Andersons Solicitors Andersons Solicitors http://andersons.com.au Wed, 19 June 2013 Wed, 19 June 2013 Robyn Clissold http://andersons.com.au/lawtalk/posts/2013/june/andersons-staff-supporting-sids-and-kids-red-nose-day-on-28-june.aspx The greater majority of our Adelaide office staff will be out in force in the wee chilly hours of Friday 28 June 2013 on Victoria Square. From about 7.45 am we'll be commandeering a little space around Victoria Square and Franklin Street corner to entice you to support SIDS and KIDS along with us.  Our staff will have a range of Red Nose Day merchandise for sale and all proceeds go to this wonderful charity in support of children and families of children affected by Sudden Infant Death Syndrome. During the entire month of June 2013 our Casual Clothes Friday Charity has been SIDS and KIDS. SIDS and KIDS is dedicated to saving the lives of babies and children during pregnancy, birth, infancy and childhood and supporting bereaved families. SIDS and KIDS works to find answers for parents, by funding and supporting vital research into stillbirth, SIDS and safe sleeping practices. Through evidence based community education they aim to prevent these deaths and they advocate for and support bereaved families. They also provide a bereavement service to assist families who have experienced the sudden and unexpected death of a baby or child, during birth, pregnancy or infancy, regardless of the cause. SIDS and KIDS support services are extensive and include counselling, parent and family support, peer support, sibling support, grandparent support groups, group activities, annual memorial services, telephone counselling and a national 24 hour free call 1300 bereavement support line. For more information on this charity, please visit them at home: SIDS and KIDS and here for information on Red Nose Day . SIDS and KIDS relies almost totally on the support of the community so we'll be encouraging our staff to please give generously to a worthy cause throughout the month of June and we'll be asking the public that if they're passing by Victoria Square on Friday 28 June and see one of our fundraising staff, please dig deep and purchase a small item of merchandise in support . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.   http://andersons.com.au/lawtalk/posts/2013/june/andersons-staff-supporting-sids-and-kids-red-nose-day-on-28-june.aspx http://andersons.com.au/lawtalk/posts/2013/june/andersons-staff-supporting-sids-and-kids-red-nose-day-on-28-june.aspx Wed, 19 June 2013 Nioole Kelly http://andersons.com.au/lawtalk/posts/2013/june/my-family-law-court-orders-are-no-longer-relevant-can-they-be-changed.aspx When separated couples with children negotiate and finalise the arrangements for their children they will normally base those arrangements on their current circumstances. Similarly, when a Court makes Orders about where a child should live and how much time they are to spend with the other parent they too base their decision on the current circumstances of that child's life. However, as we know, life is full of changes and sometimes Orders that have been agreed or made by the Court are no longer practical as time goes by resulting in one parent wanting to change the Orders. It may be that separated parents can negotiate with each other and find a way through these changes but sometimes there will be no agreement and it will be necessary for the parent seeking the change to bring the matter back before the Court. What will the Court do about changing Orders? The leading case on changing Court Orders is the case of Rice V Asplund (1979). Chief Justice Evatt said the Court, "… should not lightly entertain an application … To do so would invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances." This is known as the "Rule in Rice v Asplund". Essentially, the Court will not allow a change to the Court orders unless there are new factors that have arisen that justify further litigation. The Court considers that it is not in a child's best interest to be put through further court proceedings unless there is a very good reason for doing so. In the recent case of Walsh v Rayne [2012] the Court applied the rule in Rice v Asplund. Here the father sought a change to the existing Orders on three grounds, namely education, the mother's mental health and her non-compliance with Orders. The father complained that the child had been absent from school for six weeks. The court found that the absences from school were satisfactorily explained due to the child undergoing medical treatment and going on holiday. There was also nothing in the child's school reports to suggest that her performance at school had deteriorated. The father complained that the mother had been hospitalised on a number of occasions since the first Orders had been made and that during her hospitalisation he had difficulty contacting the mother. The mother in fact had a history of bi polar disorder which was adequately treated and existed at the time that the first Order was made so the Court found that with regard to that complaint nothing had changed. Finally, the father complained that on six occasions the mother had not complied with the Orders. Four of those occasions related to a period of time before the original Orders were made and the remaining two were at a time when the mother was having difficulties with her illness. As a result the Court decided that there was little justification in engaging in the continuation of the proceedings and so would not entertain the father's application for a change in circumstances. The Rule in Rice v Asplund  The case of Rice v Asplund provides an example where there was a sufficient change of circumstances justifying a variation of the Orders. In October 1975 an Order was made granting custody (now referred to as "lives with") of the three year old daughter of the marriage to the father, Mr Rice. Approximately nine months later the Court accepted the wife's application for variation, giving her custody, with reasonable access (now referred to as "spends time with") to the father. In this case the wife had stabilised her accommodation, had married Mr Asplund and the child was to commence schooling all which the Court found made the previous Orders unworkable and unrealistic. In summary, there are two broad categories of change that can be relied upon to satisfy the Rule in Rice v Asplund. First, the applicant can show that an important fact was not disclosed when the previous Orders were made. An example might be the non-disclosure of family violence. Secondly, and far more common place, the parent seeking the change may show that new circumstances now exist since the making of the original Orders. For example, one of the parents might plan on relocating or has obtained new employment with different working hours.  Therefore the rule in Rice v Asplund requires a balancing exercise between two objectives; first protecting children from the effects of ongoing litigation and secondly ensuring that where circumstances have changed that may have a bearing on the best interests of the child, a fresh assessment of those interests is made. It's important when seeking to apply for changes to Family Court Orders that you seek experienced legal advice from a solicitor that practices in Family Law. Today's blog writer is Family Law solicitor, Nicole Kelly .   Nicole Kelly , Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2013/june/my-family-law-court-orders-are-no-longer-relevant-can-they-be-changed.aspx http://andersons.com.au/lawtalk/posts/2013/june/my-family-law-court-orders-are-no-longer-relevant-can-they-be-changed.aspx Tue, 18 June 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/june/what-is-the-legal-age-of-consent-for-sexual-intercourse-in-south-australia.aspx The age of consent for sexual intercourse is varied depending on the country or State within a country, the act takes place. This article is about the age of sexual consent in South Australia. It was recently reported that a woman in Tasmania pleaded guilty to five counts of having sexual intercourse with a young person. It was her misunderstanding that the legal age for consent was 16.  Also in the United States a woman who started a relationship with a 15 year old girl when she was 17 years old, is currently facing criminal charges.  In this case both girls were in what they thought a consenting relationship.  Their relationship was brought to the attention of the police by the 15 year old's parents.  Regardless of what the 15 year old says she cannot consent. Both of these examples are from other jurisdictions.  However, in South Australia and the other mentioned jurisdictions', an adult having sexual intercourse with a 15 or 16 year old is not lawful.  Courts in South Australia often hear cases like this and being confused over the legal age of consent is not a defence. In most cases the age of consent in South Australia is 17 years of age.  This reflects the strong position the South Australian community takes that children are vulnerable and it is a primary consideration of the criminal law to protect them.  The offence of having sexual intercourse with a child is called unlawful sexual intercourse under the Criminal Law Consolidation Act section 49.  It is unlawful because a child under the age of 17 cannot consent to sexual intercourse.  The first issue to address is the meaning of sexual intercourse.  It is defined in the Criminal Law Consolidation Act a lot more widely than sometimes the general public expect.  Sexual intercourse includes: any activity, heterosexual or homosexual, consisting of or involving penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object;  or fellatio; or cunnilingus.  Therefore sexual intercourse goes far beyond the classic definition of penile vagina intercourse.  It can be digital penetration, penetration with an object, oral sex etc. A person who has sexual intercourse with any person under the age of 14 faces a maximum penalty of life imprisonment.  A person who has sexual intercourse with a person under the age of 17 faces a maximum penalty of 10 years imprisonment. However if a 16 year old has sexual intercourse with a 16 year old it is not an offence.  It is also not an offence if a 16 year old reasonably believes that the person whom they had sexual intercourse with was 17 or older. In the case of the young woman in the USA; she was 17 when she started a sexual relationship with a 15 year old.  This would not be legal here in South Australia either.  Even though the 15 year old said she was consenting, the law states that she is too young to consent.  In South Australia if a 16 year old is in a sexual relationship with an 18 year old, the 18 year old would be exposing themselves to being charged with unlawful sexual intercourse.  This is still the case even though there is only a two year gap in their relationship and even though in their minds they are in a consensual sexual relationship.   If the parents of the 16 year old are unhappy about the relationship and report it to the police, the 18 year old is suddenly facing a maximum penalty of 10 years imprisonment and the fate of being placed on the sexual offender's registry.  On the other hand the 16 year old cannot be found guilty of aiding and abetting the offence, even if they were a willing participant. The age of consent changes to 18 when a person is deemed in a position of authority in relation to a person under the age of 18.  Examples of a person in a position of authority are: a teacher; a foster parent step-parent or guardian of the child; a religious official or spiritual leader; a medical practitioner, psychologist or social worker treating the child; a person employed in a correctional institution in the course of their duties in relation to the child; or an employer or someone who is aware that because of the child's intellectual disability cannot understand the nature and consequences of sexual intercourse. Therefore in the case of the Tasmanian step-mother, whilst she thought the legal age of consent was 16, in fact if she was in South Australia the age would be 18 because she was in a position of authority as his step-mother. I reiterate again in all of these circumstances consent is not a defence.  All it takes is disgruntled parents, jealous friends, and suspicious teachers and suddenly a person is facing very serious criminal charges. It is also important to note that there are no time limits for prosecutions of matters of this nature.  Charges could arise from long forgotten relationships that ended years or decades ago. There are also repercussions aside from the criminal charges.  If a person is convicted of unlawful sexual intercourse they then become a registrable offender under the Child Sex Offenders Registration Act .  This will have significant ongoing detrimental implications on the rest of their life. This section does not apply to persons who are married to each other. Today's blog writer is Solicitor in Criminal Law , Leesah Randall .   Leesah Randall - Solicitor Criminal and Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.   http://andersons.com.au/lawtalk/posts/2013/june/what-is-the-legal-age-of-consent-for-sexual-intercourse-in-south-australia.aspx http://andersons.com.au/lawtalk/posts/2013/june/what-is-the-legal-age-of-consent-for-sexual-intercourse-in-south-australia.aspx Sun, 16 June 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/june/talk-to-your-executors-before-you-finalise-your-will.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors; the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully. What is the role of an executor in a Will The role of executor is an important one.  They are required to; notify banks and other organisations and the ATO; ascertain and control all assets; identify beneficiaries and determine what their entitlement is according to the Will; obtain a grant of Probate; pay liabilities and any other estate claims; attend to the distribution of estate assets which may include the sale of real estate; and even take possession or control of the dead body. Usually the appointment of someone who is trustworthy and responsible is ideal for the role of executor. You are not limited to family or even your close friends. You may appoint several professionals such as a lawyer, in the role of executor, and importantly you can appoint more than one person to act jointly. Unlike appointing an attorney for an Enduring Power of Attorney or a guardian for an Enduring Power of Guardianship (where those you appoint need to sign the document agreeing to act), an executor does not need to sign your Will nor in fact act as your executor if they do not want to. After your death an executor appointed in your Will could renounce, meaning they can avoid any of the responsibilities required of an executor. If that happens then you may be left with an administrator of your estate who is appointed by legislation enacted by Parliament rather than someone of your own choosing. For example, let's say you are married (but separated), have two young children and appoint a good friend as your only executor and wish to give your estate to your children.  After your death your friend renounces their role as executor. If that occurs, then your estranged wife will be entitled to manage your estate. Perhaps even worse, if your estranged wife was willing to renounce her entitlement the next in line will be your children but due to their age, the Public Trustee will play a significant role in the administration of your estate. It is our advice that all executors you nominate in your Will not only are aware of it, but agree and consent to doing so and also have a copy of the Will you have made. That way, upon your death, they have sufficient information to begin the process of administering your estate. Today's blog writer is Senior Associate in Wills and Estate Planning , Greg Welden .   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.   http://andersons.com.au/lawtalk/posts/2013/june/talk-to-your-executors-before-you-finalise-your-will.aspx http://andersons.com.au/lawtalk/posts/2013/june/talk-to-your-executors-before-you-finalise-your-will.aspx Fri, 14 June 2013 Ryan Thomas http://andersons.com.au/lawtalk/posts/2013/june/i-am-in-a-same-sex-relationship-if-i-get-legally-married-overseas-will-it-be-recognised-in-australia.aspx The short answer to this question is no. Same sex partners are recognised as de facto couples under the Family Law Act 1975 , but same sex marriages from other countries are not recognised as marriages in Australia. Under Australian Federal Law, as opposed to individual State laws around the country, a marriage is defined in the Marriage Act 1961 as 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.' This leaves no room to interpret a marriage as being between two people of the same sex. While international marriage between a man and a woman can be recognised and/or registered under the Marriage Act , an overseas marriage between same sex people cannot be registered as it does not fall within the definition of a marriage, a 'union of a man and a woman.' As recently as August 2012 a Parliamentary Bill titled "Same-Sex Marriage Bill 2012", was put to vote in the Tasmanian Lower House of Parliament and passed. It did not however go on to pass in the Upper House in September 2012. The main reason given for the Bill not passing the Upper House was the potential inconsistency with Federal Law. Other reasons cited were that if the Bill had been passed, Tasmanian same sex marriages would have initially been recognised in Tasmania only. There is growing momentum for consideration of legalising same sex marriages in Australia but for now, same sex relationships are recognised as de facto relationships at law in Australia, and same sex marriages are not legally recognised in any State. Today's blog writer is Partner in Family Law , Ryan Thomas .   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/june/i-am-in-a-same-sex-relationship-if-i-get-legally-married-overseas-will-it-be-recognised-in-australia.aspx http://andersons.com.au/lawtalk/posts/2013/june/i-am-in-a-same-sex-relationship-if-i-get-legally-married-overseas-will-it-be-recognised-in-australia.aspx Thu, 13 June 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/june/interim-death-certificate-versus-final-death-certificate.aspx In South Australia, when a death has occurred it is common for an interim death certificate to be issued by the Registry of Births, Deaths and Marriages. This will normally be completed with the assistance of the funeral director and carry with it information required by legislation about the deceased full name, address, date of birth and death, place of birth, marriages and children. The interim death certificate is proof of death and can be used for many purposes in the winding up of someone's estate or registering their death with an organisation. What can be missing from an interim death certificate is the cause of death. That will be completed once the South Australian State Coroner has completed their investigations and possibly an inquiry. A death must be reported to the State Coroner where it has occurred: unexpectedly; unusually or by violent, unnatural or unknown causes; within 24 hours of being discharged from a hospital; or having sought emergency medical treatment at a hospital or in a number of other ways. The State Coroner may then make findings about the cause of death or hold an inquest to obtain further information it deems necessary. Once the State Coroner has received any reports outlining the cause of death, an official determination will be made and the Registrar of Births, Deaths and Marriages will also be notified. A final death certificate can then be sought recording the cause of death. When dealing with a deceased persons assets and investments it is not uncommon for a life insurance, death policy or some insurance policies such as mortgage or credit card insurance to wait until a final death certificate has been released. Depending on the circumstances of death it is also not uncommon for a final death certificate to be unavailable up to 12 months, and beyond, from the date of death. This can be distressing to families and provide financial difficulties in certain circumstances which is unfortunate. For any assistance or advice about death certificates or the distribution of an estate or contesting an estate , why not get in touch directly with today's blog writer, Senior Associate in Wills and Estate Planning, Greg Welden .   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.   http://andersons.com.au/lawtalk/posts/2013/june/interim-death-certificate-versus-final-death-certificate.aspx http://andersons.com.au/lawtalk/posts/2013/june/interim-death-certificate-versus-final-death-certificate.aspx Sun, 09 June 2013 Catherine Clark http://andersons.com.au/lawtalk/posts/2013/june/help!-i-am-separating-from-my-husband-what-happens-to-the-family-home.aspx Most commonly when a couple purchase a home or property (referred to as "land"), they purchase it as "joint tenants".  This is where a person holds an interest in land jointly with others.  Holding property or land as joint tenants is subject to the right of survivorship.  That is, when one of the joint tenants dies, that person's share in the property is absorbed into the shares of the surviving joint tenants. So if a husband and wife have their family home as joint tenants, and the husband dies, the wife as the other joint tenant will receive her husband's share of the family home, regardless of what is written in his Will . Another way land may be owned is as "Tenants in common".  This is where two or more persons hold a distinct interest in the same piece of land.  They hold undivided shares, possessing the land in common and without exclusive possession of any part of it.  These shares can be dealt with during their lifetime (for example, leased or sold), or gifted or disposed of in a Will. If the husband and wife hold their family home as tenants in common, and the husband dies, the wife will not automatically receive her husband's share of the family home, unless he has gifted it to her in his Will, or possibly through the administration of his estate. When a husband and wife separate, it is important to sever any land from joint tenants status to tenants in common status so that the husband and wife each have a share in the land that can be leased, sold, or gifted or disposed of in a Will. To do this, a form called a T1 Memorandum of Transfer (To effect a change of tenancy) is completed by a solicitor or registered conveyancer, and lodged at the Lands Titles Office. This is a document that sets out a description of the land, the estate and interest in the land, any encumbrances (this is where another person has rights over the land which are registered at the Lands Titles Office, which limit how the owner may use the land), who the transferor (husband and wife) and transferee (normally husband and wife, now as tenants in common) are, and whether any money has been paid to change the tenancy.  Normally no money is paid at this stage to change how the tenancy is held from joint tenants to tenants in common.  Money may be paid at a later stage due to a matrimonial/family law property settlement. A Memorandum of Transfer can be signed by both the husband and wife, or just one of them to sever the joint tenancy.  A husband or wife may act unilaterally without prior notice to the other. Before the Memorandum of Transfer is lodged at the Lands Titles Office it is stamped by RevenueSA for any stamp duty payable.  There may be an exemption of stamp duty payable if the severing of the tenancy is as a result of the breakdown of a relationship, and if so it will be stamped exempt accordingly. Once the Memorandum of Transfer is stamped, it can be lodged at the Lands Titles Office, along with the Certificate of Title, and the registration fee for the Lands Titles Office.  As at May 2013, this fee is $144 where there has been no money paid between the husband and wife for the value of the land to change it from joint tenants to tenants in common.  This fee is increased annually by the Lands Titles Office. You should keep in mind the Certificate of Title for the land may be held at the bank if there is a mortgage, and the bank may charge a production fee to deliver it to the Lands Titles Office. A Memorandum of Transfer can also be used where a husband and wife wish to change how their land is held from tenants in common to joint tenants. Today's article is written by Catherine Clark , solicitor in Commercial , Family and Estate Planning.   Catherine Clark - Solicitor Commercial, Family Law and Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.   http://andersons.com.au/lawtalk/posts/2013/june/help!-i-am-separating-from-my-husband-what-happens-to-the-family-home.aspx http://andersons.com.au/lawtalk/posts/2013/june/help!-i-am-separating-from-my-husband-what-happens-to-the-family-home.aspx Thu, 06 June 2013 Jennifer Hamshere http://andersons.com.au/lawtalk/posts/2013/june/have-i-run-out-of-time-to-lodge-my-personal-injury-claim-in-south-australia.aspx Under South Australian legislation, there are strict time limits for when you are able to lodge a claim for compensation.  Section 36 of theLimitations of Actions Act 1936 (SA)imposes a time limit of three years for personal injury claims (for example a claim for injuries sustained in a motor vehicle accident ).  The time period commences from when the cause of action arose.  So if you were injured in a slip and fall or a motor vehicle accident on 9 May 2013, you must commence an action by 9 May 2016. "Commencing an action" refers to filing pleadings in a Court.  It is often the case that a claim for compensation will already be in place before an action is commenced in Court.  For example (and a reminder, we're referring to South Australia), for claims for personal injury arising out of a motor vehicle accident, the injured party would usually have submitted an Injury Claim Form with Allianz, the Compulsory Third Party insurer, and engaged solicitors to represent them.  Negotiations to settle the claim may have already commenced, and the claim may be resolved before the three year time limit has expired. However, more often than not, the injuries may not have stabilised enough to enable resolution of the claim prior to the three year time limit.  It is never advisable to formulate a claim prior to the injuries stabilising, as the full affect of the injury may not be known.  For instance, after passive treatment has been undertaken that has failed to resolve the injury, future surgery may be needed.  If this is not known when the claim is formulated, and an allowance has not been made for future surgery, if the claim is settled, then any costs for future surgery will have to be borne by the injured party. According to Rules of the District Court for example, each claim must be formulated 90 days before pleadings are filed in a Court.  Pleadings are documents lodged in a Court to commence Court proceedings. But if the injuries are not stable, the claim should not be formulated.  However, given the time limits imposed by theLimitations of Actions Act 1936 (SA), pleadings must be filed.  The legislation has therefore created a difficult situation for injured parties.  An exemption of the Rules of the Court in relation to formulating a claim prior to commencing an action is often sought, and rarely denied for personal injury claims.  In these circumstances, the filing of pleadings tends to be more of an administrative step that is undertaken to protect the claim from expiring with the lapse of time.  It does not necessarily mean that the action will progress to trial.  But once pleadings are filed, there are strict Rules imposed in progressing the claim through the various Court processes. So what if your personal injury occurred more than three years ago, and Pleadings have not been filed in the Court?  The most important thing is to seek legal advice immediately to ascertain whether the issue can be remedied. Pleadings can be filed "out of time" if a "new material fact" is ascertained.  A new material fact is a fact that is learned later, that is material to the case at hand.  For example, complications or injuries arising out of medical negligence claims may not be known until sometime after the negligent medical treatment took place.  Once the complication/injury is known, it is imperative to file pleadings as soon as possible, to ascertain whether the Court will accept the claim. Similar to the issue of not formulating a claim prior to filing pleadings, an exemption from the Court Rules is sought, but it is not always granted.  The new material fact has to be explained thoroughly and it must be strictly material to the case at hand.  The new material fact may be opposed by the defendant, and legal arguments will be heard in Court.  Therefore, engaging legal representation is extremely important for out of time claims when a new material fact is ascertained. If you think you might have grounds for a claim for compensation but you think you might have run out of time, get experienced legal advice from one of the Andersons personal injury team members. Today's blog writer is Associate in Civil Litigation , Jennifer Hamshere .   Jennifer Hamshere - Associate Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses. http://andersons.com.au/lawtalk/posts/2013/june/have-i-run-out-of-time-to-lodge-my-personal-injury-claim-in-south-australia.aspx http://andersons.com.au/lawtalk/posts/2013/june/have-i-run-out-of-time-to-lodge-my-personal-injury-claim-in-south-australia.aspx Tue, 04 June 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/june/i-am-not-guilty-what-are-my-options.aspx When you dispute the allegations of what the prosecution allege or the charges against you, then you should plead "not guilty". When your matter is first before the court you will receive a copy of the apprehension report which is a summary of the evidence that prosecution seek to rely upon to convict you of the charges.  Your matter will then be given a further court date in four to six weeks time.  The solicitor representing you should contact the prosecution in this time period to inform them that you are contesting the charges and they may put them on notice of any possible defences that you may seek to rely upon and attempt to negotiate a possible outcome that is suitable to all parties involved, instead of going to trial. Your next court appearance will be to tell the court that you are pleading not guilty and to allocate a court date for a Pre-trial conference.  The Pre-trial conference is normally four to eight weeks after this court date.  Prior to your Pre-trial Conference both parties (you and the prosecution) must comply with Rule 26 of the Magistrates Court Rules.  Both defence counsel (your solicitor and/or barrister) and the prosecution must: fully explore the possibility of disposing of the charge other then by way of trial; enable the duration of the hearing to be estimated as accurately as possible; determine what evidence, if any may be proved by Affidavit (a signed statement made under oath or affirmed and in the presence of an authorised police officer or lawyer), rather than having to call a witness to appear in court to give sworn or affirmed evidence; facilitate the course of the trial; and inform the court as to each of the above.  Parties must also confer fully and frankly with each other and the court. A Pre-trial Conference is what we term as a preliminary hearing that occurs before a full trial to determine what is in issue or in dispute and whether a trial is necessary.  At the Pre-trial conference you are required to attend with your solicitor (unless you are representing yourself which we do not recommend).  A prosecutor is also present and a Magistrate who will not ultimately preside over your trial. A Pre-trial conference is an opportunity for all the parties to: hone in on the important issues to be decided at trial; to explore the possibility of the matter resolving without proceeding to trial; to estimate how long the trial will run for; and how many witnesses will be required. If your matter cannot resolve at a Pre-trial conference then a date will be set to proceed to a full trial. If you've been charged with an offence or crime that you do not believe you are responsible for or where you dispute some of the content of the charges, you should seek experienced legal advice from a solicitor who practices in criminal and police matters. Today's blog writer is solicitor in Criminal and Police Law , Leesah Randall .   Leesah Randall - Solicitor Criminal Law and Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .    http://andersons.com.au/lawtalk/posts/2013/june/i-am-not-guilty-what-are-my-options.aspx http://andersons.com.au/lawtalk/posts/2013/june/i-am-not-guilty-what-are-my-options.aspx Sun, 02 June 2013 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2013/may/what-can-i-do-if-i'm-being-discriminated-against-at-work-because-of-my-family-or-carer's-responsibilities.aspx Dean and Lisa have a son, Ben. Although Lisa only works part-time, sometimes Dean needs to stay home when Ben is sick or home from school. Lately Dean has noticed that he is being passed over for promotions and training opportunities. Whether it's staying home to look after a sick dependent or taking care of the kids during school holidays, it is still an unfortunate fact that a worker's request to stay home to look after children or, increasingly, older family members, is sometimes responded to unfavourably by employers. The Fair Work Act makes discriminating against an employee on the grounds of their family or carer's responsibilities, unlawful. A worker who believes this is the case can bring a general protections application to the Fair Work Commission. The Commission will then hold a conference, in which the worker and their employer can attempt to settle the claim, but if this isn't successful the worker will need to go to the Federal Court or Federal Magistrates Court for a hearing. To have a successful claim, there must be three components: that the worker was protected from discrimination; that adverse action was taken; and that it was because of the protected attribute. In Dean's situation, he would have to jump each of the three hurdles. Firstly, to show he was protected from discrimination he would need to show that he had one of the stated 'heads of discrimination' in the Fair Work Act - for him, it is that he has family responsibilities, in that he needs to care for Ben. Then he would need to show that adverse action was taken against him. That he has been denied training and that he has been passed over for promotions is likely to get him over the line here, though if he was demoted or dismissed, that would also count. To cover point three above, "that it was because of the protected attribute", instead of needing to show that his employer took that action because of his family responsibilities, his employer has to show that they did not, and instead took that action for genuine business-related reasons - that someone else was more qualified for the promotion, for example. Dean only needs to raise this. If he has proof, such as if his employer had made comments about his family responsibilities, then it is harder for his employer to deny that. The Modern Award system also contains a tool that people may use to adapt their work/life balance to suit family responsibilities. It is called 'Individual flexibility arrangements' (IFA).  IFA's are allowed under all Modern Awards and Enterprise Agreements made under the Fair Work Act 2009 . IFA's can cover working hours and must be negotiated between the individual employee and their employer, then recorded in writing and signed by both parties. In our example, Lisa might approach her employer and arrange to start the day later so that she could take Ben to school or childcare. If her employer did not let her and did not have a sound business-related reason, or then breached the IFA itself, Lisa could make a complaint to the Fair Work Ombudsman. If you've got a query about flexible working arrangements, discrimination in the workplace or any other industrial law matter, today's blog writer, Senior Associate in Employment & Industrial Law , Sorna Nachiappan , is available to assist.   Sorna Nachiappan - Senior Associate Employment & Industrial Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/may/what-can-i-do-if-i'm-being-discriminated-against-at-work-because-of-my-family-or-carer's-responsibilities.aspx http://andersons.com.au/lawtalk/posts/2013/may/what-can-i-do-if-i'm-being-discriminated-against-at-work-because-of-my-family-or-carer's-responsibilities.aspx Thu, 30 May 2013 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2013/may/the-bank-has-served-me-with-repossession-proceedings-what-can-i-do.aspx In our earlier blog " Help! The bank is selling my house ", we outlined several options when faced with the difficulty of not being able to make your next mortgage payment and possibly looking at the bank repossessing your home. If you have been unable to successfully negotiate with the bank, the next steps that will usually occur are: Typically, the bank will give you a notice stating that you are in default under the mortgage and telling you what you must do  remedy that default; Next, the bank must give you a notice that it intends to exercise its power of sale against you. There are specific service requirements for this notice which must be adhered to and the bank must give you 30 days to comply with this notice; If the default continues for 30 days, then the bank would ordinarily become entitled to exercise its power of sale. There is, however, ordinarily a need for a mortgagee such as the bank to take possession of your house in order to conduct the sale; In order to ensure that the bank does not act unlawfully in taking possession of your house without your consent, it must then commence proceedings in the Supreme Court seeking possession of land against you and/or any other persons occupying your house; As part of its application for possession of your house, the bank must put evidence before the Court showing that it is entitled to take possession of your house under the mortgage; The Court then requires that you "show cause" by providing a satisfactory reason to the Court as to why the bank should not obtain possession of your house; If the Court is not satisfied that you have a sufficient legal reason as to why the bank should not have possession, then it would make an order for possession in favour of the bank; A copy of that order must then be served upon you; Once the order has been served upon you, the bank may apply to the Court seeking what is called a Warrant of Possession. This warrant authorises the Sheriff to forcibly take possession of your house; Arrangements would then be made on the Sheriff's part to allocate a day to take possession of your house and on that day unless you have vacated your house first, the Sheriff and the bank will take possession of your house; At around this time, the bank will engage a Real Estate Agent to market and sell your house; The bank is obliged to attempt to sell your house for the best reasonably attainable amount available at the time of sale. Often the sale will take place by way of an auction. Up until the point where a contract for the sale of your house is entered into, you are entitled to pay out the mortgage in full if you have the means to do so, upon which payment you can then obtain your house back. Ways in which you can pay out the mortgage is by refinancing with another lender or selling your house yourself. However, once a contract is entered into between the bank and a new purchaser, the bank and the new purchaser will make arrangements for the payment of the sale price in exchange for the transfer of your house at the settlement date under the contract to the new purchaser; Assuming that the sale goes through on the settlement day, then the bank will receive the sale proceeds, take any monies due to it from the sale proceeds and then deal with any remaining proceeds by paying it to you or to any other person who might have a better claim than you - if any (which is typically the case if there is a second mortgage or some other claim to your house); and 15.           If there is a shortfall in the amount of the sale proceeds and the amount due to the bank, then the bank may seek to recover the difference from you in ordinary court proceedings. It is clear that there are many stages between receiving a notice of default from the bank to the day on which your home is repossessed. Each of those stages represents an opportunity for you to attempt to address the problem with the aim of reaching a solution that allows you to keep your home. For instance, you can resolve the dispute by: selling your house yourself, in order to pay the bank in full; arranging to refinance the monies owed and to use the funds from the refinancing to similarly pay out the bank; making what is known as a "hardship application" pursuant to the National Credit Code; in some cases, raising funds to repay any payments which are due (or overdue) but which you have not paid and the costs of the bank with the agreement of the bank; in addition to that above, by way of seeking an early release of some of your superannuation funds; or, finding some technical defect or failure by the bank to follow the correct legal procedure in taking possession of your house. Andersons Solicitors can assist you in assessing which steps you should take in order to bring a repossession action by the bank to a cost effective outcome, preferably with the result that you are able to keep your home. Whilst we are not able to assist you in bank repossession matters at no charge, the cost of obtaining early legal advice is frequently much less than the cost and losses associated with losing your home. Today's blog writer is Partner in Commercial & Business Law, Felix Hoelscher .   Felix Hoelscher - Partner Commercial & Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/the-bank-has-served-me-with-repossession-proceedings-what-can-i-do.aspx http://andersons.com.au/lawtalk/posts/2013/may/the-bank-has-served-me-with-repossession-proceedings-what-can-i-do.aspx Tue, 28 May 2013 Camille McDonald http://andersons.com.au/lawtalk/posts/2013/may/i-want-to-divorce-my-husband-but-i-cannot-locate-him-does-this-mean-i-cannot-get-a-divorce.aspx Scenario: Jill has been separated from Jack for approximately 2 years. Upon separation Jack left the former matrimonial home and Jill has had minimal contact with him since. Jill has no postal or email address for Jack and when she tries to telephone his mobile the network says Jack's phone has been disconnected. Recently Jill spoke with mutual friends of her and Jack's who informed her that Jack is now living in Malaysia with his new partner. When Jill questioned her friends further they stated that they discovered this information through Facebook and they did not have his postal address, email address or contact details in Malaysia. Jill has no contact with Jack's family who live interstate and no other way of finding out his address or contact details. Jill also has a new partner and wants to move on with her life. She feels a divorce will help her achieve this and will give her a sense of a new beginning. Jill is concerned she will not be able to get a divorce as she has no contact details for Jack and therefore cannot serve an Application for Divorce on him. Is there any legal avenue available to Jill for her to successfully obtain a divorce in the Federal Magistrates Court of Australia? Answer: There are several legal avenues available to Jill in the event that she cannot locate Jack to serve an Application for Divorce on him. Under Rule 7.18 of the Family Law Rules 2004 , there is a procedure known as "dispensing with service", which means that the court can order that service of the Application for Divorce is not required for a particular reason. Such reasons can include that the other party to the Application cannot be found (and the Applicant has taken reasonable steps to try and locate the other party) or has not been heard from for an amount of time, which the court deems to be an acceptable period of time to warrant dispensing with the service. Further, under Rule 7.18 of the Family Law Rules 2004 , service of the Application for Divorce may be ordered by the court to be "substituted service" meaning that the Application can be served on a third party related or connected to the other party. An example of such third party could be a close family member of the other party or someone who may still be in contact with them. Jill will have to provide the court not only with an Application for Divorce, but also an Application in a Case and an Affidavit outlining the factual history of the matter. These documents need to be drafted very carefully in order for the court to be satisfied that dispensing with service or making an order for substituted service is the appropriate course of action. It is highly recommended that a solicitor draft such documents due to their complex nature. Today's blog writer is Camille McDonald , Associate in Family Law in the Andersons Port Adelaide office.     Camille McDonald - Associate Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.  http://andersons.com.au/lawtalk/posts/2013/may/i-want-to-divorce-my-husband-but-i-cannot-locate-him-does-this-mean-i-cannot-get-a-divorce.aspx http://andersons.com.au/lawtalk/posts/2013/may/i-want-to-divorce-my-husband-but-i-cannot-locate-him-does-this-mean-i-cannot-get-a-divorce.aspx Sun, 26 May 2013 Anita King http://andersons.com.au/lawtalk/posts/2013/may/i-have-been-diagnosed-with-pleural-plaques-and-asbestos-exposure-when-should-i-make-a-claim-for-compensation.aspx Many people first find out that they suffer disease as a result of asbestos exposure when reading a report after an ordinary chest x-ray. It can be frightening to have proof that sometime in the past you must have been exposed to asbestos and now it shows up on your x-ray. Thickening on the lungs, commonly referred to as pleural plaques result from contact with asbestos products in the past, either at work, on building sites or in the person's own home. Pleural plaques do not always cause symptoms although it can be stressful to know that there are plaques in a person's lungs. Often the exposure will have occurred many years ago and in more than one place. For instance it may have been while you were living in another country, such as the United Kingdom. If a person was exposed to asbestos both in another country such as the UK and in Australia, you may be able to make claims in both countries. It will firstly be necessary to identify all possible sources and places of your asbestos exposure. It doesn't matter if each and every single exposure cannot be remembered. It will be sufficient if at least one source is identified. It is often said that pleural plaques in themselves do not attract any compensation claim. That is not always correct and it is best to seek experienced legal advice from a solicitor who works in the field of asbestos exposure in order to find out. Many people suffer from pleural plaques and early asbestosis and it is possible to make a claim and obtain compensation at one point in time while also leaving it open to then make another claim in the future should the person's health conditions deteriorate. How do I know if I can claim compensation? The best time to find out whether or not to make a claim for compensation for asbestos exposure is when you first find out that you suffer disease as a result of the exposure. In South Australia the Limitations of Actions Act 1936 provides that personal injury claims must be commenced within 3 years after the injury, however in accordance with s1(a), in the case of a personal injury that remains latent for some time, such as in the case of a dust disease, the period of 3 years mentioned above begins when the injury first comes to the person's knowledge. The ability to make a claim therefore is not open-ended, and it is important to get experienced legal advice when a person first finds out that they have suffered an injury as a result of exposure to asbestos. Andersons Solicitors maintains a register where individuals are able to place their personal details and relevant information which will assist in the potential claims process at a future date. Andersons Solicitors will also send you yearly reminders and in the event that your health deteriorates, provide advice as to when it's time to make a claim or when, potentially a further claim can be made. Today's blog writer is In-house Consultant, Anita King .  Anita works in our Civil Litigation department and specialises in asbestos and dust diseases claims.   Anita King :  In-House Consultant  Asbestos and Dust Diseases       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/may/i-have-been-diagnosed-with-pleural-plaques-and-asbestos-exposure-when-should-i-make-a-claim-for-compensation.aspx http://andersons.com.au/lawtalk/posts/2013/may/i-have-been-diagnosed-with-pleural-plaques-and-asbestos-exposure-when-should-i-make-a-claim-for-compensation.aspx Wed, 22 May 2013 Catherine Clark http://andersons.com.au/lawtalk/posts/2013/may/can-my-mum-change-her-will-as-often-as-she-likes.aspx It is surprising how often we are asked this question!  Often the kids have best intentions for their Mum, but there are a few things that should keep in mind. Do you need "Capacity" to write or change a Will? If Mum has capacity (that is, she is of sound mind, memory and understanding what a Will is and it's effect), then she can revoke, make or change her Will as often as she likes.  She must have the intention to make a Will, and have a free disposing mind.  Mum's capacity may be affected by old age, illness or disability, trauma or delusions. Mum cannot delegate to others the power to decide how her estate is to be disposed of (with the exception of charitable gifts). Can I choose what to do with my assets when writing my Will? Mum can dispose of her estate as she wishes.  For example, she may wish to leave all her assets to the Cats Home.  When giving instructions to a solicitor to prepare a new Will, we may advise Mum of the risks of leaving out her partner and children in favour of giving all her assets to the Cats Home, but if Mum has capacity, and is not being influenced or unreasonable, then she is free to leave her assets to whom she likes. Mum cannot put conditions on the gifts in her Will, such as "I give all my residuary estate to my son X but only if he marries Y". What is a Mutual Will? Sometimes married couples may make "mutual wills".  This is where Wills are made by two or more persons who have agreed that their Wills are not be revoked by either without notice to the other, and the Wills have interdependent testamentary directions and reciprocal benefits to each other.  Mutual Wills are frowned upon, as a person drafting their Will is losing the power to dispose of their property freely both during their lifetime and by Will. Whilst a solicitor may prepare a Will for both a husband and a wife, the Wills don't have to be a "mirror" of each other.  For example, a wife may prefer a different person to be appointed as her substitute executor, or gift assets to different beneficiaries than those in her husband's will. What is undue influence? Sometimes kids think that they are helping by dragging Mum in to the solicitors office to discuss, make or update her Will, but in fact it can be the opposite.  When taking instructions from a client, solicitors will check to see if there is any influence on Mum and whom she wishes to leave her assets to.  Mum must have a free disposing mind and should not have undue influence from any other person. Review Your Will regularly It is a good idea for Mum to review her Will regularly, and it is recommended that a solicitor assist with alterations to her Will rather than attempting to do it herself, as even a list of assets kept with a Will may be seen as a testamentary document that the Probate Office may be interested in. Ideally a Will should be reviewed (not necessarily changed) every 2 to 3 years, or whenever a major event occurs in the family, or to make sure the Will is still what Mum wants.  In particular, Mum should consult a solicitor if: She changes her name, or anybody in the Will changes their name; If an executor dies, or is unable or unwilling to act as an executor, or is perhaps unsuitable to act due to ill health or age; A beneficiary dies; Mum sells, gives away or puts into a trust or partnership any property that has been specifically left to someone in her Will; Mum gets married, remarries, divorces, enters into or ends a defacto relationship; Following the birth or adoption of new children; or If there are matrimonial difficulties. It is not necessary for Mum to inform her partner/husband, her beneficiaries (which may be the kids!) or the solicitor who prepared the old Will that she has changed or sought advice on changing her Will. Have you got a Will?  If not, we strongly recommend you write one and ensure you review it from time to time or in the event of major changes in your life situation.  Today's blog writer is solicitor in Wills & Estate Planning , Catherine Clark .   Catherine Clark - Solicitor Wills & Estate Planning and Commercial Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/can-my-mum-change-her-will-as-often-as-she-likes.aspx http://andersons.com.au/lawtalk/posts/2013/may/can-my-mum-change-her-will-as-often-as-she-likes.aspx Mon, 20 May 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/may/south-australia-south-road-upgrade-what-happens-if-my-home-or-business-is-subject-to-compulsory-acquisition.aspx On 14 May 2013, the South Australian Government announced that it would be acquiring up to 15 businesses and 120 houses for the purpose of upgrading South Road between Torrens Road at Croydon and Brickworks Markets at Hindmarsh. As the owner of any land or a business on land which is to be compulsorily acquired, you can seek legal and valuation advice and the Government Department acquiring the land is required to pay your legal and valuation costs. Do I have any rights to compensation for the compulsory acquisition of my land? This right to compensation applies to anyone affected whether it is the landowner, a business owner who is a lessee or the tenant of a rented house. Those affected by a land acquisition are entitled to proper compensation. There are some complex rules about how that compensation is calculated. It includes not only for the current market value of the real estate but also for allowances for "disturbance, injurious affection to the value of the remaining land and severance". These are technical terms which require substantial explanation. What types of things may I be able to claim in compulsory acquisition of my land? A land owner can claim the current market value of the property. Owners and tenants can claim removal costs. Land owners can claim stamp duty and other costs on the purchase of another property. There may be issues about Capital Gains Tax where a property was acquired before the introduction of CGT. A business owner can claim for the adverse effect on the business of relocating including a loss of goodwill and the actual relocation costs. There may be substantial costs involved in negotiating a new lease and setting up new premises. In cases where a business owner is unable to find other suitable premises and must close the business down there are claims for loss of goodwill, loss of value of stock and redundancies and other payouts to staff, which in some cases may even include the business owners. Various arrangements may be able to be negotiated with the acquiring authority in relation to the time available to vacate the property and the terms of continuing occupation. If you receive a letter or "Notice Of Intention To Acquire" from the Department of Transport, Planning and Infrastructure indicating that your land or business is to be acquired then, at Andersons, we are able to assist you by providing advice, arranging a valuation and negotiating with the acquiring authority. You will have the Government cover the legal and valuation expenses. John Daenke , a lawyer with over 43 years of experience, can deal with all the legal issues associated with compulsory acquisition of land. He has dealt with many land acquisition matters for property owners in the course of his career. He was involved in very significant negotiations with the Department of Planning, Transport, and Infrastructure and achieved successful outcomes for clients in the acquisition of land and businesses for the Gallipoli underpass on South Road. Over many years he has been involved in land acquisitions for roads, power lines, reservoirs and urban growth. For more information, assistance or advice, we suggest you get in touch directly with John or the Commercial team at Andersons.   John Daenke :  In-House Consultant Commercial and Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses. http://andersons.com.au/lawtalk/posts/2013/may/south-australia-south-road-upgrade-what-happens-if-my-home-or-business-is-subject-to-compulsory-acquisition.aspx http://andersons.com.au/lawtalk/posts/2013/may/south-australia-south-road-upgrade-what-happens-if-my-home-or-business-is-subject-to-compulsory-acquisition.aspx Fri, 17 May 2013 Jennifer Hamshere http://andersons.com.au/lawtalk/posts/2013/may/motor-vehicle-accident-–-can-passengers-be-held-responsible-for-their-injuries.aspx Generally, if you are a passenger in a motor vehicle accident, you cannot be held liable for the collision and you will receive compensation for the injuries you sustain in the collision, and the impact such injuries have on your life.  However, some factors may result in an allegation of contributory negligence (that is, your actions or inactions contributed to your injury or the severity of your injury), and any compensation you may receive for your injuries will be reduced by a certain percentage.  Not all the responsibility rests on the driver to ensure that you are safe in their vehicle. For instance, if you are aware that the driver of the vehicle has been drinking and is over the legal limit, your compensation may be significantly reduced if you are injured.  Allianz, the Compulsory Third Party insurer in South Australia, will investigate whether you were aware of the driver's alcohol consumption.  They will generally request your Blood Alcohol Certificate, and if you are also over the legal limit, an inference will be made that you had consumed alcohol together.  Of course, this must be backed by evidence.  Witnesses will be sought, especially if you were consuming alcohol at a pub, restaurant or public place.  If the evidence shows that you and the driver were drunk, andyou were aware that the driver was drunk before you entered the vehicle, your compensation will be reduced significantly.  Similarly, if you and the driver were taking recreational drugs, the same suggestion will be made that you were aware of the driver's drug taking and evidence will be sought to establish this. Of course, if it can be established that you were completely unaware that the driver of the vehicle was under the influence of alcohol or drugs and you were subsequently injured in a collision, you may succeed in claiming 100% of your compensation. Therefore, it is always recommended that you ensure your designated driver has not consumedanyalcohol prior to entering the vehicle with them.  Statistics show that a significant amount of fatalities are caused by drunk and drugged drivers. Another factor that may result in an award of contributory negligence is if you actively encouraged the driver to drive recklessly and/or speed.  All too often we see in the news headlines that people, generally younger people, partake in what has been termed "hoon driving".  If you are in a vehicle and you do not urge the driver to stop driving recklessly and an accident occurs, you can be held partly responsible for any injuries you may sustain as a result of reckless driving. If you are aware that the driver of a vehicle is unlicensed, then an assumption will be made that you should have acknowledged that the driver may not be competent.  If that driver then causes a collision and you are injured as a result, your compensation may be reduced for contributory negligence. Putting aside the acts of the driver of a vehicle you are a passenger in, you will also be subject to contributory negligence if you were not wearing a seatbelt.  Seatbelts have been proven to save lives and will, in most cases, reduce the severity of any injuries sustained in a collision.  If you choose not to wear a seatbelt, or you enter a vehicle that does not have seatbelts fitted, the argument will be that you could have prevented or minimised the extent of your injuries and your compensation will be reduced by a certain percentage. How much your compensation will be reduced will vary by case to case.  It may be that no compensation will be awarded at all for particularly reckless behaviour if you do not consider your own safety when entering a vehicle.  Today's blog writer is an Andersons Associate in Civil Litigation practising heavily in motor vehicle accident compensation, Jennifer Hamshere .   Jennifer Hamshere - Associate Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.  http://andersons.com.au/lawtalk/posts/2013/may/motor-vehicle-accident-–-can-passengers-be-held-responsible-for-their-injuries.aspx http://andersons.com.au/lawtalk/posts/2013/may/motor-vehicle-accident-–-can-passengers-be-held-responsible-for-their-injuries.aspx Thu, 16 May 2013 Michael Irvine http://andersons.com.au/lawtalk/posts/2013/may/is-my-injury-medical-negligence-or-product-liability.aspx Many people who are seriously injured as a result of a medical procedure feel that justice will only be done if the treating doctor is found personally responsible for the harm caused. Many victims feel the specific doctor involved in the flawed medical procedure should be stripped of his or her medical licence and never practice again. Whilst this sentiment is understandable, it may not always be legally possible to prove on the balance of probabilities that the doctor breached his or her duty of care, and that the breach caused the injury. As stated in our blog " Causation in medical negligence claims is often a real challenge ", 'it is necessary for the victim of medical negligence to show it was more probable than not that the breach caused the injury and resultant loss.'  In fact case law suggests that the threshold may even be higher than 'more than probable than not' in relation to medical negligence matters. As an example, a doctor may arguably be negligent by not diagnosing a patient's dementia for several years. However, if the onset of the dementia was unavoidable notwithstanding the delayed diagnosis, there may be problems in making a successful claim for compensation. Medical negligence is often difficult to prove because many injuries or medical conditions are highly unpredictable with an array of conflicting medical opinions. In some instances the doctors have not been personally negligent, but rather the products and equipment they have used has been faulty, and that has caused injury to the patient. It is a tragic reality that legal claims arising from problems associated with defective medical devices and other problems are arising both in Australia and around the globe. Recently in the United States, contaminated steroid shots gained widespread condemnation when the faulty shots were linked to a meningitis outbreak and approximately two dozen deaths. The US steroid case shows a clear intersection between medical negligence and product liability. This intersection of two distinct areas of law is not uncommon. In Australia, recent litigation involving Johnson & Johnson concerned the implantation of a type of mesh to treat pelvic organ prolapsed, primarily after a woman gives birth. There are arguments that the mesh itself is fit for purpose and not faulty, but is rather being used inappropriately by the individual doctors in some instances. So deciding whether this matter involves medical negligence, product liability or both is rather a tricky task indeed. At Andersons, over the last few years, more and more clients have come to us after being implanted with faulty DePuy hip and/or knee implants (DePuy is a subsidiary of Johnson & Johnson). Many clients have suffered unimaginably as a result of these faulty products, and most have undergone revision surgery to remove the faulty prosthesis and have continued to suffer ongoing complications. Arguably the doctors involved in the initial surgery procedures knew or ought to have known that the implants were dangerous. Arguably, there is a valid claim for medical negligence against certain doctors or hospitals involved in the surgery. But there may also be a strong case of product liability, and many solicitors at Andersons are working with the numerous plaintiffs to ensure they obtain the compensation they deserve. Furthermore, many South Australian victims of the faulty PIP breast implants have seen firsthand the struggles associated with pursuing claims for compensation, particularly if the defendants involved were not appropriately insured. There are pros and cons to pursuing either a medical negligence and/or product liability claim. For example, under federal product liability laws, compensation for pain and suffering is not capped by legislation. However, under the South AustraliaCivil Liability Act, compensation for pain and suffering is fixed based on a scale of seriousness from 1-60 points. This is one of the many factors solicitors need to consider in assessing whether to pursue a claim in medical negligence, product liability or both. So as you can see, the link between medical negligence and product liability is often blurred, and requires careful legal analysis. As discussed above, a medical negligence case would require a victim to show that the doctor, hospital or other provider of medical treatment and services was at fault. The law says that a person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession or competent medical practice (refer section 41 ofCivil Liability Act). Importantly, there may be differing professional opinions accepted in Australia, which complicates the matter further. However, a product liability case may be easier to argue if it can be shown that the product was not fit for use or was of poor quality. At Andersons, we have a team of lawyers who fight for the rights of victims of medical negligence and other types of personal injury on a daily basis. If you fee that you or a family member has been the victim of medical negligence or product liability, contact today's blog writer, solicitor in Civil Litigation , Michael Irvine .   Michael Irvine - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/may/is-my-injury-medical-negligence-or-product-liability.aspx http://andersons.com.au/lawtalk/posts/2013/may/is-my-injury-medical-negligence-or-product-liability.aspx Wed, 15 May 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/may/how-to-act-while-in-court-on-criminal-charges.aspx If you are appearing in a court for a criminal matter, there are protocols and etiquette that you should be aware of and comply with.  All judicial officers (Special Justices, Magistrates, Judges and Justices) sheriff's officers and court staff should at all times be treated with the utmost respect.  Appearing in court may be a stressful or anxious experience for you but it is important to allow everyone to do their job.  It is particularly important in relation to the judicial officers as your fate is in their hands. If you are flagrantly defiant or disrespectful to the court, its rules or its order, you may be found to be in contempt of the court.  If a judicial officer finds your behavior to be in contempt of court they have the power to sentence you to a term of imprisonment. You will notice solicitors, barristers and court staff nodding or bowing at the judicial officer as they enter and exit the court room.  