Family Dispute Resolution   (Blog by Kathleen Clark)

You’ve been to see your family law solicitor about a parenting matter and hear the dreaded words, “you need to attend mediation”. What does that even mean?

The Family Law Act provides that before making an application for a parenting order, a person must make a genuine effort to resolve their dispute by family dispute resolution(see section 60I(1)). It does not mean relationship or marriage counseling. Like any industry, family law has its own jargon – “family dispute resolution” is regularly interchanged with phrases such as “mediation” and “litigation intervention conference”.

Genuine effort

“Genuine effort” means that you need to participate in the mediation process in good faith. Behaviours that are NOT in good faith include:

• Failure to make proposals in the first place
• Unnecessary postponement of meetings
• Refusing to agree on trivial matters
• Shifting position just as agreement seems in sight
• Adopting a rigid non-negotiable position
• Failure to make counter proposals
• Unilateral conduct which harms the mediation process
• Refusal to sign a written agreement in respect of the mediation process or otherwise
• Failure to do what a reasonable person would do in the circumstances

(see Tom Altobelli, A brave new world: pre-action procedures in family law, Australian Family

Lawyer, Vol 17 (2) at 34-35).

What if it fails?

If the process fails, and it may do so for a myriad of reasons, the mediator (also known as family dispute resolution practitioner) will issue each participant with a section 60I certificate.This is then filed with a court application for parenting orders.There are different types of certificates, and you should check with your lawyer about what type you have been issued, and whether there are any potential cost implications.

The Process

Each mediation provider has their own process.Broadly speaking:

• There is an intake phase.This provides each person participating in the mediation a chance to meet with the mediator, explain how the parenting relationship has worked, current issues and their concerns.Some providers at this stage require each participant to undergo some courses, counselling or other training to ensure they are ready to mediate.
• There is the mediation phase.What this looks like for each mediation is determined on a case by case basis.Some mediations are conducted by telephone, some in separate rooms (called shuttle mediation) and some face to face.Broadly speaking there is opportunity at the commencement of the mediation for each person to say what has brought them to mediation, and what they are hoping to achieve.The mediator will then facilitate discussion between the participants and help them explore options for resolution.It is not the mediator’s role to decide about certain facts or decide who is right.The mediator controls the process that allows the attendees to try and resolve their dispute.

Parenting Plan or Orders

If agreement is reached, you may receive a parenting plan.A parenting plan is a written document, signed and dated by the attendees.It may deal with a variety of matters such as:

• Who the children will live with
• How the children will spend time with each parent
• Communication between attendees/attendees and each child
• How the plan will be updated

Attendees may wish for the parenting to plan to become a Court order and will need to talk to a solicitor about this process.

Preparation

Mediation is not just another hoop to jump through to get to Court.It is an opportunity for you to make the decision about how to parent your children.If you cannot agree or compromise with the other person involved, then you may end up handing over your power to make decisions about how to parent your children to lawyers and judges.Whilst sometimes this is necessary, it is far better if it can be avoided.

Given its importance, you should seek legal advice as part of your preparation for mediation.Things to discuss with your lawyer include:

• What does the Family Law Act say about parenting matters?
• What types of proposals would be reasonable in your particular circumstances?
• What are some negotiating tips and strategies that you can employ?
• What kind of topics should you be ready to discuss at the mediation, and what points will you raise?

If you would like legal advice, please contact either Tim Cullenward or Kathleen Clark today on (02) 6882 3133.

Blog posted by Amanda Quin. Blog Author Kathleen Clark.

 

 

The New South Wales government has recently announced driver licence disqualification reforms that will come into effect in October 2017

Put simply, the penalties for when you have your license disqualified are changing, to ensure better community protection and a reduction of repeat offending and unauthorised driving.

These proposed changes can be summarised as follows:

Police will have greater powers to impose on-the-spot vehicle sanctions to keep repeat offenders and dangerous drivers off our roads.

