On 15 November 2019 the Australian Law Reform Commission released a Discussion Paper into Corporate Criminal Responsibility.

Recently, the Australian Institute of Family Studies (‘AIFS’) released an Evidence Summary of a study it had conducted in relation to post-separation parenting outcomes. The Evidence Summary provides very interesting statistics regarding family law parenting outcomes that cast some light on the process. While statistics do not always tell the whole truth, they can indicate trends in the family law parenting process that may be helpful when determining the best course of action in your case.

On 1 March 2009, Part VIIIAB was inserted into the Family Law Act 1975 (Cth) (‘the Act’) which provided for Australian de facto couples to have their financial matters dealt with upon the breakdown of their relationship under the Australian family law system. The main effect of the amendments was to the mirror Part VIII of the Act, which covers financial matters between married couples.

Most Shareholder Agreements provide that Companies are controlled by a shareholder (or a group of shareholders) that holds a majority of the shares in the Company.  These Agreements allow majority shareholders to appoint directors and control many other company activities including the day-to-day operation of the business, payment of Dividends or Dividend distribution policies, financing policies and, in most instances, the issuing of new shares.

The family law system in Australia is constantly evolving and works to recognise and assist adults and children who have suffered family violence. This year, as many as 70% of all family law matters in the Commonwealth court system involve an allegation of family violence. A particular concern of the Courts is to ensure that children who are exposed to or suffer family violence or abuse are protected as much as possible.

There has been much debate as to how the trustees' right of indemnity would apply to an insolvent corporate trustee.

Children are constantly evolving, developing and growing at varying stages of childhood and adolescence. They transition from preschool, to primary school, to high school; their friendship circles, interests and extracurricular activities may change; sometimes they may move to a different suburb, city or state. Change is a reality in a child’s life and studies show that people grow and develop more rapidly in their childhood than at any other point of life.

It is commonplace for a company to borrow funds to advance their business. This can take the form of commercial loan facility or specific equipment finance. In most if not all cases the loan facility is secured either by a security interest over the whole business, or the company, or against the equipment itself.

In a recent blog post, we explored the mandatory requirement for parties to attempt to resolve their parenting dispute with the assistance of family dispute resolution (‘FDR’) prior to applying to the court for parenting orders: Family Law Act 1975 (Cth) s 60I(1). However, s 60I(7) provides various exceptions to this mandatory requirement such as the following:

Prior to commencing parenting proceedings, parties must make a “genuine effort” to resolve their parenting dispute with the assistance of family dispute resolution (‘FDR’): Family Law Act 1975 (Cth) s 60I(1). The usual form of FDR that parties engage in is mediation with an accredited FDR practitioner. Often this take places through services such as Relationships Australia, however parties can engage an accredited private mediator (who is often an admitted lawyer) to mediate their dispute as well.

In 2005 and 2009, crucial amendments were made to the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth) that bestowed jurisdiction upon the Family Court of Australia in bankruptcy for married and de facto couples.

An area of law of specific focus in respect of costs orders is family provision matters, commonly known as ‘estate disputes’. Section 99 of the Succession Act 2006 (NSW) states that the court may order the costs of proceedings in relation to a deceased’s estate to be paid out of the estate “in such manner as the Court thinks fit”. This grants the court wide discretion in respect of the costs orders it may make in interlocutory matters and the overall proceedings.

Upon separation, a party will often feel disgruntlement or dissatisfaction with the other party and wish to retain all they brought into the relationship. This is even more so the case with inheritances received after separation.

The Family Law courts, under s79 of the Family Law Act 1975 (Cth) (“the Act”), have the power to alter the interests of parties to a marriage or de facto relationship when it is just and equitable to do so. As far as practicable, the Court aims to make orders for property settlement that will determine the financial relationship between the parties on a final basis.

Whether you are a netball, NRL or AFL fan, this time of year is full of legendary weeks of grand finals. Watching Richmond smash our local GWS team to win the AFL grand final and witnessing the Roosters win the NRL competition, one couldn’t help but admiring the skills, fitness and talents of the players to perform at the highest levels of their chosen sports.

One of the most seminal decisions in bankruptcy law is the High Court decision of The Trustee of the Property of John Daniel Cummins, A Banklrupt v Cummins (2006) [2006] HCA 6. 

In civil litigation, costs orders are where the court orders that one party pays another party’s legal costs. Costs orders can be made during or after court proceedings and may relate to the whole proceedings or a particular part of the proceedings. Costs orders are also assessed entirely at the court’s discretion depending on the facts of the case and the conduct of the parties.