This is a customary sign of respect to the presiding judicial officer.  Although not absolutely necessary it is polite to do so yourself. Whilst waiting in the body of the courtroom it is important be as quiet as possible.  If you must speak it is important to whisper and not disturb the court.  You must not eat, chew gum, wear a hat or sunglasses on you head.  If you wish to take notes for whatever reason then you must ask permission from the court staff who will ask the judicial officer.  Whilst wearing a suit may not be necessary you must dress appropriately and neatly. If you are represented by a solicitor or barrister and wish to speak to them while your matter is being heard, it is polite to ask the sheriff's officer to get the attention of your solicitor or barrister. If you are being addressed by the judicial officer you should stand and listen to what they have to say.  If they ask a question then you should answer them truthfully and politely in a raised voice so they can hear you clearly.  Should you have something that you wish to say and are not being represented by a solicitor or barrister then you should wait until everyone else has finished speaking and ask the judicial office for permission to speak.  Never interrupt a judicial officer whilst they are speaking.  A judicial officer in the criminal jurisdiction in South Australia is addressed as "Your Honour'. This is a quick snapshot of appropriate behavior in our courts.  If you have engaged a solicitor to represent you, you can seek further guidance from them.  Today's blog post is written by solicitor in Criminal Law , Leesah Randall .   Leesah Randall - Solicitor Criminal Law & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/how-to-act-while-in-court-on-criminal-charges.aspx http://andersons.com.au/lawtalk/posts/2013/may/how-to-act-while-in-court-on-criminal-charges.aspx Tue, 14 May 2013 Nicole Kelly http://andersons.com.au/lawtalk/posts/2013/june/can-i-change-my-child's-surname.aspx In Family Law matters, following separation it is not uncommon for a mother to revert to her maiden name. Family lawyers are often asked whether the child's surname can also be changed to match that of the mother. Where both parents agree it is easily done by completion of a form at the Registry of Births, Deaths and Marriages. However, in the context of a separation, it is far more likely that one parent will strongly oppose the changing of their child's name. Where there is a dispute about a child's name the parent wanting the change can apply to the Magistrates Court for an order to that effect. The Family Court does not actually make orders changing a child's name but may stipulate the name by which the child is to be known. This is called a "declaration".  If there are already proceedings on foot in the Family Court then it would be usual to make an application for a "declaration" that a child be known as a certain name. The parent seeking the change of name can then apply to the Registrar of Births, Deaths and Marriages to formally change the child's name. However, if there are no parenting issues in dispute and the only dispute is about the child's name then the Magistrates Court is the appropriate arena. In making a decision about whether to grant an order authorising the Registrar of Births, Deaths and Marriages to allow the change of a child's name (Magistrates Court) or changing the name by which a child is known (Family Law Courts) the Courts must decide if the change of name will be in the best interests of the child. The non-consenting parent will have the opportunity to tell the Court why the child's name should remain the same. The types of things that the Court takes into account are: The welfare of the child The short and long term effects on the child of changing the child's name Any embarrassment that is likely to be experienced by the child if the child's name is different from that of the parent with whom that child lives Any confusion of identity that may arise for the child if the child's name is or is not changed. The effect that a change of name may have on the relationship between the child and the parent whose name the child previously had. The effect on the child of frequent or random changes of name. The Court will also take into account the relationship between the non-consenting parent and the child and the amount of time that the child spends with that parent. If the Court makes an order authorising the change of a child's name, the Registrar of Births, Deaths and Marriages will then accept the application to register the change of name. If you need assistance or advice in relation to any Family Law issues, why not get in touch with today's blog writer, Solicitor in Family Law, Nicole Kelly .   Nicole Kelly - Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/june/can-i-change-my-child's-surname.aspx http://andersons.com.au/lawtalk/posts/2013/june/can-i-change-my-child's-surname.aspx Thu, 09 May 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/may/is-your-will-worth-the-paper-it-is-written-on.aspx So this was the tag line to "A Current Affair's" story that aired on Friday 3 May 2013 on Channel 9 in Adelaide. The accompanying visual of a piece of paper being torn in half on the promo the night before got my attention, but perhaps not for the reason Channel 9 or A Current Affair had wanted.  Nevertheless - I tuned in. The story focussed on 2 young (but adult) children from Queensland whose father died and left a Will giving his entire estate to them both.  The estate consisted of several real estate properties and other assets. Someone, either the deceased himself or the lawyer who drafted the Will, had forgotten about the domestic partner and her young children. Surprise surprise she challenged the Will and sought an order seeking further provision from her late partner's estate. As an experienced solicitor in the realm of inheritance claims I see all types of clients ranging from the Will drafter to disappointed children or partners and also the children and partners who have to defend such claims by the disappointed children or partners. Sometimes there is no way to prevent a claim being made but a thoroughly drafted Will by an experienced solicitor can make certain that a Will may provide for and ultimately satisfy all persons who you may be morally bound to make such provision for and secondly, that all the possible issues that might arise in the future are raised and discussed. In all States of Australia, legislation dictates who and on what grounds an inheritance claim may commence.  It is common throughout the States that domestic partners are entitled to make a claim should they be left without adequate provision. The children in Channel 9's story complained that their father had a made a Will and therefore he thought he had done all he needed to do to ensure his assets would pass to his children. What the story did not divulge was when the Will was drafted perhaps it was drafted before he began his domestic partnership with the spouse.  What the story did say, briefly, was that the Judge was critical of the children for not negotiating a settlement earlier.  That suggests to me that the children rejected any and all offers of settlement presented by the domestic partner wanting to have their day in Court blindly thinking that the terms of the Will must stand because that is what Dad would have wanted. It's no surprise the costs of the trial outweighed any real benefit each of the parties received. The story became more and more like a whinge about how much money they spent on lawyers rather than focussing on WHY the case commenced at all, why the partner was entitled to a share in the estate and what can be done to prevent it. Let's put it this way, if their father did not draft a Will the laws of intestacy (legislation enacted by Parliament in each State) would no doubt dictate the domestic partner gets a far larger slice than she did at trial. A domestic partner is entitled to receive a benefit from their late partner's estate as there is implicit in such a relationship a financial dependency; if one partner dies the other is entitled to some benefit as a result of that dependency no longer being available. The story suggested that the partner had young children herself.  In those circumstances additional weight is to be given to the benefit she requires as those children are, at least in part, dependent on the deceased. Furthermore, and this may be hard to swallow for some, the children in the story appeared to be of adult age, fully educated and likely to be in gainful employment.  As such theirneedfrom their father's estate is less and in some circumstances may result in them not being able to successfully challenge a Will. Two points to conclude on. First, the children of whom the story on Channel 9 focussed upon had spent perhaps a week (maybe more) in trial before a Judge of a Supreme Court in Queensland. There may have been as many as 3 or 4 barristers assisting in presenting evidence at trial and perhaps another 4 to 6 solicitors behind the scenes busy for between 12 to 24 months before the matter even had a chance of being heard by a Judge. The Judge then, after hearing all of the evidence, made a decision as to who was entitled to what share in the deceased's estate and in what proportion. A 5 minute story on A Current Affair was never going to be able to compete, so let's see it for what it was, a ratings grab, no more no less. Secondly, proper, considered and accurate advice from a solicitor experienced in drafting Wills can often lead to such claims being avoided or at the very least minimised.  Sometimes there are measures that can be put in place to protect someone's inheritance, or ensure that a claim is doomed to failure because of the provision already made for them. It is also possible in some circumstances to re-arrange your financial assets, particularly superannuation , to achieve your desired goals. The important message out of this; get your Wills drafted by a solicitor experienced in Wills & Estate Planning. Today's blog writer is Senior Associate in Wills & Estate Planning, Greg Welden .   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/may/is-your-will-worth-the-paper-it-is-written-on.aspx http://andersons.com.au/lawtalk/posts/2013/may/is-your-will-worth-the-paper-it-is-written-on.aspx Thu, 09 May 2013 Jennifer Hamshere http://andersons.com.au/lawtalk/posts/2013/may/medicare-and-your-personal-injury-compensation-claim.aspx It is generally the case that most people injured in a motor vehicle accident or in the workplace would have received some medical treatment which has been paid by Medicare, whether the fee has been entirely bulk-billed or a "gap" has been met by the injured person. If they make a claim for compensation and receive a claim number (for instance, from Allianz for motor vehicle accident claims, or WorkCover or ComCare for workers compensation claims) they have often already received some initial medical treatment for their injuries either before they have decided to make a claim for compensation or before they have received their claim number after lodging a claim. We therefore need to establish whether Medicare has contributed to the cost of any medical treatment that should ordinarily be covered by, for example, Allianz or WorkCover. If Medicare have made any contributions, they will be entitled to a reimbursement from the claimant's (the injured person) settlement funds. In order to determine any amount owing to Medicare, a request is made to Medicare to provide the claimant with a Statement which will detail all of the treatments to which Medicare has made contributions on the claimant's behalf since the date of the accident or incident.  It will then be determined which treatments out of the list are related to the compensation claim. The Medicare Statement will provide a general description of the services provided and the name of the health care professional and/or clinic, so it is generally not difficult to ascertain which treatments are related to the accident or incident.    Sometimes it is difficult to establish which treatments are related to the accident or incident, and the claimant may need to consult each health professional listed within the Medicare Statement so that they can cross check the treatments listed with their medical records.  It is therefore recommended that claimants maintain a diary to track the treatments they have received for their compensation claim, especially if the claimant does not receive a claim number and is required to pay for their own treatment throughout the claim. For example, the majority of "slip and fall" and other public liability claims can fall into this category. However, the completion of the Medicare Statement is a self assessment, and Medicare will generally be satisfied if the claimant indicates which treatments are related to the accident to the best of their knowledge.  The claimant must complete a Statutory Declaration, confirming that the Statement has been completed to the best of their knowledge. It is a criminal offence to knowingly provide false information in a signed Statutory Declaration. Upon receipt of the Medicare Statement, Medicare will generate a Notice of Charge (also referred to as a Notice of Past Benefits), which will detail the amount owing to Medicare.  This amount will be incorporated into the claim (that is, it will beaddedto the amount sought by way of compensation from the insurer).  The Notice is valid for six months, and it is often the case that updated Statements will be required as the claimant's matter progresses. If the Medicare Statement is not submitted by the due date, the claimant will receive a Deemed Notice, which means that Medicare has deemed that all of the contributions made are related to the accident.  If this occurs, the insurer will not pay for the Medicare component and 10% will be deducted from the claimant's settlement funds and submitted to Medicare to cover the Medicare contributions.  Any balance will be refunded to the claimant, and likewise, any shortfall will be sought from the claimant. Also, if there is not a valid Notice at the time of settlement, 10% will be deducted from the settlement funds in the same manner. It is therefore critical that the Medicare Statement is completed correctly and submitted by the due date, to avoid the claimant paying Medicare from their own pocket. If you've got a personal injury claim maybe from a motor vehicle accident or workplace accident, we always recommend you seek experienced legal advice.  Today's blog writer, our Associate in Civil Litigation , Jennifer Hamshere would be more than happy to advise or assist you.   Jennifer Hamshere - Associate Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/medicare-and-your-personal-injury-compensation-claim.aspx http://andersons.com.au/lawtalk/posts/2013/may/medicare-and-your-personal-injury-compensation-claim.aspx Thu, 09 May 2013 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2013/may/help!-the-bank-is-selling-my-house.aspx In difficult economic times, it is sometimes hard to make sure that you are on top of all the debts you owe.  One of the largest debts that most people have is their mortgage. It is very important that the mortgage is paid regularly because if it is not, you might lose your home. The bank is allowed to repossess and sell your home if you do not pay your mortgage. What can I do to stop the bank repossessing my home? If you are struggling financially, there are several options available to you that might avoid the bank taking back your house. In the first instance, you should always speak to the bank about your financial position, preferably as soon as you know that you might have trouble making the next payment rather than if you have already missed the payment. The bank may agree to allow you not to pay your mortgage for a small period of time until your circumstances improve. The missed payments are "added" on to the mortgage and extend the size and often the duration of the mortgage, but it means that for a period of some months you do not need to immediately make payment. This is often called "capitalisation of interest" or a "hardship provision". Another option may be that you re-finance with another lender and on different terms. Whether that is possible, or whether the bank agrees to allow you additional time to make payment, depends entirely on your circumstances and whether the bank takes the view that in the future you will be able to meet your mortgage commitments or catch up the arrears. You may also in some circumstances be able to apply for an early release of some of your superannuation savings for the purpose of paying your mortgage arrears, however doing so may have some tax implications for you. If you are encountering financial difficulty, you should speak to your accountant or, if you do not have an accountant, seek specific financial advice from a person qualified to give such advice. Whilst Andersons Solicitors cannot give you financial or accounting advice,  we can negotiate with your bank with a view to giving you extra time in which to pay the mortgage or to refinance with another lender. The most important message is to act early.  As soon as you are aware of your financial difficulties, take action. Today's blog writer is Partner in Commercial & Business Law, Felix Hoelscher .   Felix Hoelscher - Partner Commercial & Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/help!-the-bank-is-selling-my-house.aspx http://andersons.com.au/lawtalk/posts/2013/may/help!-the-bank-is-selling-my-house.aspx Mon, 06 May 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/may/do-i-have-to-stop-at-the-scene-of-an-accident-or-report-an-accident.aspx What are a driver's responsibilities to stop at the scene of an accident? If you are the driver of a vehicle that is involved in an motor vehicle accident with another vehicle or a pedestrian you must stop at the scene. ( Australian Road Rulesr 287(2) ). If a person is killed or injured as a result of the accident; then you must immediately stop the vehicle and give all possible assistance to those involved in the accident.  Then within 90 minutes of the car accident, present yourself to a police officer at the scene of the accident or at a police station.  The only defence to this is if you had a reasonable excuse not to comply and then did so as soon as possible; for example, if you yourself were taken to hospital for injuries. In our previous article " What are my legal responsibilities as a cyclist on public roads " a vehicle is defined very widely to include: a motor vehicle, trailer and tram; a bicycle; an animal-drawn vehicle, and an animal that is being ridden or drawing a vehicle; a combination; and a motorised wheel-chair that can travel at over 10 kilometres per hour (on level ground); but does not include another kind of wheelchair, a train, or a wheeled recreational device or wheeled toy. When you report to police you are to provide police with your personal details and details relating to your vehicle and undergo an alcohol and or drug test.  (The Road Traffic Acts 43).  If you fail to do any or all of these things and do not have a valid defence, you may be charged with a criminal offence with a maximum penalty of five years imprisonment and be disqualified for at least one year. Further there are very severe penalties in relation to a "hit and run" scenario.  This scenario would arise if a person drives a vehicle without due care and attention and that driving causes the death of another or causes serious harm to another.  If they fail to report the accident they will be guilty of a criminal offence.  The maximum penalty for a first office is 15 years imprisonment and a licence disqualification of at least 10 years.  For a subsequent offence the maximum penalty is imprisonment for life and a minimum licence disqualification of at least 10 years.  Where there is harm caused but not serious harm the maximum penalty is imprisonment for five years and licence disqualification of one year.  For a subsequent offence the maximum penalty is seven years and a minimum licence disqualification of three years. What are a driver's responsibilities to report an accident to police? When a driver is involved in a road accident, they are required to report it to police if the damage to the vehicles is more than $3000 and property other than their own is damaged also.  They are required to report the accident as soon as possible and except in exceptional circumstances within 24 hours of the crash.  However the sooner you do report it, the better because the details will still be very fresh in your mind. The driver is to report to police: the day, the time and the place of the crash; and details of other drivers and vehicles involved in the crash; and details of injuries and damage resulting from the crash; and except where the driver objects to providing the information on the ground that it might incriminate him or her of an offence, the details of vehicle speeds and position before and at the time of impact. You may still want to report, even if you are not required to, for insurance purposes. The penalty for not reporting to police in this scenario could be a fine of $2500. Today's blog writer is Leesah Randall , solicitor practising in Criminal Law and Police Offences .   Leesah Randall - Solicitor Criminal Law and Police Offences   Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/do-i-have-to-stop-at-the-scene-of-an-accident-or-report-an-accident.aspx http://andersons.com.au/lawtalk/posts/2013/may/do-i-have-to-stop-at-the-scene-of-an-accident-or-report-an-accident.aspx Fri, 03 May 2013 Anita King http://andersons.com.au/lawtalk/posts/2013/may/latest-news-on-powers-of-attorney-enduring-powers-of-guardianship-and-medical-powers-of-attorney.aspx The South Australian Government is proposing new legislation with The Advanced Care Directives Bill 2012 . This Act will enable a person to make decisions and give directions in relation to their future health care, residential accommodation arrangements and personal affairs. It provides for the appointment of a substitute decision maker to make such decisions on behalf of the person and ensures that health care is delivered to the person in a manner consistent with their wishes. The legislation is also intended to assist in resolving disputes relating to advanced care directives and to provide protection for health practitioners and others involved in the provision of advanced care. A number of other Acts will require amendment to work in conjunction with these proposed changes. It is intended that the legislation replace Enduring Powers of Attorney and Enduring Powers of Guardianship and Medical Powers of Attorney. In the event a person has impaired decision making capacity and has completed the relevant form (yet to be titled or drafted) in accordance with the Act, those instructions will take precedence.  Only refusals of health care are binding. Instructions such as "I never want to go into the nursing home" will not be binding instructions in accordance with the Act.  However should an individual complete such a directive, health professionals may try harder to keep that person in the family home, (see section 19 of the Bill) and accordingly it will be a powerful tool to ensure wishes are carried out.  Generally an advanced care directive needs to be in English but the use of an interpreter is permitted. Importantly, the directive needs to be witnessed appropriately and the witness must satisfy themselves that the person understands the consequences and the nature of the document.  It is impossible for the substitute decision maker to refuse the provision of pain relieving medication and the natural provision of food and fluids. The document, once created, can be revoked and a person can make a new one, appointing a new person however the Guardianship Board is to be advised. The proposed Act provides for a new concept in the case of a dispute in that the matter then goes to the Office of the Public Advocate for mediation. That Office can then refer matters to the Guardianship Board for review. The Guardianship Board has power to confirm, vary or reverse a decision. In accordance with section 50 of the proposed Act, the Board can decide if a person is not a suitable substitute decision maker. It also provides for transitional provisions in that any old Powers of Guardianship, Powers of Attorney and so forth will still be recognised, but interpreted such that the new Act will be relevant to the old documents. These proposed changes may have a significant impact on those people who have current Powers of Attorney (and similar documents) or who are proposing to obtain such documents.  There is no time limit on when this draft legislation will pass Parliament but we will endeavour to keep you informed of the progress. If you require any assistance or advice in relation the contents of this article, please feel free to get in touch with today's blog writer, In-House Consultant in Civil Litigation , Anita King.   Anita King :  In-House Consultant Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/may/latest-news-on-powers-of-attorney-enduring-powers-of-guardianship-and-medical-powers-of-attorney.aspx http://andersons.com.au/lawtalk/posts/2013/may/latest-news-on-powers-of-attorney-enduring-powers-of-guardianship-and-medical-powers-of-attorney.aspx Thu, 02 May 2013 Camille McDonald http://andersons.com.au/lawtalk/posts/2013/april/what-is-the-difference-between-a-barrister-and-a-solicitor.aspx Scenario: Jenny has recently retained a solicitor to act on her behalf in relation to a Family Law matter; a matrimonial property settlement. Her matter has escalated quickly and court proceedings have already been started by her husband. Jenny's solicitor has advised her that it may be necessary to retain a barrister to appear on her behalf in court. Jenny is confused, she was under the impression that her solicitor would be appearing for her in court. Why is it necessary that she have both a barrister and a solicitor? Answer: Jenny's confusion between the role of a barrister and a solicitor is very common among clients involved in legal proceedings. Whilst a solicitor in South Australia can appear in Court on behalf of their client, it is common in Family Law matters to engage a barrister to do so. A solicitor spends most of their time out of court and is involved in the day-to-day legal affairs of their clients. Such day-to-day affairs can include telephone and email communication, taking instructions from clients, drafting letters and court documents, conveyancing, out of court negotiations and the administrative conduct of the legal file. A solicitor can appear on behalf of their client in court however a solicitor mainly appears for preliminary and interim hearings, before the parties engage in formal argument. On the other hand a barrister spends most of their time in Court conducting Court appearances, primarily appearing in Court applications and trials. A barrister is also commonly retained for a matter in order to provide specialist advice on a particular issue, or to be involved in the drafting of court documents with the solicitor. By not being involved in as much of the direct day to day running of a file of a client, barristers are able to specialise in and become better skilled at conducting arguments and knowing intricate parts of the law. To avoid unnecessary duplication, barristers are often engaged for specific tasks, when their skills are most needed. In Jenny's case it is possible that her solicitor recommended that a barrister be involved in her matter for a number of reasons. The solicitor has the understanding of the facts of the file and will consider how to get the best possible result in Court. If they believe that the client is best served by retaining a barrister then they will advise accordingly. They will also recommend a barrister that they believe is suited to the case in all the circumstances. Perhaps Jenny's matter involves a unique difficulty which a particular barrister specialises in or perhaps the solicitor anticipates a particular hurdle in litigation which would be more appropriately handled by a barrister. A client cannot retain a barrister without retaining a solicitor first. The solicitor needs to keep a copy of the complete file and notes of all correspondence and is therefore responsible for all of the communication with the barrister on behalf of the client.   There are clearly notable differences between a solicitor and a barrister and sometimes it can be crucial to have both involved in your case. Today's blog writer is Associate in Family Law , Camille McDonald .  If you have any queries in relation to Family Law matters, feel free to get in touch with Camille directly.  If you have queries about engaging a barrister for a matter other than Family Law, feel free to contact Andersons head office.   Camille McDonald - Associate Family Law       This blog is posted in the State of South Australia. Laws may differ in each State of Australia.   http://andersons.com.au/lawtalk/posts/2013/april/what-is-the-difference-between-a-barrister-and-a-solicitor.aspx http://andersons.com.au/lawtalk/posts/2013/april/what-is-the-difference-between-a-barrister-and-a-solicitor.aspx Tue, 30 April 2013 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2013/april/the-company-suing-me-has-no-money!-how-do-i-get-compensated-if-i-win.aspx The Australian legal system works on the principle that everyone is entitled to their day in Court. The merit of a claim is usually not determined until the Court hears the dispute at trial. In other words, it is one thing to lodge a claim and another matter to win it. The result of lodging a claim but not winning it is that the unsuccessful claimant (the person making the claim) has to pay both their own legal costs in full and also a large portion (if not all) of their opponent's legal fees too. That is not intended to "punish" the claimant for bringing an unsuccessful claim, but rather to ensure that the person who has successfully defended a claim is not left substantially out of pocket as a result. It is sometimes the case that you strongly suspect that the company suing you will be unable to pay your legal fees of defending the claim once you have won. The Courts have a Rule which is intended to prevent such a result, namely the rule of "Security for Costs". Security for Costs is essentially an application to the Court where the party being sued asks the Court to make an Order that the claimant be prevented from further proceeding with the claim until such time as they have paid adequate money to the Court to satisfy any Cost Orders made against them in the event that they are unsuccessful. Such an Order is typically made in cases where a company is suing and there is a good likelihood that the company has little or no assets with which to pay an Order for Costs if the company is unsuccessful. There are several matters which the Court considers before ordering Security for Costs. Common considerations are: whether the Plaintiff is resident outside of Australia or the jurisdiction; or if the Plaintiff (the person initiating the claim) is suing on behalf of another person; or where there is evidence that the Plaintiff is behaving in a manner intended to defeat any later Order for Costs to be paid. An Order for Security for Costs is not automatic. The Court is reluctant to prevent persons from lodging claims. Requiring them to pay a substantial amount into Court to allow a claim to proceed can create considerable hardship for a Plaintiff. However, in some cases it is entirely appropriate to seek an Order for Security for Costs and each situation must be assessed on its merits. If you are facing litigation by a company that may be facing financial difficulty, Andersons is able to assist you in deciding whether to apply to the Court for Security for Costs and to represent you in any such application. For more information about this or to investiage all your options, you can speak with today's blog writer, Partner in Commercial Litigation , Felix Hoelscher.   Felix Hoelscher - Partner Commercial Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2013/april/the-company-suing-me-has-no-money!-how-do-i-get-compensated-if-i-win.aspx http://andersons.com.au/lawtalk/posts/2013/april/the-company-suing-me-has-no-money!-how-do-i-get-compensated-if-i-win.aspx Mon, 29 April 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/april/vehicle-registration-labels-bite-the-dust.aspx From 1 July 2011, South Australia ceased issuing motor vehicle registration labels and removed the requirement to display a label on cars, trailers, boat trailers, horse floats, and caravans. Heavy vehicles (vehicles with a gross vehicle mass of more than 4.5 tonnes) are still required to display a heavy vehicle registration label. What does the abolition of vehicle registration labels mean for you? This means that you can no longer rely upon a motor vehicle registration label as a reminder of when your registration is due.  There are however, three very simple ways to check if your vehicle is registered: you can look online using EzyReg ; use the EzyReg "app" on your smart phone; or telephone 1300 133 776 Owners of motor vehicles still receive reminder notices when their registration needs to be renewed.  It is the vehicle owner's responsibility to ensure that all vehicles registered in their name, are up to date on registration payments. It is important that you ensure that you car is registered.  If you use an unregistered vehicle on the road you may be committing an offence with a maximum fine of $2,500 and may not be covered by compulsory third party insurance.  This is the insurance that covers you if you injure someone else in a road accident. Police do roadside registration checks with wireless equipment that immediately checks vehicle registration status.  Also all road traffic cameras detect unregistered and uninsured vehicles on South Australian roads.  