What Happens With Join Assets When a Relationship Breaks Down?

When a relationship breaks down, and legal proceedings to split up common property are looming, there are times when one partner will attempt to shrink the settlement by offloading assets or through reckless spending.

In a trick worthy of the world’s greatest illusionists, where once there was an asset, soon there is nothing left.

Cases that have gone before the courts include the taxi driver who sold his taxi license plate, spending the proceeds before the marital assets could be assessed, and a wife who gambled away about $140,000 in joint funds over the course of 18 months.

For the victims of these subversive attempts to avoid an equitable distribution of marital assets, there can still be legal recourse.

While the court will generally identify and evaluate the assets of both parties as of the date of the hearing, there are exceptions.

From the 1980s, the judicial system recognised the injustice of the situation, initially allowing the value of certain assets that had been offloaded by one party to be notionally “added back”.

More recently, the High Court ruled that considering assets that were no longer retained by either party did not sit well against current laws, however that didn’t mean that offloaded assets were no longer relevant.

These dissipated assets can still be considered as “negative contributions”, or the Court can find that for “the justice of the case” they are required to be taken into account.

“Negative contributions” can be considered within the assessment of contributions. Either the party who disposed of the assets can be seen to have provided a negative contribution, or the other party may be seen to have made a greater indirect contribution to the remaining legal and equitable interests.

Not every case where assets are dissipated will be seen to involve an affront to justice and equity, with the individual circumstances needing to be assessed, but in many situations there is the opportunity for legal recourse.

Medical Profession Legal Issues - Chronic Health Issue Showcase

General practitioners are the front line of the health care system, but a legal grey area remains regarding their exact obligations to patients with chronic conditions.

This was highlighted recently by the case of Luis Almario, a western Sydney man diagnosed with terminal liver cancer as a result of non-alcoholic fatty liver disease.

A trial judge ordered Mr Almario’s GP, who had been treating him since 1997, to pay more than $360,000 in compensation, saying he had an obligation to act to combat the risks associated with his patient’s morbid obesity.

The decision was then overturned by the Court of Appeal, which concluded that the doctor wasn’t required to do any more than tell Mr Almario he needed to lose weight.

Mr Almario was 53 years old, and weighed 140kgs, when he first consulted the GP in 1997. Six years later he was diagnosed with cirrhosis of the liver and liver failure, which was untreatable and irreversible.

The doctor, who had a focus on environmental and nutritional medicine, believed his health problems were due to exposure to toxic chemicals at work, however that was later found not to be the case.

In court it was argued that the GP should have taken Mr Almario’s liver condition more seriously, including referrals for dietary treatment and management plans, along with appropriate specialists to address the health problems caused by his obesity.

It was suggested that the intervention of specialists and potential surgery may well have been required to save Mr Almario from a fatal disease.

But the Court of Appeal found that the doctor neither had the obligation, nor the power, to do anything more than provide the weight loss advice he did.

While the vastly different findings of the two courts illustrate how divided community and legal opinions remain on obesity, Mr Almario’s case highlights the challenges facing both medical professionals and those suffering from chronic health issues such as obesity.

Workers Compensation Law - When Does the Six-Month Restriction Kick In?

For 12 years, Menka Petrevska was employed as a process worker at Unilever’s Streets ice cream factory, where noisy machinery gradually caused her to suffer hearing loss.

Because her injury occurred slowly, Mrs Petrevska didn’t realise the damage that had occurred.

It was only fourteen years later that she received medical advice telling her that not only had she suffered a loss of hearing, but that it was the result of her noisy former workplace.

Ordinarily, workers only have just six months to make a claim under the New South Wales workers’ compensation system after suffering an injury.

Unilever argued against her claim, saying that it had been lodged outside this statutory time limit.

But Mrs Petrevska challenged that view, arguing that the six month period only began from the time she received the medical diagnosis of her hearing loss, and its cause.

The key question was when Mrs Petrevska first became aware of the hearing loss.

This was complicated by the fact that it had been a gradual injury that occurred over many years, as well as the fact that hearing loss has many possible causes, including disease, ageing, and noise exposure.

In a decision that set a significant precedent for workers who suffer workplace injuries only diagnosed some time after occurring, the Court of Appeal agreed with her.

Their finding is particularly significant for injuries with a gradual onset, such as hearing loss or skin cancer, as it allows workers to access compensation even if they no longer do the job which contributed to the condition.

The outcomes of more than fifty other cases were put on hold while Mrs Petrevska’s case was heard, while the decision will potentially impact on thousands more cases in future.

