Blog post by Geraldyne Keen - Email: gfk@peacockes.com

Court-Based Family Dispute Resolution

For separated parties/parents it is well known that the Family Law Courts require you to participate in Family Dispute Resolution (FDR) before making an application the Court. However, the Court also has the power to refer parties to FDR under s 13C(1)(b) of the Family Law Act 1975 when it considers it safe and appropriate for all parties to participate meaningfully.

Prior to December 2020, parties were referred to external providers such as Legal Aid or family relationship centres (e.g. Interrelate). From December 2020 the Family Court of Australia and Federal Circuit Court of Australia have introduced an internal Court-based FDR program which is assisted by a Register and where appropriate a Family Consultant (an expert in child development matters).

What to expect?

The Court can make an Order for the parties to attend FDR any time during the proceedings. The FDR conference will either take place over a full day or half day. The FDR operates similarly to an external mediation, however it involves a Registrar and sometimes a Family Consultant as mediators.

All negotiations are confidential (unless threats of immediate harm to a person or child are made). The Registrar and Family Consultant assist the parties to help reach an agreement, they do not make any decisions on the matter.

Two-part process:

Part 1: This part involves an initial teleconference with the Registrar who will explain the process, the next steps and what to expect.

Part 2: This part involves the actual FDR conference which includes identifying the issues to be addressed, negotiating (either together or by shuttle) and documenting the agreement.

Who attends?

The Registrar, Family Consultant, parties, legal representatives and the Independent Children’s Lawyer (if appointed).

What happens if an agreement is/ is not reached?

If an agreement has been reached, the Orders will be drafted and the Registrar can formally make the Final Orders. You will not be required to appear before the Judge and your matter will be finalised.

If no agreement is reached, then your matter will return before the Judge and continue through the Court process.

 

 

Our Christmas and New Year Hours

The Directors and Staff wish you the compliments of the season and advise that our office will close at 5.00pm on Wednesday, 23 December 2020 and will re-open at 8.30am on Monday, 11 January 2021.

 

 

Special Disability Trusts are designed to assist family members of people with a severe disability to plan for future care and accommodation needs.

The advantages associated with establishing a Special Disability Trust are that:

* A Special Disability Trust can have assets worth up to $694,000.00 (indexed annually and current as at 1 July 2020) without these assets impacting on the beneficiary's  Disability Support Pension. However any amount over the relevant annual limit will be assessed and may affect pension payments.

* Family members who contribute money or assets to the trust might be eligible to receive a concession from  social security gifting/deprivation rules. For the purposes of this concession, 'immediate family members' include natural parents, legal guardians, adoptive parents, step parents, grandparents and siblings. There is a limit of $500,000.00 on the gifting concession for each trust and effectively is only of assistance where there is a giver who is themselves a recipient of a pension or similar entitlement or is likely to be in the next 5 years. An immediate family member who is not of qualifying age for a pension might be able to make contributions to a Special Disability Trust and take advantage of the concession later, when he or she reaches qualifying pension age, providing the gifting concession has not been fully used. This means that it is possible to put assets in the trust up to five years before claiming the Age Pension  and still have the assets disregarded for means test purposes when the giver receives their pension. 

There are however certain disadvantages which include:

* Not all persons with disabilities are eligible to be a beneficiary. The prospective beneficiary needs to meet the particular requirements under the legislation for this type of trust.

* There are annual reporting requirements that need to be complied with.

* There are strict rules in respect of who can be a trustee (and the number of trustees) and strict rules relating to what money from the trust may be used for.

If you have a family member who has a severe disability and you wish to consider establishing a Special Disability Trust then we recommend you take legal and financial advice to establish whether such a trust is suitable for your circumstances.

If you hold or intend to hold real estate in NSW via a Discretionary Trust and wish to avoid foreign persons surcharges then you need to review your Trust Deed and if necessary amend your Trust Deed before 31 December 2020.

Foreign person surcharge land tax is an annual tax and it applies to real estate in NSW which is held by foreign persons. Likewise, foreign person surcharge duty is an additional stamp duty which foreign persons pay, when they purchase property in NSW.

Even though you may be an Australian citizen or permanent resident, if you hold property via a discretionary trust, then you need to be aware that all discretionary trusts are deemed to be a foreign person unless the trust deed has specifically and irrevocably excluded foreign persons from being eligible beneficiaries of the trust.

The NSW Legislative Council passed the State Revenue Legislation Further Amendment Bill 2020 on 18 June 2020.