So it is very important to ensure your registration is up to date at all times. Today's blog writer is Solicitor in Criminal and Police Matters, Leesah Randall .   Leesah Randall - Solicitor Criminal & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/april/vehicle-registration-labels-bite-the-dust.aspx http://andersons.com.au/lawtalk/posts/2013/april/vehicle-registration-labels-bite-the-dust.aspx Mon, 22 April 2013 Nicole Kelly http://andersons.com.au/lawtalk/posts/2013/april/i-cannot-support-myself-after-separation-how-can-i-make-my-ex-pay-me-maintenance.aspx Spousal maintenance (referred to as "spousal maintenance" for married couples and simply "maintenance" for de facto couples) is a payment by one partner to the other to financially support that person after separation or divorce. There is no automatic entitlement to spousal maintenance. Unless an amount can be agreed between the parties, Court proceedings will need to be issued by the person seeking the financial support. Even then, spousal maintenance will only be paid when one partner cannot reasonably support themselves from their income by reason of: Care and control of a child of the relationship; or Their age, physical or mental capacity to obtain employment; or Any other adequate reason. And where the other partner has the capacity to support them. In determining whether spousal maintenance should be payable, the Court will consider factors such as: Income, property, financial resources and debts; Age and state of health of each of the parties; The ability of each of the parties to earn income (including whether this has been affected by the marriage or relationship); What is a suitable standard of living; and Whether any dependent children live with the parties. Applications for spousal maintenance must be made within 12 months of the date of divorce becoming final or within 2 years from the date of the end of the de facto relationship . Spousal maintenance orders are usually made for periods up to 2 or 3 years, but can continue until re-marriage or death. Maintenance may also end in other circumstances such as: the recipient's financial situation improving because of a new relationship for example; changes to child care responsibilities; or improved earning capacity. If you think you have a spousal maintenance entitlement we strongly recommend you seek experienced legal advice as soon as possible following separation. You can obtain advice and assistance about spousal maintenance or any Family Law matter from today's blog writer, Solicitor in Family Law , Nicole Kelly .   Nicole Kelly - Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/april/i-cannot-support-myself-after-separation-how-can-i-make-my-ex-pay-me-maintenance.aspx http://andersons.com.au/lawtalk/posts/2013/april/i-cannot-support-myself-after-separation-how-can-i-make-my-ex-pay-me-maintenance.aspx Wed, 17 April 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/april/cyclists-at-night-do-they-need-lights.aspx While it is important for motorists to be extra cautious when driving at night to keep an eye out for cyclists, it is also important for cyclists to take precautions to ensure that they are as visible as possible.  Not only is this important for safetybut also to ensure compliance with our Road Rules. Regulation 259 of the Australian Road Rules states: The rider of a bicycle must not ride at night, or in hazardous weather conditions causing reduced visibility, unless the bicycle, or the rider displays: (a)     A flashing or steady white light that is  clearly visible for at least 200 metres from the front of the bicycle; and (b)     A flashing or steady red light that is clearly visible for at least 200 metres form the rear of the vehicle; and (c)     A red reflector that is clearly visible for at least 50 metres from the rear of the bicycle when light is projected onto it by a vehicle's headlight on low-beam. If you are a regular cycler who rarely rides at night or just getting started, all the equipment to ride at night is inexpensive and an investment in your own protection. You can be charged for not complying with the Australian Road Rules, whether you are a licenced motor vehicle driver or not.  The penalty for not complying with this regulation is a fine of $110.  $50 is the expiation (fine) and $60 is a Victims of Crime Levy. Want to know more about your responsibilities as a cyclist on our roads? Visit some of our other blog posts: What are my legal responsibilities as a cyclist on public roads? What are the rules in relation to riding your pushbike on footpaths and shared paths? How do I share the roads safely and legally with cyclists? Can I accrue demerit points for offences I commit on my pushbike? Today's blog writer is Solicitor in Criminal Law & Police Matters , Leesah Randall .   Leesah Randall - Solicitor  Criminal Law & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2013/april/cyclists-at-night-do-they-need-lights.aspx http://andersons.com.au/lawtalk/posts/2013/april/cyclists-at-night-do-they-need-lights.aspx Mon, 15 April 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/april/if-i-am-pleading-guilty-to-an-offence,-how-can-i-avoid-having-a-conviction-recorded.aspx We have previously written about some of the implications that can flow from having a conviction recorded when pleading guilty or being found guilty of an offence; 'What are the effects of a criminal conviction' . So how can you avoid having a conviction recorded? Section 16 and section 39 of the Criminal Law Sentencing Act gives the court the discretion not to record a conviction.  There are a number of factors that the court will consider including: how likely it is that you will commit a further offence; whether you are previously of good character; whether you have been convicted previously and for what offence; other circumstances the court should consider like your age, physical or mental health, and the seriousness of the offence. Section 16 is considered when a court is considering imposing a fine, community service or both, as a penalty. Section 39 is considered when a court is considering placing the defendant on a bond to be of good behaviour.  This allows the court to have a safeguard because if you are not of good behaviour then you will be re-sentenced and it is likely at that time a conviction would be recorded. As we have previously stated, whether or not a conviction is recorded is very imperative to some careers.  Increasingly there are many different positions that require the applicants to provide a police clearance.  It is important to note that matters dealt with, without a conviction being recorded, will still come up on a police clearance.  It will simply say next to the offence - "without conviction".  The difference between it stating without conviction and conviction can sometimes be significant.  If on an application you are asked if you have a criminal conviction and you have not had any convictions recorded,  then the answer can simply be no.  If you'd like more information about the effect of a criminal conviction or need assistance about criminal or police charges, today's blog writer, Solicitor in Criminal Law, Leesah Randall , is available to assist.   Leesah Randall - Solicitor Criminal Law & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/april/if-i-am-pleading-guilty-to-an-offence,-how-can-i-avoid-having-a-conviction-recorded.aspx http://andersons.com.au/lawtalk/posts/2013/april/if-i-am-pleading-guilty-to-an-offence,-how-can-i-avoid-having-a-conviction-recorded.aspx Thu, 11 April 2013 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2013/april/managing-legal-costs-in-litigation.aspx It is an unfortunate fact that litigation can be expensive. The usual outcome for costs in litigation is that the unsuccessful party must pay the legal costs of the successful party. However, the payment is usually not enough to cover all the legal costs and expenses of the successful party. Lawyers can be expensive for a number of reasons.  A common reason is that the lawyer in question is an experienced specialist in their field, and their services attract a premium fee. However, the choice made by a party to have a specialist lawyer (rather than perhaps a cheaper, more junior or inexperienced lawyer) is not one which should be reflected in the costs to be paid by their opponent, if that opponent is unsuccessful in the litigation. A successful litigant should not be compensated in costs simply for their choice of lawyer or their ability to pay a premium fee. Accordingly, the Courts of South Australia set a scale of fees, which allow for an amount to be paid by the unsuccessful party to the successful party. For instance, the scale of fees allow for an hourly rate to be charged by a solicitor. If the hourly rate charged byyoursolicitor is higher than the scale, then if you are successful in your litigation you will have to pay the difference between the amount allowed for each hour of your solicitor's time under the scale of fees and the amount that your solicitor hasactuallycharged you for that hour. You will have agreed to the ratesyoursolicitor is charging you when you sign a retainer agreement to engage their services. In one sense, that is a fair outcome, because it means that the costs of both parties are treated equally before the Court, on the basis that one party who has chosen to have a multitude of expensive lawyers will not recover more in costs than a party that has chosen (or could only afford) to have a single, less experienced solicitor. However, it also has the effect of penalising those people who have chosen to retain the best lawyers that they can afford, because the cost of such representation will not be fully reimbursed in the event of a win. Despite the above, the Courts recognise that ultimately most litigation is a stressful and costly exercise. Accordingly, there are principles of common law and the Court's Rules which allow parties to depart from the usual outcome described so far. Those principles and Rules make it more likely that the dispute can be resolved without litigation, or, if there must be litigation, that the successful party can recover theiractualcosts if  such costs are more than those allowed for in the Court's scale of fees. The most common strategies for affecting the usual costs outcome is to have a solicitor write what is known as a "Calderbank" letter" or, if legal proceedings have already been issued, to file a Settlement Offer with the Court. Generally speaking, both a Calderbank letter and a filed Settlement Offer attempt to achieve the same purpose. That purpose is to make your opponent a settlement offer. If the offer is accepted, that is the end of the dispute. However, if the offer is not accepted, then the making of the offer itself plays a role on recoverable costs. The principle which then follows is that if the matter proceeds to trial and the outcome for you at trial is better for you than the offer, your client has to reimburse your legal costs from the date that the offer was made (and refused) at a higher rate than allowed for in the Court's scale of fees. By way of simple example, if you are suing somebody for $50,000.00, you could make an offer to accept $40,000.00. If that offer is accepted, then the matter is resolved. If the offer is refused, there are two possible outcomes at trial. The first outcome is that you are successful and the Court finds that you are in fact owed the $50,000.00. In that case, your opponent was unwise to refuse your offer and all of your legal fees from the date that the offer was made (but refused) onwards have been wasted. Had the offer been accepted, you would not have incurred all the subsequent fees. You are therefore able to ask that the Court order your opponent to pay your fees either in full or at a much higher rate than under the Court's scale of fees, because they unwisely refused to accept the offer. The other potential outcome at trial is that the Court find that you are in factnotowed the $50,000.00. You are unsuccessful in the litigation. In that event, the fact that your opponent was wise not to accept your offer has no impact on your legal costs. There was no disadvantage to either you or your opponent in you having made the offer, and accordingly there is no penalty on costs. Making a commercially realistic and financially viable settlement offer early in litigation is an important strategy for managing legal costs. There is no good reasonnotto make a settlement offer, because there are only three potential outcomes, none of which are detrimental to you. Those outcomes are: The offer is accepted and the matter ended; or The offer is not accepted, but has a favourable outcome for you on costs; or The offer is not accepted, but has neither a favourable nor negative outcome for you on costs. The above commentary is a significant simplification of the principles involved and we strongly recommend obtaining legal advice for both formulating an appropriate offer and the process of making that offer itself. The complexities of litigation are endless.  If you'd like more information or assistance in regard to potential litigation, today's blog writer, Partner in Commercial Litigation , Felix Hoelscher, is available to assist.   Felix Hoelscher - Partner Commercial Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/april/managing-legal-costs-in-litigation.aspx http://andersons.com.au/lawtalk/posts/2013/april/managing-legal-costs-in-litigation.aspx Wed, 10 April 2013 Nicole Kelly http://andersons.com.au/lawtalk/posts/2013/april/my-ex-partner-is-forcing-me-to-go-the-family-court-can-i-make-him-pay-my-legal-costs.aspx In Family Law matters the general principle is that each party pays their own legal costs regardless of whether they "win" or "lose". Courts do have the option to make a party pay for the other side's legal costs but that rarely happens. When the Court does make the other side pay it is usually because they have done something wrong. For example, if an Order has been breached,  causing the other party to have to come back to court, an Order may be made for their legal costs to be paid. These are called "party-party" costs. The amount of "party-party" costs are set out in the Federal Magistrates Court Rules. If a Costs Order is made, the Courts don't usually make the other party pay the whole amount of your legal costs. There is usually a "gap" - a bit like Medicare - between what your lawyer will charge and what the other side is ordered to pay. Therefore, if you find yourself in court it is highly likely that you will need to pay your own legal fees regardless of the reason why you are there. In Family Law matters, tt is important that you obtain legal advice though as it may be possible for your lawyer to make an "application for costs" to reduce the amount that you will have to pay if the circumstances permit. Having Family Law problems?  Need a question answered; not just on costs but Family Law generally?  Why not get in touch directly with today's blog writer, Solicitor in our Family Law department, Nicole Kelly .   Nicole Kelly - Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/april/my-ex-partner-is-forcing-me-to-go-the-family-court-can-i-make-him-pay-my-legal-costs.aspx http://andersons.com.au/lawtalk/posts/2013/april/my-ex-partner-is-forcing-me-to-go-the-family-court-can-i-make-him-pay-my-legal-costs.aspx Sun, 07 April 2013 Tyne Beeby http://andersons.com.au/lawtalk/posts/2013/april/over-65-and-workcover.aspx One of the most frequently asked questions regarding WorkCover entitlements for South Australian workers, is whether workers over the retirement age are eligible for workers compensation. The South Australian Workers Rehabilitation and Compensation Act 1986 defines retirement age as follows: if there is a normal retirement age for workers in employment of the kind from which the injury arose - that age of retirement, or age 65 years, In order to determine the retirement age the WorkCover Corporation will use whichever is the lesser. There seems to be a common misunderstanding that workers close to or above the retirement age are not entitled to WorkCover, this is simply not true. Workers who suffer an injury whilst in the course of their employment can lodge a claim for workers compensation regardless of their age. Once the claim has been lodged it will be assessed and if accepted the worker may be entitled to claim income maintenance payments and reasonable medical expenses, including things such as physiotherapy, doctors appointments, surgery and travel to and from medical appointments. The age of the injured worker is considered when the WorkCover claim is first lodged.  If a worker is injured within two years of the retirement age or was over the age of retirement when they were injured at work and are incapacitated for employment, they may be eligible for weekly payments for a period of up to two years from the date of the commencement of their incapacity. However if a workers injury occurred more than two years prior to the retirement age, their weekly income maintenance payments will cease when they reach the retirement age. It is important to note that reasonable medical expenses will be paid ongoing as long as the worker requires treatment related to the workplace injury and these payments do not cease at the age of retirement or after the two year period.  Workers will also be entitled to lump sum payments for pain and suffering should their injury be assessed at 5% whole person impairment or greater. Employers are therefore still required to pay WorkCover premiums for employees over the retirement age. Early last year a Bill was introduced into Parliament seeking to increase the retirement age within the Workers Compensation Act from 65 to 67 in order to reflect the changes to the federal pension age which are set to increase gradually starting in 2017 and taking full effect in 2023. This Bill was supported by SA Unions and also the Liberal Opposition, indicating that there is real support for change in this area. We await further updates from Parliament in this regard.                                            If you or someone you know is having difficulty while on WorkCover, either with the claim, the claims agent or the employer, today's blog writer, solicitor in Civil Litigation , Tyne Beeby is available to advise and assist.   Tyne Beeby - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/april/over-65-and-workcover.aspx http://andersons.com.au/lawtalk/posts/2013/april/over-65-and-workcover.aspx Wed, 03 April 2013 Catherine Clark http://andersons.com.au/lawtalk/posts/2013/march/adverse-possession-of-land-what-exactly-does-it-mean.aspx I am surprised by the number of times I have been approached by clients claiming they have had possession of land (that is, they are using or occupying the land but do not own it legally) for a long period of time and have been unable to contact or find the original owner of the land.  It is often that the original owner has passed away, and the property was never dealt with by their estate.  For example, a vacant block of land was used to store a cool room.  The person who owned the cool room did so with the owner's permission, but eventually they lost contact, and some 40 years later sought adverse possession of the vacant block of land.  The original owner of the land had died many years ago and had no relatives.  There had been no grant of Probate.  The occupier had paid all the rates, had fenced the vacant block and put up signs to keep out trespassers, kept the block tidy and generally acted as though they were the "owner".  Title was granted by adverse possession to the occupier. Adverse possession of land is where a person ("the occupier") occupies or is in possession of land legally owned by another person or entity, and may acquire ownership and title to the occupied land.  In South Australia an application is made to the Registrar General through the Lands Titles Office, under the Real Property Act , to acquire ownership. The application is on a form appropriate for the Lands Titles Office (normally a "Form B1"), which is signed by the occupier declaring the statements in it are true.  In most cases, the Registrar General requires the occupier to provide a current survey of the land. Further information to accompany the Application may be required by the Registrar-General, such as an Affidavit from the CEO of the local council regarding whether council fees were paid and up to date and who paid them, or Affidavits from neighbours or other parties demonstrating how the property has been used by the occupier, and whether the occupier acted as though the land was "owned" by them, to the exclusion of all others.  For example, the Registrar General may want to know for what purpose the land was used, and whether it was fenced to exclude others, for how long, and of what materials.  The Registrar General will want to know what improvements have been made to the property by the occupier.  The Application normally contains a statement as to what efforts have been made to contact the legal owner of the land, or whether there are any relatives known to the occupier and if they have been contacted. In South Australia, the person occupying the land must be able to show that they have had continuous and exclusive possession of the land, for a minimum of 15 years.  The time limit varies between States and Territories.  It is not enough just to show that there has been possession of the land; the person occupying the land must also be able to show to the Lands Titles Office that they have acted as though they own the land, and have not had a break in the use of that land. The occupation must also be without the permission of the legal owner of the land.  In South Australia, a person renting or occupying land at the permission of the legal owner cannot claim adverse possession of the land. The Application is published in the newspaper in the Notices section, and is given to any other person whom the Registrar General believes may have an estate or interest in the land.  For example relatives of the owner of the land may be notified.  The notice allows time (usually 21 days) for a person claiming an estate or interest to lodge a caveat forbidding the granting of the Application, otherwise the Registrar General will issue a Certificate of Title in the name of the occupier, and cancel any existing Certificate of Title.  There are fees payable for the new Certificate of Title. It is a lengthy process and may take many years, but one which allows occupiers of land to acquire legal title if the original legal owner cannot be found. If you require some advice or assistance for property inquiries, including adverse possession, get in touch directly with today's blog writer, our solicitor in Commercial and Business Law, Catherine Clark .   Catherine Clark - Solicitor Commercial, Estate Planning, Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/adverse-possession-of-land-what-exactly-does-it-mean.aspx http://andersons.com.au/lawtalk/posts/2013/march/adverse-possession-of-land-what-exactly-does-it-mean.aspx Tue, 02 April 2013 Camille McDonald http://andersons.com.au/lawtalk/posts/2013/march/my-husband-and-i-have-recently-separated-what-happens-with-the-pets.aspx Scenario: John and Judy have been married for five years. Recently they separated and Judy moved out of the family home. When Judy left the family home she also left behind her beloved golden retriever dog "Bronson" and her parrot "Arnold". Bronson and Arnold were jointly purchased by John and Judy during the marriage and both John and Judy have a strong attachment to the pets. Last Friday evening Judy telephoned John to see if they could come to a care arrangement regarding Bronson and Arnold. Judy suggested that she have the sole care of the pets and John visit the pets as agreed between them.  John very abruptly told Judy that he was keeping the pets and she couldn't see them ever again. Judy is devastated as Bronson and Arnold are like children to her. Is there any legal avenue available in the Family Law Courts for Judy to make a claim in relation to Bronson and Arnold? Answer: Traditionally Australian Family Law Courts have been very reluctant to become involved with pet ownership disputes upon the breakdown of a relationship. The Family Law Act 1975 , is the main piece of legislation governing the Family Law Courts in Australia, and contains no specific provisions regarding pet ownership upon the breakdown of a relationship. The court takes the view that pets are property of the marriage. Therefore if you apply to a Family Law Court for property settlement, your pet will be dealt with strictly as personal property and can be distributed to one party or the other in much the same manner as the court would divide a car, lounge or refrigerator.  Clearly such an approach does not accommodate for the emotional attachment an individual party may have to their pet and the courts do not apply any provisions to pets that are similar to children's provisions, such as "shared care arrangements" (ie: the pet lives with the husband on weekends and the wife during the week). In Judy's matter it would be advisable that she contact a solicitor immediately to discuss what options would be available to her regarding Bronson and Arnold. If you'd like advice or assistance in relation to pets involved in a relationship breakdown or for your property settlement generally, today's blog writer, Associate in Family Law , Camille McDonald is available to assist.   Camille McDonald - Associate Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/march/my-husband-and-i-have-recently-separated-what-happens-with-the-pets.aspx http://andersons.com.au/lawtalk/posts/2013/march/my-husband-and-i-have-recently-separated-what-happens-with-the-pets.aspx Wed, 27 March 2013 Michael Irvine http://andersons.com.au/lawtalk/posts/2013/march/dont-be-a-victim-of-work-health-safety-discrimination.aspx All too often, clients come to us at Andersons and tell us about instances where both they and their colleagues have been treated unfairly because they raised a legitimate concern regarding Work Health & Safety (WHS)  conditions in the workplace (previously referred to as Occupational Health & Safety or OHS). Some client's have been treated like outcasts by management after commenting that certain work practices are unsafe. Other clients have been told not to bother applying for a promotion after raising a WHS issue. Some have been told they are simply being troublemakers for talking about WHS in the workplace. This treatment is unprofessional, unethical and unlawful, and it should not be tolerated. The Work Health and Safety scheme was developed nationally over recent years. The law was designed to increase safety in Australian workplaces and provide Australians with the same standard of health and safety protection regardless of the type of work they do, or where they work. The Work Health and Safety Act became operational in South Australia on 1 January 2013. One of the most important aspects of the legislation involved the prohibition against discriminatory, coercive and misleading conduct in relation to work health and safety matters. This is enshrined in Part 6 of the new laws. This type of conduct may deter people from being involved in activities or exercising rights that are important to workplace health and safety. 'Workers' and even 'prospective workers' are protected by the legislation. Importantly, aworker encompasses more than just an 'employee' and can include a contractor/subcontractor, an employee of a labour hire company, an outworker, an apprentice/trainee, a work experience student and a volunteer . The protections even apply to commercial arrangements; for example, refusing to enter into a contractual arrangement with a person or organisation (eg, a supplier or manufacturer) because of a safety related activity, may be a breach of the law. The law even creates a criminal offence for a person to engage in discriminatory conduct for a 'prohibited reason'. This offence carries a maximum penalty of $100,000 in the case of an individual or $500,000 in the case of a body corporate (a company for example). 'Discriminatory conduct' is broadly defined and may include: Dismissing a worker; Demoting a worker; Providing less overtime; Providing less flexible working hours; Treating a job applicant less favourably than another; etc. It is important to note that there may be valid reasons to dismiss a worker or withdraw overtime. However, it is unlawful if this is done for a 'prohibited reason'. Prohibited reasons include (but are not limited to): The worker is an elected Health and Safety Representative, or on a Health and Safety Committee, and performs functions related to that position; The worker performs a function, or refrains from performing a function under the Work Health and Safety Act ; The worker assists someone else in performing a function under the Act; The worker raises WHS concerns or attempts to resolve a WHS issue. There are different thresholds that apply to determine if the matter is a criminal offence or a civil breach. If a reason mentioned above is the 'dominant reason' for the discriminatory conduct, then the matter may involve criminal prosecution. The Industrial Relations Court may order compensation, reinstatement or make other orders. If the reason mentioned above is a 'substantial reason' for the discriminatory conduct, then the matter may involve civil penalties, including injunctions against the particular conduct, compensation or reinstatement. A one year time limit applies to commencing a civil claim. Both civil and criminal proceedings can be brought against the same conduct. Other offences involve requesting, instructing, inducing, encouraging, authorising or assisting another person to engage in discriminatory conduct. Any intentional conduct to intimidate, force or cause a person to act or to fail to act in relation to a work health and safety issue is strictly prohibited. For example, threatening to sack a Health and Safety Representative if they issue a Provisional Improvement Notice at a workplace is clearly unlawful (a Provisional Improvement Notice or 'PIN' can be issued by a trained Health and Safety Representative requiring a person/organisation to remedy a WHS Contravention or prevent a likely contravention from occurring). Finally, it is unlawful to misrepresent in relation to a person's rights under the WHS Act. For example, it would be unlawful to tell a worker that he/she has no legal right to report a safety issue, when clearly they do have that right. So don't put up with any unfair behaviour from managers or colleagues in relation to safety issues in the workplace. If you have workplace safety concerns, you should report them immediately. If you feel you have been the victim of WHS discrimination you can seek guidance from your Union (if there is a Union presence at your workplace and you are a member) or you can contact the Government regulator, SafeWork SA. If you feel there are clear criminal or civil breaches of work health and safety in the workplace, you can also seek guidance, advice and assistance from solicitors experienced in this field.  Today's blog writer is Civil Litigation solicitor, Michael Irvine .   Michael Irvine - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/dont-be-a-victim-of-work-health-safety-discrimination.aspx http://andersons.com.au/lawtalk/posts/2013/march/dont-be-a-victim-of-work-health-safety-discrimination.aspx Tue, 26 March 2013 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2013/march/i-was-drink-driving-and-injured-someone-in-a-car-accident-will-my-registration-insurance-still-cover-their-injuries-claim.aspx Every car owner is obliged under South Australian legislation to be a licensed motor vehicle driver and to have current motor vehicle registration and compulsory third party insurance in place. Compulsory third party insurance is the insurance component of the vehicle registration you pay each year that insures people you may injure in a motor vehicle accident in South Australia. That is not to say of course that on any given day every road user complies with those requirements.  It will come as no surprise to learn that there is a number of people who drive vehicles who have never had a licence, are driving under an expired licence or a licence which is under disqualification.  Similarly, some people drive vehicles where the registration insurance has lapsed. Others drive under the influence of alcohol or illicit drugs. What is the situation when a driver behaves illegally and causes an accident resulting in injury to another person? Does the insurer step in even though in some instances there is no relevant insurance cover or we have a driver without an adequate licence and hence breaching the law?  Similarly when a person affected by alcohol in excess of the limit prescribed by the law causes an accident resulting in injuries, does the insurer still cover the injured person? There is some good news and some bad news in the answer.  The good news is that the injured person is still able to claim compensation .  There is a scheme under which they will not be disadvantaged despite the shortcomings of the driver that has caused the accident. The bad news is the claim is directed towards the driver. In any of the examples given above the driver would be in breach of his policy and the Motor Accident Commission (MAC), as a matter of policy, would make attempts to recover from that driver the amount of money that it paid out to the injured party. There is yet another example where this happens and that is where the driver who has caused the accident may well have been properly licensed and insured but has caused the accident by such grossly negligent driving that also can potentially breach the MAC policy.  I know of one example where a truck driver drove his truck, at a high speed, through an intersection and against a red light for his direction of travel.  His action caused mayhem.  He caused damage to several other cars, and injuries to several people.  The total payouts to those people ran into the hundreds of thousands of dollars. In that example the MAC sought repayment from the driver due to his grossly negligent driving.  