The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) are acutely aware that the current pandemic is having an enormous impact on families and the Australian community.
Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives. Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times.
The purpose of this statement is to clarify that the Courts remain open to assist parties, and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.

It is imperative that parents and carers act in the best interests of their children.  This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements.  This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with court orders very difficult, if not, impossible.  This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties.  These should be considered sensibly and reasonably.  Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached.
If you feel that you need further guidance, the Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit the website here.
Parents and carers can also mediate their differences through lawyers. Electronic mediation services are available from the Courts and through local Bar Associations and Law Societies during these restricted times. Visit their websites for more information.
If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.
Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).
It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.
The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police.
The perpetration or threat of family violence is never in the best interests of the child. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police and seek medical advice if required.

In the meantime, the community should be assured that the Courts will continue to perform their duties during this time of crisis. Whilst changes to the Courts’ operations have been implemented in accordance with the necessary restrictions placed on our community by the Commonwealth Government, the Courts remain open to assist Australian families in these challenging times.
Judges, Registrars and staff are committed to providing access to justice when called upon to do so. This includes conducting hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.
There will be, in exceptional circumstances, a small number of face-to-face in-court hearings. For the safety of all concerned, these will only be granted when absolutely necessary. Those hearings will be conducted in strict accordance with the Face-to-Face in-Court Protocol issued by the Courts. As in any other interaction, social distancing requirements will be strictly be followed. Similarly, face to face interviews by family consultants will only take place in exceptional circumstances.
The Registries are still open for telephone appointments, electronic filing and the listing of urgent cases. Family Consultants will also continue their vital work through these electronic mediums as best they can.
Family Dispute Resolution
The law requires separating families who have a dispute about children to make a genuine effort to try to sort it out through family dispute resolution (FDR) before filing an application for parenting orders in court.
This requirement applies to anyone wanting to file an application with a family law court. It also includes those seeking changes to an existing parenting order. There are a few exceptions to this requirement, such as cases involving family violence, child abuse or urgency.
Unless an exemption applies, parties seeking to have a parenting matter determined by a family law court will need to electronically file a certificate from an accredited FDR practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.
You can visit Family Relationships Online for more information about the services and advice available for families, including seeking services from an FDR practitioner.
An FDR practitioner is an independent person who can help people discuss issues, look at options and work out how best to reach agreement in disputes about children. You can search for an accredited FDR practitioner who has consented to be on the Family Dispute Resolution Register website.
For general information about parenting orders, the following pages may be visited:

Complying with orders about children;
Parenting orders – obligations, consequences and who can help;
How do I apply to the court when parenting orders have been breached or not complied with?

More information on these measures are available from the Courts’ websites:

Federal Circuit Court of Australia
Family Court of Australia

More information about how to self-assess for your personal risk for coronavirus (COVID-19) is available from the website of the Commonwealth Government.
Download the Family Law Council Top Ten Guide for Separated Parents During COVID-19 here.
The post Statement from the Chief Justice of the Family Court of Australia – Parenting Orders appeared first on MCNA.

At McNamara Law we are receiving a high demand for Wills, Enduring Powers of Attorney & Advanced Health Directives. We have now made it very easy for you to secure these important documents with our “drive-in” service.
Estate Planning Expert Rebekah Sanfuentes discusses more in this video. Call 13 58 28 for your appointment.

The post The Time for Estate Planning is Now appeared first on MCNA.

COVID-19 could see the Australian Government implement a never before seen lock down of the Country, for an unspecified period of time.
Certain businesses have already been forced to close.  It is unclear whether further restrictions will be put in place, however, the Queensland Law Society is preparing for this eventuality.
REIQ Contracts provide that “time is of the essence” which means failure to comply with a deadline under the Contract will cause that party to be in breach of the Contract.   Standard condition 6.2 of the Contract  deals with a “Suspension of Time” due to a “Delay Event”.  A Delay Event includes a tsunami, flood, cyclone, earthquake, bushfire or other act of nature, riot, civil commotion, war, invasion or a terrorist act or an imminent threat of any of these, or compliance with any lawful direction or order by a Government Agency.
This standard condition does not include a pandemic, but it does include a lawful direction or order by a Government Agency.
What does this mean for my Contract:-
McNamara Law is committed to staying open during the current pandemic and will only close if directed to do so by a Government Agency.
If we are directed to shut down by a Government Agency, or for other reasons you are unable to fulfil your Settlement Obligations due to a Delay Event, your Settlement Date will be automatically suspended for the period of the Delay Event.  This means that you will not be in breach of the Contract for failing to settle on the due date.  However, when you are no longer prevented from performing your Settlement Obligations due to the Delay Event, you must give the other party a notice of that fact promptly.
When the Suspension Period ends, whether or not you have given the other party notice of cessation of the Delay Event, either party may give the other party a Notice to Settle which must state that the Suspension Period has ended and nominate a Settlement Date not less than 5 or more than 10 business days after the date of the Notice to Settle, and that time is again of the essence.
Please note that any other condition under the Contract (such as Building and Pest or Finance) will not be automatically suspended due to the lockdown.  Your Solicitor may need to request an extension of these dates to avoid being in breach of the Contract.
Buyers will likely be unable to engage a contractor to undertake a Building and Pest Inspection during a lockdown and it is unclear whether Banks will suspend lending arrangements during any lockdown.
If you have a conveyance that may be affected, please contact one of our conveyancing staff as soon as possible so we can assist you in these uncertain times.
 
The post What happens to my Residential Contract if Australia goes into lockdown? appeared first on MCNA.

Following the developments in the COVID-19 situation, and the need to protect staff and all visitors to the family and Federal Circuit court, the court has decided to close its public facing counters and cease face-to face services from Tuesday 24 March 2020.
While the counters are closed, court staff are still working in registries and remotely to provide services and support to law practitioners and litigants via phone and other online services.
In urgent circumstances, face-to-face services may be provided after initial assessment via telephone.
You can contact the court on the following numbers:
Family law enquiries: 1300 352 000
General Federal Law enquiries: 1300 720 980
This has been a difficult decision but one that is 100% focussed on the safety and wellbeing of staff, court users and the community
THE CHANGES
The Family Court of Australia and the Federal Circuit Court of Australia (the Courts), the profession and the community are facing unprecedented challenges. COVID-19 is having a direct impact on the way the Courts are able to administer justice for Australian families. The Courts must adhere to the requirements that have been imposed by the Government. As a result, they cannot administer justice in the usual way, and significant changes have had to be made. The Courts are required to balance the health and safety of the community, the profession, Judges and staff with the need to continue this essential service. It is of paramount importance that the Courts minimise risk to all when conducting court hearings.
The Courts will continue to conduct court work based on the advice of the Commonwealth Government Department of Health and the Chief Medical Officer.
Work will be conducted in the Courts in the near future will be by telephone, and when it becomes available, videoconferencing. Only urgent matters will be dealt with by face-to-face hearings or interviews, which will be conducted pursuant to the face-to-face in-court protocol and face-to-face interview protocol (below).
The protocols set out regarding in court and face to face interviews are as follows:
PRINCIPLES
The key overarching principles relating to the work of Registrars and Child Dispute Services (CDS) during the period of the special arrangements for COVID-19 are as follows:

Prioritising the safety of the community, Judges, Registrars, CDS and staff minimising the number of people in Court and implementing social distancing practices.
The principle basis upon which work will be conducted by Registrars and CDS in the near future will be by telephone, and to the extent possible, by video technology. All work that can be shifted to telephone/video should be transitioned immediately.
Only urgent or priority matters will be dealt with by in-court face-to-face hearings or interviews.
Any face-to-face hearings or interviews will be conducted in accordance with the relevant face-to-face protocol, including in relation to social distancing requirements.

