HHG’s Ben Majoe and Biljana Radulovic from the Family Law team provides insight into forensic accountants & how to locate assets in Family Law proceedings.

In family law proceedings, the first step is to identify the assets, liabilities and financial resources of the parties.  This is not an easy task, as more often than not, assets are willfully hidden by parties.
Disclosure in Financial Cases

Each party to a family law matter has an obligation to make full and frank disclosure of all information relevant to the case, in a timely manner.
Rule 13.01 of the Family Court Rules 2004 (Cth) states the duty of disclosure is ongoing from the time that the parties begin conferring in regard to, a potential property settlement (even if they have not commenced proceedings in the Family Court) until the matter their property proceedings are finalised.
As family lawyers, we frequently engage forensic accountants to not only unravel complex business structures but to assist with determining the extent of the asset pool, valuing interests of a party in various entities and providing advice as to structuring a settlement.

How can a Forensic Accountant assist their client with their disclosure obligations?

Accountants have an important role to play in assisting family lawyers in family law proceedings.
Accountants can assist Family Lawyers in presenting clients’ information clearly by:

creating a consolidated schedule of assets and liabilities;
creating mind maps of entities;
explaining complicated financial transactions; and
clarifying complicated transactions.

‘Red Flags’

The following examples act as ‘warning signs’ that a party to proceedings may be hiding or undervaluing specific assets:

Failure to disclose assets or resources held offshore – for example, in off-shore tax havens in blind trusts;
Purchasing assets in the name of other parties;
Sale or transfer of an asset at a lesser value to a friend – this may be done by a party to hold the asset until the family law matters is finalised in attempts to keep it out of reach of their former partner;
Assets being undervalued;
Undervaluing goodwill of a business;
Concealing acquisition or disposal of assets post separation;
Excluding the work in progress in a partnership/business which has an impact on the businesses profit and asset value;
Failing to disclose details in relation to contracts acquired which are yet to be performed;
Prepaying tax;
Faking a robbery; and/or
Diverting funds – for example, a testator may choose to protect a party’s inheritance from potential divorce proceedings by leaving a party’s inheritance to their sibling.

Locating hidden assets: Where to look?

If a client suspects that their former partner has not made full and frank disclosure, they can utilise one or more of the following contrivances to assist with their inquiries:

searching Landgate or ASIC registers;
making an application in the Family Court seeking interim orders that specific documents are produced;
issuing a subpoena for the production of documents; and
be careful, as a forensic accountant, your file is generally not subject to LPP so the entire file can be subpoenaed.
seeking an Anton Pillar order from the Court for ex-parte seizure of property.

Clients can also utilise the services of a forensic accountant to assist them with their inquiries.
Additionally, it is imperative to marry up signed Form 13 Financial Statement to information available from other sources such as:

tax returns;
bank statements;
balance sheets;
depreciation schedules;
financial statements or loan applications;
credit card statements;
passports; and
BAS statements.

Examining Family Court files for previous separations parties have undergone can also assist with revealing assets available to a party.
We find that forensic accountants’ knowledge and experience in analysing financial documents, auditing techniques and their awareness of common methods of secreting property, is extremely useful in uncovering hidden assets. Through close co-operation between lawyer and accountant, it is possible to discover these undisclosed assets.

Get in touch
One of our experienced family lawyers at HHG Legal Group can give you advice on your rights and entitlements with respect to making proper arrangements for the children of the relationship or negotiating a property settlement.  Call 1800 609 945 or send us an online query.
 
 
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HHG Legal Group is excited to announce the further expansion of our Business, Tax and Property team with highly-regarded tax specialist Sam Radici joining us this week.
With over 25 years’ experience as a practising accountant and taxation lawyer, Sam brings with him the great ability to analyse complex technical legal and taxation issues and provide practical solutions to clients. He also has deep experience in dealing with domestic and international taxation, duty and corporate matters as well complex dealings with the ATO at an internal level and through Federal Court of Australia proceedings.
To find out more about how Sam can assist with your personal, business or property taxation requirements, view his profile here.
If you require assistance with any of your other commercial or property requirements, please contact us today.
 
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HHG is very proud to announce the recent appointment of our Senior Associate, Dianne Caruso, to the panel of Independent Children’s Lawyers.
“I am very proud and excited to have the opportunity to practice as an Independent Children’s Lawyer (ICL).  It is so important for children to have a voice in Family Court proceedings and someone to promote their best interests.   This is particularly so where there are vulnerable children in difficult circumstances” said Dianne. ” I feel the weight of the responsibility and importance of this role and I am committed to performing these duties to the highest standard, which is what these children deserve.”
In addition to Dianne, our Family Law Managing Associate, Dr Steve Cohen, was also recently appointed to the ICL panel.
What is an ICL?
An Independent Children’s Lawer is appointed by the court to represent children in parenting matters, to review the evidence and provide an opinion on the best outcome for the child. An ICL informs the child on how the family law court operates and potential decisions the court can make. They can have varied interaction with the child depending on the child’s other connections. An ICL must be impartial and always have the best interest of the child.
You can read more about ICLs here
If you need legal assistance with your current family situation, get in touch with our Family Law team
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HHG Legal Group’s Commercial Law and Dispute Resolutions lawyers Murray Thornhill, Blair Campbell and Nikolina Milošević discuss restraint of trade. 