Of course it goes without saying that the ability of the MAC to recover moneys paid out is only as good as the ability of the targeted negligent driver to pay back that money. If you or someone you know has been injured in a motor vehicle accident resulting in injuries, it is our strong recommendation they seek experienced legal advice. For advice or assistance on injuries claims as a result of a car accident, get in touch with today's writer, our Partner in Civil Litigation , Dion McCaffrie .   Dion McCaffrie - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2013/march/i-was-drink-driving-and-injured-someone-in-a-car-accident-will-my-registration-insurance-still-cover-their-injuries-claim.aspx http://andersons.com.au/lawtalk/posts/2013/march/i-was-drink-driving-and-injured-someone-in-a-car-accident-will-my-registration-insurance-still-cover-their-injuries-claim.aspx Mon, 25 March 2013 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2013/march/i-have-a-compensation-claim-from-a-motor-vehicle-accident-in-south-australia-must-i-attend-an-independent-medical-examination.aspx Clients who have claims for compensation (as a result of a motor vehicle accident in South Australia) are often requested by an insurer to attend what is known as an IME; an independent medical examination.  Quite why they are described as being "independent" is somewhat disingenuous.  The insurer would maintain that the appointment is independent in the sense that the doctor who sees you is not employed by them but rather is engaged by them to assess you.  The doctor will report directly to the insurer and will send their invoice to the insurer for payment.  You are obliged to attend at such an appointment providing reasonable notice of the appointment is given to you.  We think it is important that you take someone with you.  In our experience, difficulties sometimes arise later over exactly what was said during the appointment, and with some of the content of the resultant medical report.  It would be a handy thing to have a witness to support the text of the conversation that took place.  Further, we think that after you have attended at the appointment you should make accurate notes of how long you were in the doctor's surgery, exactly what the nature of the physical examination of you was and what questions you were asked.  Some clients are disappointed that they do not receive any immediate feedback or advice from the doctor.  You should bear in mind that the doctor is not there to provide medical advice to you.  They are engaged by the insurer to conduct an assessment and their immediate role, having done that, is to report back in writing to the insurer.  We are entitled to obtain a copy of the medical report which you then of course can see and comment on.  The doctor's purpose is not to treat you. The purpose of the IME is often to allow the insurer to consider their position on continuing to pay for medical treatment.  If their report indicates that no further treatment is required, that enables them to justify ceasing payment for ongoing treatment you may think you need.  All you can do if that is the case is to go back to see your own local doctor and have them assess you and your needs for ongoing treatment. We repeat that it is an obligation to attend medical appointments arranged by the insurer.  If the appointment is made on a day or time that is inconvenient then of course that can be changed.  If you fail to attend at successive appointments that are made by the insurer then the insurer can take out an application to put your claim on hold until you do submit to an appointment. If you've got any queries in relation to this article or your motor accident compensation claim in general, why not get in touch directly with today's blog writer, Partner in Civil Litigation , Dion McCaffrie .   Dion McCaffrie - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/i-have-a-compensation-claim-from-a-motor-vehicle-accident-in-south-australia-must-i-attend-an-independent-medical-examination.aspx http://andersons.com.au/lawtalk/posts/2013/march/i-have-a-compensation-claim-from-a-motor-vehicle-accident-in-south-australia-must-i-attend-an-independent-medical-examination.aspx Wed, 20 March 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/march/powers-of-attorney-across-state-borders.aspx In 2012 a Bill was introduced to Parliament in South Australia in an attempt to overcome potential difficulties in the recognition of interstate documents (including Power of Attorney ) that deal with a persons financial care, most commonly after they have suffered a mental incapacity.  It is called the Powers of Attorney and Agency (Interstate Powers of Attorney) Amendment Bill 2012. At present (March 2013) the Powers of Attorney and Agencies Act 1984 ("the Act") allows someone to appoint an attorney to make financial decisions on their behalf either immediately upon the document being signed or, most commonly, after that person has suffered a mental incapacity and can no longer make sound financial decisions for themselves. The appointment of an attorney is an important step in the planning of your estate and future needs.  Care must be taken to appoint the right people and with the right authority as people can be appointed jointly, jointly and severally (meaning two people can either act together in unison or independently of each other) or in some hierarchy (for example one person acts as your attorney but only if they die or cannot act for some reason, then someone else can take over).  A lawyer's help is always advised. The Act is deficient however as it is currently silent on the recognition of interstate documents which have delegated the same power. Difficulties can arise when proper and legal documents are prepared by a lawyer in South Australia and that person relocates interstate, perhaps temporarily.  There is some respite in Victoria with South Australian documents being recognised there however the reverse scenario is not the same. The need for such recognition is highlighted even more in a regional centre such as Mount Gambier where people commonly traverse State borders perhaps for work, school or home life and should not need to complete two sets of documentsjust in case. The changes to current legislation, if passed, will confirm that an interstate power of attorney has effect in South Australia as if it were a power of attorney made under local laws but only insofar as the power it gives could validly be made locally. There might be circumstances where a complicated or in-depth power of attorney is required and further care is needed to ensure what limitations may apply interstate, however in most cases simple powers of attorney should now (once the bill is passed into law) be recognised more widely which is quite sensible. Need more information about your power of attorney ?  Or do you need to prepare a power of attorney and other estate documents? Today's blog writer, Senior Associate in Wills and Estate Planning , Greg Welden , can advise and assist on all your needs in this area.   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/powers-of-attorney-across-state-borders.aspx http://andersons.com.au/lawtalk/posts/2013/march/powers-of-attorney-across-state-borders.aspx Mon, 18 March 2013 Travis Le Riche http://andersons.com.au/lawtalk/posts/2013/march/caveats-a-simple-guide.aspx We have had a great number of responses to Ryan Thomas' series of posts called " To caveat or not to caveat?" So to give our readers a bit more information and to answer a few more recent queries we thought that we would provide another post about caveats in South Australia. Can I put a caveat on for ...? A caveat can be lodged for a variety of types of claims but in South Australia these are limited to claims that you have an interest in the land which is the subject of the caveat. The most common types of caveats are for: Where a party to a relationship claims to have contributed to the land; Second (unregistered) mortgages; Unregistered leases; Caveats by authorities (such as for unpaid taxes or rates); By anticipated purchasers of the land; By a beneficiary to a Will ; and, Where an agreement is alleged that a child would inherit the land in return for substantial ongoing assistance to their parent. It is not enough in South Australia for one person to just owe another person money.  There must be a real connection with the land. Having said that, some connections with land can be difficult to spot. For example, abuses of Powers of Attorney , breaches of trust and partnership agreements and the like, can sometimes give rise to being able to lodge a caveat. We are unable to give any specific answers through this blog post, but if you are interested in getting our advice as to whether you can lodge a caveat, please contact us and we can arrange an appointment to discuss your specific circumstances. What if the item you wish to place a caveat on, is not land? The type of caveat we are referring to above and in the original post " To caveat or not to caveat " only covers land. There is another type of caveat, being a caveat against a Grant of Probate or Letters of Administration, which is relevant where someone has died. If neither of the circumstances referred to above apply, and it is some other asset, then other legal processes must be used. If there is a need to urgently protect some other property, such as a car, shares, bank funds or a business, then often it is possible to bring an application to a Court seeking the protection of the asset. This is also true if the caveat is removed. Can I still deal with the land if a caveat has been lodged? Our answer to this is always "maybe". It will not be possible to register any dealing with the land unless the caveat allows it (which most do) and the dealing is made subject to the claim in the caveat. The parties to the dealing could end up with less than they bargain for and the dealing could be prevented entirely. In some circumstances, it may still be worth doing, but specific and specialised legal advice should definitely be sought. The answer to this question may depend on whether or not the claim supporting the caveat is strong, because if the caveat is removed then any subsequently dealings can proceed. How can I get a copy of the caveat? Sometimes people will not receive a copy of a caveat that has been lodged, because they have changed address. Copies of the caveat can be obtained from the Lands Titles Office, so long as you know the address of the property. A solicitor or conveyancer can also conduct a search to obtain a copy of the caveat.  There are fees for doing this type of search. What do I do now that I have put a caveat on the land? The caveat itself does not provide any remedy to you and it is just a protection measure, but an important one. You will need to bring a claim in either the District or Supreme Court in order to obtain the interest in the land which you have said you are entitled to in the caveat. If the claim arises out of a relationship breakdown, then it may be more effective to bring proceedings in the Family Court. You should ordinarily seek legal advice before lodging or removing a caveat, in addition to advice on the next steps to take. Should I apply to remove this caveat against my land? This is another question where we can't give an answer until we know your particular circumstances. It can often be very unwise to remove the caveat because of the process that it starts and the costs involved. It is important that you understand the risks and the advantages and disadvantages applying to have the caveat removed, or even lodging a caveat. Do I have to disclose the caveat when selling the land? In South Australia, the answer to this is yes. The caveat must be listed in the Form 1 Vendor's Statement, which is the disclosure document which must be provided upon any sale of land. If the caveat is not disclosed in the correct manner, then the Purchaser may be entitled to void the contract. I have paid money to help my friend buy a property. Can I put a caveat on the property? Whether you can (or more correctly should) put a caveat on if you have provided monies for someone else's purchase of land, will depend upon the intention behind the payment towards the purchase. If it was a gift, then the answer would be no. If it is a loan or a joint investment, then it may be possible to lodge a caveat. If I remove the caveat, can I put it back on later? Not without applying to a Court first. You can only put a caveat on once for the same subject matter. Even if you do go to the effort of obtaining the Court's permission to lodge a further caveat, your claim in the caveat could lose out against third parties. We hope we've covered all the questions you may have about caveats.  If you'd like more information or legal assistance, please feel free to get in touch directly with today's blog writer, Senior Associate in Commercial Law , Travis Le Riche .   Travis Le Riche - Senior Associate Commercial & Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/caveats-a-simple-guide.aspx http://andersons.com.au/lawtalk/posts/2013/march/caveats-a-simple-guide.aspx Wed, 13 March 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/march/what-happens-when-the-registrar-of-firearms-declares-a-gun-amnesty.aspx The police conduct and manage any gun amnesty in South Australia.  The aim of a gun amnesty is to give the community an opportunity to surrender guns, gun parts and ammunition to the police without any negative consequences.  This in turn makes South Australia a safer place by removing unwanted, unregistered and illegal guns from the community. Guns, silencers, unwanted antique guns, imitation firearms and ammunition can be surrendered.  There are many reasons why guns may be surrendered in a gun amnesty: guns may no longer be wanted, guns may have belonged to a now deceased relative or friend or the gun is not registered in South Australia to the current owner. When a gun is surrendered to a police station it must be unloaded.  If possible it should also have the bolt removed and the gun dissembled.   The guns should be placed in a gun bag or placed in a blanket for transportation to the police station and only removed in the presence of police.  If there is also ammunition to surrender it must be transported in the same manner and also stored in a separate bag to the guns. Once at the police station you will need to complete a surrender notice surrendering the guns at the time of handing them over.  You will then receive a surrender notice and a receipt for the guns and other forfeited items. A gun amnesty is normally only for a limited amount of time.  When there isn't a gun amnesty a person may voluntarily attend a police station to surrender a firearm and bring themselves within the law.  In this situation police will endeavour to facilitate compliance with the law without to legal action against the person surrendering the guns.  Of course if the firearm was involved in an offence then there will be legal consequences. Today's blog writer is solicitor in Criminal & Police Matters, Leesah Randall .   Leesah Randall - Solicitor  Criminal and Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/march/what-happens-when-the-registrar-of-firearms-declares-a-gun-amnesty.aspx http://andersons.com.au/lawtalk/posts/2013/march/what-happens-when-the-registrar-of-firearms-declares-a-gun-amnesty.aspx Mon, 11 March 2013 Suzanne Pinyon http://andersons.com.au/lawtalk/posts/2013/march/how-do-i-claim-compensation-for-personal-injury-involving-a-child.aspx The limitation period (that is, the time you have available from the date of injury to making your claim) in South Australia, with respect to an adult involved in an accident for which they can claim compensation for the injuries they sustained, is three years. A child, which is defined as a person under the age of eighteen, who suffers personal injury in a compensable accident is subject to special provisions under the Limitations of Actions Act 1936 .  According to this Act a person is under a "legal disability" (that is a child under the age of 18) in relation to any potential action or proceeding while he or she remains a child and accordingly the three year limitation period does not begin until the child reaches the age of eighteen. Therefore a child has until their twenty first birthday to claim for compensation for personal injury. Depending on the age of the child this could potentially mean that considerable years lapse before the limitation period actually begins.  For example, if a child suffers a compensable injury due to medical malpractice at birth, the child has 21 years to make a claim for compensation.  However, there is further legislative provision that if an intended action for compensation does not begin after more than six years from the date of the incident, there is an obligation to give the liable party (that is, the party alleged to be responsible for the injury) notice of an intended action within six years after the date of incident. It is imperative in these circumstances for documentary evidence to be kept in relation to the accident and clear and accurate records maintained with respect to medical treatment and expenses.  If this is not done there is a risk that important evidence will no longer be available when the case is being considered. Depending on the type of case, out of pocket expenses such as travelling expenses, medical treatment and pharmaceutical expenses can be recouped immediately and accordingly the sooner a claim is made to the negligent party or the insurer for the negligent party the more beneficial in the long run. Claims involving children can take many years to resolve, particularly if the child is very young at the time of the accident as it is difficult to determine the child's long term prognosis until they have finished growing and reached a certain stage of development. In such circumstances claims are commonly resolved when the child reaches mid to late teens depending on the severity of injury. In personal injury matters involving children, it is imperative that the guardians seek experienced legal advice.  Today's blog writer, Senior Associate in Civil Litigation , Suzanne Pinyon , is highly experienced and skilled at personal injury cases involving minors.   Suzanne Pinyon - Senior Associate Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/march/how-do-i-claim-compensation-for-personal-injury-involving-a-child.aspx http://andersons.com.au/lawtalk/posts/2013/march/how-do-i-claim-compensation-for-personal-injury-involving-a-child.aspx Wed, 06 March 2013 Leesah Randall http://andersons.com.au/lawtalk/posts/2013/march/what-are-the-effects-of-a-criminal-conviction-on-your-future-life.aspx A criminal conviction may result when an offender pleads guilty or is found guilty after a trial to a criminal offence.  There are many consequences that arise and can affect you in the future, as a result of a criminal conviction. Once you have been convicted it will appear on your South Australian Police Clearance or a National Police Certificate.  A criminal conviction may have some serious effects to your current or future employment or volunteer positions, amongst other things. Criminal convictions in the hospitality industry The Liquor Licensing Act 1997 requires that licensed premises must be personally supervised and managed by a responsible person at all times when the premises are open to the public.  The licensing authority approves responsible person's badges.  Employers of licensed restaurants or pubs may require you to have a valid responsible person's badge. To apply for a responsible person badge an applicant must fill out a 'Personal Information Declaration Form'.  On this form the applicant is required to provide details of all convictions and creditworthiness details.  The licensing authority will consider matters such as: the applicant's reputation; honesty integrity creditworthiness; and the person's known associates will also be considered. The form contains this question: "Have you EVER been arrested or reported for ANY offences (including offences committed before the age of 18 years but not dealt with by way of a family conference or a caution) in ANY jurisdiction that was found proven in this State, other State/Territory or in any other country, whether or not a conviction was recorded?"  You also must answer whether you have been expiated (fined) for any matters (for example, possession of drugs, speeding fines etc) or have any ongoing matters before the court. If a person with a responsible person's badge is convicted of an offence against theLiquor Licensing Act 1997then the Licensing Court may revoke the person's licence. Criminal convictions in the security services industry TheSecurity and Investigation Agents Act1995 states that the Commissioner determines who can be a licenced security guard, alarm installer, crowd controller, investigator etc.  In determining whether to grant an application for security agents licences the Commission must consider whether the person is a 'fit and proper person'. Factors to be taken into account are: the reputation of the applicant; honesty and integrity of the person the reputation, honesty and integrity of the people with whom the person associates; and if the granting of the application would not be in the public's interest. A licence holder may be suspended if the Commission is satisfied that it would be contrary to the public interest if the security agent's licence were to continue. If the holder of a security agents licence is found guilty of an offence of a class specified in the regulations, their licence will be cancelled. Some examples of such offences are: an assault or an offence of violence; any offences in relation to weapons. Other employment opportunities affected by a criminal conviction Most government positions require applicants to have a police clearance.  Teachers cannot be registered or teach in South Australia until they pass a national criminal history check.  Mining positions require applicants to have a police clearance. There are a number of other professions that will not allow you to enter if you have a conviction for certain offences.  For instance nurses, doctors or legal practitioners have to be of good character.  How does a criminal conviction affect volunteering in the community? Parents, carers and other volunteers who wish to participate in any of the following are now required to provide a police clearance: attending overnight camps, school sleepovers or billeting programs; working one-to-one with, or in close proximity to, children on a regular basis - eg learning assistance, music, drama, coordination skills (this also includes parents working regularly with their own child but in proximity to other children); acting as a coach or manager of sports teams or groups of children; working in resource centres, offices, managing canteens; and who are members of a governing council, board or committee. How does a criminal conviction affect firearms licences? A person needs to be deemed as a fit and proper person to be eligible for a firearms licence.  TheFirearms Act1977 defines who will not be considered to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence. They may find a person to not be a fit and proper person if the person has been found guilty of offences: against the Firearms Act; involving actual or threatened violence; prescribed by legislation (for example, manufacturing a controlled drug, cultivation of controlled plants, serious criminal trespass and unlawful stalking). How will a criminal conviction affect the ability to travel overseas? There is a number of countries that will not allow entrance if you have a criminal record.  Visas may be refused or cancelled on the grounds of character. The United States and the United Kingdom have a good character requirement for people applying for visas.  As a part of the visa process you will need to declare any criminal convictions. It is important to note that there are other adverse affects on your life, not specifically related to the above, that you can experience as a result of your criminal conviction. If you're in trouble with the police or you've been charged with an offence, minor or serious, we strongly recommend you seek legal advice and assistance. You can get in touch with today's blog writer, solicitor in Criminal and Police Matters, Leesah Randall.   Leesah Randall - Solicitor  Criminal & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/march/what-are-the-effects-of-a-criminal-conviction-on-your-future-life.aspx http://andersons.com.au/lawtalk/posts/2013/march/what-are-the-effects-of-a-criminal-conviction-on-your-future-life.aspx Mon, 04 March 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/february/what-to-consider-when-determining-capacity-for-making-a-valid-will.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who the executors are (person or people whose role it is to secure and distribute assets of the deceased). A Will is only valid if at the date of its execution the testator (person making the Will) fulfilled certain conditions. To execute a valid Will, the Testator must: have obtained the age of 18 years, know, approve and have capacity in relation to the Will, had the necessary intention to make a Will, have a free disposing mind, and, have complied with the formalities prescribed by theWills Act (SA). There are certain exceptions to the above conditions but they are far and few between. The intention of this blog post is to consider the necessary requirement for the testator to have "capacity" to make a valid Will. There are some people who are incapable of making a Will. Generally, infants are prohibited in doing so by legislation, and there are adults with intellectual difficulties who could not, and can never, understand the matters which must be considered in the testamentary process. A person must have the ability to understand what a Will is and its legal effect. They must know and understand the extent and value of property over which they have a disposing power. They must have an awareness of those who might be thought to have claims on the estate and the ability to evaluate and determine between the respective strengths of the people who may have a claim against their estate. The deceased, at the time of making their Will, must have understood all of these concepts to effectively determine how to dispose of their estate. All of the above contribute to determining a person's capacity to make a Will.  A person's capacity to take all of those matters into account may be effected by old age, trauma and/or disturbance of understanding through delusions. If any of these conditions exist at the time of creating the Will and have an effect on capacity then the Will can be considered invalid and therefore ineffective to dispose of the person's estate. The concept of freedom of testation allows a person to dispose of their estate as they wish. It is an important right and any determination that a person lacked a sound disposing mind, memory and understanding is serious. It is therefore obvious that someone who is, for all intents and purposes, a vegetable, perhaps laying in a coma in hospital, will not have the requisite capacity to make a valid Will. Sometimes great difficulty is faced by the legal profession particularly with the elderly who may be suffering from the early stages of dementia or perhaps who have, to a significant degree, late stage dementia but experience a period of heightened perception at a time when the Will is drawn and executed. There are, however, occasions when someone may have an intellectual incapacity or disability but would be considered to have the capacity to execute a valid Will.  I have come across people of all ages, for example, suffering from down syndrome and have formed a view that they have the requisite capacity to instruct me and to execute a valid Will. If there is any potential question as to a person's capacity to make a Will then an experienced solicitor should be engaged to undertake their own assessment and may then seek further guidance from specialist medical practitioners. Obtaining such professional and contemporaneous advice is the key to defeating any potential future allegation of incapacity at the time of executing the Will.    For more information on this topic or Wills & Estates Planning generally, get in touch with today's blog writer, Greg Welden .   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/what-to-consider-when-determining-capacity-for-making-a-valid-will.aspx http://andersons.com.au/lawtalk/posts/2013/february/what-to-consider-when-determining-capacity-for-making-a-valid-will.aspx Thu, 28 February 2013 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2013/february/i-have-two-options-take-a-redundancy-or-take-a-lower-paid-role-what-do-i-need-to-consider.aspx Jack has been working with his employer for 6 years. There's been some cuts and he's told that his job, a senior management position, is being made redundant . Jack is offered a choice between taking a redundancy package or moving into another position, which pays less. When your position is made redundant , it means that your employer no longer requires your job to be done by anyone. The employer, in this case, is obliged under the Fair Work Act to pay you a redundancy payment, which is based on your length of service with that employer. One of the ways an employer can get out of paying a redundancy is if they offer another job, which is "substantially similar" to the one being made redundant, or is "no less favourable". However, this only works if the employee's existing service is recognised. So far, we know that it is legal for Jack's employer to offer him another position instead of paying the redundancy, so long as they recognise Jack's existing 6 years service. If Jack accepts the other position, he can't then pursue an unfair dismissal , or the redundancy payment because he's agreed to a transfer of employment. In effect, he's said that he feels the new role is no less favourable to him. But if Jack doesn't feel the new position is acceptable, he can choose the redundancy, or contest it. If Jack takes the position, he might run into some further complications down the road. For example, annual leave and long service leave payments are calculated at the rate of pay you are on when you take it, not when it was accrued. Jack is also precluded from claiming the redundancy later on. If the redundancy payment is significant, like after a long employment relationship or where a contract or agreement provides for a higher payment than that in the National Employment Standards , that lump sum can be quite useful! Unfortunately in this economy it may well be unlikely that Jack will get another job, as well paid or even in the same industry, so that is something to be considered as well. So there is a lot for Jack and people like him to think about. If you're in the same boat and not sure what to do, or not sure if it applies to you, we strongly recommend you seek legal advice from a solicitor experienced in employment and industrial issues. At Andersons we have a team who practice in employment and industrial law. Today's blog writer, Sorna Nachiappan is highly experienced in all issues related to employment law .   Sorna Nachiappan - Senior Associate Employment and Industrial       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/february/i-have-two-options-take-a-redundancy-or-take-a-lower-paid-role-what-do-i-need-to-consider.aspx http://andersons.com.au/lawtalk/posts/2013/february/i-have-two-options-take-a-redundancy-or-take-a-lower-paid-role-what-do-i-need-to-consider.aspx Thu, 28 February 2013 Tyne Beeby http://andersons.com.au/lawtalk/posts/2013/february/workcover-sa-has-appointed-two-claims-agents-from-january-2013.aspx As of 1 January 2013 WorkCover SA began using two claims agents to provide claims management services for the South Australian WorkCover Scheme.  These two claims agents are Employers Mutual SA and Gallagher Bassett Services. At the commencement of the contract in January 2013 both agents will receive a 50% market share of workers' workers compensation (WorkCover) claims to manage.  Each year after 2013 employers will have the opportunity to choose the agent they wish to represent their matters.  WorkCover SA believes the decision to use two claims agents is a significant step towards continuing to improve the scheme's performance and the State's return-to-work rate. WorkCover SA chief executive Robert Thomson said recently that WorkCover's main priority is to ensure a high level of quality and service is maintained through the transition period; 1 January 2013 to March 2013.  WorkCover will work closely during this period with both agents to ensure this process is as smooth as possible. Employers Mutual SA WorkCover SA appointed Employers Mutual as the sole workers compensation claims management agent in 2006.  Since this time Employers Mutual has provided claims management for approximately 55,000 registered employers in South Australia. Employers Mutual SA claims management specialists employs over 280 case managers. WorkCover SA's contract with Employers Mutual SA as sole management agent expired on 31 December 2012.  WorkCover therefore undertook a competitive tender process to select two claims agents to commence from 1 January 2013. Following this process Employers Mutual SA and Gallagher Bassett Services were chosen as the preferred claims management agents in the hope that they would deliver the best return to work outcomes for workers on the scheme. Gallagher Bassett Services Gallagher Bassett Services is incorporated in Queensland and has provided claims administration and related services across Australia and New Zealand for over twenty years and employs nearly 13,000 people worldwide. It is currently contracted as claims agent for Workers Compensation Schemes with WorkSafe Victoria and WorkCover New South Wales. In South Australia, Gallagher Bassett Services was appointed to the State Procurement Board Panel Contract for the provision of audit and related services in 2006 and has also been providing services to the South Australian Police in relation to its self insured requirements since 2005. Workers and employers not to be hampered by the appointment of WorkCover two claims agents Most importantly, WorkCover SA advises that all registered employers in the scheme and workers with active claims will not be affected by the appointment of two claims agents and that their current arrangements made under the scheme will remain the same. WorkCover SA confirms that its decision to provide equal market share of registered employer portfolios to both claims agents is to ensure high level and quality of claims management services can be maintained.  