REGISTRARS

DIVORCE LISTS

In the case of Divorce Lists the following telephone appearance procedure is to apply:

Joint applications – will be done on the papers and parties are not required to attend Court.
Sole applications –

will be done on the papers if there are no children to the marriage and parties are not required to attend Court.
will require attendance via telephone by parties and lawyers if there are children under the age of 18 years.

Where Court attendance is required, each matter currently listed will be sent an email advising that parties are to attend a virtual courtroom and will be provided a number to dial-in to the virtual courtroom. Parties and lawyers will also be requested to provide their direct contact details  to each Registrar no later than 4:00pm two business days prior to the listing
Respondents who request to appear in court personally should be advised to attend via telephone.
If the applicant is seeking orders for dispensation of service, these will also be dealt with by telephone.
If parties or lawyers still appear personally, rather than by telephone, the face-to-face in-court protocol will apply.
Divorce lists will be staggered into 3 time slots per day. Each time slot will have a maximum of 10-12 matters listed.
Rather than a single Registrar, the divorce list will be split between two Registrars who will conduct staggered telephone attendances.

FEDERAL CIRCUIT COURT (FCoA) – REGISTRAR DIRECTIONS LISTS

In the case of FCoA Registrar Directions Lists the following telephone appearance procedure is to apply:

All FCoA Registrar Directions Lists will be conducted by telephone where limited to a procedural issue.
Where a matter is contested, written submissions are to be filed at the direction of the Registrar with orders to be made in chambers.
Parties with a matter currently listed will be sent an email by Registry staff advising of the above. In response to the email, parties and lawyers should provide their direct contact details to each Registrar no later than 4:00pm two business days prior to the listing. Parties must ensure they are available by telephone until they receive the Court’s call.
In the event that parties are in agreement as to the future conduct of the matter, proposed interim consent minutes should be submitted as soon as possible by email to the Registrar for consideration.

DISCRETE PROPERTY LISTS, PPP500 LISTS AND CONTRAVENTION LISTS

In the case of Discrete Property Lists, PPP500 Lists and Contravention Lists the following telephone appearance procedure is to apply:

All Discrete Property Lists, PPP500 Lists and Contravention Lists will be conducted via telephone.
Parties with a matter currently listed will be sent an email by Registry staff advising of the above. In response to the email, parties and lawyers are requested to provide their direct contact details to each Registrar no later than 4:00pm two business days prior to the listing. Parties must ensure they are available by telephone until they receive the Court’s call.
In the event that parties are in agreement as to the future conduct of the matter, proposed interim consent minutes should be submitted by email to the Registrar for consideration as soon as possible.
In relation to matters in the Contravention Lists, where a matter needs to be listed before a judge for a contested hearing, the prioritisation of the matter will be at the discretion of the Judge. Any future listings will be subject to judicial capacity.

CONFERENCES AND ALTERNATIVE DISPUTE RESOLUTION (ADR) EVENTS e.g Mediation, Arbitration, Conciliation.

In the case of Conferences the following telephone or video procedure is to apply:

Final defended cases that are assessed to be of a lower priority, may be sent to an ADR event, and the trial otherwise adjourned to a date to be advised. All Case Assessment Conferences and Conciliation Conferences will be conducted via telephone or via video.
Where Conferences are to be conducted via telephone/video, parties will be sent an email which will include dial-in details. Parties will also be requested to provide their direct contact details to each Registrar no later than 4:00pm two business days prior to the listing.
Where Conferences are to be conducted using Microsoft Teams or other platform, parties will be sent participation details.
Lawyers and parties are still required to provide/exchange the usual documents in advance of the Conciliation Conference (as ordered by the Judge/Registrar) and proposed orders to both the Court and to the other party prior to the conference.

FEDERAL CIRCUIT COURT (FCoA) SENIOR REGISTRAR LISTS

In the case of FCoA Senior Registrar Lists the following procedure is to apply:

Parties and lawyers should attend interim hearings by telephone to the greatest extent possible.
The parties and lawyers are still required to provide a short case outline, identifying the evidence they wish to rely upon together with a minute of proposed orders.
Parties with a matter currently listed will be sent an email by Registry staff advising of the above. In response to the email, parties and lawyers are requested to provide their direct contact details to each Senior Registrar’s chambers no later than 4:00pm two business days prior to the listing. Parties must ensure they are available by telephone until they receive the Court’s call.
Parties who request to appear in Court personally should contact the Senior Registrar’s chambers by email and provide a brief outline as to why the matter is urgent and should remain listed for a face-to-face hearing.
Matters in a Senior Registrar Magellan Lists will be treated as urgent.
If the Senior Registrar directs the parties and lawyers to appear personally, a face-to-face hearing should strictly adhere to the Face-to-face In-court Protocol.

CHILD DISPUTE SERVICES

CHILD DISPUTE CONFERENCES

In the case of Child Dispute Conferences, the following procedure is to apply:

All Child Dispute Conferences (CDCs) will be conducted by telephone or videoconferencing.
Family Consultants will contact the parties directly.

CHILD INCLUSIVE CONFERENCES

In the case of Child Inclusive Conferences, the following procedure is to apply:

For all new orders, Judges have been strongly encouraged by the Chief Justice to order Child Dispute Conferences (CDCs) (which will be conducted via telephone), rather than Child Inclusive Conferences (CICs), given the difficulty of having face-to-face contact. Therefore it is expected that CICs will be ordered only where there is an urgent requirement for a Family Consultant to see the children.
Existing orders for Child Inclusive Conferences (CICs) will, subject to the views of the Judge or Senior Registrar, be serviced as CDCs.
Where a CIC has been ordered, it will be conducted consistent with the Face-to-face Protocol as far as possible.

CHILD RESPONSIVE PROGRAM (FCoA)

In the case of Child Responsive Program, the following procedure is to apply:

Meetings with the adult parties Meetings Including Adults (MIA) will be conducted by telephone.
Necessary meetings with children – meeting Children and Families (MCF) will proceed in-person as arranged at the Registry decided by the individual Family Consultant, in conjunction with their manager, and a Judge with necessary.
Meetings with children will be conducted consistent with the Face-to-face Protocol as far as possible.