Last week Frank Law presented a seminar entitled: Firing the ‘Unfireable’: How to dismiss someone and not get sued.

Compulsory retirement is when an employer forces an employee into retirement by either;

The recent decision of Estate of the late James Sundell [2019] NSWSC 1108 highlights the issues and complexities that surround making handwritten amendments to a Will after it has already been signed.

When a company is first set up, usually its purpose and subsequent structure is clear. Over time, the business grows, and the company may outgrow its current structure, or in the alternative, the business may find itself in financial strife and so the structure of the company may need to be reconsidered.

It is not uncommon for a spouse to accumulate debt following separation. If your spouse is partying it up, spending money on extravagant items, selling investments and increasing their credit card debt, it can make the family law property settlement problematic. This is because all assets and liabilities are included in the pool that is to be divided between the parties, and the value is at the current value, not the value at separation. What can be done about debts incurred post separation?

It is quite common in civil litigation proceedings for the Defendant or Plaintiff to be located in another state. The person you are intending to sue may live interstate or their registered office may be interstate. Either way, there are a number of things to think about if you intend to sue someone who is not in the same state as you.

One of the primary considerations when determining what is in a child’s best interests is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”: Family Law Act 1975 (Cth) (‘FLA’) s 60CC. This consideration is given greater weight than the benefit to the child of having a meaningful relationship with both parents.

If you are concerned that a Will was signed in suspicious conditions, you are able to challenge it. The NSW Court of Appeal in its recent decision of Mekhail v Hana; Mekail v Hana [1] had reason to consider this question and identified the major legal principles to be considered for a suspicious Will.

In the decision of Mondalez v AMWU [2019] FCAFC 138 handed down 21st August 2019, the Court has fundamentally changed the way many Australian employees are entitled to accrue sick leave. 

James Frank recently spoke at a Sydney Hills Business lunch on how the Internet has changed the business game. The following article is a summary of what he spoke about.

When a person who owes you money becomes bankrupt, it may become a lot more difficult for you to recover your debt. A trustee (being a person or entity) steps in to manage the bankrupt’s affairs. The trustee works with the bankrupt individual and the bankrupt’s creditors to achieve a fair outcome for all. While the trustee will endeavour to ensure all creditors receive due payment for the amounts owing to them, creditors may have to commercially accept ‘cents in the dollar’ to ensure they receive some payment for their debt.

If you decide to commence court proceedings to sue a debtor for an amount they owe to you, the first step is to draft and serve your originating process. ‘Originating process’ are the documents used to commence legal proceedings and to notify the defendant of the case against them. This usually takes the form of a Summons or Statement of Claim, which must be served personally on the debtor to ensure they are aware of the proceedings. The court will not hear the case until they are satisfied that the defendant is aware of the proceedings and that the documents have been personally served.

In a family law matter whether it be in a lengthy litigation battle or attempting to settle matters outside of court, the most frequent issue that arises is not a question of law but of fact. Specifically, how much is a particular asset or liability worth. A valuation may then be required to resolve the dispute regarding the value of the item.

There is much more to succession planning than simply putting in place a generic Will, and a Power of Attorney and Guardianship appointment document.

Unlike wine, debts don’t improve with age. Once you have made a decision to take action to recover a debt, it is important to move quickly in deciding the means by which you will pursue repayment.

Whenever we speak to clients about why their business is struggling and explore restructuring options we continually hear common myths about the Voluntary Administration (VA) process. We have detailed the 5 key myths below:

When running a litigation matter, that is, any Court matter, it is critical to be able to prove to the court that your court documents were delivered to the other side. Afterall, if the other side did not receive your court documents then how do they defend themselves and how is justice upheld in the court system? This is where a process server comes in handy.

Parents with children under the age of 18 years have a responsibility to financially support and provide for their children. When marriages or de facto relationships break down causing the parents to separate, that financial responsibility to their children does not end. As a result, the primary carer is usually entitled to receive money from the non-primary carer to assist with providing for the children. This is to pay for food, clothing, education expenses and the day to day expenses in raising children. This payment occurs by way of child support.

When children are taken and not returned to their usual parent at the agreed upon time and location it can be cause for serious alarm. Questions like “Where are my children?” “Are my children safe?” “How do I get them back?” arise. The Court has a clear process for the recovery of children if children are kidnapped.