Restraint of trade clauses are common clauses included in a wide array of commercial agreements (predominantly in sale of business and employment agreements). Their purpose is to restrict or prohibit a party (restrained party) from engaging in certain acts relating to their trade, profession or business, in a certain location for a specified period of time, for the benefit and protection of the other party to that contract (restraining party).
Restraints of trade in sale of business contracts are more likely to be effective, and for a longer period of time, than restraints contained in employment contracts. Additionally, it is common practice to draft the clause as a cascading clause, where the restrained period of time, acts and geographical location gradually decrease. For example, the clause might state that the restraint is for a period of three years, and if that is considered unreasonable then it is for a period of two years, and then one year. If drafted correctly, and the restraining party has the time and financial resources to fund enforcement, they can be a good way to protect business goodwill.
When dealing with a restraint of trade issue a Court will begin its assessment from the perspective that a restraint of trade clause will be void, this is because of the public policy of allowing people to utilise their skill to earn a living as they choose. This perspective can be changed if the restraining party satisfies the Court of the need and reasonableness of the restraint.
The responsibility is on the restraining party to show to the Court why the restraint should not be void, and that enforcement is reasonable and necessary in the circumstances. The process involved in enforcing a restraint is often by seeking an urgent injunction to prevent the restrained party from continuing to breach the clause, and then proceeding to trial for damages arising out of a breach of the restraint.
The effectiveness of a restraint of trade clause will heavily depend on the circumstances of the case, the way the clause is drafted, whether the restraint is reasonable, and, most importantly, the interest being protected. An important consideration for parties to such action includes the resources available to the restraining party to enforce the restraint.
The matters assessed by the Court in deciding whether a restraint of trade is enforceable include:

Whether the restraint is reasonable – the restraining party must show that the restraint of trade does not go beyond that which is reasonably necessary to protect the restraining party;
Whether the restraint is harmful to the public interest;
How much of the purchase price of the business was attributed to goodwill of the business – the more consideration paid towards goodwill, the likelier it is that the restraint is necessary to protect the business;
The reasonableness of the restraint in real life, and not just in its contractual form;
The restrained person’s trade and potential to earn a living;
The geographical limitations imposed;
The period of time for which the restraint is in effect;
The commercial context – this includes the nature of the contract, industry, and the standard restraint practices in the industry; and
The types of acts which the party is restrained from engaging in.[1]

As with all injunctions, the Court also takes into consideration whether there is a prima facie case (i.e. a breach of the restraint) and whether the balance of convenience favours the granting of the injunction.[2] Again, the responsibility falls on the restraining party to show that the balance of convenience favours the grant of the injunction.
The principal factors the Court takes into consideration are:

Whether damages are an adequate remedy for the damage; and
Whether the damage the restraining party would suffer outweighs the damage which the restrained party would suffer if the injunction is allowed.

The restraining party must also be prepared to give an undertaking as to damages if the injunction is granted. This ensures that if the restrained party suffers damage as a result of the injunction, and the outcome of the proceedings following the grant of the injunction establishes that the restrained party did not breach the clause, damages will be payable by the restraining party to compensate the restrained party.
If you are considering selling a business, leaving a franchise, or signing an employment contract with restraint of trade clauses, or may potentially be in a situation where an employee or seller of the business you have bought is breaching a restraint, contact our experienced legal team to see how we can assist you with protecting your rights.
 
[1] Devil Dog Pty Ltd -v- Cook [2017] WASC 27, 12.
[2] Ibid, 11.
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HHG Legal Group is very happy to announce Anne Hurley’s return to HHG’s Business, Tax and Property Law Team.

After a six month sabbatical, we are excited to welcome back Anne, and her 35 years’ experience across the complex property and commercial transaction.   
With a career gilded with success, including notable mentions in Best Lawyers Australia for Property Anne is excited to be back to assist an array of HHG’s clients across supermarket retailers, listed Australian property developers, Western Australian property developers, local and international landlords and tenants in major property transactions.
To find out more about how Anne can assist your business or property portfolio, view her profile.
If you require assistance with any of your commercial or property requirements, please contact us today.
 
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Verge and Driveway FAQs by HHG Legal Group’s Property & Dispute Resolution Lawyers Murray Thornhill and Julia McCullagh 

With regular media reports filled with stories of residents’ shock at driveway access and front verge issues at their property, HHG Legal Group has pulled together some  answers to frequently asked questions which our property team lawyers are regularly asked about.
Do I own my verge?
No, you do not own your verge. The Local Government Act 1995 provides for local governments to care for, control and manage public land. Your verge is ‘crown land’ under the control of your local government.
Can the council control what I do with my verge?
The maintenance of a verge is the responsibility of the adjacent landowner or occupier. The Local Government Act 1995 gives powers to local governments to do certain things for the purpose of controlling and managing public land, this includes making local laws. What you can do with your verge is governed by the local laws of your local government and will vary depending on where you live.
What if I want to put up a swing or plant a garden?
Most local governments have lists of permissible “verge treatments,” which include planting gardens but have local laws preventing you from putting up “structures” without permission. Structures are generally considered to include built-up box gardens, swings and tree houses.
One reason why the local government may be reluctant to allow you to build swings and similar things on your verge is that (as the land is under their control, rather than private property) the local government is potentially liable for any injury.
Another reason that local governments may prevent you from putting up a structure on your verge is that they often have local laws aimed at protecting motorists’ lines of sight at intersections.  
The rules and local laws are, however, not always the same. Your first stop should be to check your local government’s webpage. The City of Vincent, for example, recently adopted a policy that allows residents to attach ladders, swings, cubbies and platforms to street trees, as well as decorations and lighting, residents can also install raised garden beds, seats, logs, rocks and various forms of paving on their verge.
Do I need local government approval to build a driveway?
Yes, local government approval is needed for the construction of that section of a driveway that crosses the verge from the road edge to the property boundary. Each local government has different rules and requirements for driveways (such as how wide they can be and how close they can be to street trees).  There are penalties for property owners who construct a driveway without council approval. Potentially they could be fined up to $5000.  Local governments also have the power to require property owners to repair the driveway and to remove a driveway that is no longer being used.  However, a property owner would not be prosecuted for a driveway constructed by the previous owner without approval. The local government also does not have the power to force a property owner to remove and re-do a driveway that was constructed by a previous owner and which does not comply with the local government’s driveway rules.
My local government won’t let me put up a swing or put in the driveway that I want. What can I do?
Under the Local Government Act 1995, if you are a person affected by an unfavourable decision you have a right to lodge an objection with the local government within 28 days. This objection must be reviewed by the Council or a sub-committee of the Council (rather than an employee of the local government).  You also have a right to apply to the State Administrative Tribunal (SAT) for a review of the decision. You can apply to the SAT for a review if you have not lodged an objection with your local government or if your objection was rejected or you did not receive a response.
Need more clarification? Contact our Dispute Resolution Team 
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Are you aware of your obligations as an employer?
Employment Law helps protect workers and employers, it defines the relationship between the employer and the employee. Knowledge of employment law is crucial for both parties to protect their rights. Awareness of these laws can save an employee from being taken advantage of and similarly an employer can protect their business operations.
Join HHG Legal Group’s Employment Law & Commercial Litigation Solicitors Gemma Wheeler-Carver and Murray Thornhill to learn more about Employment Law.
Topics to be covered are:

Is minimum wage really the minimum? 
Does an Award and/or agreement apply to my employees?
Determining employee entitlements (wages, overtime, commission, leave, allowances)
Can I contract out of employee entitlements? If so, which ones and how?
Consequences of incorrect entitlements – on the company AND individual directors and managers
Practical steps to take to protect yourself and your business

Details as follows:
DATE:             Wednesday, 16 October 2019
TIME:             5.00pm to 6.30pm
ADDRESS:     Level 1, 16 Parliament Place, West Perth WA
RSVP:            Please register through our event management system
This event is must-attend for small businesses in: 
 

building & construction;
manufacturing, warehouse & logistics;
hospitality & tourism; and
agriculture

We look forward to seeing you!
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HHG’s Murray Thornhill and Alex Turner have written this article discussing an interesting inheritance case involving unclarified adoption, guardianship and customary considerations. 

A recent decision of the Supreme Court of Queensland involved a fascinating and unique set of facts that made for an inheritance matter complex in both fact and law. It outlines the need for quality estate planning to ensure that not only are the testamentary intentions captured accurately but also that your specific family dynamics are taken into consideration, especially when there are guardianship and customary law factors.
The case
Sheralee MacGowan made an application to the Court for an extension of time to commence an application for provision from the estate of a deceased testator. Ms MacGowan brought her application on the basis that she was the adopted child of the deceased, Kenneth MacGowan (“Ken”). Ms MacGowan’s mother had been Ken’s housekeeper at his estate in Vanuatu, and she had passed away when Ms MacGowan was a young child. At the time the deceased died in 2012, he had returned to Australia and was living in Queensland. Ms MacGowan had lived in Queensland for a couple of years while she attended high school, but has lived in Vanuatu since 2008.
Ms MacGowan initially brought her application on the basis that she was the deceased’s biological child, and there was evidence that the deceased had told friends that he believed that he was her father. However, this was ruled out by DNA testing, resulting in Ms MacGowan instead relying upon an alternative argument that she had been adopted by the deceased. In particular, Ms MacGowan argued that the adoption occurred in accordance with the customary law of Vanuatu prior to her mother’s death. Ken, an Australian, had lived in Vanuatu for many years, and Ms MacGowan was born during that period.
The facts considered
When Ken passed away, he left Wills in both Australia and Vanuatu. The Australian Will left his estate in Queensland to his nieces and a charitable foundation, and included a wish (as opposed to a direction) that his property be retained to for ongoing use by friends and family, including Ms MacGowan (described as “…the girl of whom I was formally [sic] guardian until she turned 18…”). The Vanuatu Will left two of three lots of Ken’s Vanuatu property to Ms MacGowan, subject to certain conditions.
The Succession Act 1981 (Qld) permits an application for a provision by a “child” of the deceased person. The Succession Act includes within its definition of “child” an “adopted child”. An “adopted child” is defined to mean “… a child that is adopted by [the relevant person] … in accordance with the law of the State of Territory, or country, where the adoption takes place, as in force at the date of the adoption”. The Adoption Act 2009 (Qld) provided additional requirements because the purported adoption had occurred in Vanuatu, a non-convention country – the Court needed to decide whether Ken had adopted Ms MacGowan under customary law, whether that adoption gave Ken a right superior to that of any biological parent of Ms MacGowan, and whether Ken was placed generally in the position of parent to Ms MacGowan.
The Court considered expert evidence from legal academics in relation to what elements comprised a valid adoption under the law of Vanuatu, and specifically under the customary law of Tongoa Island, which was where Ms MacGowan’s maternal family came from. The nature of customary law – unwritten, differing from community to community and open to interpretation within the relevant community – meant that this expert evidence was crucial. The Court considered the evidence around what a ceremony would look like, whether the law would have permitted a female child to be adopted by a single male adult, whether a non-indigenous person would be permitted to adopt an indigenous child. The Court’s findings included that:

customary law would not have allowed Ken, as a foreign national, to adopt Ms MacGowan; and
adoption under the customary law did not sever ties between the adopted child and her biological parent(s), and so did not meet the requirements under the Adoption Act.