FAMILY REPORTS

In the case of Family Reports, the following procedure is to apply:

Interviews with adult parties will be conducted via telephone (or video). Adult parties will be contacted by Child Dispute Services staff or, where interviews are to be conducted using Microsoft, parties will be sent participation details.
Meetings with children will be conducted consistent with the Face-to-face Protocol as far as possible.

FACE TO FACE COURT PROTICOL
This protocol is designed to reduce the risk of being in close contact1 with a court user who may be infectious. This is the most appropriate way, at present, for the court to balance important health and safety considerations of judges, staff and the community with the need to continue this vital work for Australian families.
The significant features of the face-to-face in court protocol for Registrars are set out below for the information of the profession.

Listings

Federal  Circuit Court (FCoA) Interim Hearings
Priority should be given to urgent matters (e.g. matters involving risks of family violence) that the Senior Registrar considers cannot be dealt with over the telephone.
Listings will be staggered to reduce the number of people waiting in the foyer/registry building. A list will be collated each day by the Judicial Services Team Leader to ensure that hearing times are sufficiently staggered to allow for cleaning.
Matter(s) will not be listed for more than 1.5 hours, and with sufficient space in between to allow cleaning to occur.
To reduce the length of any face-to-face hearing, where possible, it should be complemented with written submissions or telephone hearings if necessary.

Courtrooms and courtroom procedure

No party is to enter the courtroom before their matter is called.
No more than 8 people (excluding the Registrar and Court Officer) should be in the courtroom at any one time.
Counsel, solicitors and parties are to adhere to social distancing by sitting in appropriately distanced seats as indicated in the courtroom diagram attached (i.e. at least 1.5 to 2 metres apart).
Parties are to leave the courtroom immediately after their hearing has concluded, and then make their way promptly to the Registry exit.

Cleaning

Additional cleaning of courtrooms that are used for face-to-face hearings will occur as often as practicable when the court is adjourned during the day.
Hearings will be conducted for not more than 1.5 hours in the same matter. After that period, the courtroom will be closed and appropriate surface cleaning will take place.
To ensure the safety of staff, lawyers, litigants and witnesses, the same matter should not continue after the first 1.5 hour period.

Security

Security screening should be staggered appropriately. Security will be instructed to ensure social distancing is observed whilst court attendees are queuing for security.
The Court is currently investigating the availability of contactless thermometers to allow for non-invasive temperature measurements prior to parties/practitioners entering the Registry buildings.

Court attendees displaying symptoms

In the event that any court attendee is ill or display any symptoms of COVID-19, they should immediately notify the Court and proceed to leave the Registry. The Court will be adjourned and appropriate steps taken, including any deep cleaning required.
Footnote:
1 A close contact is typically someone who has been face-to-face for at least 15 minutes, or been in the same closed space for at least 2 hours, with a person that was infectious (World Health Organisation definition).
(Courtesy : Family Court of Australia & Federal Circuit Court of
The post COVID-19 and the Implications for Family & Federal Circuit Courts appeared first on MCNA.

There’s little doubt that we’re in challenging times. In this video, Senior Associate and Estate Planning Expert Rebekah Sanfuentes poses some things worthy of consideration if necessary. You can contact Rebekah on 13 58 28

The post COVID-19 & Estate Planning appeared first on MCNA.

At McNamara Law the safety and well-being of our clients and staff is our first priority. Our Managing Director Peter Wilkinson has an important message to share with you regarding measures we have implemented and things you should consider at this time.
The post We are Still Open for Business – Just doing it a Little Different appeared first on MCNA.

The role of a company director is to govern a company on behalf of the shareholders or members of that company. Director’s duties fall under the Corporations Act 2001 which sets out how a director must run a company. These duties are:

Duty of care;
Duty to avoid conflict of interest;
Duty to act in good faith;
Duty to act for proper purpose; and
Duty to prevent insolvent trading.

Duty of Care
This duty requires the director to exercise care and skill in the performance of their obligations to the company. The test to determine whether a breach of duty has occurred is an objective one. This means that the director’s actions are measured against what a reasonable person in the position of director would have done in a similar situation.
Duty to Avoid Conflict of Interest
The director’s personal interests must not conflict with those of the company. As such, a director cannot use their position as a director to acquire a personal gain for themselves or another, or use information that they acquire as a director to acquire a benefit for themselves or for another person. Directors may protect themselves from breach of this duty if they obtain member’s approval.
Duty to Act in Good Faith
Directors have to act in the best interests of the company. This means that the directors must act in the best interest of the company as a whole and not in the interests of individual members.
Duty to Act for Proper Purpose
Directors must exercise their powers for a proper purpose. Any use of director’s powers that are not undertaken for the benefit of the company are an improper use of their powers. For example, a proper purpose may be the issuing of shares includes raising capital, while an improper purpose includes diluting the shareholding of a particular shareholder or class of shareholders.
Duty to Prevent Insolvent Trading
Directors should prevent the company from trading when it is insolvent. Failure to do so may result in the director(s) being held personally liable for the debts of the company.
Civil Penalties
If directors breach their statutory duties, civil penalties may apply. Penalties may include a pecuniary penalty which is where the directors are required to pay money to the Commonwealth. Disqualification is another type of penalty banning a person from being a director of a company for a certain period of time. A director may also face a compensation order if the company has suffered a loss resulting from breaches of the director’s duties.
Criminal Action
The Director of Public Prosecutions (Cth) can bring the action for criminal breaches of director’s duties. It is important to remember that a director may be dealt with both criminally and civilly regarding the same conduct. However, not all breaches of director’s duties may result in criminal action.
The post What are the Duties of a Company Director? appeared first on MCNA.