Certain disqualified drivers who have complied with their disqualification period for at least two years will be able to apply to the Local Court to have their disqualification lifted early.

No disqualified driver ever convicted of driving offences involving death or grievous bodily harm will be eligible to have their disqualification periods lifted early.

Penalties for unauthorised driving will be more proportionate to other NSW driving offences.

There is a number of rationales for these changes. For instance, a disqualification period of 5 to 10 years does not necessarily deter unauthorised driving, and such lengthy periods without a licence may have a devastating impact on people in regional and remote rural areas, especially those without access to public transport, or whose employment requires a license.

It is hoped these reforms will reduce reoffending, by allowing people to return to lawful and regulated driving, while simultaneously providing stronger powers for police to protect the community from dangerous drivers. The reforms are expected to allow police to confiscate registration plates or cars owned by repeat offenders on the spot, where drivers have continued to drive whilst unauthorised. These reforms will enable police to impose a three month vehicle sanction where a disqualified driver is caught exceeding the speed limit by more than 30 km/h. Police will also be able to impose vehicle sanctions on the spot of six months to repeat offenders who have two or more existing convictions for certain driving offences within the previous five years. For instance, people who have been convicted for driving whilst unlicensed or disqualified, apply for a licence without mentioning the disqualification, or stating the name incorrectly on a driving application, may be subject to these harsher penalties. At present these amendments will only apply to a disqualified driver is also the registered operator of the vehicle.

A number of benefits come with these reforms. For instance, certain disqualified drivers may apply to the local Court to have their disqualification lifted early if they have complied with their disqualification period from a minimum of 2 to 4 years depending on the individual circumstances. However, if a person subject to a disqualification has ever been convicted of driving offences involving death or grievous bodily harm, then they will not be eligible to lift their disqualification period. That all aside, the local Court will still need to consider community safety in determining whether to lift a disqualification period. If you have had your disqualification period lifted, you will still need to apply to the roads and Maritime services to complete the standard road safety knowledge test to get your license back.

The maximum penalties for unauthorised driving offences will also be revised, and more information on that issue will be available shortly. Minimum and automatic disqualification periods the plight unauthorised driving offences. For example if you are convicted of driving while your license is disqualified, cancelled or suspended, you will automatically be disqualified for six months under these new reforms. Whilst the court may vary that suspension. Depending on your circumstances, will be no less than the minimum disqualification period of three months. Those automatic disqualification and minimum periods will increase for each second and subsequent offence.

One of the biggest reforms is the abolition of the habitual traffic offender scheme. At present if you are convicted of three relevant serious driving offences within a five year period, you automatically declared a habitual traffic offender Accordingly you are banned from holding a driving licence for five years. That ban applies in addition to any other penalty received for the offence and runs consecutively, meaning you may be off the road for extremely lengthy periods.

If you have received a disqualification notice, or you have been subject to a sanction by police, for further information you should make an appointment with our office.

Blog author: Tim Cullenward

REVENGE PHOTOS

 

In our modern age it has become common for people to record and photograph everything even intimate images and actions. This has led to spurned lovers or ex partners publishing explicit photos or videos of their ex-partner without consent on the internet usually via social media.

The Crimes Amendment (Intimate Images) Act 2017 (NSW) was recently passed criminalising this technological form of stalking and abuse. 

There are four new offences:

• 1.intentionally recording an intimate image of another person without consent;
• 2.intentionally distributing an intimate image of another person without consent;
• 3.threatening to record and or distribute an intimate image of another person without consent; and
• 4.failing to take down or destroy an intimate image recorded or distributed without consent when ordered by the courts to do so.

Penalties for being found guilty of the above offences include up to 3 years in prison, an $11,000 fine or both.

A person under the age of 16 cannot give consent and offenders under the age of 16 may also be liable, however there are some special rules surrounding an offer under the age of 16.

The new laws are a response to sexual, domestic and family violence and a timely message that such behaviour is not humorous but criminal.