This legislation specifies that 31 December 2020 is the deadline for you to review your trust deed and potentially amend it to exclude foreign persons, in order to avoid the need to pay foreign person surcharge land tax and foreign person surcharge stamp duty.

Accordingly,  assuming you are prepared to exclude foreign persons from being a beneficiary of your trust, then  you should review and where necessary have your Trust Deed amended before the deadline of 31 December 2020.

Please contact Andrew Graham (email amg@peacockes.com ) or Jeremy Tooth (email jrt@peacockes.com ) or phone our office on 02 6882 3133 if you would like our assistance to review your Trust Deed.

The NSW Legislative Council passed the State Revenue Legislation Further Amendment Bill 2020 on 18 June 2020.

This is particularly relevant if you own real estate in NSW or are likely to own real estate in NSW and have  been thinking about leaving your property to your beneficiaries via a testamentary trust.

If this applies to you - then you you need to consider the effect of potential foreign persons surcharges when making your Will.

From 1 January 2021, if you leave NSW real estate in a testamentary trust, then the foreign person surcharge land tax (which is an annual tax) will apply to that property unless you have specifically and irrevocably excluded foreign persons from being eligible beneficiaries of the trust.

Likewise if the trust were to purchase any property, the foreign surcharge duty would apply.

This may not be particularly important if you are certain that none of the potential beneficiaries would be foreign persons, as in such a case an appropriate exclusionary clause can be included in your Will.

However,  if your intended beneficiaries are foreign persons or even if they might marry foreign persons, then to allow your testamentary trust its greatest level of flexibility, (and subject to you not being a foreign person) you should consider executing your Will before 31 December 2020 (ie this year) - so that it is not caught in the changes that will apply from 1 January 2021.

Please contact Andrew Graham (email amg@peacockes.com ) or Jeremy Tooth (email jrt@peacockes.com ) or phone our office on 02 6882 3133  if you wish to obtain advice on this issue or your succession planning.

 

If you are building a new home or substantially renovating an existing home which is or will be your principal place of residence then you may be eligible for a $25,000 grant under the HomeBuilder program.

You do not need to be a first home buyer to be eligible to receiver a HomeBuilder grant, but if you are first home buyer, then you may be able to obtain this grant on top of other first home concessions.

Eligibility Criteria in NSW

Each Applicant must be an Australian Citizen who is 18 years old or older (not a company or trust). 

The Applicant(s) must meet one of the following two income caps:

• $125,000 per annum for an individual applicant based on their 2018-19 tax return or later; or
  
• $200,000 per annum for a couple based on both of their 2018-19 tax returns or later.
  

The Applicant(s) must enter into a building contract between 4 June 2020 and 31 December 2020 to either:

• build a new home as a principal place of residence, where the property value (house and land) does not exceed $750,000; or
  
• substantially renovate their existing home as a principal place of residence, where the renovation contract is between $150,000 and $750,000, and where the value of the existing property (house and land) does not exceed $1.5 million.
  

 

Construction must commence within three months of the building contract date.

The registered or licensed builder may need to demonstrate that the contract price for the new build or substantial renovation is no more than a comparable product (measured by quality, location and size) as at 1 July 2019.

If the contract is for renovations then the building works must improve the liveability, accessibility or safety of your home (ie swimming pools, sheds and similar structures not connected to the house will not count).
 

NB Owner-builders and those seeking to build a new home which will be used as an investment property, or renovate an existing home which is an investment property, are not eligible.

 

 

 

The NSW government operates a Domestic Violence Helpline to assist people who feel unsafe at home.

The number for the NSW Domestic Violence Line is 1800 65 64 63.

They are available 24 hours a day, 7 days a week.

Interpreters are available and all calls are confidential.

If you are hearing impaired, call the National Relay Service on 133 677.

 

 

Blog authored by Andrew Cannon - Email: aac@peacockes.com
Electronic transactions, signing and the Electronic Transactions Act NSW and CTH

In these current uncertain times and restrictions with COVID-19, professionals are increasingly changing the way they think about communicating and transacting internally in the office and amongst wider colleagues electronically.

Electronic and digital documents and signing are, subject to legislative requirements, providing a real and flexible alternative to completing legal transactions electronically, particularly in the areas of conveyancing and real property. The convenience of near uniform legislation since 1999 known as the Electronic Transactions Act (theETA) ensures that a transaction under a state or Commonwealth law will not rendered invalid simply because a document was signed via electronic means. Courts are also increasingly aware of how electronic transactions and signatures are already a part of modern commercial life^[1], as well as their significance to the future of “modern business practice”^[2].