The Court also considered the later dealings between the parties to the 1993 ceremony and found that there was evidence that the ceremony was not perceived by the parties to it to be a final adoption. The biological family retained control of Ms MacGowan, and oversaw Ken’s support and care of her, giving the relationship the character of sponsorship or guardianship, rather than parental responsibility. Ken himself referred to the relationship as one of guardianship in relevant documents, such as his Wills, and expressed a view that the promise he made to care for Ms MacGowan was fulfilled once she reached the age of 18.
The outcome
The Court ultimately found that Ms MacGowan was not Ken’s daughter, adopted or biological, and hence she was not an eligible application for provision under the Succession Act and her application for an extension of time was refused. This meant it was not necessary for the Court to determine whether Ken had adequately provided for Ms MacGowan, although the Court did express the view that Ms MacGowan had a moral claim and would have been likely to receive substantial further provision had she been found to be an eligible applicant.
The Court did not make an adverse costs’ order against Ms MacGowan because, although she was ultimately unsuccessful, it was the Court’s view that the claim was not frivolous and involved difficult questions of law and fact. Further, the estate was valued in excess of $5 million and there was not the imperative of deterring the frittering away of small estates by unsuccessful claims that appears in other decisions of the Court.
What can we take away from this case?
This case highlights two things:

each case under the Succession Act or comparable legislation across Australia is determined in relation to the very specific facts of that case; and
eligibility to make a claim for provision from a deceased estate is limited to a narrow class of applicant, indeed narrower than simply those persons who community standards would perceive to have a “moral claim” to provision from the estate.

How can I avoid a dispute in relation to my estate?
Quality estate planning advice is vital to ensure that not only are your testamentary intentions captured accurately but also that your specific family circumstances, customs and dynamics are taken into consideration. This becomes extremely important where you have a concern that there could be a dispute between family or friends after you are gone.
Someone close to me has passed away, and I believe they should have provided for me in their Will. Is there anything I can do?
If you have specific enquiries about the estate of someone who has passed away, you should consider seeking legal advice, contact our Wills and Estates Litigation team.
 
 
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HHG Legal Group is a proud supporter of Alzheimers WA and is proud to be supporting their Walk to Remember locations this year in Perth, Mandurah and Albany.
Alzheimer’s WA, is the leading voice for people living with dementia in Western Australia and advocates for a world where people with dementia and their families are supported on their dementia journey. Walk with Alzheimer’s WA is in support of the 41,630 people living with dementia in Western Australia and every dollar raised will help ensure no one faces dementia alone.
Here are the dates and locations if you would like to support: 
Mandurah Walk to Remember
Sunday, 20 October 2019
Eastern Foreshore
Albany Walk to Remember
Sunday, 27 October 2019
Middleton Beach
Perth Walk to Remember
Sunday, 3 November 2019
Perry Lakes Reserve
For more information please visit walktoremember.com.au
If you wish to donate, you can do so here
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HHG Legal Group is very proud to announce Janene Bon’s ranking as a Leading  W.A. Wills, Estates and Succession Planning Lawyer and Murray as a Recommended Estate Litigation Lawyer in the 2019 Doyles Guide.

“Our Senior Counsel,  Janene Bon does a superb job leading the Wills & Estate team and assisting her clients with highly complex estate matters and Murray Thornhill, in his capacity as the head of HHG’s Commercial team, is highly regarded for his Estate Litigation work across the state. We are thrilled to see them both recognised by their peers for their expertise and abilities in these areas,” said HHG Legal Group’s Chief Operating Officer, Nigel Richards.
In addition to the personal recognition of Janene and Murray, HHG Legal Group, as a firm, was recognised as a Leading Third-Tier Wills & Estates Law Firm in WA and a Recommended Wills & Estate Litigation Firm in WA, so these accolades also reflect the skills and client commitment of the whole Wills & Estate team.
If you require assistance with any of your Wills, Estates and Succession Planning requirements, please contact us today.
 
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HHG’s Stewart Kattowitz and Erin Papalia from the Family Law team provide some clarity around Child Support assessments in the following article.
When couples separate, they can choose to self-manage the financial arrangements for their child or children, or either one can approach the Child Support Agency (“CSA”) for an assessment for child support. When the CSA is required to make an assessment, then it will use one of many formulas available, and based on that relevant formula, calculate the required payment.
 

What about non-parent carers?
The child support laws also operate in favour of non-parent carers. A non-parent carer may be eligible to receive child support from either one or both parents of the child or children. There are specific provisions that address non-parent carers that may impact on such carer eligibility despite the level of care that is in place. It is a tangled maze to navigate and to proper examination is required to discern the application of the child support laws to the individual circumstances.
 Which law applies to me?
The child support regime now operates uniformly throughout Australia. Previously, the child support laws discriminated between married and unmarried couples living in Western Australia. For married couples living in Western Australia, the Child Support (Assessment) Act 1989 (Cth) applies. Until recently, for unmarried couples living in Western Australia the Child Support (Adoption of Laws) Act 1990 (WA) applied. 
The peculiarities of being a federation resulted in creative lawmaking due to the constant power struggle between the State of Western Australia and the Commonwealth of Australia. Accordingly, married couples living anywhere in Australia and unmarried couples, living in any other State or Territory outside of Western Australia, enjoyed the same national law concerning child support.  For unmarried couples living in Western Australia, the national child support laws were adopted up to a particular point in time and these adopted laws did not always apply contemporaneously. Additionally, the adopted laws did not always maintain pace with the changes made by the Commonwealth Parliament unless those were adopted. Accordingly, it was not usual for the child support laws to differ between married and unmarried couples living in Western Australia.
On 15 May 2019, the Western Australia Parliament referred its powers concerning child support for unmarried couples to the Commonwealth Parliament.
When child support is not enough – What do I do?
In circumstances when the parent receiving the child support payments objects to the assessed payment, the objecting parent can seek a re-assessment or departure of the original assessment. Whilst objecting parents may have varying motivations or reasons, it is important to keep in mind that the principal object of the child support law is to ensure that “children receive a proper level of financial support from their parents”.
However, there are avenues available for the objecting parent to pursue should there be a dispute about the assessed payment amount, namely:

seeking an administrative departure order via the CSA;

seeking a court-based amendment to the CSA assessment; or 

seeking a court-based departure order.