Blog author: Geoff Yeo

 

 

What is stamp duty?

Transfer of land duty (formerly known as stamp duty) is a duty payable on the sale or transfer of land, including improvements in NSW.

Put simply, stamp duty is a tax imposed on the purchaser of land in NSW. The tax is payable to the Revenue NSW (formerly known as the NSW Office of State Revenue).

How is stamp duty calculated? 

Stamp duty is calculated on an ad valorem basis – meaning the amount of stamp duty payable is proportional to the value of the land.

Revenue NSW has a calculator to assist you with your calculations and you may access this on the Revenue NSW website at:

https://www.apps08.osr.nsw.gov.au/erevenue/calculators/landsalesimple.php 

When am I required to pay stamp duty?

You are required to pay stamp duty prior to land being transferred (acquired by you). However there are some exemptions for First Home Buyers.

Who is a First Home Buyer:

Eligibility criteria:

An eligible purchaser is a purchaser who has not, and whose spouse has not:

At any time owned (either solely or with someone else) residential property in Australia other than property owned solely as a trustee or executor;

Previously received an exemption or concession under the First Home Buyers Assistance Scheme

Furthermore an eligible purchaser must:

Be over the age of 18 years;

Must be an Australian citizen or permanent resident;

Must be a natural person - not be a company or trust;

Must purchase the whole of the property; and

Acquire an interest of at least 50% of the property.

First Home Buyers:

The NSW State Government established the First Home Buyers Assistance Scheme on 1 July 2017 to assist First Home Buyers with acquiring land in NSW by providing them with an exemption from stamp duty in certain circumstances:

First Home Buyers Assistance Scheme:

Provides an exemption on stamp duty on new and existing homes valued up to $650,000.00;

Provides a concession on stamp duty on new and existing homes valued between $650,000.00 - $800,000.00;

Provides an exemption on stamp duty on vacant land valued up to $350,000.00;

Provides a concession on stamp duty on vacant land valued between $350,000.00 - $450,000.00;

Allows purchasers to receive an exemption or concession (as per the above values) if they are purchasing the property with someone that is not a first home buyer and they are purchasing at least 50% of the property. ( Note: this does not apply to spouses). These are called Shared Equity Arrangements and would apply if the first home buyer was purchasing with a relative (other than a spouse) or friend for example. Duty is calculated with reference to the proportion of the property purchased by other parties.

First Home Owner Grant (New Homes) Scheme:

The First Home Owner Grant (New Homes) Scheme was established to assist eligible first home owners to purchase a new home or build their home by offering a grant.

The grant amount is determined based on the date of the eligible transaction:

For eligible transactions made on or after 1 January 2016, the grant amount is $10,000.00;

For eligible transactions made on or after 1 October 2012 and 31 December 2015, the grant amount is $15,000.00

What is a new home?

A home that has not been previously occupied or sold as a place of residence.

Residence Requirement:

Both the First Home Buyers Assistance Scheme and the First Home Owner Grant (New Homes) Scheme require the home purchased or built to be occupied by at least one of the eligible purchasers as his/her principal place of residence for a continuous period of at least 6 months with that occupation commencing within 12 months after settlement.

Should you have any queries regarding the abovementioned Schemes, please do not hesitate to contact our office or review some further information on the Revenue NSW website:

http://www.revenue.nsw.gov.au/grants

The Financial Ombudsman Service, the Credit & Investments Ombudsman and the Superannuation Complaints Tribunal are to be merged into a single entity called the Australian Financial Complaints Authority (AFCA).

AFCA will be overseen by ASIC.

It is proposed that this new complaints authority will commence on 1 July 2018.

 

On 1 July 2017 a number of changes to the Retail Leases Act (NSW) (“the Act”)commenced including:

Removal of 5 year term

Section 16 of the Act was removed. As a result there is no longer a minimum term for a Retail Lease and no requirement for a solicitor’s certificate to be executed for short term leases.