While Mrs Petrevska’s victory means the time limit for making a compensation claim doesn’t begin running until a worker is aware of both the injury, and the cause, the strict six-month restriction does kick in from that time.

Importance of Having a Will - What Happens if a Person Passes on Before Signing Their Will

Wills are certainly one of the most popular reasons for people to see a lawyer.  That’s understandable, if you are in a position to leave assets you have accumulated over a lifetime to those who are dear to you, you want to make sure your money or assets are divided up according to what you want.

A clear and unambiguous Will is a great gift to leave to your nearest and dearest.  Everyone knows where they stand and the potential for disputation and bad feeling is minimised.  An unclear Will is a recipe for great upheaval and potential unhappiness amongst the people you care about most.

A recent court decision in the NSW Court of Appeal has clarified the importance of being clear in your instructions to any solicitor tasked with preparing your Will.

In the case, the son of the deceased person took his mothers Solicitor to court because, although his mother had started down the road of preparing a new Will, his mother had died before the Solicitor had finalised the paperwork and the signing the new formal Will.  

The son would have been a beneficiary of more of his mother’s estate if the new Will had been signed.

Although a lower court initially found against the Solicitor, the Court of Appeal overturned that decision.

Basically, the take out message from the case is that having your affairs completely in order as you enter your last days is critically important.  If there is any risk of imminent death, an informal Will can be offered by a Solicitor.  

If you have given instructions to a solicitor and are unable to sign a formal Will the same day, you should ask the solicitor if you can sign the instructions you give the solicitor.  There are also other avenues available to avoid complications.

This would mean that if anything happened to you between giving instructions and signing the formal Will, your instructions could be admitted as an informal Will to the court.

Legal Bindings of Senior Employees - Are They Also Being Discriminated in a Way

With high pay, large bonuses, share options, and frequent "networking opportunities" at exclusive sporting events and fine restaurants, the lives of business executives and senior managers often appear enviable.

But this perception can easily conceal the real difficulties that are faced daily.

The high-stakes and high-stress nature of executive employment brings with it high rates of bullying and harassment, and difficult arguments about whether performance goals have been achieved and entitlements to additional pay or benefits are due.

For senior sales people, most of their remuneration can be tied to a commission structure that is poorly drafted, or contains wide discretions that mean that determining the correct payment is often very difficult.

When things turn sour and the executive is pushed out, they are left in an extremely vulnerable position. Relationships and reputation are key and enormous damage can be done to future employment opportunities by destructive gossip.

For many senior employees, opportunities to move to competitors are limited by restrictive, at times oppressive restraint clauses in their contract of employment that limit who else they can work for.

Most employees who earn more than $133,000 per annum have no entitlement to unfair dismissal claims. Rather, their options involve a variety of other potential actions, such as claims for breach of contract, or for adverse action or unlawful discrimination.

For some, insurance policies inside and outside of superannuation funds can provide much needed financial assistance to ensure that large mortgages and other financial obligations can be met.

It is vital for employers that they look after and listen to their senior employees who are valuable to the organisation and often difficult to replace.

Simple personality conflicts can degenerate quickly and cause distraction and cost.

Allegations of harassment, discrimination and serious misconduct should be thoroughly investigated, often independently.

Legal advice can assist in ensure sensible steps and solutions that protect those involved.

Age Discrimination at Work - Know Your Rights

Australians are not only living longer, many are working longer -- in many cases well past the traditional retirement age.

One unfortunate side-effect of this longer working life has been an increase to the number of people discriminated against because of their age, whether through the loss of a job or some other adverse treatment.

While official statistics confirm a rising trend, reported cases may be the tip of the iceberg, as many older workers are either unsure about their legal rights or nervous about the process of seeking recourse.

In a recent case, a restaurant worker returned from long service leave only to be told that he would now be working part time.

After meeting with his employer and raising a number of issues, he was sent a letter informing him that his employment would be terminated on his sixty-fifth birthday.

In court it was successfully argued that this action had been unlawful, with the restaurant owners ordered to pay almost $40,000 in compensation and other penalties.

While this area of law is relatively new, with the Age Discrimination Act only introduced in 2004, there is a strong legal protection for employees from a range of discrimination based on their age, whether it is a direct or indirect for of mistreatment.

Put simply, it is illegal to sack an employee simply because of their age.

There may be exceptions; such as if the inherent physical requirements of a particular position mean it cannot be carried out by someone of a particular age.

Anti-discrimination laws also prohibit a worker being sacked or adversely treated because of their race, gender, sexual orientation, marital status, pregnancy, family responsibilities, disabilities, religion, or political views.

If you have been discriminated against at work you may have the right to seek compensation, along with other penalties.