What does a departure order involve?
It is critical to remember that the objecting parent may be required to exhaust all administrative processes first before that parent can pursue court proceedings. Whether a parent is seeking a department from the CSA’s assessment through its administrative process or through a court proceeding, different thresholds will be applicable and must be considered within the facts of each individual case.
When an administrative departure is sought through the CSA, the objecting parent merely needs to satisfy the Registrar of the CSA that due to special circumstances that exist, there should be a departure from the assessment made by the CSA. Before a determination is made by the Registrar, several matters must be considered as well. 
In terms of seeking a departure from a court, the objecting parent must satisfy the court that it would be in the interest of both the parents to consider whether a departure should be made from the assessment made by the CSA. Before a determination is made by the court, several matters must be considered.
The matters to be considered by the Registrar when seeking an administrative departure are not as involved or complex as those matters that must be considered by the court when seeking a court-based departure order.
Are there any alternatives?
Separating couples can also enter in private, binding, agreements that deal with the arrangements for the financial support of their child or children. There are two kinds of such agreements, namely:

limited child support agreements; and

binding child support agreements.  

These agreements are complex, having varying strict requirements, and must conform with the legislative provisions of the child support laws. However, these agreements will greatly assist couples with defining what kinds of payments are made, received, and whether any discounts should be available for the paying parent.  Failure to properly account for the legislative provisions may result in the agreement being partly or wholly ineffective or non-binding.
Couples will also be required to lodge their agreement with the Registrar and it must be accepted by the Registrar.  
Get in touch
One of our experienced family lawyers at HHG Legal Group can give you advice on your rights and entitlements with respect to making proper arrangements for the children of the relationship or negotiating a property settlement.  Call 1800 609 945 or send us an online query.
 
 
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Gemma Wheeler Carver, Senior Associate and Murray Thornhill, Director and Notary Public from the Employment Law and Commercial Litigation teams update individuals and employers on the latest announcements.
As previously written, the state and national minimum wage increased as of 1 July 2019. Most employers would have by now undertaken a review of all their wages and implemented any necessary changes to employment contracts and your payroll.
However, have you also reviewed which Awards or enterprise agreements apply to your employees? If not, you might still be in breach of your obligations as an employer. Even if your employees are being paid at or above minimum wage, there are some common Awards that may include a higher figure for some or all of your employees. These Awards include:

Clerks – Private Sector Award 2010;
General Retail Industry Award 2010;
 Restaurant industry Award 2010;
Hospitality Industry (General) Award 2010 Building and Construction;
General On-site Award 2010 A full list of the relevant Awards; and
agreements can be found on the Fair Work Commission and the WAIRC websites. Each Award and agreement sets out the classification and rates that apply to different employees. Different rates may apply to employees who work weekends, nights and/or public holidays.

What are your first steps?
Once you’re sure you’ve correctly classified your employees, and have set up appropriate employment contracts and payroll processes, it is also important to ensure that you maintain ongoing records of payments made and that employees are provided with payslips reflecting those amounts.
What happens if I do nothing?
The Fair Work Ombudsman has this week successfully prosecuted an employer in Queensland for underpayment of nine employees, including for breaches of record-keeping obligations and failure to provide adequate payslips. The amount of the underpayments (including underpayment of superannuation) totalled less than $30,000. The penalties imposed on the company AND its directors totalled $125,700 (with nearly $20,000 of that amount payable by the directors).
The maximum penalties for breaches of the Award or the Fair Work Act related to underpayment of employees are $63,000 for companies and $12,600 for individuals. You will likely also be ordered to repay any underpaid amounts, including superannuation contributions. You can also be issued with infringements notices for failing to provide payslips or other record-keeping breaches. These are on-the-spot fines issued by FWO inspectors and can be a maximum of $1,260 per contravention for an individual or $6,300 per contravention for a company.
Where to from now?
We recommend you carefully review all of your employees and whether an Award or agreement applies to them (or to your business). If you’re unsure about which classification or rate applies, we can provide you with guidance, whether you require advice as to classifications and wages only or as part of an overall review of your employment contracts.
Even if you’re confident that you’re paying your employees at the correct rates, remember that it is also important to provide payslips and ensure records are kept of these payments. We can assist with setting up processes and templates to protect your business, directors and management staff.
How HHG Legal Group can assist.
Navigating these new reforms and their implications can be unclear to both individuals and organisations. If you require any advice on these reforms please contact Murray Thornhill or Gemma Wheeler-Carver on 1800 609 945.
This is general information only and does not constitute specific legal advice. If you are concerned for yourself or a member of the community, please contact HHG Legal Group.
 
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HHG’s Dr Steve Cohen, Managing Associate and Rachel Pocock, Lawyer from the Family Law team provides some clarity around separation from a de facto relationship. 
So, what does it mean in the realm of Family Law if you decide to shack up with your partner? Whilst you may not think that living with a partner has any legal consequences, this is often not the case?