Owning a business is a challenging and sometimes complex venture requiring total commitment, but one thing a company owner definitely needs to pay attention to is protecting their personal assets in the event of litigation or liabilities that might arise while running the business.
Whether a customer or client decides to take legal action against the business for anything from negligence to breach of contract, or issues such as insolvency come to pass, the last thing you need is for personal assets such as your house or car to become ‘fair game’ in any settlement of the issue. Here are the key things to consider in creating what’s commonly known as an ‘asset protection plan’.
What type of company should you set up?
By ‘type’ we mean whether you’re a sole trader, a partnership, a company or a trust. While the first two will generally leave your personal assets exposed in the event of any liabilities, a company or trust arrangement will generally create ‘limited liability’.
A company, for example, is a legal entity separate to you, meaning individual shareholders are only liable for debts or liabilities that the company incurs up to the amount unpaid on their shares (which is commonly zero).
Many business owners prefer a dual company structure in which their holding company owns 100% of shares in a subsidiary operating company. In this set-up, contracts with clients, suppliers and employees are conducted through the operating company while the company’s primary assets – such as intellectual property, cash and other assets – are owned by the holding company, thereby protecting them from any liability the operating company may encounter.
Trusts
Many legal, tax and financial advisers will suggest business owners establish a discretionary trust to protect personal assets.
Discretionary trusts provide a vehicle for a business owner to own their shares in the business while putting personal assets in the trust and business assets in the company. This also allows an owner to protect beneficiaries of the trust, most likely your family, from creditors should a beneficiary be sued or made bankrupt, as the assets of a discretionary trust are distinct from the assets of the beneficiaries of the trust.
Trusts are also often preferred for the tax benefits they offer. By distributing income and capital to beneficiaries on lower marginal tax rates and distributing different types of income to different beneficiaries, the overall tax paid by a family group can be reduced.
Other types of trusts can be used to run a business, through either an individual or corporate trustee. The trustee controls the trust and distributes profits to the beneficiaries of the trust, in accordance with the trust deed. In the circumstance of a corporate trustee, the company’s shareholders receive protection through the company’s limited liability but it does require an owner to incorporate another company, adding to your overall costs. Expert legal advice on creating and maintaining a trust is highly advised.
Putting personal assets in the names of your family
Making sure the mortgage and deeds on the family home are in the name of the business owner’s spouse is another way to minimise the risk to personal assets from any headwinds experienced by the business. The same applies to personal savings and investment accounts. It should be noted that there are likely tax and duty impositions when existing assets are transferred.
Concentrating on superannuation
Personal wealth held by a superannuation trustee is generally considered untouchable by creditors or litigants against a business owner.
Therefore it’s advisable to follow a pattern of contributions to a super fund. Why a pattern? Because an out-of-pattern transfer to the fund, in expectation of a claim against the business, may be accessible by a litigant in any action against the business. In addition, any concessional contributions to the super fund will not only minimise the exposure of business assets but maximise your tax benefits.
If you have a self-managed super fund (SMSF), reduce risk of exposure to any action against the company by ensuring it has a corporate trustee, not individual trustees (who can be held personally liable for debts, etc.). An SMSF may even allow an owner to purchase business premises through the fund, thereby protecting it against claims made against the business.
The importance of insurance
As with most areas of our lives which carry risk, a good insurance policy is always advisable. Taking out professional indemnity insurance while running a business can reduce your personal exposure to any action taken against the company.
As a director of the company, also consider a directors’ and officers’ (D&O) insurance policy and an indemnity deed (also known as an officer protection deed) to further protect your personal assets.
The need for contracts
Many business owners expose their personal assets to risk by not ensuring they have detailed and enforceable contracts in place which properly outline the business relationship with clients and customers, limit liability and provide protection against adverse claims.
Consulting experienced legal professionals to ensure contracts entered into by the business meet these criteria is vitally important, whether or not you address all the other issues raised above.
If you need guidance and advice on protecting personal assets from any adversity that a business you own may face, contact us today.
The post How to Protect your Personal Assets as a Business Owner appeared first on MCNA.

The social impact of coronavirus has begun affecting Australian workplaces. Those most vulnerable in the workplace are those employed on a casual basis.
Unlike part time and full time employees, a casual worker does not have a right to sick leave or annual leave. If those casual workers are not able to work, or are not offered shifts because of an economic downturn, what can they do to supplement their income?
Employees who are sick with the coronavirus cannot attend the workplace for a period due to the workplace health and safety legal obligations. These obligations relate to both employers and employees.
Employers can direct employees who are sick with the coronavirus not to come to work and to get medical clearance from a doctor before returning. Employers can do this if they’re acting reasonably and based on factual information about health and safety risks, which includes relying on the Australian Government’s health and quarantine guidelines.
Under the Fair Work Act, casual employees are entitled to 2 days of unpaid carer’s leave per occasion. However, the employee must give their employer evidence of the illness or unexpected emergency if their employer asks for it. This will also apply to situations relating to coronavirus.
Some casuals may have access to long service leave and they should raise the possibility of accessing that leave with their employer. It is usually a requirement for that casual employee to have been working with the same employer for at least 10 years, or be an employee in an industry that utilises portable long service leave such as security, community services, building and construction, coal mining, and contract cleaning industries.
If shifts are not being offered because of unsubstantiated fear of coronavirus, this could be considered workplace discrimination. However, this is quite a complicated issue when the employer also has an obligation under the Work Health and Safety Act to provide a safe workplace for all employees. If you are concerned about such treatment, you should consider seeking legal advice as soon as possible.
If an employee contracts coronavirus in the course of the employment (such as a health worker), the employee may be able to make a workers’ compensation claim for weekly income benefits while they are unable to work, or in quarantine. Again, this is quite complicated considering the transmission of the virus through the community. If you have contracted the virus through employment, you should consider seeking legal advice as soon as possible.
If you have loans, credit cards or other payments to meet, consider contacting those providers to see if there is any financial assistance available.
Check with your superfund, or insurer, if you have any income protection insurance available. In most cases the waiting period for income protection is 30-90 days.
If you are unable to obtain any other financial assistance, you may be able to apply to withdraw some of your superannuation on compassionate grounds. You should contact your superfund, or the Australian Taxation Office .
If you are concerned about being quarantined due to coronavirus, consider preparing an Enduring Power of Attorney so that your appointed attorney can attend to your affairs while you are unable to do so.
If you are concerned about a vulnerable family member in the high risk category, consider ensuring they have a properly drafted Will in place before any quarantine issues could affect their ability to do so.
If you need any other assistance, contact one of our lawyers on 13 58 28.
The post Casual Workers and Coronavirus (COVID-19) appeared first on MCNA.

At McNamara Law the safety and well-being of our clients and our staff is our first priority. We are watching the COVID–19 (Corona Virus) situation and taking the necessary measures to ensure the wellbeing of our clients and staff with face to face meetings and appointments.
We are trying to move our face to face appointments and meetings to be via Telephone, FaceTime or other video platforms.
As we navigate the COVID-19 situation within the Ipswich, Springfield and Lockyer Valley area a number of key actions have been put in place at McNamara Law:

Appointments and other meetings will still proceed as planned unless otherwise advised.
We as a team will observe social distance (1.5 metres apart or greater) by conducting appointments in large conference rooms;
There is currently no specific advice for small group gatherings. If this advice from health authorities changes these appointments will be switched to Telephone or FaceTime delivery.
Hand sanitiser and tissues are available at all of our face to face appointments. Soap is available in our building’s for use by staff and client’s;
Please advise if you are suffering flu-like symptoms or have returned from overseas travel, and arrange for a Telephone, FaceTime or other video platform meeting, or re schedule your appointment if able to do so.

If you need us 
It is business as usual at McNamara Law – Ipswich, Springfield and Gatton. We don’t foresee any disruptions to our services and we’re here to help you with all your legal needs during this difficult time.
If you need to contact us, please note the following:

McNamara Law
10/88 Limestone Street
PO Box 359
IPSWICH
QLD 4305
PH:  07 3816 9555
McNamara Law
Level 1, 6 Yoga Way
PO Box 4629
SPRINGFIELD CENTRAL
QLD 4629
PH:  07 3470 3600
McNamara Law
11 William Street
PO Box 116
GATTON
QLD 4343
PH:  07 5462 1566

Yours faithfully
Peter Wilkinson
Managing Director
McNamara Law
The post We are Open for Business but Doing it a Little Differently! McNamara Law’s Response to COVID-19 (Corona Virus) appeared first on MCNA.