However, the ETA sets out three mandatory conditions in order for electronic signatures to be deemed effective. These conditions are:

1. Identity

- the person (signatory) must use a method to identify themselves and their intention;

2. Reliability

- the method used was as reliable as appropriate for the purpose of the electronic communication ( or proven in fact with further evidence); and

3. Consent

- the signatory (and any counter-signatories) must consent to the use of the electronic communication to fulfil the requirement and method of identification.

“Electronic” Signature and “Digital Signature” – What is the difference?

Whilst it is often the case that the terms “electronic signature” and “digital signature” are thought of and used interchangeably, it is important to note the distinction between them.

An electronic signature is essentially a signature on any electronic communication or document which DOES NOT have any physical verification or authentication on the document which it relates to. Such examples include inserting an electronic signature in a pdf letter or clicking an ‘I accept’ button online on a terms and conditions disclosure.

However, a “digital signature” is a type of electronic signature in which a verification element or authentication is provided on the document using specialised software integrated with a Public Key Infrastructure (PKI) system, to help ensure the security of the signatory’s identity, confidentiality and avoid issues surrounding document integrity and fraud.

An example of such a verification or authentication element is an DocuSign envelope ID or an AdobeSign transaction number, which are two well- known digital signing platforms. Most often, digital signing platforms provide a certificate of completion or similar certification or authentication after the completion of electronic signing. This certificate or authentication details and tracks the electronic ‘footprint’ of who, when and how a electronic document was created, sent, opened and signed, providing reassurance for clients and other signatories that the use of their electronic signature is confidential and secured.

Deeds and companies signing under s 127(1) of the Corporations Act – Issues?

Whilst NSW is currently the only state which permits deeds to be signed and witnessed electronically, regard should be had to the Law Society of NSW’s ‘FAQ on Electronic Witnessing of Signatures’. Witnessing electronic or digital signatures for deeds is legally and technologically complex, particularly also if one of the signatories is a company signing under s127(1) of the Corporations Act 2001 (Cth).

However, if electronic execution is required to occur pursuant to s 127(1) of the Corporations Act it may be prudent to consider some further practical measures such as:

• Including an electronic execution clause and warranties as to the authority of the persons similar to the assumptions set out in s129(5) of the Corporations Act;
• Requiring evidence of personal authentication of the officer signatories, and that a single electronic document was signed and witnessed; and
• Requiring evidence of the identity and actual authority of the signatory or signatories to the relevant documents (eg board minutes or company resolutions).

In this respect, legal advice should be sought if you require either a document to be signed under section 127 (1) or a deed .

References

 

[2] Stuart v Hishon [2013] NSWSC 766 [34].

Blog authored by Geraldyne Keen   Email: gfk@peacockes.com
 

Over the past two months and as direct result of the covid-19 pandemic, the Local Court of NSW has implemented changes to its daily operations to reduce the risk of the spread of the virus, protect court users and limit face-to-face contact.

On 9 April 2020 the Chief Magistrate released a consolidated Memorandum outlining the changes to the Local Court.

A summary of these changes are as follows:

Appearances

None of these arrangements prevent a physical appearance before the Court however individuals should contact the court prior to attending in person.

Legal practitioners are permitted to appear before the Court in writing or by email to minimise their physical attendance in court in the following circumstances:

• By entering an appearance, making a requesting such as an adjournment, and/or indicating a plea.
• In AVO matters: by entering an appearance and seeking adjournments or any necessary orders including orders by consent
• An application pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990.
• For sentencing proceedings (see below and the memorandum for further detail).

Defended hearings – defendant NOT in custody 

No hearing dates will be allocated for defended hearings.

All defended hearings which were listed between 23 March to 1 May 2020 were vacated and should now be listed for mention in August 2020. All defended hearings which have hearing dates between 4 May and 31 July 2020 will be vacated and listed for mention in September 2020.

This does not include matters listed for:

• Determination of section 32 applications,
• Annulment applications; or
• Part-heard matters for submissions and decision only.

No appearance

If there is no appearance the matter will be adjourned for not less than 1 month. The defendant will be notified if they do not appear on the next occasion or contact the Court, then the Court will deal with the matter in their absence, subject to the requirements of section 25(1) of the Crimes (Sentencing Procedure) Act 1999.

Custody matters

All appearances by defendants are to be by Audio Visual Link (AVL).

The Court will not hear or list any defended hearings where defendant remains in custody.