A de-facto partnership carries with it the same legal rights and remedies as a marriage. This means that if you are a de-facto couple you have the same right to seek property settlement as a married couple does.
In Western Australia, the main exception to this is superannuation entitlements are typically dealt with differently. Currently, only couples who were married or those who are in a State or Territory other than Western Australia are able to seek a superannuation splitting Order in the Family Court.
Am I in a de-facto relationship?
The law for de-facto couples in Western Australia falls under the Family Court Act 1997 (WA) and the Interpretation Act 1984 (WA)
When deciding whether you are in a de-facto relationship, the Family Court considers the circumstances of the relationship and whether you are living together as a couple on a genuine domestic basis. In determining whether you are a de-facto couple, the Family Court will look at these factors (but they are not essential):

The length of the relationship;
The nature and extent of the common residence;
Whether 2 people have resided together;
Whether there it or has been a sexual relationship;
The degree of financial dependence or interdependence;
The ownership, use and acquisition of property;
The degree of mutual commitment to a shared life;
The care and support of children; and
The public aspects of the relationship.

What if you purchase a home together, only to realise you cannot live with that person in 2 months time?
In Western Australia, to seek relief from the Family Court a couple who have lived in a marriage-like relationship for a period of two years and have resided in Western Australia for a third of their entire relationship may be enough to invoke the jurisdiction.
If you have not been in a de-facto relationship for a minimum of two years, the Family Court may not have jurisdiction to assist.
However, if you have made substantial contributions to the acquisition, conservation, or improvement of any property, to the welfare of the family, or have a child together, you may be able to apply to seek permission from the Family Court to assist in resolving your property dispute.
What if we breakup?
If your de-facto relationship comes to an end, you have two years to apply for a property settlement after your separation. If you seek a property settlement after this time, you will have to seek the Court’s permission.
Get in touch
If you are separating from your de-facto partner, one of our experienced family lawyers at HHG Legal Group can give you advice on your rights and entitlements with respect to making proper arrangements for the children of the relationship or negotiating a property settlement.  Call 1800 609 945 or send us an online query.
 
 
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Daniel Morris, HHG Special Counsel had the pleasure of chairing the panel discussion entitled “Doing it Overseas – the legal tips and tricks for taking construction smarts to foreign jurisdictions” at the 2019 Society of Construction Law of Australia Conference (SOCLA) on the weekend. 
The session saw the preeminent panellists discuss various important issues in construction law with an international perspective.
Alastair Oxbrough, a consultant at HFW and Alexander Swift, contract administrator at Hansen Yuncken started off the session by presenting on the difficulties superintendents face when wearing their ‘two hats’ and the way forward;
The Hon Wayne Martin AC QC, immediate past Chief Justice of the Supreme Court of Western Australia discussed the strengths and weaknesses of international arbitration of construction disputes, and pointed out that given modern case management procedures, arbitration and litigation are becoming increasingly comparable;
The Hon Peter Vickery QC, recently retired judge of the Victorian Supreme Court and longstanding patron of SOCLA; and
Basil Georgiou, construction partner at Jackson McDonald and longstanding patron of SOCLA’s WA division raised the issue of unenforceable liquidated damages clauses and provided an innovative and quick solution to the problem.
It is of no doubt that all attendees have benefitted from these excellent presentations. Well done to SOCLA and the Conference Sub-Committee for organising yet another successful conference.
 
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Written by Dianne Caruso, Senior Associate and Simon Creek, Managing Director and Special Counsel, Family Law
The recent Full Court of the Family Court of Australia decision of Keating & Keating [2019] FamCAFC 46 discusses the evidentiary requirements necessary to successfully run a Kennon argument, which is essentially that family violence perpetrated by one party has adversely impacted upon the other party’s contributions to the marriage. The majority of the Court held that there must be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions, however quantification of the effect of the violence on the contributions was not necessary. In this article I discuss some of the Full Court decisions discussed.

The Full Court of the Family Court of Australia in the decision of Kennon & Kennon (1997) FLC 92-757 found that family violence was of relevance to property settlement proceedings within the assessment of contributions. Fogarty and Lindenmayer JJ stated at 84,294:
“…where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.”

Their Honours went on to state:
“It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.”
In the unanimous Full Court of the Family Court of Australia decision of Spagnardi & Spagnardi [2003] FamCA 905, their Honours Kay, May & Carter JJ held at paragraph 47:47. “An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
• The incidence of domestic violence;
• The effect of domestic violence; and
• Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).”
The Full Court of the Family Court of Australia handed down the decision of Keating & Keating [2019] FamCAFC 46 on 21 March 2019. In this decision their Honours, Ainslie-Wallace and Ryan JJ, found at paragraph 38, that the reference to “quantification” in the decision of Spagnardi (supra) appeared to elevate the need for a “discernible impact” between the conduct complained of and its effect on the party’s ability to make contributions as set out in Kennon (supra).

Their Honours went on to state that perhaps the use of the word “quantification” by the Court in Spagnardi (supra) was “infelicitous” when in fact, the Court “was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions”.

Their Honours went on to confirm it is well settled that a party does not require corroborative evidence before evidence of family violence can be accepted (paragraph 42), and quoted from the decision of Amador & Amador (2009) 43 Fam LR 268 in which the Full Court stated at paragraph 79 of that Judgment:
“Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.”

Ainslie-Wallace and Ryan JJ stated at paragraph 34:
“…the wife gave evidence about a course of significant family violence which was prolonged, had a significant adverse effect on her and undermined her parenting and her ability to contribute.”