Employers were given the opportunity to nominate a preferred agent when WorkCover assigned claims in 2013, however, there was no guarantee employers would receive their preferred agent for the first year.  For each calendar year after 2013 employers will be given the opportunity to change their claims agent should they wish to do so. What happens with matters transferred from Employer Mutual to Gallagher Bassett management? Gallagher Bassett commenced receiving claims from WorkCover from 7 January 2013. For those claims transferred from Employers Mutual to Gallagher Bassett, claim numbers won't be changed as a result of the move. For employees who are having a claim transferred from Employers Mutual to Gallagher Bassett, a new case manager will be appointed to the case and they are anticipated to make contact with all workers within a few weeks following the transfer.  Gallagher Bassett will continue with current payment arrangements. If there are to be any new arrangements, the new case manager will discuss that with the worker first.  Workers who have been paid by their employer should continue to submit Medical Certificates to them and if they were paid directly by Employers Mutual they can submit their WorkCover Medical Certificates to Gallagher Bassett. What happens with workers who have an upcoming Workers Compensation Tribunal appearance? If workers have upcoming Workers Compensation Tribunal matters these will not be affected by the change of agents.  These matters will still proceed as normal. Finally, South Australia had the lowest return-to-work rate of all States in 2011 and 2012. As well as this, injured workers who did return to work took longer to make the transition back to work than interstate counterparts.  South Australia should expect to see improved results within two years as a result of the ongoing changes such as the recent introduction of the experienced rating system for calculating employers levy and healthy competition between the two claims agents hopefully providing better financial incentives for improved return-to-work outcomes. If you're on WorkCover and you're having difficulties with your claims agent or WorkCover SA, you should seek independent legal advice.  You can get in touch directly with today's blog writer, solicitor in Civil Litigation specialising in WorkCover matters, Tyne Beeby .   Tyne Beeby - Solicitor Civil LItigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/workcover-sa-has-appointed-two-claims-agents-from-january-2013.aspx http://andersons.com.au/lawtalk/posts/2013/february/workcover-sa-has-appointed-two-claims-agents-from-january-2013.aspx Sun, 24 February 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/february/what-are-your-rights-to-obtain-your-deceased-partners-sperm.aspx The use of sperm in South Australia for artificial insemination is governed by the Assisted Reproductive Technology Act 1988 ("the Act"). There are serious constraints on the use of sperm from a deceased male. It is possible to harvest the sperm for a short time after death. The use of the sperm is then controlled by that Act and by directions from the Supreme Court. Where an order has been made for the harvesting of sperm from a dying or deceased male, usually on the application of the wife or domestic partner, it has been a condition of the order that the sperm be stored and the applicant seek further orders from the Court as to its use at a future time. In 2012, the South Australian Supreme Court reviewed a number of recent decisions from around Australia about this topic, and concluded that at least in this state, the Court in its inherent jurisdiction, retained control over the sperm. It concluded further that the sperm was a form of property to which there was an entitlement to possession. That entitlement was with the applicant (being the wife/domestic partner or widow) to the court (and not the executor or administrator of the deceased male's estate). However use of the sperm was to be controlled by the Court. The Assisted Reproductive Technology Act 1988 lays down conditions as to the use of sperm which in the case of a deceased person can present certain problems. Those conditions can be waived by the Attorney General. The conditions include a condition that before his death the donor had consented to the use of his semen after his death in the provision of the proposed assisted reproductive treatment. It would be a rare case where such consent in writing was given before death but it is something which all young men should consider and if appropriate sign a form of consent which might be kept with their Will . There are many ethical issues relating to the use of sperm of a deceased person including the fact that the child will never know his or her biological father. The Court must be satisfied that it is appropriate for the widow or domestic partner to use the sperm. Any direction made by the Court would be subject to the Attorney General waiving the conditions specified in the Act if necessary. In February 2012, today's blog writer, John Daenke of Andersons Solicitors, represented a claimant seeking harvesting of her husband's sperm where death was imminent.  The application was successful. For more information, see our article " Orders successfully made to harvest dying partners sperm ".   John Daenke :  In-House Consultant Commercial Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/what-are-your-rights-to-obtain-your-deceased-partners-sperm.aspx http://andersons.com.au/lawtalk/posts/2013/february/what-are-your-rights-to-obtain-your-deceased-partners-sperm.aspx Wed, 20 February 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/february/orders-successfully-made-to-harvest-dying-partners-sperm.aspx Supreme Court decisions in 2012 in South Australia have permitted a widow to arrange for the harvesting of sperm from a dying or deceased husband. Contrary to a headline in The Advertiser" newspaper on 13 February 2013, such applications as to the harvesting of sperm have been allowed in this State (and there are decisions in Supreme Courts in other States of Australia allowing a similar procedure in the case of sudden death). In early February 2013 we received a telephone call from the parents of a male on a life support machine requesting that we seek an urgent order on behalf of his wife who wanted a further child by her husband. The wife agreed to the application and signed her written consent. Because of the imminent prospect of death, the application was urgent. Similar applications have been previously allowed both in South Australia and Queensland where each victim had died in a motor vehicle accident. Advice from a reproductive technology specialist was that whilst it was possible to harvest sperm for up to about 48 hours after death, because the reproductive organs were amongst the first to shut down, it was preferable to harvest sperm before death. Courts can and do hear applications urgently when the circumstances require it. For example, in Queensland in 2011 a hearing was conducted by a Judge in chambers by a telephone application by the widow. Within two hours of the initial telephone call to us in early February, we had arranged and attended a hearing before a Supreme Court Judge and obtained the order to harvest the sperm. The Supreme Court in South Australia has granted orders permitting the harvesting of the sperm by an appropriate medical specialist and the storage of the sperm. The applicant must come back to court at a later date and in a more unhurried time to make an application for its use of the sperm. At Andersons, we deal with a significant number of unusual legal situations. The above request was handled by our In-House Consultant, John Daenke .  John has a varied practice covering matters in commercial litigation , Wills and estate planning, business law and insurance law.   John Daenke :  In-House Consultant Commercial Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/orders-successfully-made-to-harvest-dying-partners-sperm.aspx http://andersons.com.au/lawtalk/posts/2013/february/orders-successfully-made-to-harvest-dying-partners-sperm.aspx Tue, 19 February 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/february/moving-to-a-retirement-village-or-nursing-home-what-happens-with-land-tax-on-your-home.aspx Land tax is assessed against the person(s) registered as the owner(s) of each parcel of land as at midnight 30 June each year on the circumstances then existing and is billed a few months later. STOP PRESS - Go to outcome of  Revenue Ruling LT003 Land tax exemption for owner-occupiers A registered proprietor is required to pay land tax on any property owned which has a Site Value (generally vacant land value) of more than $316,000.00 and which is not exempted under the Land Tax Act 1935 . One of the most common exemptions is found in section 5(10)(a) for owner occupiers.  The land will be exempted from land tax where land constitutes the "principal place of residence" of the owner and: the land is owned by a natural person (whether or not he/she is the sole owner of the land); the buildings on the land have a predominately residential character; and no part of the land is used for a business or commercial purpose or the part used is less than 25% of the total floor area of the building. Thus, generally, the family home is exempt from land tax as it is the "principal place of residence". What happens when you move into aged care accommodation but do not sell your existing home? Upon you moving permanently into aged care accommodation, your former home ceases to be your "principal place of residence" and so you as the owner may have become liable for land tax. If you had moved into residential care prior to 30 June but retained ownership of your home then you would have been liable to pay land tax for the forthcoming financial year as the land was no longer exempt. Notifying the relevant authorities If the sole surviving owner occupant leaves the family home to move to aged car accommodation, whether a retirement village or nursing home, the owner must "forthwith inform the Commissioner" that circumstances have changed so that proper grounds of exemption have ceased to exist.  Failure to notify the Commissioner forthwith can result in a fine of up to $5,000.00 (with an expiation fee of $315.00). Under the Taxat ion Administration Act 1996 , a failure to notify the Commissioner that results in a failure to pay land tax on time can also result in penalties being imposed in addition to the land tax.  A 25% penalty can be imposed for an accidental failure and a 75% penalty can be imposed on the owner for a deliberate failure. Relief Granted in Revenue Ruling on 29 January 2013 Following certain highly publicised claims last year Revenue Ruling LT003 now indicates that the Minister for Finance has approved, on a case by case basis the provision of ex gratia relief from land tax for the first financial year where the owner of the land has moved on an ongoing basis into "residential care" provided by an "approved provider (both terms as defined under the Commonwealth Aged Care Act 1997 ). The relief is available from 2012-13 financial year onwards and is conditional upon the property having been occupied by the land owner as their principal place of residence from which they moved into the residential care facility, and the property not being leased between that time and the time that the land is transferred or sold. The relief is only available where persons apply in writing to Revenue SA and supply the information required.  Applications will need to include a copy of the residential care facility admission letter for the owner of the land. Thus where an owner moves into a residential care facility, the owner (or family) should notify the Commissioner forthwith and in the first year after admission should claim at the appropriate time, relief from land tax if the property has not been leased out before being sold or transferred. Land tax relief for a deceased estate When a person dies, the land they previously owned passes to their estate.  As the deceased person is now neither the owner nor occupier of their former land, the land is no longer exempt from land tax under the "principal place of residence" exemption in South Australia. Instead the land becomes taxable in the hands of the estate in the same way that it would if some other person had purchased the land but was not living on it.  There are no provisions in the Land Tax Act that allow the Commissioner to waive land tax in these circumstances. Under Revenue Ruling LT001 however, the State Treasurer has approved on a case by case basis, the provision of ex gratia relief from land tax for deceased estates for the first financial year following the death of the owner of the land.  The relief is only available where persons apply in writing to Revenue SA and the land has not been leased by the estate after the owner's death.  Revenue rulings do not have the force of law and so relief is not guaranteed. It is noteworthy that the situation in NSW is somewhat different as there is provision for relief built into the legislation.  Under the Land Tax Management Act 1956 (NSW) there exists an exemption from land tax for land that was a deceased person's principal place of residence immediately preceding his or her death.  The land will be exempt for 24 months from the deceased person's death or until the land is transferred to another person (other than the deceased person's personal representative or a beneficiary of the deceased person's estate). In addition an estate has 2 years from the date of death to sell a residential property and not have the property being subject to Capital Gains Tax. If you'd like to know a bit more about how you may become liable for land tax upon moving into aged care accommodation, get in touch with today's blog writer, Commercial and Business Law solicitor, John Daenke .   John Daenke : In-House Consultant Commercial & Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation. It should be noted that figures referred to in this article are current as at January 2013 but may change in the future.   http://andersons.com.au/lawtalk/posts/2013/february/moving-to-a-retirement-village-or-nursing-home-what-happens-with-land-tax-on-your-home.aspx http://andersons.com.au/lawtalk/posts/2013/february/moving-to-a-retirement-village-or-nursing-home-what-happens-with-land-tax-on-your-home.aspx Mon, 18 February 2013 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2013/february/what-if-the-other-driver-does-not-stop-after-a-car-accident-can-i-still-claim-for-my-injuries.aspx In an unfortunate number of motor vehicle accidents, not just in South Australia but Australia wide, the driver who has caused the accident often fails to stop to either render assistance to an injured person or at the very least to exchange particulars with that person. Can I make a claim if the responsible driver doesn't stop? If in that circumstance where you are an injured victim after a motor vehicle accident, you can still make a claim for damages even if the other driver has failed to stop at the scene of the accident and you are not aware of his name or the registration number of his vehicle. The problem in these circumstances is that you cannot lodge a claim against the compulsory third party insurer, Allianz, because there is no one to claim against.  There is no individual against whom a claim can be registered because in this example the insured driver has decamped. Happily however, there is a scheme set up for such events known as the "Nominal Defendant".  This scheme stands alongside the compulsory insurance scheme and deals with circumstances where either the vehicle at fault has left the scene without stopping, or the driver of the vehicle is unregistered and uninsured or dies in the accident.  In all of those cases there is no individual person against whom a claim can be made but the law has recognised that it would be unfair to deny an injured person a claim in such circumstances.  As such a Nominal Defendant scheme has been set up and it is run on exactly the same basis as is a normal claim for damages against the compulsory insurer. If you are an injured person in such circumstances however, it is very important that you take action quickly.  Attempts must be made, under the legislation, to make what is called "due inquiry" and search to try and ascertain the name of the other driver.  In this regard you will often see advertisements in the paper alluding to such circumstances.  You cannot simply sit back and do nothing, but rather to bring a claim here you need to be pro-active. You still need to prove your claim and you still need to prove, on the balance of probabilities, that the accident was caused by another vehicle but that task is not so difficult to do when there is no-one giving a contrary view.  If you'd like advice or assistance about motor vehicle accident claims for injury, get in touch with today's blog writer, Partner in Civil Litigation , specialising in motor vehicle accident claims, Dion McCaffrie .   Dion McCaffrie - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/what-if-the-other-driver-does-not-stop-after-a-car-accident-can-i-still-claim-for-my-injuries.aspx http://andersons.com.au/lawtalk/posts/2013/february/what-if-the-other-driver-does-not-stop-after-a-car-accident-can-i-still-claim-for-my-injuries.aspx Wed, 13 February 2013 Ryan Thomas http://andersons.com.au/lawtalk/posts/2013/february/high-court-decision-set-to-significantly-impact-family-law-property-settlements.aspx The High Court delivered judgment in the case of Stanford v Stanford [2012] HCA 52 on 14 November 2012.  The judgment is likely to have a significant impact on the way the Family Court applies Section 79 of the Family Law Act 1975 ("the Act") which relates to matrimonial property settlements. In this case, at the time of the hearing the husband was aged eighty seven and the wife was aged eighty nine.  It was their second marriage although they had been married for forty years.  Each of the husband and wife had children from a previous marriage.  The husband and wife had lived in the former matrimonial home which was owned solely in the husband's name, and had been for nearly 40 years.  The home had been acquired by the husband after the breakup of his first marriage. The second (current) wife had fallen ill and required fulltime care and was forced to leave the matrimonial home.  The husband remained in the home with care assistance from his son.  In the case before the Court, each of the parties had case guardians which were their children from their previous marriages. A case guardian is appointed by order of the Court to conduct the case on behalf of one of the parties in circumstances where that party has sufficient mental or physical disability to lack the understanding or capacity necessary to conduct their case. In this case, the children of the wife (as case guardian) brought the application for property settlement against the husband. Presumably, the motivation for this was the fact that the primary asset was owned by the husband and without such a claim the wife's children would receive minimal inheritance. At first instance a Magistrate of the Family Court of Western Australia made Orders dividing the assets of the parties 57.5% to the husband and 42.5% to the wife.  This required the husband to pay the wife the sum of $612,931.00 within sixty days which would require him to sell the home. The husband appealed to the Full Court of the Family Court but before that appeal was finalised the wife died. The case was continued by her estate (once again the wife's children), and the Full Court found that the Magistrate had erred given that the wife did not have a need for a property settlement as her reasonable needs could be met in other ways such as by way of maintenance.  A maintenance Order could require the husband to pay periodic sums of money to the wife for her support for the rest of her life. The Magistrate was also required to consider the effect of the Orders on the husband and the fact that it was an "intact marriage".  The parties had not separated in the normal sense as separation was forced solely by virtue of the wife's ill health requiring her to be in a nursing home. The Full Court did not change the amount the husband was required to pay to the wife but ordered that the payment be made, to the wife's estate, upon the husband's death. The husband (per his case guardian) was granted special leave to appeal to the High Court.  The husband argued that there was no power for the Court to make Section 79 Orders (an order for property settlement) because the parties were not separated and that any property entitlement of the wife would benefit the children of the previous marriage and not the wife. This is because the payment of the $612,931.00 for property settlement would be paid into the wife's estate which would then be distributed to her children. Further, that s79(8) had not been satisfied as this section of the Act requires that prior to the wife's death, the Court would have made that Order for property settlement and that subsequent to her death it was still appropriate to make the Order. The husband's appeal was successful as the majority of the High Court found that the Full Court had erred in its judgement as it had not shown that if the wife had not died it would have been appropriate to make the order. Interestingly the majority found that an Order for alteration of property interest can be made in circumstances where there was no separation or a forced separation such as in these circumstances.  The majority found that a Section 79 Order could be made if it is just and equitable to do so regardless of whether the parties were separated. The High Court emphasised Section 79(2) of the Act, in particular that the Court must first consider whether it is just and equitable to make the Order for property settlement, rather than applying the "just and equitable" test as a fourth step in the Section 79 process (for the four step process please refer to our blog " My husband and I just separated. Does he automatically get half of the assets of the marriage?"  .  The facts in Stanford were quite unique but the judgment of Stanford suggests that the four step process followed by practitioners and the Courts in respect of Section 79 has changed and it will be interesting to see how the Family Courts interpret this judgment. This is a very significant case on the interpretation of Section 79 of the Family Law Act and it will be interesting to see how the Family Courts apply this decision.  We will provide further updates in respect of this issue. If you've got property settlement issues after a relationship breakdown or any other Family Law issue, feel free to get in touch directly with today's blog writer, Partner in Family Law, Ryan Thomas .   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/february/high-court-decision-set-to-significantly-impact-family-law-property-settlements.aspx http://andersons.com.au/lawtalk/posts/2013/february/high-court-decision-set-to-significantly-impact-family-law-property-settlements.aspx Sun, 10 February 2013 Michael Irvine http://andersons.com.au/lawtalk/posts/2013/february/proposed-changes-to-motor-vehicle-accident-compensation-in-south-australia.aspx The South Australian Compulsory Third Party (CTP) Scheme is a scheme that provides personal injury insurance to eligible people injured in accidents involving a motor vehicle.  Each motor vehicle registration payment has a component allocated to fund the scheme. Under the current CTP Scheme, if a driver, pedestrian or cyclist can prove that another driver is at fault for injuries sustained in a motor vehicle accident, the injured person can claim compensation for their injuries. They will have to show that they have been injured for at least seven days. Importantly, if a driver in a single vehicle collision sustains an injury, he or she would likely be ineligible for compensation because they won't be able to prove someone else was at fault. However, a passenger in a single vehicle collision may be able to prove that the driver was at fault, and therefore be able to claim compensation under the CTP Scheme. Currently (February 2013), injured victims are able to claim compensation from minor whiplash and other muscle strains through to catastrophic bodily injuries such as paraplegia, spinal injuries and brain injuries. Victims can claim for the pain and suffering they have sustained based on a scale of seriousness from one to sixty (sixty being the most serious type of injury). They are able to claim for economic loss. For example, if the injuries force the victim to take time of work, or cut back their hours, they should be in a position to claim for that loss. The victim is generally also able to claim for past and future medical expenses and even help around the house and garden, amongst other things, if the injuries prevent the victim from performing their normal domestic duties or duties they would normally undertake if they were not injured . Also, the current system takes into account the extent to which the victim's own actions contributed to the accident. So if he/she wasn't paying attention, or they were intoxicated, affected by illicit drugs or they were speeding, the damages that can be claimed will be reduced to the extent that the negligence contributed to the victim's own injuries. This CTP Scheme has worked well since 1963. When a motor vehicle is registered in the State of South Australia, part of the registration fee is designed to financially protect a driver if they cause injury to someone else, but also to compensate a victim if they suffer injuries or economic loss. The State Government has proposed drastic changes to the CTP Scheme that, if enacted through Parliament, will have drastic impacts on the rights of innocent injured victims, including cyclists and pedestrians. Compensation will be significantly slashed and it is estimated that around 6,000 people per year will be unable to claim if the proposed changes, as they stand in draft form today, come into effect. One of the main proposals is to change the Scheme to a 'no fault' system. Basically, this means that if a driver is entirely to blame for an accident, he/she can claim compensation if they suffer an injury. Currently a driver cannot claim if they are fully at fault. This proposed change is seen by many as potentially rewarding people who behave negligently or stupidly on our roads. Under the proposed changes, a driver may kill a cyclist whilst on drugs or drunk or speeding, but the driver may still be entitled to compensation if they suffer injuries. Also, the proposed changes will scrap the method for calculating compensation for pain and suffering as listed above. As mentioned, currently pain and suffering is calculated on a scale of seriousness up to 60 points. The amount of compensation is fixed depending where the victim fits on the scale, and the year the accident occurred. For example, a serious whiplash injury causing pain and discomfort and possibly requiring years of rehabilitation may only be 6 points on the scale. If the injury occurred in 2012, the compensation for pain and suffering would be $9,030. Similarly, if a cyclist or pedestrian gets knocked over by a speeding car and breaks both their wrists, suffers some cuts and bruises and a concussion, they may be 7 points on the scale. If the injury occurred in 2012, they would be entitled to $10,530 in compensation for pain and suffering. The proposed changes to the CTP Scheme will calculate pain and suffering under what is termed a "Whole Person Impairment" scale in accordance with the Australian Medical Association (AMA) Guidelines. The proposed changes suggest a threshold of 10% Whole Person Impairment before one can be compensated for pain and suffering. This is a high threshold, and in the examples mentioned above of broken wrists with cuts and bruising, the injured person would likely not qualify for compensation. So someone who sustains whiplash or broken bones, which may cause pain for the rest of their life, might not be eligible for compensation for pain and suffering. Potentially 70% of people injured in motor vehicle accidents would not receive this type of compensation. If the proposed changes get passed into legislation, it is also likely that many back and neck injuries will not be compensable. The Whole Person Impairment scale would also not take into account many psychological symptoms associated with the injury, including depression, anxiety, nightmares or recurrent thoughts, which are all very common following a motor vehicle accident. This all means that if the changes come into effect, many innocent victims injured in motor vehicle accidents will receive much less compensation than they would otherwise under the current Scheme. Furthermore, entitlements to future care which exist under the current Scheme will be slashed if the proposed changes take effect. A very high threshold is proposed, including the requirement that an injured person needs at least six hours of care per week, for at least six months following the accident. Therefore, if a victim is severely injured through no fault of their own, and they require three hours of intensive physiotherapy per week, they may have to pay that out of their own pocket. This could cost the victim thousands of dollars annually. The proposals also limit the amount of legal fees a victim can recover. This will likely deter victims from seeking legal advice. It is unreasonable to expect victims to know about the intricate details of complex insurance policies, the Allianz (the CTP insurer) claims management processes, or even their own basic legal entitlements or obligations. The claims agents at Allianz are all legally trained and work with motor vehicle accident matters on a daily basis. The proposed limitation in relation to legal fees will put the victims at a significant unfair disadvantage when it comes to negotiating a proper settlement for their injuries. Victims may be more inclined to accept the first settlement offer by Allianz, even if it is inadequate, rather than seeking independent legal advice about the appropriateness of the offer. The proposed Scheme also includes unjust methods for calculating economic loss. The process may involve complicated calculations of past average weekly earnings, and a step-down approach (that is, a reduced entitlement of, for example, only 80% of the average weekly earnings after 6 months), similar to the State's workers compensation scheme. Income replacement may not be paid to people who are unemployed or on Centrelink at the time of the accident, even though the accident has rendered them incapable of obtaining decent work in the future. At Andersons, we're not opposed to a review of the current CTP Scheme. In fact, we believe all compensation schemes should be reviewed at appropriate intervals to ensure the rights of the claimant and the insurer are suibtable and that the schemes are efficient and, fair and financially responsible.  We believe the proposed changes to the South Australian CTP Scheme are detrimental to innocent and well behaved road users and they require further review. Although the time for formal community feedback has ended, you may wish to write directly to the Premier, the Hon Jay Weatherill MP , who is also now the State Treasurer in charge of these proposed changes.  For further information, contact today's blog writer, Andersons solicitor in Civil Litigation , Michael Irvine .   Michael Irvine - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/proposed-changes-to-motor-vehicle-accident-compensation-in-south-australia.aspx http://andersons.com.au/lawtalk/posts/2013/february/proposed-changes-to-motor-vehicle-accident-compensation-in-south-australia.aspx Thu, 07 February 2013 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2013/february/trading-with-an-insolvent-company-how-do-you-protect-against-unfair-preference-claims.aspx If you are a supplier of goods to a company, you expect to get paid. Unfortunately, sometimes companies will keep trading with you long after they are able to pay all their debts. Very often, you will not be alone and by the time it becomes apparent that the company has failed, there is a string of suppliers, including you, lining up to be paid. Such circumstances are not uncommon and they happen when a company is trading while insolvent.   Insolvent companies are usually "wound up" and have a liquidator appointed to them. Under section 588FA of the Corporations Act , a liquidator has the power to investigate the financial affairs of the company and to regulate the repayment of debts. One step that a liquidator can take is to see if there have been any unfair payments to certain creditors of the company, at the expense of other creditors who received nothing. Such payments are viewed as an "unfair preference" because it means that those suppliers who have been paid have received the full amount of their entitlement, whereas other creditors have missed out being paid.   