Defended hearings listed between 4 May and 31 July 2020 are to be vacated and remain listed for mention on the previously allocated hearing date. An application for release may be made on this date. The Court recognises that as a direct result of these changes lengthy periods of custody may result in a period of incarceration that would exceed the ultimate penalty that would have been applied should the defendant been found guilty at an earlier time. Matters in this category will be adjourned for not less than 8 weeks for mention only.

Fresh custodies & Bail

First appearances for persons police bail refused will continue via AVL at particular courts.

Not every country court has access to AVL facilities. Dubbo will be operational as a centralised bail court for the surrounding region.

Sentencing proceedings 

Legal representatives should indicate a plea and provide sentencing submissions in writing/email. The submissions should be no longer than 3 A4 pages.

A physical appearance by the defendant or their legal representative will not be required unless the Court determines necessary. This should only arise in matters where a conditional release order, community correction order or intensive correction order is considered by the Court. If this is the case, the proceedings will be adjourned for either a physical or AVL appearance by the defendant.

Where the Court considers a sentence of full-time imprisonment the matter may be adjourned for 8 weeks and a possible further 8 weeks if the current situations remains at that time.

AVO matters

AVO hearings listed to 1 May 2020 will not be heard and no hearing dates will be allocated. AVO’s with related CAN proceedings will be adjourned to the same date as the CAN. AVO matters without a related CAN may be adjourned for mention for not less than 3 months. Applications that remain contested may be adjourned for not less than 3 months.

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 amended the Crimes (Domestic and Personal Violence) Act 2007 (the Act) to facilitate changes to the listing of provisional orders during the pandemic period. Section 29(4) provides for provisional orders to be listed up to 6 months from the date the order is made. NSW Police had advised the following in relation to fresh provisional orders:

• 1.Provisional orders with no charge will be listed 3 months from the date the order was made.
• 2.Provisional orders with related charges will be listed the same date the charge is first listed and will continue to travel with the criminal charge.

Urgent applications

The Court will continue to accept urgent proceedings including AVO matters. However, the Court should be contacted first by email indicating why the matter is urgent. If the Magistrate considers the matter urgent, arrangements to deal with the matter will be provided by email.

Listing of non-bail Court Attendance Notices (CANs)

Police will not be listing Field Court Attendance Notices or Future Court Attendance Notices until 3 months into the future.

Unless straight forward, the Court anticipates they will not deal with these matters other than by way of an adjournment

Listing of bail CANs

From 31 March 2020 these Notices will be listed 8 weeks into the future.

Traffic matters

The State Debt Recovery Office will not list any further traffic matters until 1 October 2020.

Future arrangements 

The Court has set aside October 2020 to endeavor to catch up on backlogs. The Court does not intend to list any hearings during this month.

Further information

The Chief Magistrate’s Memorandum dated 9 April 2020 can be found at: http://www.localcourt.justice.nsw.gov.au/Documents/COVID19/updated-and-consolidated-listing-adjustments-during-covid-19-pandemic.pdf

For information regarding Early Appropriate Guilty Plea committal matters please refer to the Chief Magistrate’s Memorandum (No. 4) dated 9 April 2020: http://www.localcourt.justice.nsw.gov.au/Documents/COVID19/further-clarification-of-local-court-arrangements-for-eagp-matters-during-pandemic-period.pdf

For further information regarding Domestic and Personal Violence proceedings please refer to the Chief Magistrate’s Memorandum (No. 7) dated 31 March 2020: http://www.localcourt.justice.nsw.gov.au/Documents/COVID19/chief-magistrate-s-memorandum-7-management-of-domestic-and-personal-violence-proceedings.pdf

As everyone is aware the Coronavirus pandemic is causing changes day by day to the way in which we do business and conduct our daily lives.

Peacockes Solicitors has the internal resources and staff (working remotely) to close the office, yet continue to provide our range of legal services, even though in a less conventional manner.

From Monday 30^th March 2020 our office doors are closed and we ask that you call us on:

02 6882 3133  (our Dubbo office)

02 6847 2001 (our Gilgandra office)

0448 673 924 (our Canowindra office)

or email us at admin@peacockes.com where your query will be dealt with promptly in the normal manner.

A member of our staff will deal with your query/affairs, even though it is now our policy to keep face to face contact to a minimum.

We all have to adapt to these challenging times and we trust that you will understand and co-operate with the measures we have adopted.It is the safety of our staff and clients which is the main factor in our decision making.

PEACOCKES SOLICITORS PTY LTD