They held at paragraph 43 that the primary Judge misdirected himself in focusing on there being no evidence of quantification of the husband’s violence on the wife’s capacity to make contributions. The appeal was allowed and the matter was remitted for rehearing.

Austin J dissented finding at paragraphs 65 and 67:
65. “…when they make allegations of family violence in litigation, the veracity of their contentious allegations must be tested and evaluated by the same forensic techniques as apply to all other contested issues of fact. In the adversarial process, procedural fairness demands that such allegations are not insulated from challenge.”…

67. Without in any way trivialising the serious repercussions of family violence, the wife needed to do more than allege her victimisation by the husband and express her distress about it before her contributions could have been accorded greater weight under Part VIII of the Act.”
The question arises whether the decision of Keating will result in an increased number of Kennon arguments being run due to what may be perceived as an acceptance that the circumstances of family violence are inconsistent with the notion of quantification of the impacts of family violence on contributions, and evidence of significant family violence, its impact on the victim, and their ability to make contributions, constitutes sufficient evidence to successfully run the argument.
If you need any assistance, we have experienced lawyers at HHG Legal Group who can assist you with these family matters. Please contact HHG Legal Group’s Family Law team on 1800 609 945 for assistance.
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HHG Legal Group is proud to announce the internal promotion of three of our rising stars to Associate.

Congratulations to Gina Nofal, Patrick Beilby and Biljana Radulović working across our Commercial, Commercial Litigation and Family Law teams.
Gina Nofal assists and represents both corporate and individual clients with their business and dispute resolution matters across all Courts in WA. Her diverse experience across general and commercial litigation, wills & estates and insolvency brings a well-rounded approach to matters with a commercially focused outlook.

Patrick Beilby advises and represents clients through all stages of the dispute resolution process across their building and construction, general commercial and wills and estate disputes. He has a wealth of experience in litigation, including advising on matters and appearing in all WA Courts as well as representing clients in the State Administrative Tribunal.

Biljana Radulović is an experienced and empathetic Family lawyer who assists clients across divorce proceeding, property settlements and parenting matters. She is also a highly skilled linguist, proficient in seven languages, allowing her to be a trusted advisor and a comfort to limited-English speaking clients experiencing family legal issues.

HHG Legal Group Director Murray Thornhill said, “I’m so proud of the upcoming talent pool across all our practice areas at HHG Legal Group and it’s Gina’s, Patrick’s and Biljana’s exceptional client service and technical ability that has been rewarded in this year’s first round of promotions.”
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Blair Campbell, Senior Associate and Murray Thornhill, Director and Notary Public from the Commercial Litigation Team update individuals and employers on the latest announcements.
With the recent raids by the Australian Federal Police on the Australian Broadcasting Corporation and an Australian journalist’s home reminding us that whistleblowers are at risk of prosecution, Australia’s whistleblower laws have been criticised for providing inadequate protection.
 
There is a growing recognition of the need for better protection of whistleblowers in the private sector across the world. The EU Parliament recently approved the new EU ‘Directive on the protection of persons reporting on breaches of Union Law’, which provides for internal and external reporting channels, and protection measures. Similarly, in the US and Canada, sophisticated whistleblower protection frameworks are already in place. The new amendments should put Australia on par with these countries.
What are the reforms?
While the Public Interest Disclosure Act 2013 (Cth) provided protection for whistleblowers in the public sector, those in the private sector had limited protection until now, with the long-awaited whistleblower reforms officially coming into effect last week
Officially commencing on 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) provides a ‘single, strengthened whistleblower protection regime’ that ‘covers the corporate, financial and credit sectors’.[1]
The amendments have now widened the scope of protection, including:

who may make a disclosure;
to whom the disclosure can be made;
matters that can be disclosed; and
the level of protection for whistleblowers.

These changes allow for enhanced protections for whistleblowers. These protections include protecting the anonymity of whistleblowers’ identities, where previously whistleblowers were required to disclose their identity as a pre-requisite to being eligible for protection under the Corporations Act 2001 (Cth).  Furthermore, these amendments protect whistleblowers from criminal or civil liability. A range of protections, such as court-ordered compensation and injunctions, are also available if the whistleblower suffers detriment.
In particular, the amendments provide a clear structure for disclosure. For a disclosure to attract protection the disclosure must be made to either:

ASIC,
APRA,
a prescribed body,
an eligible recipient of the relevant regulated entity, or
a legal practitioner for the purpose of obtaining legal advice.

What are my organisation’s obligations?
Certain companies, such as public companies and large proprietary companies, must implement a whistleblower policy that informs officers and employees about protections available to whistleblowers, how disclosures are to be made and investigated, and ensuring fair treatment of the whistleblower and related employees.
Where to from now?
It will be interesting to see how the reforms play out in practice however, there is now a statutory mechanism for private sector whistleblowers to report their concerns to recognised legal authorities without recrimination.
How HHG Legal Group can assist.
Navigating these new reforms and their implications can be unclear to both individuals and organisations. If you require any advice on these reforms please contact Murray Thornhill or Blair Campbell on 1800 609 945.
This is general information only and does not constitute specific legal advice. If you are concerned for yourself or a member of the community, please contact HHG Legal Group.
 