Each year, financial mismanagement, poor business practices and bad luck take a toll on countless Australian businesses. When a business goes “belly up”, the owner(s) usually have a couple of options. One is just to wind it up and walk away. The other is to start over. For those who choose the latter, the question is how to do so without inadvertently engaging in illegal ‘phoenix activity’.
What is phoenix activity?
This is a process in which a new company is purposefully registered (created) to assume the activities of the failed or insolvent predecessor company. In other words, only the name changes. The new company and the old company are one and the same, and as such often remain under the control of the old directors.
Why is it illegal?
The illegality of a so-called phoenix scheme has to do with the reasons for the creation of the ‘new’ company. Often, directors of the original company deliberately register a new one so they can avoid the legal and financial obligations associated with the old one. For example, they may register the new company so they don’t have to pay their old employees. They may also do so to avoid paying taxes or creditors.
Examples of illegal phoenix activity
Or, to put it another way, illicit phoenix activity occurs when:

A company can no longer meet its financial obligations; and
the directors transfer its assets to another company; and
the company that receives the assets has the same or a similar name; and
the transfer occurs before control of the original company is given to an outside administrator, such as a registered liquidator.

By engaging in this type of scheme, directors accomplish two key objectives. Firstly they free the company from any outstanding financial obligations (debts), including any to the Australian Tax Office (ATO), contractors or employees. And secondly, they stay in business.
Another example of phoenix activity occurs when a business owner going through a corporate insolvency process:

Transfers the assets from the insolvent company to another company;
that he or she is the director of for, and for an unreasonably low price or for no price at all;
to protect the company’s assets from being seized by creditors and/or the ATO;
potentially in violation of their duties as a director.

Of course, these are basic explanations. In reality, these schemes are incredibly intricate, with numerous people or groups carrying out different aspects of the plan. And because this type of activity is questionable at best, participants often face criminal prosecution.
Legitimate restructuring
Sadly, liquidation is a grim reality for many business owners. The good news is that there are ways to move on and stay in business without breaking the law. If liquidation is inevitable, you could simply sell the business assets, or you could sell the entire business to someone you know. Many directors prefer the latter because it allows business operations to continue.
There are several things that must be taken into consideration, however, and the transaction must be carried out accordingly.
Firstly, the transfer of business assets or the business itself should not be done solely to evade financial responsibilities. If it is done to avoid creditors, paying outstanding taxes, paying employees and so forth, it is considered illegal phoenix activity.
Secondly, you must make sure that the business and/or its assets are sold at market value. This means you must hire relevant professionals (with no ties to you or your business) to assess what everything is worth. Within this context, it is important that assets and liabilities are valued properly. This means depreciation should be taken into account. A qualified, independent, professional can easily make these determinations.
Another thing to keep in mind is that transparency is vital. This means you should make sure all aspects of the transaction are documented in accordance with relevant rules, regulations and policies. By making the documents readily available to authorities and the general public, you can also allay any suspicions of illegal phoenix activity.
Why sell to a related party?
By selling your business to someone you know, you may be able to secure a better price. This is because the buyer is already familiar with the business and its assets. Doing so also allows the business to continue, and allows for the retention of assets needed to make that happen. An added bonus for employees is that it allows them to keep working, which wouldn’t happen if liquidation came to pass.
Here’s what you could sell (transfer) in this scenario:

The physical plant, equipment and motor vehicles;
real property;
intellectual property;
customer lists;
websites;
finance and lease agreements;
employees and their benefits.

The bottom line
The bottom line is that there are legitimate ways to keep a business going if you’re facing liquidation. But without the proper legal advice, you could easily find yourself in a lot of trouble. McNamara Law has a solid reputation for providing high-quality legal advice and solutions across diverse industries, providing prompt, expert and cost-effective solutions for all commercial matters, including transferring business assets and avoiding the appearance of phoenix activity. Contact us on 13 58 28 to arrange a consultation today.
The post Transferring the Business of an Insolvent Company Without Conducting an Illegal ‘Phoenix Activity’ appeared first on MCNA.

With the ever increasing popularity of social media, gaining access to a person’s social media account on their death is often required to be able to either shut the account down or manage it appropriately. While an executor assumes control over a deceased persons social media accounts on their death, such control is generally not achievable without knowing the persons login and password.
What if inappropriate posts have been made to your page after your death?  What if you are tagged in inappropriate photographs? Who will remove you from these posts to protect your reputation once you have passed? Or, more commonly, what if it is causing distress to your loved ones who are seeing your facebook account still active, your birthday reminder popping up on their screen, or an anniversary or a milestone?
Well, Mark Zuckerberg and his team at Facebook have made death a little easier. Facebook has a policy that allows you to designate a ‘legacy contact’. Your legacy contact would ordinarily be the person appointed as executor in your Will, or, if you do not have a Will (tsk! tsk!  Everyone needs a Will!) or if your executor is not on facebook, your legacy contact should be a person who is your friend on facebook that you trust to assume control over your facebook account.
So just what can your legacy contact do? They can memorialise your account and then have the ability to do any of the following:

Write a pinned post for your profile (for example, share a final message on your behalf or provide information about your funeral service to share with all of your friends);
View all of your posts, even if set to private;
Archive your facebook posts and photos;
Manage tribute posts (a feature of a memorialised account);
Change who can see posts that you are tagged in;
Respond to new friend requests;
Update your profile picture and cover photo; and
Request the removal of your account.

Your legacy contact cannot:

Login to your account;
Read your private messages; or
Remove any of your friends.

How do you set up your legacy contact?
To designate your legacy contact, while you are logged in to your facebook account on your computer (it seems there are different pathways on the Android/Apple facebook app) go to Settings > Memorialisation Settings and from there you will be able to select one of your facebook friends to be appointed as your legacy contact. You will also be given the option to send them a pre-written message, which you can edit, to let them know that they have been appointed. Otherwise, facebook will notify them directly once your death has been reported to facebook.
Below the appointment of your legacy contact, facebook also gives you the option to select that you would like your facebook account to be deleted in the event that you passed away, if this would be your preference.
Death is never a nice thing to talk about, but the loved ones that you leave behind will thank you for doing all that you can while you are alive to make that difficult time as easy as possible for them.
The post Who Assumes Control of Your Facebook Account if You Pass Away? appeared first on MCNA.