Voluntary Administration is a formal restructuring process contained within Part 5.3A of the Corporations Act. It has more recently become a strategic tool used by directors to protect themselves from insolvent trading breaches but also to ‘reset the business’ in times of shock.

The Duty of Disclosure

Some people believe that in Family Law a parent with a mental health issue will be disqualified from spending time with their child. That is not the case. The paramount consideration in parenting matters is what is in the best interests of the children, which is having a meaningful relationship with both parents while minimising harm to the child.

On 19 September 2017 the safe harbour laws commenced which enabled directors to turn around struggling companies without exposing themselves to personal liability under Australia’s insolvent trading laws.

The Family Law Act 1975 states that the best interests of the children are served by a meaningful relationship with both parents in a safe environment. Where there are allegations of abuse or harm, it needs to be considered how best to facilitate time with mum and dad in a safe manner. Accordingly, supervised contact may be an appropriate solution.

If someone owes a debt to you that they refuse to pay, you may wish to take legal action to pursue them for payment of the amount owing. If you decide to sue someone for the debt, the first question you must consider is the applicable jurisdiction. In other words, you need to ask yourself the question, ‘In which jurisdiction should I pursue my debt?’.

Introduction

The actions of employees regularly get employers into trouble. Whether it’s a disgruntled employee as they leave their workplace or a trainee starting out, there can be many issues that need to be accounted for by the employer. But what about criminal activity?

Every matter involving parenting arrangements is different; they each have their own uniqueness that requires careful consideration by the court. However, across all cases, the court’s key consideration is what is in the best interests of the child.

The sense of loss and grief after losing a loved one is heightened when the Executor seems to be unwilling or is unable to process the Will by applying for the grant of probate. A delay can see the assets devaluing.

All of us have been in a situation at one point or another where we owe someone money. Whether it’s paying someone back for dinner or obtaining a loan from a multinational financial institution, the burden of debt can be crippling for individuals and businesses alike.

The Personal Property Securities Register is a great tool for parties who lend money, supply goods on account or enter into asset leases. However, one common problem is the laziness of lenders or suppliers in perfecting their security interest.

Consultant Conrad Liveris released a report, based on the annual reports and websites of ASX200 companies, identifying commonalities and norms in the educational and professional experiences of CEO's. According to his analysis, the CEO candidate pool has remained narrow (despite the fact that business is increasingly global) and the pathway to become CEO has likewise remained narrow and has changed little over time. The report questions, in the context of increasing community expectations of Australian business, whether businesses should consider revisiting their approach to ensure they are recruiting the best available talent rather than sticking with the familiar.

The Sydney property market has seen enormous growth. The median price has risen by some 412% in the past 25 years. Pegged to this has been the growth in certain industries such as trades and services or manufacturing.

Last month, the Australian Law Reform Commission (‘ALRC’) released its report, ‘Family Law for the Future – An Inquiry into the Family Law System’ (‘the Report’). The ALRC spent 18 months working on the inquiry, which was headed by the Honourable Justice Sarah Derrington.

With the update of the Family Violence Plan in April 2019, the Courts have continued to recognise the importance of protecting those experiencing family violence, and the detrimental impact on the health and wellbeing of separating partners and children in situations of family violence.

In the case of Carrier v Bonham [2002] 1 Qd R 474 Queensland Court of Appeal, Bonham was a psychiatric patient with a long history of schizophrenia. He was being detained in a hospital and escaped. Carrier was driving a bus when Bonham jumped in front of the bus with the intention to harm himself. Carrier attempted to brake, however, he was unable to avoid hitting Bonham.

Medical Negligence, also known as medical malpractice, is the failure from a healthcare provider to treat a patient with reasonable skill and care, causing injury as a result. This includes GPs, dentists and specialists.

A Testamentary Trust Will is used to give a legacy to one or more beneficiaries by utilising a trust for each beneficiary.   

What is a Mutual Will?

Domestic Violence is unfortunately common. Today 1 in 3 women have been or are in an abusive relationship. As Domestic Violence Prevention Month, this May, begins we look at 5 different ways to help us understand how we can respond and support those who we know are experiencing domestic violence.

Introduction

Currently there are 2,672,325 companies registered in Australia, therefore meaning that there at least 2,672,325 company directors in Australia. Fundamentally, the role of a director is a fiduciary in relation to the company. That means that they have a responsibility to place the companies interests before their own.