 
References.
[1] Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth) Revised Explanatory Memorandum.
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The Fair Work Commission announced recently its annual wage review under the Fair Work Act 2009. It is understood that 21% of Australians will be affected by this rise:
• the National minimum wage is set to increase to $740.80 per week or $19.49 per hour (up 3%); and
• Modern Award minimum wages will increase by 3%; and
• The National Training wage will increase by 3%; and
• Modern Award minimum wages for those employees with a disability, and for those with training arrangements will increase by 3%
Employers – Who is affected, what do they need to do and when?
Employers will be required to review the employment contracts of any employees that are paid wages at the minimum wage (or within 3% of that), or are under a modern award or other industrial instrument such as an Enterprise Agreement.
This increase must take effect in the pay period on or after the 1st July 2019.
Employers in the West Australian state industrial system (sole traders and unincorporated trusts and partnerships) will need to wait a week or two more for announcements of increases to the state minimum wages, but should have processes in place to pass on the increases in the first pay cycle of July 2019.
Need a hand ensuring you are complying with the minimum standards or to make sure your employment contracts are otherwise compliant?
Please call HHG Legal Group’s employment law and employee relations team on 1800 609 945
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Managing Director and Special Counsel, Simon Creek, joins Channel 9’s Tracey Vo to discuss the latest that is happening with this class action.  Watch the clip below for more on what Simon Creek had to say.

https://www.hhg.com.au/wp-content/uploads/2019/06/300519-Cabinet-makers.mp4
 
Tracey Vo [00:00:00] Stone workers exposed to a potentially fatal lung disease from cutting kitchen bench tops and joining a major class action which was launched today. Let’s bring in lawyer Simon Creek from HHG Legal Group. Hi Simon. Hello. Do you think this could be as big as the asbestos issue?
Simon Creek [00:00:16] Look I hope all lawyers are wrong on this one. I think the whole country is going to be holding their breath crossing their fingers and hoping that this is not the new asbestos but it’s too early to tell. And until further medical and legal evidence is at hand we’re going to have some trouble for seeing the future. What I can say is that you don’t kick off a class action without being fairly confident that there’s some serious trouble at large.
Tracey Vo [00:00:43] Yes sure. What is the product liability issue that arises here?
Simon Creek [00:00:47] I think this is going to be the toughest issue to get up on because we all know large manufacturers they’re very very good at hiding any liability that might be sitting with them now or that they found or discovered during the production process. But at the end of the day if at any time they can be found or sat on research or evidence that they should have revealed then that is a product liability crisis for them.
Tracey Vo [00:01:13] Absolutely. Can you talk us through about the occupational health and safety issues as well?
Simon Creek [00:01:18] And I think there’s a great link here to the the overall liability issue. But here we’re talking about employees we’re talking about purchasers of the product what warnings were they given by the manufacturers. Did they have any heads up at all that when they started to use the product in their own businesses it may harm their employees in the way that it has?
Tracey Vo [00:01:40] There’s certainly a big and interesting story. Simon, what do you think is going to happen next?
Simon Creek [00:01:44] It again I hate saying this but it really is too early to tell. Sure. But so far we are talking about people who have died. We know that we are talking about a lot of people who have lodged claims and that never bodes well for the future of a case like this.
Tracey Vo [00:01:59] And I suspect it will take some time as well for the case to go through the courts. It will indeed be lots of evidence to go through. All right Simon Creek thanks so much for your time this afternoon.
Simon Creek [00:02:08] My pleasure.
 
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Managing Director and Special Counsel, Simon Creek, joins Channel 9’s Tracey Vo to discuss a California couple being awarded almost three billion dollars after a jury agreed the roundup weed killer they had used for more than 30 years caused their cancer. Watch the clip below for more on what Simon Creek had to say.

https://www.hhg.com.au/wp-content/uploads/2019/06/160519-Round-Up.mp4
Tracey Vo [00:00:00] A California couple has been awarded almost three billion dollars after a jury agreed the roundup weed killer they had used for more than 30 years caused their cancer. There are reports thousands more cases are now set to be launched against the chemical giant. Let’s bring in Simon Craig from HHG Legal Group. Good afternoon to you Simon. Why is this case so significant.
Simon Creek [00:00:21] Significant because the amount of evidence that’s allowed or has been allowed to be introduced to this particular case hasn’t been allowed before and it totally changes probably the world’s outlook on Roundup. One of the most common garden chemicals that we’ve probably all used.
Tracey Vo [00:00:39] What does what does this mean for people here in Australia.
Simon Creek [00:00:42] It means I’d stop using Roundup. It really does. Now of course you really careful what I say. But at the end of the day this case backs any decision to stop using Roundup. And it shows that these large chemical manufacturers cannot conceal from the general public all of the evidence reporting and scientific test results that we should all see whenever we decide to use a chemical.
Tracey Vo [00:01:05] All right  have we seen any situations here in W.A. where someone has been awarded such a significant amount or payout.
Simon Creek [00:01:12] No but this is still new in the US. This is literally a groundbreaking decision and it does open the door in Australia for lawyers to be talking to clients about whether or not roundup played a role in their particular medical situation. More importantly than that though I think it’s a big warning to us all as to whether or not we treat this particular garden talk excuse the phrase chemical as something that we can continue to use.
Tracey Vo [00:01:41] Will the cases arise in the future in Australia? It sounds like they will. We’ve mentioned already thousands more potential cases coming out from this particular outcome with this couple so I mean it’s obviously a very lengthy kind of situation and case to deal with. So where to from here? I mean for the for the company but also people who might consider taking this sort of action.
Simon Creek [00:02:01] Yeah well the company’s already taken a massive hit to its share price. And I’d say putting that aside it’s not just the manufacturer that needs to be worried. It’s anybody who is promoting the use of roundup. And I would say farmers agronomists the DIY gardening company everybody needs to be careful now. We’ve all been given a heads up. Is this safe to use or is it not.
Tracey Vo [00:02:26] Three billion dollars is a huge payouts. We’ll see how it all plays out in the future for that particular company. All right Simon Creek thank you very much for your time.
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