It is possible for a liquidator to recover unfair preference payments, provided that the payment was made no earlier than six months prior to the company having been wound up. If it is perceived that you received unfair preference payments, the last few payments you received may well be targeted. Whilst there are some defences against an unfair preference claim against you by a liquidator, the matter will usually have to be heard by the Court at considerable expense and effort by you. The onus is on you to prove that you had no reasonable way of knowing that the company was in financial difficulty at the time that you accepted the payment. Any delay in you having being paid, or requests for an extension of time to pay by the company, or bounced cheques, will be considered to have been a warning to you and will hurt your chances of defending an unfair preference claim on the basis that you did not have any suspicion that the company was insolvent at the time you were paid. Unfair preference claims generally affect only unsecured creditors, being those creditors who do not have a written agreement which secures your unpaid invoices against assets of the company or the assets of the company's directors. Wherever possible, as a supplier you should always attempt to have such an agreement in place and you should also ensure that your contracts with the company contain a "retention of title" clause. A retention of title clause is a written condition which says that ownership of the goods which you have supplied to your customer does not pass to that customer until you have been paid for those goods in full. The Personal Property Securities Register ("PPSR") gives you an opportunity to further secure your position as a creditor of the company, by way of a Purchase Money Security Interest ("PMSI"). A PMSI can grant you priority above other suppliers and gives you a security interest which will ordinarily protect you from an unfair preference claim by a liquidator. The commercial team at Andersons can assist you and your business to avoid facing an unfair preference claim by structuring your terms of trade to include the necessary security provisions, such as a retention of title clause and guarantees from the directors of the company for the payment of your accounts in the event that the company is unable to pay them. If you are already facing an unfair preference claim, we can advise you as to your liability to pay and any defences which may be available to you. Need advice or assistance with an unfair preference claim, or the PPSR or commercial and business advice generally?  Today's blog writer, Partner in Commercial Litigation , Felix Hoelscher is able to assist you with your commercial and business law inquiries.   Felix Hoelscher - Partner Commercial Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian legislation.   http://andersons.com.au/lawtalk/posts/2013/february/trading-with-an-insolvent-company-how-do-you-protect-against-unfair-preference-claims.aspx http://andersons.com.au/lawtalk/posts/2013/february/trading-with-an-insolvent-company-how-do-you-protect-against-unfair-preference-claims.aspx Wed, 06 February 2013 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2013/february/a-car-driver-opened-her-door-on-me-while-riding-my-bike-do-i-have-a-claim-for-compensation.aspx It is a matter of fact that there are far more bicycle riders on our streets than ever before.  This trend is likely to continue. A not infrequent accident occurs when the driver of a car which is parked on the side of the road opens the car door without checking to see what is coming, with the result that a collision occurs between the bicycle and the car door. If that collision results in injuries being sustained by the rider of the bicycle, does that person have a claim for motor accident compensation in South Australia? In the overwhelming number of cases, such a claim will be successful.  In the example given above, each of the participants to the accident has a duty to look out for their own welfare and indeed the welfare of others.  The most usual cause of this type of accident is that the driver of the car has either not checked or not checked adequately to see if any vehicle or bicycle is approaching from behind. The rider of the bicycle also has an obligation to keep a proper lookout.  The bicycle rider should approach the parked car with some caution and, if able to do so, should pass it allowing sufficient space to pass safely. If you're a bike rider on our public streets and you've come into contact with another vehicle and sustained injuries as a result of the accident, you should seek legal advice about your rights and entitlements under motor accident compensation. You can get in touch directly with today's blog writer, Andersons Partner in Civil Litigation with significant experience in motor vehicle accidents , Dion McCaffrie .   Dion McCaffrie - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/february/a-car-driver-opened-her-door-on-me-while-riding-my-bike-do-i-have-a-claim-for-compensation.aspx http://andersons.com.au/lawtalk/posts/2013/february/a-car-driver-opened-her-door-on-me-while-riding-my-bike-do-i-have-a-claim-for-compensation.aspx Mon, 04 February 2013 Catherine Clark http://andersons.com.au/lawtalk/posts/2013/january/back-to-basics-in-estate-planning-what-is-an-executor,-trustee-and-beneficiary.aspx It can often be confusing when making a Will with all the legal terms involved.  The purpose of this blog is to simplify the main terms, and what they mean. What is a Will? A Will is a written legal document which sets out who will be responsible for organising your funeral, arranging for your debts to be identified and paid from the estate, and then how you would like the remainder of your assets to be dealt with after you have died. What is a Testator? A Testator is a person who makes a Will.  It is often used to describe a male person who makes a Will, but can also be used to describe a female person who makes a Will (also known as a Testatrix). What is an Executor? An Executoris a person who is appointed by a Testator or Testatrix to execute, manage, administer, direct, and distribute assets according to the Testator's/Testatrix's Will.  An Executor may have to apply to the Supreme Court to obtain a grant of Probate.  What is Probate? Probate is where the Court determines that the Will is valid, and enables the Executor to deal with any real estate or real property that the deceased owned according to what is written in the Will. An Executor may be a spouse, son or daughter of the Testator, or close friend, and is generally an unpaid role.  The Executor may also be a Beneficiary. An Executor is sometimes the Testator's Accountant or Solicitor, particularly if the estate is complex, and fees are charged by these professions to act as an Executor.  It may also be the Public Trustee, if the Will has been prepared by the Public Trustee. Even if a person has not been named in the Will as an Executor, if they have intermeddled with the estate, such as given away assets of the estate, then they may be appointed anExecutor de son tort, and may then be personally liable to Beneficiaries and creditors of the estate if they have given away assets to the wrong Beneficiaries. What is a Trustee? A Trustee is a person to whom property is conveyed, devised, or bequeathed in trust for another (the Beneficiary).  The Trustee has a duty to act in good faith for the benefit of the beneficiary. A Trustee may hold assets on behalf of a beneficiary for a short or long period of time.  For example, if a child is to inherit under the Will, the Trustee may hold the assets on behalf of the child, until they reach the age set by the Will to inherit. What is a Beneficiary? A Beneficiary is a person who is to receive or is entitled to receive something in the Will. What is a Codicil? A Codicil is a document that is often made at a later date after a Will which is executed (that is, signed correctly to make it valid) by the Testator or Testatrix, and intends to add, alter or revoke, explain or confirm part of a Will.  It is often a safer option to have a new Will prepared, as a Codicil may be lost or destroyed or separated from the original Will, or there may be so many changes to the original Will that a Codicil is as long or requires as much effort to prepare as a new Will. What does intestate mean? When a person dies without a having a Will, they are said to have died intestate.  A person can also be intestate if they have a Will, but it was not executed properly, or it has been revoked by other documents. Letters of Administration are sought from the Court, rather than a Grant of Probate.  An Administrator then acts like an Executor to tidy up the estate. It is important to remember that getting married revokes a Will, but getting divorced does not! That said, if you get divorced, we strongly recommend you get a new Will. So a lot of new terms?  Have you done your Will ? If not or if you need a new Will drafted, get in touch with our Wills & Estate Planning team to arrange a consultation. Alternatively you can contact today's blog writer directly, Catherine Clark .   Cathe rine Clark - Solicitor Wills & Estate Planning / Commercial & Business Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/back-to-basics-in-estate-planning-what-is-an-executor,-trustee-and-beneficiary.aspx http://andersons.com.au/lawtalk/posts/2013/january/back-to-basics-in-estate-planning-what-is-an-executor,-trustee-and-beneficiary.aspx Wed, 30 January 2013 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2013/february/what-changes-are-there-to-the-fair-work-act-in-2013.aspx This year we have seen a few changes to theFair Work Act, which came into force from 1 January 2013. Fair Work Australia, the industrial tribunal, is now known as the Fair Work Commission and their website and contact details have been updated accordingly. The time limits for lodging unfair dismissal actions and general protections (or adverse action) claims have been altered. What are the new time limits for Unfair Dismissal claims and General Protections applications? Unfair dismissal applications can now be lodged up to 21 days from the date of dismissal (previously 14 days). The time limit for general protections claims is now also 21 days (previously 60 days). This means that you have three weeks to lodge your claim with the Commission.  You calculate this time frame from the action that gave rise to your claim (eg, the date from the date of dismissal). This applies to all dismissals that occurred on or after 1 January 2013. Unfortunately, that means that if you were dismissed on 31 December 2012, you only have 14 days for an unfair dismissal claim (which has now passed at the time of posting this article), but you would still have 60 days for your general protections claim. Changes to Protected Action Ballots Another set of changes applies to protected action ballots, which are the first step towards taking industrial action. Protected action ballots can now be run electronically, and include all members of a Union. The Commission also has the power to say when the vote ends. Changes to the Enterprise Bargaining Process There are also changes to the enterprise bargaining process. It is now not possible to have an enterprise agreement apply to only one employee, or opt out of being covered. Also, an employee cannot ask a Union official to bargain for them unless they are a member of that Union. This means that if you want the Union to represent you in negotiations, you will have to join up. Procedural Changes to the Fair Work Act Other changes include procedural changes within the Commission, including provision for new panels (groups of members who oversee specific issues such as the minimum wage decision and default superannuation), new members, and new powers which include being able to deal with claims more effectively. If you're not sure how these changes affect you, feel free to ask one of our industrial team or get in touch directly with today's blog writer, Senior Associate in Employment and Industrial Law, Sorna Nachiappan .   Sorna Nachiappan - Senior Associate Industrial & Employment       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/february/what-changes-are-there-to-the-fair-work-act-in-2013.aspx http://andersons.com.au/lawtalk/posts/2013/february/what-changes-are-there-to-the-fair-work-act-in-2013.aspx Mon, 28 January 2013 Nicole Kelly http://andersons.com.au/lawtalk/posts/2013/january/can-my-childrens-school-stop-the-other-parent-from-picking-the-children-up.aspx Often a parent will be concerned about sending their children to school where there is a dispute over the childrens' living arrangements. This is a common problem following separation. What if there are no Court Orders in place? Where there are no court orders in place, each parent has the same rights and responsibilities in relation to a child by virtue of the fact that they are a parent of that child. That means that both parents are entitled to collect the children from school. The school does not have any power to refuse either parent unless it is provided with evidence of a court order setting out the arrangements for the children. What can I do to sort out who picks up the children from school? A parent who is concerned about the other parent collecting the children from school without their knowledge or consent should immediately meet with the principal of their child's school to advise the school of the current circumstances and any concerns they have about the other parent. If the other parent then attends at the school to remove the child the school should attempt to make contact with the other parent to ascertain his or her views prior to the child being removed. What formal options are open to me for picking up the children from school? It is strongly recommended that a parenting plan or court order be obtained as soon as possible after separation. The order or parenting plan will give guidance to schools as to who can and cannot collect the children on any particular day. A school can therefore refuse to allow a parent to take a child home if it appears to be contrary to the court orders or parenting plan. Should you be experiencing similar issues and think you may benefit from a parenting plan or court order with regard to your children or you have any other concerns about family law matters, get in touch with today's blog writer, Andersons Family Law solicitor, Nicole Kelly .     Nicole Kelly - Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/january/can-my-childrens-school-stop-the-other-parent-from-picking-the-children-up.aspx http://andersons.com.au/lawtalk/posts/2013/january/can-my-childrens-school-stop-the-other-parent-from-picking-the-children-up.aspx Fri, 25 January 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/january/transfer-of-business-name-changes-in-procedures-with-new-legislation.aspx On 28 May 2012 registration of business names became national rather than state based and is now handled by ASIC. Previously to transfer a business name which occurred upon the sale of a business or change in partnership was carried into effect by lodging a paper form signed by all relevant parties with the Office of Consumer and Business Affairs. A new procedure is now required. Each Business Name will have an "ASIC Key". This is a unique security number. (For some time each company has had a "Corporate Key" issued by ASIC). If the Business Name was registered from 28 May 2012, the ASIC key was sent on registration. If the Business Name was registered prior to that date then the ASIC Key is sent with the first reminder notice to renew the business name (every 3 years). If the business does not yet have an ASIC Key it can request one in the course of the transaction from ASIC. It is important for all business name owners to retain the information of the ASIC Key.  To change the ownership of a business name, including adding new owners, deleting existing owners or transferring to a new owner, now requires a new procedure. If selling a business, there are steps which the vendor should undertake prior to any settlement. The existing owner must enter the " ASIC Connect Portal " which may require registering or logging in, and then select a transaction from a list of transactions. In the case of a transfer, the "Cancel/Transfer Business Name" transaction is to be selected. The procedure for a proposed transfer requires the person to select "Cancel and Transfer" (as opposed to the alternative of just "Cancel"). This request triggers cancellation of a business name and serves as notice that the person has given consent to another person to register the same business name. Once submitted the transaction cannot be withdrawn (so a contract which does not settle presents a problem). ASIC will send the person who has sought the information: a "Notice of Intention to Cancel a Business Name"; and a Consent to Transfer Number. The cancellation will come into effect 28 days after the person receives the "Notice of Intention to Cancel a Business Name" from ASIC. Prior to settlement, or endeavouring to register the transaction following settlement, the new owner must obtain an ABN from the Australian Business Register website. At settlement the vendor should deliver the "Consent to Transfer Number" to the purchaser or new owner. The purchaser, being the proposed new business name owner, can then apply to register that business name using the "Consent to Transfer Number", which is a "1" followed by 10 digits. This Number enables that owner to register the name before it becomes available to the public, subject to meeting other requirements of registration such as providing an ABN, paying the fee and not being disqualified under the Business Names Registration Act 2011. The online application will be registered but the business name will not display on the national business names register until 28 days after the issue of the "Consent to Transfer Number". The details will appear on the "Register of Recently Transferred Business Names". After applying to register the business name, the new owner can conduct business under the business name for up to 3 months without committing an offence. The name will not be available for registration by anyone who cannot provide the "Consent To Transfer Number" until 3 months have passed. Any contract or precedent relating to the sale of a business should be thoroughly checked. If they specifically provide for a vendor to deliver at settlement a "Transfer of Business Name" then that provision should be amended to provide that prior to settlement the vendor will apply to "Cancel and Transfer" the business name and obtain a "Consent To Transfer Number" and at settlement will deliver the "Consent To Transfer Number" to the purchaser. It can be a daunting process and you must ensure, as a business owner wishing to transfer a business name, that you comply with all these requirements.  If you have any queries about the information contained in this article, get in touch directly with today's blog writer, John Daenke from the Andersons team in Commercial & Business Law .   John Daenke :  In-House Consultant Commercial & Business Law / Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian State legislation.   http://andersons.com.au/lawtalk/posts/2013/january/transfer-of-business-name-changes-in-procedures-with-new-legislation.aspx http://andersons.com.au/lawtalk/posts/2013/january/transfer-of-business-name-changes-in-procedures-with-new-legislation.aspx Tue, 22 January 2013 Greg Welden http://andersons.com.au/lawtalk/posts/2013/january/what-happens-if-the-beneficiary-to-my-will-is-a-child-who-dies-before-turning-18.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors.  An executor is the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully. It is quite common that people leave a gift (or perhaps the majority of their estate) to a minor child - anyone who is under the legal age of 18 years.  One example might be where both parents, upon each other's death, give their entire estate to their child or children, some or all of whom may be minors. In those circumstances the named executors also act as trustees; administrators and controllers of the fund set aside for the minor child or children. Most legally drawn Wills allow for some payments out of the fund for the benefit of the child. For example school fees, other educational expenses and medical or health related expenses can be paid for out of the fund set aside for that child.  It is only when the child reaches the age of majority that the control of the trustees end and the child (now an adult) can control the fund themselves - Ferrari anyone? You may wish to specify certain conditions on the use or administration of the fund or you may wish to increase the age the child assumes control - some prefer the age of 21 or even 25 years. But what happens if the child dies before reaching that critical age of 18? If the child beneficiary dies before the age of majority, the gift, or bequest, to them is treated as of the child had predeceased the testator (the person making the Will) and the executors must then look to any other provision in the Will. A properly prepared Will can account for unexpected deaths and provide a substitute provision. For example, if your gift is to a child who can only control the fund after they turn 18 but dies before reaching that age then you may nominate someone else to take that benefit (or what remains of it at the time). If there is no substitute provision then it is possible the gift will be distributed on the rules of intestacy which is a set of cascading directions to administrators or executors as to how the gift should be divided.  It may be spouses, children, parents or even siblings that take the benefit.  Importantly, it may be someone that you did not intend to benefit from your estate and that's why we all do a Will in the first place, right? If you do not want your estate to be divided and distributed unexpectedly and not necessarily in accordance with your wishes, it is critical you obtain a professionally prepared Will by an experienced solicitor. Need a Will and/or other estate planning documents.  Get in touch with Andersons Senior Associate in Wills & Estate Planning , Greg Welden .   Greg Welden - Senior Associate Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/what-happens-if-the-beneficiary-to-my-will-is-a-child-who-dies-before-turning-18.aspx http://andersons.com.au/lawtalk/posts/2013/january/what-happens-if-the-beneficiary-to-my-will-is-a-child-who-dies-before-turning-18.aspx Sun, 20 January 2013 Michael Irvine http://andersons.com.au/lawtalk/posts/2013/january/thankyou-cfs-volunteers.aspx During late 2012 and early 2013, barely a day has gone by without reports of tragic losses of life and property as a result of fires raging across Australia. Record breaking heatwaves have taken a devastating toll on many families. At times like this, it is important to acknowledge the invaluable work of those South Australians who risk their own wellbeing to protect communities and save lives.  Many areas in our state are sparsely populated; however they are constantly under serious risk of bushfires. It would not be feasible for each town to have their own paid fire department. In South Australia, the Country Fire Service (CFS) is a volunteer-based fire fighting service. Although the Government funds equipment, protective clothing and training, the actual fire-fighting duties are performed by volunteers. The majority of towns in South Australia rely on the CFS. Even some suburbs of Adelaide have CFS stations, particularly suburbs that contain scrubland.  The CFS even assist with non-fire related emergencies, including motor vehicle accidents and dealing with hazardous chemicals and other material in country South Australia. They also assist the State Emergency Services (SES) with problems associated with flooding and other weather related damage (for example, trees falling over during storms). However, fire-fighting is the main job of the CFS. The volunteers can assist with bush-fires, house fires, industrial fires, car fires, and other types, and all too often have to use their valuable time and resources battling fires caused by cowardly arsonists.  The CFS was only established as a statutory body in the mid 1970s with the passing of theCountry Fires Act. However, subsequent legislation in 2005 (theSA Fire and Emergency Services Commission (SACOME) Act) was adopted; this pulled the CFS, Metropolitan Fire Service and State Emergency Service together for funding and administrative purposes. The SACOME Act outlines some general powers of CFS volunteers and also provides them with some important legal protections. For example, at a scene of a fire or emergency, a member of the CFS has the authority to enter a building, including a residence, and even break into the building if necessary. That means that if they have to smash through windows, they cannot subsequently be prosecuted or sued for trespass or damaging property. They also have general authority to remove unsafe structures, remove vegetation, direct evacuations and shut off the supply of water. When a member of the CFS exercises his or her powers, section 127 of the SACOME Act protects them from personal liability. Some protections also exist under theVolunteers Protection Act. The liability for damage to property will not lie against the volunteer fire-fighter him/herself, but rather lie against the Crown (that is, the State Government). The legislation also ensures that if a CFS volunteer is injured or killed while performing their duties, they or their family will be covered by workers compensation laws and other similar arrangements. This is important, because generally speaking, a volunteer is not covered by workers compensation legislation in South Australia. The protections will not apply if the volunteer has intentionally and maliciously damaged/destroyed property or otherwise acted in a corrupt or criminal manner. Similarly, they will not be protected if they intentionally inflict harm or injury to a person, unless the harm was necessary to protecting the person (for example, it may be necessary or unavoidable to injure a person whilst dragging them out of a burning building). In other words, for the protection to apply, the actions or non-actions of the volunteer must be done honestly and in good faith. Even if an act is done negligently or with lack of skill, the protections should still apply if the volunteer acted in good faith. So as we swelter through summer, spare a thought for those volunteers in towns all across the state who give their time and commitment to the worthy work of the CFS. South Australians all owe the courageous CFS volunteers a debt of gratitude. If you wish to become a CFS volunteer, contact them on 1300 364 587 or vist them at CFS Volunteers. If you'd like to know more about the rights and entitlements of CFS volunteers or volunteers generally, visit our blog " What are some of the legal issues that can confront Australia's volunteer work force?" Meet today's blog writer, solicitor in Civil Litigation, Michael Irvine .   Michael irvine - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/thankyou-cfs-volunteers.aspx http://andersons.com.au/lawtalk/posts/2013/january/thankyou-cfs-volunteers.aspx Thu, 17 January 2013 Catherine Clark http://andersons.com.au/lawtalk/posts/2013/january/i-am-a-primary-producer-what-are-my-obligations-when-shifting-stock-on-the-road-in-south-australia.aspx A Primary Producer (farmer) who has the management and control of an animal must ensure a reasonable standard of care in the control of that animal.  This includes warning other road users when shifting or moving stock across or along a public road. Farmers shifting stock on or near the road should use signs to warn oncoming traffic of the hazard.  As advised by Transport SA, these signs should be fluorescent red/orange background with the words "Stock on Road" in black.  The signs are to be provided by the stockowner, who must also maintain and clean the signs to keep them in a good condition. Farmers using "Stock on Road" signs should not leave them on the side of the road on a permanent basis.  They must also be removed within a reasonable time after the stock have left the road.  Farmers may apply to Transport SA to install permanent stock warning signs (yellow with a picture of a cow and a sheep) where stock is moved across or along a road on a daily basis, or where the road is unfenced, and oncoming traffic may be at risk of wandering stock. "Stock on Road" signs should be placed at least 250 metres from the stock crossing site, or where the driver may encounter the stock.  Drivers should be able to see the sign at least 200 metres in advance to allow time to react and slow down before reaching the stock.  Farmers should be aware that they cannot fix a "Stock on Road" sign to other road signs, but the sign may be affixed temporarily to rigid guide posts.  Wherever they are set up, oncoming traffic should have a clear view of the "Stock on Road" signs, so avoid setting up the signs in long grass or where visibility of the sign is poor. Farmers cannot, and are advised not to, direct or control traffic whilst moving stock on the road.  It is up to the driver to pass the stock safely. Farmers who are droving stock should move the "Stock on Road" signs regularly, so the sign is never more than 5 km in advance of where the stock are. Farmers droving stock may mount a "Stock on Road" sign on the vehicle droving the stock, in addition to a "Stock on Road" sign left on the side of the road. A yellow flashing light, whilst not compulsory, may be attached to a vehicle being used by a primary producer to move stock on the road, to warn oncoming traffic of the stock, or if vehicles are in a hazardous position whilst moving stock.  The use of hazard lights is not encouraged by Transport SA, particularly in conjunction with the use of a yellow flashing light. Whilst "Stock on Road" signs only warn drivers that there are stock on or near the road, it does not provide full legal protection to the persons responsible for the movement of stock on the road. For example, as the signs are not suitable for use at night time or when visibility is poor, stock should not remain or move on the road during these times. Remember, at all times you are responsible for the movement of your stock.  If you have any queries about the content of this article or you need clarification or advice and assistance about your responsibilities as the owner of stock, get in touch directly with today's blog writer, our Solicitor, Catherine Clarke .   Catherine Clark - Solicitor Commercial and Businss Law / Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/i-am-a-primary-producer-what-are-my-obligations-when-shifting-stock-on-the-road-in-south-australia.aspx http://andersons.com.au/lawtalk/posts/2013/january/i-am-a-primary-producer-what-are-my-obligations-when-shifting-stock-on-the-road-in-south-australia.aspx Wed, 16 January 2013 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2013/january/incapacitated-by-your-motor-vehicle-accident-in-south-australia-what-services-might-you-be-entitled-to.aspx A serious injury from a car, motorbike or pushbike accident or a road accident involving pedestrians often leads to a person being unable to carry out domestic activities, home maintenance or even activities associated with a person's regular hobby. Will a motor accident claim for compensation, in South Australia, cover such expenses? By way of example, it was recently put to us by a client that he was a boat owner and regular sailor.  Once each year he would arrange for his boat to be slipped for anti-fowling, minor repairs and hull maintenance.  He was in the habit of doing the labour component of this task himself. Having been seriously injured in a motor vehicle accident he was "out of action" for several months and was unable to undertake this cleaning activity.  He asked whether the insurer would pay for the labour cost associated with his having to obtain help to have the job completed. Initially the insurer was troubled by this, primarily we think, because it was an unusual request.  It was however pointed out to the insurer that the activity was a regular activity. It was usually conducted by the injured person, was part of his normal lifestyle and his injuries prevented him from doing it.  In those circumstances the insurer agreed to make payment. Similarly it may be that a lawn mowing contractor will have to be engaged if the person who normally does that activity is, because of injuries sustained in a road accident, is unable to do so for a period of time.  There may be a painting project that cannot be attended to or required household duties including cleaning.  Clearly in these examples it is the labour component only that is being compensated by the insurer.  Often the insurer will require that the work be completed and then will reimburse for the labour component.  This is the case so they can be assured the work in fact has been done. The test to apply in these cases is as follows: Did the injured person normally conduct the activity; Was it a regular activity; Is it required to be done; Do the injuries prevent the injured person from doing it. Have you or someone you know been involved in a motor vehicle accident sustaining injuries that prevent them from carrying out the normal duties outside the workplace?  If so or if you have any other queries about motor accident claims, get in touch with today's blog writer, Andersons Partner in Civil Litigation , Dion McCaffrie .   Dion McCaffrie - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/incapacitated-by-your-motor-vehicle-accident-in-south-australia-what-services-might-you-be-entitled-to.aspx http://andersons.com.au/lawtalk/posts/2013/january/incapacitated-by-your-motor-vehicle-accident-in-south-australia-what-services-might-you-be-entitled-to.aspx Tue, 15 January 2013 http://andersons.com.au/lawtalk/posts/2013/january/alternative-dispute-resolution-in-family-law.aspx What is Alternative Dispute Resolution? There is a number of ways that Family Law matters can be resolved without resorting to litigation (that is, taking the matter through the expensive process of a court action) in the Family Law Courts.  This is known as Alternative Dispute Resolution (ADR).  