In our previous article, “What is a Statutory Demand?” we outlined what a statutory demand is and the high-level impact of not complying with it according to the Corporations Act 2001 (Cth). In this article we will explore the impact of a statutory demand from a creditor’s perspective and a debtor’s perspective.

Section 459E of the Corporations Act 2001 (Cth) explains that a creditor may serve a debtor with a statutory demand. A statutory demand is an instrument which sets out the demand and may have an affidavit attached to validate the claim.

Section 95A(1) of the Corporations Act 2001 (Cth) defines a ‘person’ (which includes a company) as being “solvent if and only if, the person is able to pay all the person's debts, as and when they may become due and payable.” Insolvent is defined in s95A(2) as being unable to pay all of its debts as and when they become payable. This definition clearly places the test on a cash flow test rather than a balance sheet test.

If you have been injured in an accident, you should act promptly as there are strict limitations for making an application before the court. The circumstances of the facts effect how statutory time limit restrictions apply.

There are key events for which people should immediately update their estate planning documents, such as a marriage, a death of a spouse, a breakdown of a marriage or a birth of a child. Without updating your will with these changes, they will not be considered when your will is executed.  

Total and Permanent Disablement Insurance (TPD) is designed to provide a lump sum benefit to the claimant in the event of a medically diagnosed event that renders them unable to work again.

This article uses the matter of Reilly v Reilly [2018] NSW CA 322 to outline what an Enduring Power of Attorney is able to do without express power.

When partners purchase a property together they are known as joint tenants. The most important legal concept in joint ownership is survivorship. So, what does that mean?

The question of who has duty of care, and therefore who is at fault, is the main issue with negligence leading to a sports injury.

The National Redress Scheme (the Scheme) was created in response to recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). The Royal Commission listened to thousands of people about the abuse they experienced as children and the Scheme was designed for victims of institutional abuse.

Introduction

Although the legislation relating to Financial Agreements seems clear-cut, Financial Agreements are often overturned or set aside by the Court for a variety of reasons. This makes it more difficult to guarantee that a Financial Agreement will indeed be ‘binding’. When considering the application and utility of Financial Agreements in practice, it is therefore prudent to weigh the advantages of entering into a Financial Agreement against the drawbacks or risks associated with it.

Introduction

On American television shows and in movies, the term ‘pre-nup’ is often thrown about. You may be interested to know that there is actually no such thing as a pre-nuptial agreement in Australia. Rather, under Australian law, people can enter into a Financial Agreement at any stage of their relationship to deal with their financial settlement or financial support after the breakdown of the relationship.

It is an interesting scenario when considering if the assets of a testamentary trust should be treated as property in a divisible pool of assets in a family law dispute. More commonly these issues have been considered in relation to inter vivos Discretionary trusts.  There is however, a series of family law cases which help to establish key principles.

We often find that directors are unaware of an important section of law: Division 269 to Schedule 1 of Taxation Administration Act 1953 (Cth). This places a positive obligation on Directors to cause the company to meet its pay-as-you-go (PAYG) and superannuation guarantee charge (SGC) liabilities or to take action to ensure that the corporation takes certain steps.

As already identified in a previous article titled, How to Restructure your Business: Part One, the broad insolvency process in Australia can be broken down into 2 stages:

In the matter of the Estate of Hawkins; Huxtable v Hawkins [2018] NSW SC 174, Mr Justice Lindsay was asked to consider whether the Plaintiff could successfully bring a claim against the estate of her de facto partner when the relationship was of only 3 years standing.

Estate planning is often thrown to the wayside with the busyness of life. A client receives professional advice, but the distractions and responsibilities of life keep them from implementing such advice.

On 14^th March 2019, Commissioner Chris Jordan AO addressed the Tax Institute’s 34^th National Convention and highlighted several key points for professionals to learn from. These will be outlined in this article.

Australian businesses are increasingly engaging workers overseas attempting to overcome skill shortages or simply lowering labour costs. Opening offices overseas or establishing overseas joint ventures usually involves Australian companies sending Australian management overseas and then, along with hiring local workers, establishing overseas branches to assist in their Australian operations. But advances in technology are progressively making it unnecessary for Australian businesses to relocate employees overseas, they can simply ‘hire and fire’ overseas workers from the comfort of their Sydney-based HQ offices.

The insolvency process in Australia can be broken down into two stages.