Legal action may potentially be taken against both your employer, as well as any co-workers who were responsible for the discrimination.

Find Out if Your Home is Exposed to Loose Fill Asbestos Insulation

With the Federal Government committing $1 billion to buy and demolish more than 1000 Canberra homes contaminated by “Mr Fluffy” loose fill asbestos insulation, attention has now turned to locating NSW properties potentially containing the deadly product.

Sold as ceiling insulation in the 1960s and 70s, pure amosite, or brown asbestos, was crushed into a fine state and pumped directly into the ceilings of residential and commercial properties.

The loose nature of the cancer-causing fibres allows them to easily become airborne, where they can be inhaled and lodge in the lungs, causing a number of diseases.

So far 21 NSW properties have been confirmed to contain loose fill asbestos, with tests currently being undertaken on more than 700 other properties in 26 council areas.

As well as Canberra-based company Mr Fluffy, it is believed two other contractors may have installed the product in NSW homes at around the same time.

The NSW Government is attempting to establish the scale of the problem before making a decision on the most appropriate remedial action.

Concerned residents in homes built before 1980 can contact WorkCover on 13 10 50 to see if they are eligible to have their property tested and assessed for the material free of charge.

Ceiling insulation tests are currently being provided across 26 local government areas, including Bankstown, Ku-ring-gai, Manly, North Sydney, Parramatta, The Hills, and Warringah councils.

If you suspect your home contains loose fill asbestos, it is essential that you do not undertake any renovation work that alters walls or ceilings, or that removes wall sockets, cornices, or cabling.

An occupational hygienist can advise whether your ceiling is well sealed as well as testing to see if asbestos fibres have migrated into living spaces of the home.

Only specialist tradespeople can work in areas containing loose fill asbestos.

For homes containing asbestos insulation, a warning sticker should be placed in the switchboard to ensure tradespeople are aware of the risk.

Homeowners Rights - Is Fighting With The Bank a Losing Battle?

As a homeowner, there are few things more heartbreaking than falling into financial hardship and having a bank attempt to take possession of your house.

The decision to fight those legal proceedings is a natural reaction — especially given the irreplaceable memories homes contain — but it is a choice that shouldn’t be made lightly.

Failing to properly understand your legal rights and obligations could see you not only lose your home, but also be left paying the bank’s legal costs.

In a recent case, Bendigo and Adelaide Bank applied to the NSW Supreme Court to take possession of the Marrickville home of an elderly Greek couple.

The owners, who had little education and poor English, were aged in their 70s when the bank approved them for a $1.2 million, 25-year loan.

The bank had accepted their estimate of the property’s value without carrying out a formal valuation.

Initially the court found with the owners. The judge found the contract for the loan was unfair, setting aside the contract and only requiring the borrowers to repay a part of the loan.

The bank challenged the decision, with the Court of Appeal overturning the initial case.

It was found the couple had failed to provide adequate evidence about the true value of the property when the loan was entered into.

The couple, now aged 80, were ordered to repay the loan, outstanding interest, and the bank’s legal costs.

There were steps that could have been taken to ensure sufficient evidence was tendered, such as obtaining a historical valuation, however the failure to take these steps contributed to a very unfortunate outcome.

Fighting a bank’s attempt to take possession of your home can add cost and stress to an already tough situation.

It is essential that decision is based on timely, strategic legal advice, which identifies the grounds for opposing an order for possession and the evidence required.

Workplace Compensation Issues - Better Worker Environment

While technological has made many people’s jobs lives easier, mobile phones, email, laptops and other items increasingly blur the line between personal and work lives.

One of the results of these extra demands, facilitated by new technology, has been increasing levels of workplace stress and other mental health problems.

Across Australia, compensation claims relating to workplace stress have become the second most common workers compensation category.

Prominent factors that can increase the risk include excessive demands, long hours, uncertainty around job security, a lack of recognition and reward, and unfair expectations that phone calls, emails and other tasks be completed outside of the workplace.

For many people, the ability for work to follow them home also means they receive little or no respite from these pressures.

An employee suffering from work related stress can take a range of simple steps such as taking time off from work or registering their concerns with their manager or employer.

In situations where the stress is caused by workplace bullying, a stop bullying order may be sought from the Fair Work Commission, which can be made against a person or group of people in the workplace.

It is important to address issues before they escalate. Making an employer aware of any concerns allows them to deal with the problem and seek to resolve it without the need for legal avenues to be pursued.

It is extremely important that employers create an environment in which employees feel comfortable expressing their concerns, with businesses benefitting where mental health is made a priority.