We have recently seen Harry and Meghan announce they are leaving the “Firm” and living a more quiet life, leaving all the headaches of royal life behind.
It’s important to get legal advice when you sell a business so you do not get any legal headaches after you do.
There are many things that a lawyer can check to ensure you don’t have any continuing exposure to the business.
Leases
You must ensure that the Lease has been properly transferred to the new owner or you or your Company might have a continuing liability to pay the rent.
If the Lease is in a company name you also need to make sure that you receive back any cash bonds you have paid the Landlord and get a Release of any personal guarantees.
If the new owner goes bust the Landlord will check whether they have any rights to have the rent paid by you.
Contracts with suppliers
You need to ensure that you have properly ceased trading with all of your suppliers so you don’t have any outstanding obligations to pay them any further money after the sale. You need to check your contracts with them to make sure you also don’t have any continuing personal guarantees for the business.
These contracts may be for telephones, cleaners, IT storage, IT suppliers, stationary, website, marketing, advertising etc. The list goes on and on. We have seen photocopier contracts and telephone contracts trip up outgoing sellers where they can’t get out of personal guarantees they have signed in the past.  A warning to carefully read any contracts you sign for the business.
Employment Contracts
You need to know what your obligations are to your employees both those staying with the buyer and those that aren’t. Are you liable for long service leave, personal leave or other entitlements and how is it calculated?
Technology
Have you properly terminated / transferred your contracts so you don’t have a continuing obligation to pay bills for the businesses telephone, IT storage and maintenance, website domain etc.
It’s important to be careful about what you are taking and what you are leaving for things like data, Patents, trademarks and other intellectual property.
Loans
A careful review of the loans of the business will be required to see how you are released from any liability from any business debt.
Stocktake / goods delivered but unpaid
Have you had the contract carefully drafted to make sure you are getting what you think you are e.g. if you have delivered goods to a customer but are yet to be paid, do you get the proceeds or does the business buyer.
While Harry might have Charles for financial support, a business seller needs to get what they can from the sale of the business and ensure they don’t have any ongoing exposure to what they’ve left behind.
The post Meghan and Harry Leaving the Firm, What are the Implications? appeared first on MCNA.

Making new child-raising arrangements when a couple separates is often an issue most prone to result in conflict and acrimony. Emotions can be highest when dealing with the future of your children and so a family report is often used to help clarify and, ideally, solve areas of disagreement.
A family report is a written document prepared by a family consultant – usually a specially qualified social worker or psychologist – ahead of a family mediation or before family court proceedings on future arrangements regarding the children. In the court context, the report works as an independent assessment that can help a judge make a decision on where children should live and be raised. It can also help the separated couple come to an agreement through a dispute resolution method such as mediation, avoiding the need of going to court.
What issues are covered in a family report?
The focus of a family report is to find out what is in the best interests of the children. To determine the best interests for a child, the consultant must take into account each parent’s circumstances, the issues relevant to the individual case, and provide recommendations on arrangements that will best meet the child or children’s future care, welfare and developmental needs.
The family consultant will separately interview both parents in order to include each parent’s account of the history of the relationship, how relations are now between them, and the relationship of each parent with the child or children.
Where children are old enough to understand the process and express their views, the consultant will also ask them for their thoughts and feelings on each of their parents in a separate interview, including who they might want to live with and any other concerns they have. They will also likely observe each parent’s interaction with the child or children in a separate session, often through “play time” such as a conducting a board game between parent and child, drawing together etc.
The family consultant may also interview other people who are important in the children’s lives, such as adult siblings, step or half siblings, grandparents or other close relatives.
In conducting this process a family report writer will concentrate on where the parents’ and children’s accounts reveal exposure of the children to conflict and, in some situations, violence. An experienced consultant will have the experience and skills to assess a child’s account to determine whether their account is genuine, or whether one or both parents have tried to exert influence over what the child said.
How is a family report used?
Parents can organize a family report either privately through a social worker or psychologist, or request Orders from the Federal Circuit Court.
A family report is can often used to assist in negotations between the parents about resolving the matter on a final basis.
Where the family report is written by a family consultant appointed by the court, the judge is not bound by the content of the report but generally places considerable weight in its recommendations in forming a view as to how much time the child or children should spend with each parent. Again, the report can often be the basis for an agreement between the parents and avoid the need to go through court action.
Court-ordered family reports must be formally released by the court before either parent can receive it, and the report cannot be shown to anyone but the parties and their respective legal representatives. This includes people who may have been interviewed for the report but are not a party to the court matter.
If you disagree with the recommendations made in the family report, you need to call the family consultant as a witness for cross-examination of their findings. A family consultant needs at least 14 days notice in writing for this to occur.
How should you prepare for a family report?
If you’re about to be part of a family report process it is important to be prepared. While the interview process may only take an hour or two, the results of what you say and how you say it can have long-term impacts on your relationship with your children.
Speaking to a legal professional with experience and expertise this area is a wise idea at this time. They can help prepare you for what the family consultant is likely to ask, give you useful information on how the process works, and keep your expectations about the results of the process realistic.
You should be ready to provide a concise and comprehensive account of your relationship history and the circumstances leading to the separation. The consultant will also observe you interacting with your child or children as part of the report process and this can be vital in informing the recommendations made in the report. In short, it’s important to be aware that a family report will offer a snapshot of your parenting ability.
McNamara Law has widespread experience in family law matters, including the best way to prepare for a family report. We provide high-quality legal advice and prompt, expert and cost-effective solutions. Contact us on 13 58 28 to arrange a consultation today.
The post What is a Family Report? appeared first on MCNA.

Today sees the roll out of mobile phone detection cameras in New South Wales. Queensland is intended roll out the program on 1 February 2020 along with an increase in on-the-spot fines for using a mobile phone from $400.00 to $1,000.00, for the first offence. The second offence in a year could result the suspension of your driver’s license. The demerit points for any offence will remain at 3 points.
Currently (and this will continue to be the case) the offence of using a mobile phone occurs while driving, but it also includes when stopped at traffic lights, or stationary in congested traffic. It is only legal to use your mobile while legally parked (the vehicle is stationary in a safe position, with the gears in neutral and with the hand brake applied).
What is considered use of your mobile phone includes:

Turning on and off your phone;
Making/receiving calls, or sending/receiving test messages (including via apps like Messenger;
Operating any function on your phone – including changing a song, using navigation software, or switching your phone to loudspeaker.

You are permitted to use the phone ‘hands-free’ which includes using the phone connected to the speakers via a cable system, or Bluetooth – as long as you do not touch the phone while driving.
The rules are different for provisional 1 (red plate) and learner drivers. Those drivers cannot use the ‘hands-free’ method at all. This rule also applies to passengers of those drivers.
The offence may extend to using a navigation device designed for only that function.
We recommend:

When using navigation, set the destination before driving;
Turn your phone off (or activate airplane mode) before driving;
If you must drive with your phone active, use a hands-free system that allows you to answer a call without your hands leaving the steering wheel;
If you do not have a hands-free system, only use your phone while parked;
If you have your phone on a mounting bracket, it must not obscure your view of the road.

These rules do not apply to CB radios, or any other two-way radios, that are commonly used in the transport industry.
The post Big Penalties Apply for Using a Mobile Phone While Driving appeared first on MCNA.

