satisfy that provision.

Conclusion

The legal costs in Salmon v Osmond exceeded $160,000; a significant proportion of the estate’s overall assets.

Despite attempts to negotiate and settle the claim the matter proceeded to Court incurring additional legal costs. These costs could have gone a long way towards satisfying the further provision of $50,000 finally awarded to the claimant.

The testator’s explanation in his Will, although not determinative, was helpful in upholding his wishes to ‘favour’ the one son that assisted on the farm throughout his life.

Rural interests in a deceased estate can be particularly complex. When drafting a Will, careful consideration is necessary to safeguard the continuance of a farming enterprise and to reduce the potential of a family provision claim.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Windfalls and family law property settlements

The steps involved in determining how property is divided after the breakdown of a relationship generally include:

  • identifying the assets, liabilities and financial resources of the parties;
  • assessing the parties’ financial and non-financial contributions;
  • evaluating the parties’ respective future needs;
  • determining a financial settlement that is, in all circumstances, just and equitable.

This is the process a Court takes in making property orders and, although most matters are settled without Court proceedings, is the approach usually adopted when lawyers and their respective clients negotiate a financial settlement.

What happens though when one party receives a windfall? Will this be considered a contribution from that person alone, or a joint contribution, and will the benefits of the windfall form part of the asset pool available for distribution between both parties?

The answer is neither a definitive ‘yes’ or ‘no’. It depends on the nature of the windfall, when it was received, the relevant circumstances, and the Court’s discretion to alter property interests to achieve a just and equitable distribution.

What do assets and contributions include?

Assets generally include real estate, personal property, furniture, motor vehicles, investments, cash, shares and insurance policies. Superannuation is also included which may be split between the parties to give effect to property orders.

Contributions include financial contributions, such as assets brought into the relationship and the parties’ financial earnings, and non-financial contributions such as the care and welfare of the family.

Windfalls may also be considered contributions to the financial assets.

What is a windfall?

A windfall is money or a gift received, sometimes unexpectedly, but not necessarily earned. A windfall may be a win on the horses or other event through organised betting, a jackpot on the pokies, a lottery win, or an inheritance.

Is a windfall a contribution for the purposes of a family law property settlement?

Previously, a lottery win was deemed a windfall and treated distinctly from other contributions and property of the relationship. In Mackie and Mackie [1981] FamCa 34 the husband’s post-separation lottery win was not relevant in assessing an application for spousal maintenance.

More recently however, cases have determined that windfalls do form part of the asset pool and are therefore contributions when determining the alteration of property interests.

Zyk and Zyk [1995] FamCa 135 dealt specifically with lottery winnings and noted that the term ‘windfall’ was problematic and should more accurately be described as a ‘contribution’. The Court determined that the individual purchase of a lottery ticket during a marriage should be treated as any other purchase made from the joint income provided to the partnership. This would be so even in marriages where only one party contributes financially, based on the recognition of the non-financial (domestic) contributions of the other. Consequently, the treatment of the winnings as a ‘contribution’ rather than a ‘windfall’ made a significant impact to the net contributions determined by the Court.

Does timing make a difference?

The timing of a windfall may be of considerable relevance to how it is treated and the overall outcome when dividing property.

In Eufrosin and Eufrosin [2014] FamCAFC 191 the Court considered the timing of a windfall, looked at the nature of the relationship at the time it was received, as well as exercising its discretion of factors to be taken into account regarding spousal maintenance.

The parties had been married for 20 years and separated for 6 months (and living separate lives) when the wife won $6 million. Although the Court found that the husband had not contributed to the lottery winnings, and divided the non-windfall assets equally, the husband was awarded spousal maintenance of $500,000 which took account of the income, property, and financial resources of the parties and their respective capacity for gainful employment. In this case the husband was 62 years old.

In Elford and Elford [2016] FamCAFC 45 the parties, both of whom had previous relationships, led largely separate financial lives and had no joint accounts. They co-habited in 2003, married in 2007 and separated in 2012. The husband, who was 22 years older than the wife, won $622,842 about 12 months after they started living together. He added personal savings and invested a total of $650,000 in a term deposit in his name.

In this case, the Court held that the purchase of the ticket was not a joint endeavour between the parties as they had ‘clearly kept their assets quite separate’ and ‘to a very large degree’ their finances. The wife did not contribute to the purchase of the ticket, nor the selection of the winning numbers which the husband had consistently used on a weekly basis since 1995, and the ticket was in the husband’s sole name. Consequently, the winnings were treated as the sole contribution of the husband.

What about inheritances?

The treatment of an inheritance generally depends on when it was received, the duration of the relationship and the value of the inheritance compared to the overall asset pool.

Generally, an inheritance received before or during a relationship forms part of the asset pool, however its full value may not be equally proportioned between the parties.

Usually, the significance of an inheritance will diminish over the course of a long marriage or relationship, with less weight likely given to it when compared to the overall asset pool. In shorter relationships, where the beneficiary of the inheritance used it for the benefit of the partnership, then he or she may have a greater entitlement to it.

An inheritance received close to the time of separation, or afterwards, is generally (but not always) considered an entitlement of the recipient and may not form part of the asset pool available for distribution. It may however be considered a financial resource of the party receiving it which is potentially available to meet the needs of the other.

Conclusion

The above examples illustrate the discretionary role the Court plays in determining family law financial settlements generally and, more particularly, how a windfall might be treated. Each case will turn on its own unique circumstances, which could result in a range of outcomes including:

  • the complete isolation of the windfall from the asset pool and the party entitled to it entitled also to a share of all other joint property;
  • the isolation of the windfall from the asset pool and an adjustment made in favour of the party who is not entitled to it;
  • inclusion of the windfall in the asset pool, with an adjustment made in favour of the party contributing the windfall;
  • inclusion of the windfall in the asset pool without regard to its source.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.