Initiatives that diminish workplace stress, like reducing work demands, creating open dialogues, and enforcing policies aimed at fostering a safe workplace environment, are all beneficial.

By putting effort into creating a mentally healthy workplace, not only is it possible to reduce the risk of psychological issues, such as anxiety and depression, but work performance and productivity can often be improved considerably.

Family Law - The Best Interests of a Child

A child’s best interest is the central principle in family law and is the deciding factor in care arrangements following a family breakdown.

Being a parent is not reason enough for the court to grant ongoing primary parental care of a child.

While there is a preference for children to live with and maintain strong relationships with both parents, including through shared care responsibilities, there is no requirement in the law for that to mean equal amounts of time.

There are a range of factors that the Family Court can take into account when making orders in relation to who a child lives, spends time and communicates with, from serious issues like the risk of abuse or neglect, to practical elements like a child’s access to school, friends and support networks.

In extreme cases a parent may not be granted any time with their child, although preventing a child from seeing their parent is a measure of last resort.

In all cases, the child's best interest will trump other considerations, with the primary goal being to ensure children enjoy a safe and secure upbringing.

The court will generally endeavour to have both parties share equally in parental responsibilities.

This does not necessarily mean equal time, but instead seeks to distribute the hard work of child-raising fairly.

Both parents are expected to be involved in all aspects of a child’s life, from their daily routine, discipline, and welfare, to more exciting things like holidays.

The benefits of children remaining in strong contact with grandparents and other significant adults is also considered, with legal avenues available where someone has been excluded from a child's life without good reason.

The consideration of a child’s best interest is ongoing, and where there's substantial changes the court has the power to vary a previous parenting order.

Navigating family law, especially where children are involved, can be challenging, making sound legal advice essential.

Sport Injury Legal Options - Understanding Your Options

Australians love their recreational pursuits, whether it’s taking to the field with sporting teammates, heading into the outdoors, or catching a wave over summer.

One of the unfortunate side effects of this passion is that sporting injuries are now among the most common kinds suffered.

These vary from mild inconvenience through to severe disablement, with the most extreme cases leaving people unable to work, sometimes permanently.

Earlier this year, research that examined more than 1000 Australian surfers found about a third had suffered chronic injuries that were either caused or aggravated while catching waves.

After experiencing an injury from sporting or recreational activities, the first priority should always be to obtain proper medical advice. While it can be frustrating to need to take a break as a result of an injury, ignoring the problem can lead to more serious problems.

Sporting injuries can also affect life in other ways, in some cases leaving people unable to work, in the worst cases permanently.

Whether you are a professional athlete or simply a weekend sportsperson, if you are injured there are a number of legal options that may help.

Many people have access to benefits through their superannuation fund, with total and permanent disablement entitlements and income protection two common forms of cover linked to many super schemes.

If you have suffered a particularly severe injury, you may be entitled to another kind of insurance claim under the Sporting Injuries Insurance Act.

This legislation covers injuries suffered when engaging in a sporting activity as part of a club or association.

There are also various other legal avenues available to people who have suffered a severe sporting injury which depend on the individual circumstances of the case.

If you do suffer an injury that leaves you with a permanent impairment or the inability to work, or mounting medical bills, obtaining legal advice will help you understand what your options are, and how you can pursue them.

The Privacy Act - Fine Balance Between Security and Privacy

Advances in technology have seen video surveillance equipment become increasingly accessible in the last decade, with CCTV now an affordable option for small businesses and even home owners looking to deter criminal behaviour.

While there is not one law that deals with the use of CCTV systems, there are several that impact on where a system may be installed, what can be filmed, and what the footage can be used for.

Only a very small percentage of the footage captured by a surveillance system will be relevant to the investigation of a crime, while the vast majority will simply record ordinary people going about their daily business.

The Privacy Act limits how personal information, including video footage of people in public areas, is collected. It also requires that this information is only used for legitimate purposes.
Under the act, businesses are generally required to inform anyone who will be recorded by the CCTV system that their image is being captured. They also need to indicate how that personal information will be used, and ensure any actual use is legitimate.

In 2013, Shoalhaven City Council was briefly ordered to turn off the CCTV in Nowra after a court agreed with a local resident that the cameras had breached his privacy.

While the NSW Government made a change to the law governing how councils operate CCTV, which allowed the cameras to be switched back on, the case highlighted the importance of complying with relevant laws when installing surveillance systems.

The internet and social media have also seen substantial changes to how information can be used and shared.

As well as privacy restrictions, using footage inappropriately, whether online or elsewhere, can sometimes constitute a criminal offence.