Lease registration

• The Landlord must supply the Tenant with a copy of the fully signed lease within three (3) months of the tenant returning the signed lease to the Landlord.

• In addition, where the term of a lease is three years or more then the lease must be registered within 3 months of the Tenant returning the signed lease to the Landlord. This period may however be extended where any mortgagee delays in consenting to the lease.

• The Landlord cannot require the Tenant to pay any mortgagee consent fees.

• The maximum fine that may be imposed is 50 penalty units (which is currently $5,500).

Disclosure Statements

• If the estimated amount of an outgoing is not disclosed in a Lessor’s disclosure statement, then the Tenant does not need to pay the outgoing.

• Where the estimate for any outgoings is less than the cost of the actual outgoing – then unless there was a reasonable basis for the estimate, then tenant does not need to pay more than what was estimated.

• If a Landlord fails to provide a Tenant with a disclosure statement (which is to be supplied at least 7 days before the lease is entered into) or has served a defective disclosure statement (ie an incomplete or misleading disclosure statement), then the Tenant may terminate the lease during its first 6 months.

• If the Tenant does exercise its right to terminate the lease then the Tenant will be entitled to claim compensation for costs such as their expenditure on fitout. (Although the Tenant cannot terminate the lease under this section in relation to a defective disclosure statement if the Landlord had acted honestly and reasonably when issuing the disclosure statement and if the Tenant is in substantially as a good a position as they otherwise would have been if the disclosure statement had been correct).

• Lessor disclosure statements are now required for Agreements for Lease.

Bonds and Bank Guarantees

Bank Guarantees must be returned to the Tenant within two months after the Tenant has performed all of its obligations under the lease.

Whilst it has not yet started, there is now provision for the Retail Tenancy Unit to move to an on-line bond lodgment system.

Assignment Process

When a Tenant is seeking consent to assign its lease to an assignee, then the Tenant may ask the Landlord for an updated lessor’s disclosure statement.

If the Landlord fails to provide the Tenant with an updated lessor’s disclosure statement within 14 days of it being requested to do so, then the Tenant may prepare its own updated lessor’s disclosure statement for service on the assignee.

If the Tenant then serves an assignor’s disclosure statement and the updated lessor’s disclosure statement on the assignee and the Landlord AND if the Landlord consents to an assignment of the lease (or is deemed to have consented, where the Landlord fails to respond within 28 days) then the Tenant and its guarantors will be released from liability under the lease from the assignment date.

NCAT jurisdictional limit increase

NCAT can now hear retail lease dispute matters up to $750,000.

 

SELLING AGRICULTURAL GOODS AND REGISTERING A PERSONAL PROPERTY SECURITY INTEREST

It is not unusual for a farmer/grazier to sell grain or wool or other products on terms that payment shall occur at a later date.

A risk which arises in this scenario is the possibility of the buyer becoming bankrupt or entering into liquidation prior to paying the farmer for the grain or wool.

In such cases, the farmer could potentially not be paid at all for the farmer’s produce.

Where a person or entity becomes bankrupt or is liquidated, then secured persons, such as a bank with a registered mortgage will always be entitled to receive payment from a liquidator prior to unsecured creditors.

It is possible however for a farmer who has sold agricultural products on terms for payment in the future, to become a secured creditor and this can be done by utilising the Personal Property Security Interests Act 2009 (“the PPSA”).

WHAT DO YOU NEED TO EFFECTIVELY REGISTER A SECURITY INTEREST

Firstly, for a security interest to be registered and to be effective, then you need to ensure that:

(a) You have the right to register a security interest; and

(b) You need to know sufficient information about the buyer of your produce to be able to register a security interest; and

(c) The security interests needs to be “attached” to the collateral; and

(d)The security interest needs to be perfected.