Tomorrow the Court of Appeal will hear an appeal on behalf of our client of the decision of the Supreme Court to dismiss his Application to set aside a settlement agreement he reached with the Board of Trustees of the Brisbane Grammar School in 2002.
The Trial Judge dismissed the Application on the basis the settlement agreement was the product of a fair, arms length (legally represented) negotiation between two parties on equal footing and that the settlement was a fair settlement reflecting the factual and legal strengths and weaknesses of the parties respective cases.
In that regard, the trial Judge found that our client had not satisfied the test that it was “just and reasonable” to set aside the settlement agreement reached in 2002. The trial judge found the settlement of our client’s claim was not materially contributed to by any consideration of the limitation defence, which had expired 8 years prior.
The Appeal will focus on three particular aspects of the trial Judge’s decision, particularly that he erred in concluding that the material that the limitation date had not been a material factor in the decision of our client to accept a modest sum in comparison to that which he would have been entitled without the school having a limitation defence available to it, and that, although the parties were legally represented by competent solicitors and counsel, the limitation date defence was a significant factor which made the bargaining positions of the parties unequal.
The Appeal will be heard by Justices Morrison, Fraser and Mullins.
The post Court of Appeal to Hear Application to Set Aside a Settlement Agreement appeared first on MCNA.

Each week we post on Facebook Josh’s top picks in legal news. One headline which has favoured attention was the sick leave win for Cadbury shift workers which could flow on across Australian workplaces. The Federal Court has found that shift workers who work extended daily hours (10 hours per day in this instance) should be entitled to 10 hours per day for the legislated 10 days of sick leave per year, rather than the 7.6 hours per day as suggested by Cadbury.
Because this decision could affect many workplaces around Australia, we thought we would break it down and explain to you what it might mean for your workplace.
We will start with a legal interpretation of this decision, but it you would prefer an easier read, jump to the end.
Legal discussion of the case:
Mondelez Australia Pty Ltd (“Cadbury”) filed an application with the Federal Court of Australia against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“Union”) and against two Cadbury workers.
The purpose of the application was to consider a decision of the Fair Work Commission which interpreted section 96(1) of the Fair Work Act 2009 (Cth) which provides “for each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave”.
Cadbury contended to the Federal Court that the entitlement to “10 days of paid personal/carer’s leave” must be construed according to the “industrial meaning” of the word “day”. That meaning is said to be a “notional day”, consisting of an employee’s average daily ordinary hours based on an assumed five-day working week—that is, average weekly ordinary hours divided by five. For example, an employee who works 38 ordinary hours per week works an average of 7.6 hours per day over an assumed five-day working week. The “notional day” is 7.6 hours and the employee is entitled to 10 such days, or 76 hours, of paid personal/carer’s leave for each year of service.
Arguably, if the employee takes a day of personal/carer’s leave, the employee is paid 7.6 hours’ wages, and 7.6 hours is deducted from the employee’s accrued leave balance. On this basis, all employees who work the same average weekly ordinary hours are entitled to receive the same number of hours of paid personal/carer’s leave.
Interestingly, the Minister for Small and Family Business, the Workplace and Deregulation, was granted leave to intervene in the proceeding and went on to support Cadbury’s interpretation of sick leave.
On the other side, the Union, and the workers, argued that a “day” in the Act has its ordinary meaning of a “calendar day”, or a 24 hour period, and that it allows every employee to be absent from work without loss of pay on 10 calendar days per year.
What sounds like quite a simple question – is a day 7.6 hours, or 24 hours – became a lengthy and complicated legal issue. The outcome of this question would have practical consequences.
There are many different types of workers. Some examples include:

employees who work the same number of hours each day over a five-day week – your average 9am to 5pm,
employees who work shifts that compress their weekly hours into a shorter number of days (longer than then usual 7.6 hours per day),
employees who work different hours on different days of the week which is common in retail and hospitality industries.

On Cadbury’s view of a “day”, each employee is entitled to accrue 76 hours of paid personal/carer’s leave over a year; but a 7.6-hour employee’s entitlement will be used up over ten calendar days, whereas a 12-hour employee’s entitlement will be used up over six calendar days. On Cadbury’s construction, a 12-hour employee who is unable to work after the sixth day would lose income, whereas a 7.6-hour employee would not. Although, those who work short shifts, say 4 hours per day, might have been better off on Cadbury’s view potentially giving them 19 sick days in the year (demonstrating one of the flaws in Cadbury’s argument).
On the Union’s view, the 12-hour employee is entitled to more hours of paid personal/carer’s leave than the 7.6-hour employee, but neither would lose income over a period of ten calendar days from each workers own perspective.
The Federal Court reached the following conclusions (among others):

A “day” in s 96(1) of the FW Act refers to the portion of a 24 hour period that would otherwise be allotted to work (a “working day”).
Under s 96(1), an employee accrues an entitlement to be absent from work for ten such working days for each year of service.
For every day of paid personal/carer’s leave taken, a day is deducted from the employee’s accrued leave balance.
An employee may take a part-day of paid personal/carer’s leave, and an equivalent part-day is deducted from the employee’s leave balance.
The expression “ordinary hours of work” distinguishes ordinary hours from overtime hours.

The Federal Court ultimately decided that the employees of Cadbury are each entitled to accrue ten days paid personal/carer’s leave for each year of service. Their entitlement to a day’s paid personal/carer’s leave is an entitlement to be absent from work for the portion of a 24 hour period that would otherwise be allotted to work. For those long shift workers, that is 12 hours, they are each entitled to ten such periods for each year of service. That is equivalent to ten x 12-hour shifts (or 120 hours per year).
This was the decision of two of the three sitting Judges. The third Judge came to a different view, but majority rules.
The case simply put:
Simply put, if Cadbury was correct, a long shift worker would have less sick leave days per year compared to a 9am to 5pm worker. For these particular workers, they would only have had the benefit of 6 days per year instead of 10.
If we break the personal/carer’s leave entitlement down to hours, for a worker who works 7.6 hours per day, the total hours that can be paid for personal/carer’s leave is 76 hours per year.
For a long shift worker – who might work 12 hours per day – the total hours that can be paid for personal/carer’s leave is 120 hours per year.
For those who work short shifts, say 4 hours per day, their total hours for personal/carer’s leave is 40 hours per year.
Cadbury lost their Application and with reliance on this Federal Court decision we are of the view that it is safe to say that in all three of those examples the workers are entitled to 10 days personal/carer’s leave per year, with each day based on each of their own ordinary hours worked in a day (12 hours vs 7.6 hours vs 4 hours).
Importantly, the daily hours are based on the ordinary hours that a worker has been contracted to work. The daily hours do not include overtime that a worker may work, even if those overtime hours are worked on a regular basis. For those workers that are contracted to work 38 hours per week, but perform overtime everyday, their personal/carer’s leave entitlement remains at 7.6 hours per day.
For those workers that are contracted to work 50 hours per week (10 hours per day), and perform overtime everyday, their personal/carer’s leave entitlement remains at 10 hours per day.
In consideration of this decision it is our view that most employers likely pay the personal/carer’s leave entitlement correctly at the ordinary hours worked.  Most employees should not expect any changes on their workplace’s sick leave practices.
If you are an employee and believe your employer is underpaying your personal/carer’s leave entitlements, or an employer seeking advice on your payroll systems, contact one of our employment lawyers for further information.
The post What are the Sick Leave Entitlements for Long Shift Workers? appeared first on MCNA.