In NSW, using CCTV images to intimidate someone into doing something could lead to a maximum penalty of two years in prison.

While activities carried out in public may be recorded, it is essential to take a careful approach to ensure the right balance between security and privacy is struck.

Risks of Online Dating and Potential for Cyber Crimes in Today's Age

Technology hasn't just revolutionised how people live and work, it is increasingly responsible for how they fall in love.

Online dating services have become the norm for singles, transformed how people with increasingly busy lives juggle the search for a partner.

This form of dating offers a range of benefits, including convenience and access to a much wider circle of potential matches, but it doesn't come without risk.

Unfortunately, some people see the anonymity of the internet as a license to say or do things they would never consider in person.

These inappropriate actions, such as unwanted explicit text messages or images, can be extremely distressing for the person receiving them. For the sender, they can also amount to criminal behavior.

Laws that apply in ordinary life, including those relating to harassment, intimidation or stalking, extend into the digital space.

There are also specific laws that provide protections from harassment that is carried out using a mobile phone or other electronic device.

Using a computer, tablet, mobile phone or even a dating app to harass or offend someone — including by sending unwanted sexual advances or images — is taken very seriously, and in the most extreme circumstances can lead to a sentence of three years in prison.

Even consensual images, if misused, can become criminal matters.

The consensual sharing of sexually explicit images, often referred to as sexting, has resulted in concerning cases of intimidation and harassment.

It increasingly hard to destroy photographs or other digital information, and social media has made it easier than ever for those images to be shared without the victims knowledge or consent.

In some cases, former partners have even threatened to send explicit material to a victims family, friends or colleagues to force them  to do something.

Online dating can be incredibly convenient, but it is essential users understand the potential risks along with the legal obligations to act in an appropriate manner.

Business Receives $41,500 Penalty for Unfair Dismissal Against Vulnerable Employee

Cases of employers dismissing workers in an attempt to deny them their legal entitlements are taken very seriously by the legal system.

A staff member at a panel beating and spray-painting business who had been diagnosed with blood cancer was recently awarded $15,000 after the Federal Court found he had been sacked for attempting to access his sick leave entitlements.

After revealing his diagnosis, his employer pressured him to resign. The managing director also harassed him and accused him of feigning his condition.

He refused to resign, continued to apply for sick leave, and provided medical certificates for his treatment.

Instead of being paid sick leave during several months of chemotherapy, he received nothing, which the court found had removed his financial stability at a time when he was extremely vulnerably.

Eventually he was dismissed following an argument with the managing director.

Critical to his case was the whether he had been sacked or -- as his employer claimed -- he had resigned.

The Court decided that it was a dismissal and was the result of him seeking his legal entitlements.

The business employing him and the managing director were also issued with fines totaling $41,500, with the court saying they should be penalised for deliberately denying their employee his fundamental entitlements.

This case highlights how seriously courts view employers taking adverse action against vulnerable employees as well as their willingness to impose penalties personally onto the directors and officers of a business responsible.

Any employee that feels pressured to resign should do so carefully and only as a last resort.

If you find yourself in a similar position, immediately talk to a specialist employment lawyer about your legal rights.

Court Awards Woman $200,000 from Her Ex-husband

When loved ones die, many people wrongly assume that the details of their will are final and unchangeable.

In reality, NSW law gives people with a close personal relationship who have been unfairly excluded from the estate a year to challenge it.

Spouses, former spouses, children and de facto partners may all be eligible, with factors like the nature of the relationship and its duration taken into account.

Obligations owed by the deceased to the person making the application, provisions made for them by the deceased in life, their age and financial resources, and the nature and value of the estate can all be taken into consideration.

In special circumstances the Court can also accept applications more than a year after the loved ones death.

A good example was a recent case involving an American woman who married an Australian businessman in 1988.

After struggling to settle into life in Australia she moved back home and in 1994 they divorced.

Both moved on with their lives, but they retained a strong affection for each other and the businessman would visit his former wife when in America.

When the man was diagnosed with terminal cancer in 2011, he told his former wife that he would ensure she received some financial support, however this wasn’t included in his will.

Despite the short length of their marriage, the time between their divorce and his death, and the lack of regular contact between them, the Court found the pair had never completely moved on from the relationship.

The Court awarded her $200,000 from her ex-husband’s substantial estate, which included property, trust funds, and business assets.

And while she was five months late with her application to challenge his will, the Court accepted that she had not discovered the possibility of making the claim until almost a year after her former husband’s death.

If you believe you have been unfairly excluded from a will, consult a lawyer immediately and they will be able to determine whether you may have the right to challenge it.