The simplest way to ensure that you have the right to register a security interest is to have a written agreement with the buyer of your produce that grants you the right to retain title in your produce until you receive payment for it AND a right to register a security interest on the Personal Property Securities Register. If required we can assist with preparing such an Agreement.

The information that you need to know about the buyer includes:

• The full and correct legal name of the buyer of your produce (ie whether they are a company, trust, partnership or an individual);

• The buyer’s ABN (where they have one); and

• The date of birth of the buyer (but only where the buyer is an individual or a partnership of individuals).

The security interest attaches to the grain or wool or other produce (“the collateral”) in a number of different ways, but the simplest way to meet the requirement for “attachment” is to ensure that the written security agreement is completed and signed prior to delivering your goods to the buyer.

The easiest way to “perfect” an interest in the collateral and to therefore become a secured party, is to register your interest electronically on the Personal Property Securities Register at https://www.ppsr.gov.au/ and we can also assist you with that process, if required.

Strata legislative changes

On 30 November 2016 the Schemes Management Act (2015), Strata Schemes Management Regulations (2016) and the Strata Schemes Development Act 2015 commenced.

There are over 90 changes to the Strata Laws and not all of them are significant. For example, Executive Committees are now called Strata Committees. However, some of the main changes to Strata laws are:

Collective Sale/demolition of strata property	There is a new process which could allow the whole building to be sold or demolished or replaced, if 75% of the owners agree to this occurring. This new power does give greater flexibility to replenish an old crumbling building, but could mean that some owners may be forced to relocate regardless of whether they want to or not.
By-laws	There are new standard by-laws for new schemes. As previously, the by-laws may be modified or amended. All pre-existing schemes must review their by-laws by 30 November 2017, but the new by-laws will not apply to the pre-existing schemes unless the pre-existing schemes choose to use them and register them. Changes to by-laws will not be effective until they are officially registered with the Registrar General. An owners corporation may pass a by-law that limits the number of occupants of a unit (to stop overcrowding). However any such by-law must permit a minimum of 2 people for each bedroom in the unit.
Renovations or other works by Owners	Under the previous strata laws, all works required approval from the Owners Corporation. The new laws now divide works into cosmetic, minor and major. If a change is cosmetic, a lot owner only needs to notify the committee and the committee does not need to approve the cosmetic change. Cosmetic works include: installing or replacing hooks, nails or screws for hanging paintings or other things on walls, installing or replacing handrails within the lot, painting, filling minor holes and cracks in internal walls. If the works are minor, then approval may be granted by a vote of the committee ( which does not need to be at a general meeting. Minor works might include renovating a kitchen (but only if no structural work is required), installing or replacing wood or other hard floors, installing environmental measures (such as a clothesline or reverse cycle air conditioner). Whether these types of work are minor will depend on whether or not there is any structural work and whether any changes to the lot will be externally visible. Major works, such as structural alterations, will require approval by a special resolution at a general meeting.
Strata Managers	When a new scheme is created, the initial Strata managers can only be appointed for the first year – to allow the new owners to determine if they are happy with the manager.
Abandoned Goods	There is a new process to follow that permits the Owners Corporations to sell or dispose of goods which have been abandoned on common property. A disposal notice may be required to be placed on the goods (although this is not required for perishable food). The owner of the goods is entitled to apply to NCAT for payment of the net proceeds from the sale of such abandoned goods, otherwise, the proceeds go to the administrative fund.
Unpaid levies	The Owners Corporation may either enter into payment plan with a non-paying lot owner or the Owners corporation can take recovery action by applying to the Local Court.
Fines	Higher upper limits on fines for breaches of general by-laws and new fines for overcrowding offences may be levied by NCAT. The Owner’s corporation is to receive the money from such fines. The Owner’s corporation may enforce the fines in the Local Court. Strata schemes are encouraged to arrange medication prior to taking proceedings at NCAT.
Meetings	If registered tenants make up more than 50% of the occupants of a Scheme, they can nominate a tenant to be their representative on the strata committee. However, in practice, hardly any owners register their tenants with the scheme, so it is unlikely that this new law will be of any practical value. New limits on the number of proxies that any one person may hold. If the scheme has 20 lots or less, then only one proxy vote may be held per person. For larger schemes, the maximum number of proxies that may be held by one person is 5% of the total number of lots in the scheme.