1. Restructuring: when there is a possibility that the company can turnaround or be salvaged
2. Winding Up: when the company is irretrievably insolvent and has no real possibility of a turnaround or resurrection

Suppliers asking a Business Owner or Director for a personal guarantee is a well-trodden path.

The duty of disclosure requires all those in family law to provide all information relevant to the family law proceedings. In family law financial cases this means that those involved are required to provide ongoing relevant information such as bank statements, tax returns and financial reports. However, it is not uncommon for some to be reluctant in disclosing relevant information. Afterall, if you disclose an asset then that asset may form part of the family law proceedings. So, it becomes difficult for those who are trying to get accurate and up to date information on those assets.

Introduction

The Australian family law system is currently undergoing many changes, leading to a highly politicised and uncertain environment that has only exacerbated issues with the court system. While it may seem that governments and lawyers alike are the only beneficiaries of the inefficiencies of the family law jurisdiction, one form of alternative dispute resolution is on the verge of making a great resurgence that may make clients the real winner. 

What is the PPSA?

The PPSA is a regime established by the Personal Property Securities Act 2009 (Cth) (PPSA) and the Personal Property Security Regulations 2010 (Cth).

The Australian Law Reform Commission in 1988 in its General Insolvency Inquiry set out the range of purposes for insolvency law in Australia which largely revolved around the efficiency and administrative process rather than the possible rehabilitation, restructuring and turnaround possibilities.

The Decision of the Supreme Court of the Australian Capital Territory, 29 January 2019 Southwell v Staite [2019] ACT SC2 reminds us that under the Bankruptcy Act when a beneficiary who is bankrupt receives money owing under a will it automatically becomes the property of the Trustee to be paid over to creditors.

The provisions of section 59 of the Succession Act 2006 prescribe that:

We all would like to live in a world where there is no fighting or violence, but the truth is that in Australia currently, at least one woman dies from domestic violence a week. Often domestic violence is kept secret within the walls of the home, with family and friends unaware. We must be more educated and socially aware to offer support and help people suffering this danger. Victims should not feel ashamed and know that there is support available to help them change their circumstances.

Setting up a company is relatively easy these days. If you fill out the right form and pay the right fee, you can have a company before the week is out. However, one of the more mundane details on the form – listing the registered office – could actually be the undoing of your company, or your clients’ companies, if you fail to keep it updated.

Have you ever wondered what the key principles are for the court when deciding about a Family Provision Claim brought by an adult child?

Quite often we have clients referred to us to sell their business.

The sale can be for a variety of reasons. They may be retiring, unwell, looking to downsize operations or may have been approached by a larger Company. Whatever the reason, it is common that the purchaser only wants the ‘good’ and not the ‘bad’ while our client (the seller) wants the good and to dispense with the bad.

Spousal maintenance is ongoing financial support paid by a party of a marriage to their former partner in circumstances where the former partner is unable to support themselves. In de facto relationships, this is called de facto partner maintenance. For the purposes of this article, both types of maintenance will be referred to as ‘spousal maintenance’.

It is not uncommon in family law proceedings for a party to post on social media about their separation. It is so common in fact, that many may think that venting on social media, or indeed any media available to the public, is acceptable. This could not be further from the truth.

For the first time in over 40 years an inquiry has been made into the family court system. The Family Court system has been criticised as ‘painstakingly slow’ and ‘prohibitively expensive’ time and time again. To remedy this, the government has proposed a merger between the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCC) without waiting for the release of the Australian Law Reform Commission’s final report, which is scheduled for 31 March 2019.

Claims for psychiatric harm are becoming more common due to social change and awareness. There has been an influx of claims being made against employers for not protecting their employees from exposure to psychiatric harm. These claims are being made on the basis that an employer owes their employee a duty of care. Duty of care is the obligation to ensure the safety or well-being of others.

Santos Ltd, Australia’s second largest independent oil and gas producer, recently lost an appeal in the Supreme Court of Queensland: Court of Appeal against BNP Paribas.

In 2018, ABC’s Four Corners program investigated the grip of the sugar industry on global policy efforts to cease the rise of obesity. The epidemic of obesity has been a major problem in Australia, with some advocating for a sugar tax to solve the problem. The program focused on some of the tactics that companies who use excessive amounts of sugar in their products utilised to skew the public’s perception of sugar.

A Power of Attorney is a document where a ‘principal’ authorises an ‘attorney’ to act on behalf of the principal for financial and property related decisions. However, an attorney for an individual cannot step into the individual’s role as director of a company.