For the first time in recorded history, a crime may have been committed in space and our Space Law “expert” is here to break it down for you.
The American National Aeronautics and Space Administration (NASA) is reportedly investigating claims that astronaut Anne McClain accessed the bank account of her estranged spouse from the International Space Station (ISS).
Setting aside the issue of whether or not the astronaut committed a crime, the real questions are: can a crime be committed in space in the absence of legislation?; if a crime is committed in space, who investigates the crime?; and who has the jurisdiction to prosecute an offence?
Currently, there are five international space agencies involved in the ISS — the US, Canada, Japan, Russia and the European Space Agency. Australia is dragging it’s heals, but hopefully the Australian Space Agency gets up and running properly soon.
At this stage there is no international law that applies to people who are beyond Earth. In 1996 the United Nations Office for Outer Space Affairs developed the Outer Space Treaty which was a basic framework for international space law. Some of those principles include:

the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;
outer space shall be free for exploration and use by all States;
outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
astronauts shall be regarded as the envoys of mankind (just in case we meet little green people up there);
States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
States shall be liable for damage caused by their space objects; and
States shall avoid harmful contamination of space and celestial bodies.

This Treaty provides that the agencies will operate under their own agreed legal frameworks, which stipulate that national law applies to any people and possessions in space – Americans are subject to American law in space, and Russians subject to Russian law, etc.
So, in answer to the first question – yes, a crime can be committed in space, although what might be a crime to the Americans, might not be a crime to the Russians.
Who then investigates the crime? In 1998 the International Space Station Intergovernmental Agreement was developed for the use and inhabitation of the ISS. Under this Agreement, the basic rule is that ‘each partner shall retain jurisdiction and control over the elements it registers and over personnel in or on the Space Station who are its nationals’. This means that the owners of the Space Station – the United States, Russia, the European Partner, Japan and Canada – are legally responsible for the respective elements they provide to the ISS.
This extension of national jurisdiction determines what laws are applicable for activities occurring on ISS elements (e.g. European law in the European Columbus Laboratory).
So, in answer to the second and third question, any crime committed in outer space by a US citizen would fall under American jurisdiction, as if a crime had been committed on Earth in the US. Therefore, in Lieutenant Colonel McClain’s situation, the allegations would be investigated by the United States, and if evidence suggested a crime did occur, the prosecution would also be by the United States.
If you or your family have been involved in a crime in space, contact one of our space law experts today.
The post When Do You Need a Space Lawyer? appeared first on MCNA.

From 1 October 2019 a paper certificate of title (Title Deed) for a property will no longer be issued from the Queensland Titles Office and will cease to have any legal effect. This means that dealings e.g. transfer of title, can be registered in relation to a property without the need to produce a Title Deed. Title Deeds are no longer required and any protection that they provided against the registration of unauthorised dealings will no longer exist.
Remember that if a Title Deed for a property is held as any type of  security, you should consider if any steps  are requied by you to ensure your interests are protected and legal.
Title Deeds do not have to be returned to the Queensland Titles Office.  You are entitiled to hold onto the Title Deeds for historical and sentimental purposes.
If you become aware of any unauthorised dealings with your property, or have any questions regarding these changes please contact us on 13 58 28.
The post Paper Title Deeds Become Extinct appeared first on MCNA.

As adults, there are plenty of things we don’t want to think about as well as some things we would really rather not do. In reality, however, avoidance doesn’t solve anything. It simply delays the inevitable and in some circumstances, procrastination makes matters worse.
If you and your spouse have separated and have failed to reach agreements on property, financial or parenting matters, you may have thought about consulting a family lawyer. And then you may have pushed the thought aside, telling yourself that it would be too expensive or that it wouldn’t really help.
Alternatively, you may have a false sense of security. Perhaps you and your spouse are still on (relatively) good terms so you’re convinced you can settle everything on your own. Or perhaps you don’t think you need a lawyer based on what you’ve heard about separation and divorce from friends, relatives and co-workers who have gone through it.  In your complacency, you may think that by handling everything on your own, you’ll save time and money.
In truth, seeing a family lawyer not only helps you save time and money, but may also lead to quicker resolution of your case. Here’s how it can help.
Assistance with unresolved parenting matters
If you are concerned about unresolved parenting matters, our qualified, compassionate family lawyers can address the relevant issues. Once we have assessed your case, we can provide comprehensive legal advice about the contents of your parenting agreement, based on your unique circumstances. We can also answer any questions you may have regarding custody and visitation, and facilitate communication with your former partner or his/her lawyer. Most importantly, we will help you make decisions that accommodate your children’s best interests.
Help with unresolved financial issues
Even if you don’t have children, separation and divorce can be emotionally grueling. This is usually so when former spouses are unable to agree on financial and property matters from the beginning. If you and your ex are currently at odds over these issues, you may think it’s impossible to move forward. However, our family law team can address your questions and concerns about:

Any assets, liabilities and financial resources to be divided between you and your spouse or partner (this information is  essential in the determination of who gets what);
specific types of contributions (financial and non-financial) that you and your former spouse made prior to, during and after your relationship;
your need for financial support on an interim basis and how to get it (if applicable);
any long-term needs that you and your former spouse may have that warrant consideration, such as care of young children, or health conditions.

General benefits of consulting a family lawyer
One of the most important things to keep in mind when going through separation or divorce is that no two couples – and no two sets of circumstances – are identical. All of the helpful advice you’ve received from separated friends or divorced co-workers may not apply to your situation. By following it rather than consulting a legal professional, you could end up making some very costly mistakes. In particular, you risk proceeding without being aware of your legal rights and entitlements. This means that your separation could take a bigger toll on your purse strings and your psyche, thereby costing you a lot more in the long term (both emotionally and financially).
However, our family lawyers are expertly trained and equipped to provide advice based on your unique circumstances. Depending on your needs, a family lawyer can provide guidance regarding:

Alternative dispute resolution (if applicable);
the potential outcome of your case based on the facts;
how to reach a fair and just outcome;
required processes prior to negotiations.

Just as importantly (if not more so) our family law team will make you aware of any immediate steps you should take to protect yourself, your property or your children based on the specific circumstances of your case. We will also make you aware of your general legal rights and provide the tools you need to make informed decisions.
The bottom line…
As experienced and knowledgeable family lawyers, we are well aware of how difficult it can sometimes be to seek our help after separation. We know it can be scary. However, we cannot stress enough how important it is to find a family lawyer who can address your specific needs. If need be, bring a friend or family member to your first appointment for support and don’t be afraid to ask questions.
Our family law team makes sure that each and every person has the information and tools they need to make informed decisions. If you need comprehensive legal advice and representation to resolve your family law matter, we are here to help. Don’t put it off any longer. Contact us today on 13 58 28.
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