 

Rental Bonds Online

From 30 January 2017, it will be mandatory for landlords and real estate agents to invite residential tenants to lodge their residential rental bonds in NSW using Rental Bonds Online (RBO).

When a new residential tenancy agreement is entered, then the landlord (or the landlord's real estate agent) must be registered with RBO and must invite the new tenant to provide their email address for the purpose of initiating the RBO bond lodgement process.

A landlord or agent who fails to invite a new tenant to lodge their bond using RBO, prior to accepting a bond, will be in breach of the Residential Tenancies Act.

Tenants who do not have internet access can continue to give their bond directly to the landlord or landlord's real estate agent. The landlord or agent is then required to lodge the bond with the Rental Bond Board using the current paper based method.

More information is available athttp://www.fairtrading.nsw.gov.au/rentalbondsonline

 

SURCHARGE LAND TAX

Surcharge Land Tax is payable by foreign persons in addition to any other land tax that may be payable on land held in NSW. The surcharge is 0.75% of the value of the land held by the foreign person.

There is no principal place of residence exemption or tax free threshold for the foreign persons land tax surcharge.

All other normal land tax exemptions do apply (ie the land tax surcharge is not paid on primary production land).

As per traditional land tax, the surcharge is only payable on the proportion owned by the foreign person.

Given the 200 day rule for permanent residents (see below paragraph titled WHO IS A FOREIGN PERSON), a person may be a foreign person one year, but not the next and so on.

If you or any company or trust that you control is a foreign person, then you may need to register with the OSR NSW in relation to surcharge land tax.

WHO IS A FOREIGN PERSON

FOREIGN PERSONS ARE:

• Any natural person who is not ordinarily resident in Australia or does not have a right to reside in Australia.
• Any natural person with only a temporary right to reside in Australia (irrespective of how long that temporary right may be or how long they have lived here).
• Any natural person holding a permanent visa, who has not been in Australia for at least 200 days during the 12 months prior to the relevant liability date. (NB there are special rules for off the plan though).
• Any discretionary trust where any foreign person (including foreign companies or foreign trusts) are a potential beneficiary (irrespective of whether any distributions have ever been made to them).
• Any company or unit trust in which a foreign person (whether natural or otherwise) and the associates of that foreign person (even where the associates are Australian citizens) has at least a 20% interest in the entity.(For example, if your spouse was a UK citizen and if he or she held 5% of the shares in a company and you held 18% of the shares in that company, then because you are an associate of your spouse, then that makes that company a foreign person. Likewise with units trusts).
  
• Any company or unit trust in which multiple foreign persons (and the associates of those persons) hold at least a 40% interest.

PEOPLE WHO ARE NOT FOREIGN PERSONS:

• Australian Citizens, no matter whether they currently reside in Australia or not.
• Any natural person holding a permanent visa, who has been in Australia for at least 200 days during the 12 months prior to the relevant liability date.
• Any citizen of New Zealand who entered Australia legally and has resided in Australia for at least 200 days during the 12 months prior to the relevant liability date.
• Any discretionary trust where none of the potential beneficiaries are foreign persons.

HOW TO MEASURE INTERESTS IN A COMPANY OR UNIT TRUST

A person holds an interest in an entity if that person, either alone or with one or more of their associates:

• Controls that percentage of the voting power; or
• Holds interests in that percentage of the issues securities in the entities (ie shares or units); or
• Holds options which would give them that percentage of interest if the options were exercised.

Associates are a person’s spouse, parents, lineal descendants (including adopted children), siblings, aunts, uncles, nephews, nieces and grandparents AND all those people for their spouse as well.