These alternatives are generally available for people involved in disputes regarding property settlement and childrens' issues.  At Andersons, it is our preference to, wherever possible, resolve matters via ADR rather than resort to Court action.  In some cases however it may be necessary to issue proceedings in Court to protect you rights. What Alternative Dispute Resolution types are available for disputes relating to children? There are two ADR processes that are regulated by the Family Law Act 1975 (the Act) being: Family Dispute Resolution regulated by Part 2 Division 3 of the Act.  These are conducted by accredited Family Dispute Resolution practitioners.  (see our earlier blog " Resolving Family Law Disputes about Children via Family Dispute Resolution ") Mediation in the form of a Child Dispute Conference conducted by a Family Consultant regulated by the Act.  Mandatory child dispute conferences are conducted by Family Consultants within the Family Law Courts counseling section. Family Dispute Resolution is not reportable to any Family Law Courts. Child Dispute Conferences are reportable to the Family Law Courts. This means that anything said in the context of Family Dispute Resolution cannot later be put before the Courts.  This is in contrast to a Child Dispute Conference in which anything said in the conference can be put before the Court. What are the Alternative Dispute Resolution Processes Used in the Family Court? There are three main ADR processes used in the Family Court System: Mediation Negotiation Conciliation Mediation Mediation is the process where participants, together with the assistance of a neutral third person, systematically isolate disputed issues in order to develop options, consider alternatives and reach consensual settlement that will accommodate their needs. Negotiation Negotiation is the traditional form of dispute resolution.  Parties discuss a range of outcomes and then make concessions in order to reach a negotiated settlement. Conciliation Conciliation is a process in which the parties in a dispute are assisted by a third party (the Conciliator) to identify disputed issues.  The Conciliator in a Family Law context is usually an experienced Family Law solicitor and is a Registrar of the Court.  They have an advisory role on the content of the dispute and outcome of the conference.  They do not have the power to determine the matter. They can only advise on their view of what the likely outcome would be if the matter were determined by the Court. In summary, there are a number of ways in which disputes regarding property and children's issues can be resolved without resorting to the Family Courts.  Often Alternative Dispute Resolution offers a much more affordable way to resolve a dispute Want more information about Alternative Dispute Resolution or Family Law matters generally?  Get in touch directly with today's blog writer, Andersons Partner in Family Law , Ryan Thomas .   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/january/alternative-dispute-resolution-in-family-law.aspx http://andersons.com.au/lawtalk/posts/2013/january/alternative-dispute-resolution-in-family-law.aspx Thu, 10 January 2013 John Daenke http://andersons.com.au/lawtalk/posts/2013/january/i-made-handwritten-changes-to-my-will-is-that-ok.aspx Albert made a will in handwriting using a Will kit form (also see " Dangers of DIY Will Kits ") on 7 October 2004 appointing his wife as executor and leaving his estate to her. He provided for certain chattels/possessions to pass to specifically named people and then if his wife died before him the estate was to be equally divided between his children and one named child was to be the executor. One week later his wife had a serious stroke and was admitted to hospital. The following day Albert's Will was placed with a bank for safe keeping and it was never removed before he died. Therefore it could not have been altered after it was lodged with the bank. However on the Will form was a handwritten addition of 10 lines in a different pen of various comments including the words "Everything is done and prescript in the Will, only be effective when I'm the first to die, and somebody look after Mum [My Wife]". This alteration was not signed or witnessed. After Albert's death, when the Will was lodged with an application for probate (the official proving of the Will as authentic or valid) it was referred to a Judge to determine whether the hand written alteration was part of the "Will". TheWills Actprovides that no alteration in a Will has any effect unless executed as a Will. That means it must be executed in the presence of 2 witnesses who also sign. However a court has power to order that an "informal Will" not signed and witnessed as required by the Wills Act be accepted as a Will if certain requirements are met. The Court concluded that the handwritten alteration was made after Albert's wife had a stroke and in the one day before the Will was lodged at the bank. It determined that the final 10 lines of handwriting were intended by Albert to constitute his Will.  Finally the Court decided that by adding the words "only to be effective when I'm the first to die", Albert meant that he only wanted this Will to operate if he died before his wife. At that time he did not know whether she would die before him. Because Albert's wife had in fact died before him, the addition of these words meant that the Will no longer applied and the previous provisions as to what was to occur if his wife died first were no longer operative. Thus Albert died intestate (meaning, without a Will). This decision illustrates the risks and inadvisability of making handwritten alterations on any Will including a Will kit document. If you want to make changes then those should be made in accordance with the requirements of theWills Act. If someone dies intestate, the law specifies who is to get the deceased person's estate and that may not be the intention of the person who has died. Furthermore, Albert's estate was forced to incur legal costs to resolve the issue of whether the alterations were part of the Will and if so the effect of the alterations. At Andersons we have a team of highly experienced solicitors practising in Wills & Estate Planning .  We always recommend all adults have a professionally drafted Will.  If you'd like some more information on your estate planning requirements or you have a problem you need assistance with, why not get in touch with today's blog writer, John Daenke .   John Daenke : In-House Consultant Commercial Law and Wills & Estate Planning       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/i-made-handwritten-changes-to-my-will-is-that-ok.aspx http://andersons.com.au/lawtalk/posts/2013/january/i-made-handwritten-changes-to-my-will-is-that-ok.aspx Thu, 10 January 2013 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2013/january/employment-law-what-is-adverse-action-and-what-does-it-mean.aspx An 'adverse action' claim is another name for a 'general protections' claim under the F air Work Act 2009 (the Act).  It is called that because one of the necessary parts of a successful claim is that the worker suffered some form of 'adverse action' because of the actions of the employer. An adverse action is any action of the employer which has the effect of "injuring" the worker's employment. It can include dismissal, but it also includes things like: being demoted or receiving a pay cut; being suspended or investigated, or other disciplinary actions; prevented from attending training or accessing resources; or a change in duties or worksite. Also for a claim to be successful, the reason for the action has to be one that's in the Act as being 'protected'. One of the most common reasons is discrimination , although it can also be over something as simple as making a complaint about your working conditions or joining a Union. Recent case law suggests that if an employer can give reliable evidence that they did not take that action for one of the reasons in the Act, and that action is lawful, that will be enough to satisfy Fair Work Australia. For example, Bruce is Cassie's boss and cuts her shifts from five shifts a week to three. Cassie thinks this is because she is pregnant and had to take a day off for a doctor's appointment. The reason Bruce gave her is that he is trying to share the work more equally between staff. The adverse action is that Cassie's hours and pay have been cut, and the reason is because she is pregnant. Bruce might be able to say that he has taken shifts from other staff members who are not pregnant, in order to show that he cut Cassie's hours for genuine business reasons and not because of her pregnancy, and that he treated all his staff the same. If Bruce wasn't able to prove that he didn't cut Cassie's hours because of her pregnancy, he would have to pay her compensation for the lost hours. However, if Bruce and Cassie were able to settle before their dispute reached a hearing, Bruce and Cassie could agree on any solution, such as restoring Cassie's hours. With the right advice, many cases can be settled at conciliation, so it is important to get legal advice early on. Do you think you or a colleague or family member of yours has been a victim of "adverse action" in the workplace? If so, you should seek immediate and experienced legal advice and assistance.  Today's blog writer, Sorna Nachiappan is highly skilled in the area of Industrial and Employment law.  Sorna is happy to take your inquiries or assist you where needed.   Sorna Nachiappan - Senior Associate Employment & Industrial Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2013/january/employment-law-what-is-adverse-action-and-what-does-it-mean.aspx http://andersons.com.au/lawtalk/posts/2013/january/employment-law-what-is-adverse-action-and-what-does-it-mean.aspx Tue, 08 January 2013 Michaesl Irvine http://andersons.com.au/lawtalk/posts/2013/january/what-are-some-of-the-legal-issues-that-can-confront-australias-volunteer-work-force.aspx According to the Australian Bureau of Statistics just over one third of Australians regularly volunteer in a number of sectors of society such as health, welfare, the arts and education. Volunteering is an important part of people's lives and volunteers across Australia provide valuable services for millions of Australians every day. If I am injured during the course of volunteering, what can I do? Although volunteers make invaluable contributions to the community, they do not enjoy all the protections typically offered to paid employees through workplace agreements and/or awards. However, this is not to say that volunteers have no workplace rights at all. As a volunteer you should check with the organisation you are working with to see whether they have any specific policies or procedures concerning volunteering. These may provide some guidance as to how to deal with injuries in the course of volunteering or other workplace disputes. In particular, many organisations will have insurance that indemnifies the organisation for any injury caused to volunteers they engage. Also, the particular insurance policy may protect volunteers from liability for acts performed in the course of volunteering. Beyond specific policies or procedures, volunteers generally fall under the protections offered by the Occupational Health, Safety and Welfare (OHS&W) legislation. This legislation protects you as a volunteer if an organisation you are working with has failed to take reasonable care to prevent an injury. . However, if you perform work for a volunteer association (that is, a group of volunteers, working together for one or more community purpose, which has no employees) then you won't be covered by OHS laws. This is also the case for volunteer associations under the new Work Health and Safety Act (WHS) that is in effect from 2013. The OHS&W legislation (and the WHS legislation from 2013) also places responsibilities on you as a volunteer to ensure a safe working environment. Generally, you should take care to prevent harm to yourself or people you work with, use appropriate safety equipment and adhere to safety guidelines. For more information about volunteers under the new WHS laws, click here. Also, apart from limited exceptions relating to volunteer fire-fighters and other 'prescribed classes', volunteers are not 'workers' for Workers Compensation purposes, and are not covered by the Workers Rehabilitation and Compensation Act 1986 . What happens if I injure someone else during the course of volunteering? Organisations should make sure they have insurance for the actions of their volunteers and as a volunteer you should make sure to check with your organisation to see whether that insurance exists. If it does not then you risk being personally liable for injury caused during the course of volunteering. There are some protections for volunteers offered in the Volunteers Protection Act 2001 which protects volunteers from personal liability for their volunteer work if they are performing it for an incorporated community organisation or government program. 'Community work' in the Act includes work for a range of purposes including:                  A religious or charitable purpose; An educational purpose; Encouraging literature, science or the arts; Looking after or providing treatment for people with physical or mental disabilities; For sporting or recreational purposes; For political purposes; For environmental protection purposes; For preserving historical or cultural heritage. Generally, the legislation protects a volunteer against personal civil liability for an act or omission done or made in good faith and without recklessness in the course of carrying out community work for a community organisation. In other words, if your actions cause injury to another person, the community organisation would be liable rather than you personally. Of course, the organisation may dispute that they are liable by claiming that you are excluded from the protections under the Act. You will likely be excluded from the scope of the Volunteers Protection Act if your act (or omission) was not done in good faith (for example, you were doing something dishonest, or your actions had the potential to damage the reputation of the organisation) or if you behaved in a reckless manner. Furthermore, the immunity within the Act does not operate if the volunteer was acting outside the scope of the activities authorised by the community organisation or contrary to instructions given by the organisation. It should also go without saying that a volunteer may not be protected from liability if they are significantly impaired by a recreational drug. As a volunteer, what can I do if I feel discriminated against? In South Australia, volunteers fall under the provisions of the Equal Opportunity Act 1984 which prevents discrimination on a number of grounds including age, sex and disability. The Equ al Opportunity Act 1984 also protects volunteers against sexual harassment and victimisation. As a volunteer the appropriate avenue to lodge a complaint on grounds of discrimination is the Australian Human Rights Commission or through the South Australian Equal Opportunities Commissioner. If you are feeling bullied at work, you may wish to contact the government agency, SafeWork SA, which can investigate allegations of workplace bullying. It's important to ensure your own rights are protected and you are also aware of your responsibilities. If you're having difficulties in your volunteering role, whether it relate to discrimination , bullying or exposure to an unsafe workplace, Andersons has a team of solicitors who will fight for your rights.  Today's blog writer, Michael Irvine , can assist you with any inquiries or assistance you may need around this topic.   Michael Irvine - Solicitor Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/what-are-some-of-the-legal-issues-that-can-confront-australias-volunteer-work-force.aspx http://andersons.com.au/lawtalk/posts/2013/january/what-are-some-of-the-legal-issues-that-can-confront-australias-volunteer-work-force.aspx Mon, 07 January 2013 David Fabbro http://andersons.com.au/lawtalk/posts/2013/january/i-have-been-prescribed-the-wrong-medication-who-is-responsible-for-the-adverse-results.aspx Millions of Australians are prescribed drugs for all sorts of medical conditions; some more serious than others. It is important that you know that when you are taking a drug you are taking the right drug for you.  Otherwise you may end up experiencing some nasty side-effects. Here are four scenarios which could lead to you ending up with the wrong medication. Your treating doctor may prescribe you inappropriate medication. This can happen in a variety of ways, most obviously through your doctor failing to consider an allergy you have that will be triggered by the medication or by failing to recognise that prescribing a certain medication will clash badly with medication you are already taking. If the doctor is an employee of a hospital then you have an action against the hospital. If however the doctor is not employed by a hospital (for example, they are a general practitioner in their own practice) then you have an action against them individually. In this instance it's important to check whether the GP is self-employed or operating in partnership with other GP's to make sure that you are bringing proceedings against the correct legal entity. The pharmacist may fill out the script incorrectly. In this instance the action is simply against the pharmacist who filled the prescription. While you are in hospital, a treating nurse may administer the wrong drug to you. In some instances this can be very serious and in others can be less so. Either way you will be able to bring an action against the hospital or organisation which employs the nurse. Finally, and this is least likely, the drug company itself may have put the wrong drug in the wrong package or used the wrong ingredients in manufacturing the drug. An example of this is the PIP breast implants which have, years after they were implanted, exploded. In such cases the action is brought under the Trade Practices Act and plaintiffs may sue the provider of the drugs, provided that the foreign company manufacturing the drugs does not have a presence in Australia.   As indicated, the result of being prescribed the wrong medication can be serious.  If you've been a victim to this or perhaps any other medical negligence matter including mis-diagnosis, you should seek experienced legal advice. Today's blog writer is Partner in Civil Litigation , David Fabbro .  He's happy to take your inquiry or assist you with any legal action you may wish to take.   David Fabbro Partner - Civil Litigation         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2013/january/i-have-been-prescribed-the-wrong-medication-who-is-responsible-for-the-adverse-results.aspx http://andersons.com.au/lawtalk/posts/2013/january/i-have-been-prescribed-the-wrong-medication-who-is-responsible-for-the-adverse-results.aspx Sun, 06 January 2013 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/december/my-fiancée-and-i-do-not-have-very-many-assets,-do-we-need-a-pre-nuptial-agreement.aspx A pre nuptial Agreement is one name that is sometimes used to describe what is formally referred to as a Binding Financial Agreement under the Family Law Act 1975 . Can I have a Binding Financial Agreement before I get married? The Agreements have several uses but one particular use is for parties to agree in advance how to deal with their property in the event that they separate.  A couple will often do this before they enter into a de facto relationship or before they are married.  These types of financial agreements are complex and require advice from a solicitor who specialises in Family Law.  The complexity arises partly from the fact that the parties are trying to agree on how their property will be divided in the event that they separate at some unknown time in the future.  The parties cannot know when this may be or what property they might own at the time. The requirements on the solicitor to provide advice are also very strict and non-compliance can lead to the agreement being set aside (that is, not usable) in the future. What if I don't have a Binding Financial Agreement when my relationship breaks down? In the event that parties enter into a de facto relationship (subject to satisfying certain criteria) or are married and do not have a Binding Financial Agreement then if they separate they will be subject to the ordinary principles of the Family Law Act that determine how the parties property will be divided (Refer to our blog on dividing the assets of the marriage by Camille McDonald ). Reasons why people with minimal assets may want to enter into a Binding Financial Agreement before entering into a relationship could be as follows: They anticipate receiving a significant inheritance and they do not wish their partner or spouse to be able to claim against the inheritance should they separate. It may be a second marriage or relationship where the parties want to keep their assets separate. One party may have brought in all of the assets into the relationship. A Binding Financial Agreement will not be suitable for everyone but it is worth consideration for many.  Want more information about Binding Financial Agreements or Family Law matters generally?  Get in touch directly with today's blog writer, Andersons Partner in Family Law , Ryan Thomas .   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/my-fiancée-and-i-do-not-have-very-many-assets,-do-we-need-a-pre-nuptial-agreement.aspx http://andersons.com.au/lawtalk/posts/2012/december/my-fiancée-and-i-do-not-have-very-many-assets,-do-we-need-a-pre-nuptial-agreement.aspx Thu, 03 January 2013 Camille McDonald http://andersons.com.au/lawtalk/posts/2012/december/i-am-gay-and-have-just-split-from-my-partner-of-20-years-what-will-happen-to-our-joint-assets.aspx Scenario Adam and Ben are a same-sex couple who have been in a relationship for the past 20 years. Together they own an apartment in metropolitan Adelaide, a country house and acreage in Renmark and a Mercedes motor vehicle. Adam and Ben also have three bank accounts in joint names as well as Telstra Shares in joint names. In November 2012 Adam moved out of the couple's Adelaide apartment stating that he was leaving Ben for someone else and wanted a property settlement.  Ben is concerned that as a same-sex couple, he will not be able to seek protection under the law as he believes it only applies to married couples. What are Ben's options and what will happen to Ben and Adam's joint assets? Generally speaking, much of the current legislation under the Family Law Act 1975 (the Act) that applies to married couples is also applicable to same-sex couples (otherwise known as "de facto" couples under the Act). The Federal Magistrates Court of Australia has the jurisdiction to administer de facto property settlements and therefore any property settlement applicable to Adam and Ben will be relevant under this jurisdiction. With respect to Adam and Ben's joint assets, such assets will be dealt with under the law using the same "four-step" approach as applied to heterosexual couples. Step 1 Identify and value the net property and financial resources of the parties (this is known as the "asset pool") Step 2 Consider the contributions of the parties (both financial and non financial. Non-financial factors can include home-making duties or parenting duties) Step 3 Consider the future needs of the parties; and then Step 4 Determine if the proposed division of property is just and equitable. How much Adam or Ben receive from the property settlement is dependent on the information, facts and figures assessed in correlation with the above "four-step" process. If you would like some more information or advice about your rights in relation to a matrimonial property settlement , including same-sex relationship partners, get in touch with the Andersons Family Law team.  Today's blog writer, our Camille McDonald is more than happy to provide you with any advice and assistance you require in relation to your Family Law matters.   Camille McDonald - Associate Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/i-am-gay-and-have-just-split-from-my-partner-of-20-years-what-will-happen-to-our-joint-assets.aspx http://andersons.com.au/lawtalk/posts/2012/december/i-am-gay-and-have-just-split-from-my-partner-of-20-years-what-will-happen-to-our-joint-assets.aspx Wed, 02 January 2013 David Fabbro http://andersons.com.au/lawtalk/posts/2012/december/can-nurses-be-held-responsible-for-matters-of-medical-negligence.aspx Sometimes patients who have been the victim of medically negligent treatment performed by nurses are reluctant to pursue legal action because they assume that the nurse will not have the financial resources to pay any damages they might be awarded or they believe there is no recourse for compensation. This is actually a misperception as it is not the nurse who will be responsible for paying you any money in compensation. This is because nurses are employees of the hospital or health organisation they work at which means any medical negligence they are responsible for leads to an action against their employer (the hospital or health organisation) and not the nurses personally. This is the case even if the nurse's behaviour was grossly negligent. In fact the nurse's conduct would have to be close to criminal (for example, deliberately causing harm to a patient) before the nurse would be personally liable for their conduct. Furthermore, there is the potential for a nurse to be accountable for omitting to act. For example, failing to inform doctors that a particular drug was administered to a patient. There is one exception for independent nurse practitioners who are typically not employees of hospitals or health organisations. But as they are required to have insurance for medical negligence it will still be possible to recover from their insurer for the nurse practitioner's negligence. If you've suffered further injury or illness as a result of the negligence of nursing staff who had the care of you, you should seek experienced legal advice from a solicitor proficient in medical negligence matters. Today's blog writer is Partner in Civil Litigation , David Fabbro .  He's happy to take your inquiry or assist you with any legal action you may wish to take.   David Fabbro - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/december/can-nurses-be-held-responsible-for-matters-of-medical-negligence.aspx http://andersons.com.au/lawtalk/posts/2012/december/can-nurses-be-held-responsible-for-matters-of-medical-negligence.aspx Tue, 01 January 2013 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/december/resolving-family-law-disputes-about-children-via-family-dispute-resolution.aspx There is a requirement under the Family Law Act 1975 that parties attempt to resolve disputes about children via Family Dispute Resolution (FDR) before applying to the Courts for a parenting order which is an order about the living arrangements for children. A Family Dispute Resolution provider must be appropriately qualified to conduct the FDR. Family Dispute Resolution can be undertaken at organisations such as:- Relationships Australia Centacare Family Relationships Centre Do I always have to attempt Family Dispute Resolution first? In some cases, however, you will not need to attempt Family Dispute Resolution before applying to the Court.  This applies when: The parties are jointly applying to the Court for a parenting order (also known as a Consent Order); The party is responding to an Application that the other party has made to the Court for a parenting order. The Court is satisfied that there are reasonable grounds to believe that: there has been abuse of the child by one of the parties. Abuse includes physical abuse, serious neglect and causing a child serious psychological harm, which includes being subjected to or exposed to family violence (see " Australia has new family violence amendments to the law "); there is a risk of abuse to a child, if there is a delay in applying to the Court there has been family violence by one of the parties; and there is a risk of family violence by one of the parties. The Application is in respect of a contravention of an order made within the previous 12 months and that person has shown a serious disregard for their obligations under the Order. The Application is made on the grounds of urgency, such as one party leaving the State with the children. One or more of the parties is unable to participate effectively in Family Dispute Resolution. Other circumstances specified in the regulations are satisfied. The Family Dispute Resolution provider is impartial and will try to help the parties identify the issues in dispute and assist them to come to an agreement about those matters.  The Family Dispute Resolution provider cannot decide the outcome nor can they provide legal advice to the parties.  They are usually not solicitors. In the event that an agreement is reached, the parties may have a parenting plan drawn up which will be signed by the parties to reflect the agreement. That can also be formalised by way of a consent order through the Family Court. At Andersons, we strongly advise that parties speak with an experienced Family Law solicitor before attending Family Dispute Resolution.  As detailed above, the Family Dispute Resolution provider cannot provide legal advice to the parties.  The law as it relates to children is complex and you can benefit from receiving advice from someone who has experience in resolving such matters.  We recommend obtaining advice not just about your rights but also your obligations under the Family Law Act and assistance in drafting a proposal in respect of parenting orders. There are many things that we find are often overlooked when parties don't have experienced Family Law legal advice before attending Family Dispute Resolution which can include overlooking special occasions such as Christmas and birthdays, proper arrangements regarding handovers and each party's rights to attend at the school and extra curricular activities. Want more information about Family Dispute Resolution or Family Law matters generally?  Get in touch directly with today's blog writer, Andersons Partner in Family Law, Ryan Thomas.   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/resolving-family-law-disputes-about-children-via-family-dispute-resolution.aspx http://andersons.com.au/lawtalk/posts/2012/december/resolving-family-law-disputes-about-children-via-family-dispute-resolution.aspx Thu, 20 December 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/december/can-i-accrue-demerit-points-for-offences-i-commit-on-my-pushbike.aspx Riding a bike is a great way to keep fit and save money you would otherwise have to spend on petrol. It's a great way to commit to a sustainable future. But, do cyclists have to obey the same road rules as drivers? What if you break a road rule under the Road Traffic Act while riding a bike? Are the penalties for cyclists the same as for drivers? Well, yes to all of the above. Any breach of the Road Traffic Act committed by you on your bike will incur demerit points against your current driver's license. If you do not hold a license at the time of the offence the points can be used to prevent you applying for a driver's license into the future. The number of demerit points incurred will not change just because you are on a bike. So, as well as obeying specific rules applicable to cyclists (such as those requiring cyclists to wear helmets and the rules for " Riding on Footpaths and Shared Paths "), cyclists must also obey the same road rules as drivers such as obeying red traffic lights and riding within the speed limits. While this last one might sound silly, it is particularly relevant for cyclists when the speed limit has been reduced to 25 km/h due to road works for example. Have you received an expiation notice incurring a fine and/or demerit for offences committed while riding your bike on public roads?  If you need advice or legal assistance for such a matter, today's blog writer Leesah Randall , is available to assist you.  Leesah is a solicitor in our Criminal & Police Matters department.   Leesah Randall Criminal Law & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/december/can-i-accrue-demerit-points-for-offences-i-commit-on-my-pushbike.aspx http://andersons.com.au/lawtalk/posts/2012/december/can-i-accrue-demerit-points-for-offences-i-commit-on-my-pushbike.aspx Tue, 18 December 2012 David Fabbro http://andersons.com.au/lawtalk/posts/2012/december/95-cancers-may-have-gone-undetected-in-south-australia-breast-screening.aspx The South Australian government has recently announced that a review will be conducted of up to 54,000 BreastScreen SA digital images. The review was prompted after it was discovered that 95 cancers may have gone undetected. The images to be reviewed were taken between 6 September 2010 and 1 July 2012. The Advertiser newspaper reported on 14 December that: BreastScreen SA said yesterday three women had come forward saying they had cancer despite their digital mammograms appearing normal, but it was not known if they are the same women. The Advertiser also reported that: A woman, who contacted The Advertiser yesterday and asked to remain anonymous, said despite having a scan in February she had since had surgery and was undergoing chemotherapy. The Government's announced review is expected to take about 5 months which would see it conclude in April 2013. Should women who have been misdiagnosed be considering legal action? If a woman has been misdiagnosed and subsequently is diagnosed as having breast cancer they may have a claim against the South Australian Government as they are liable for the professional negligence by the radiologist who failed to conduct the mammogram correctly. In this instance, the provisions in the Civ il Liability Act which deal specifically with negligence and standard of care with regard to professionals would be relevant as radiologists would fall within that category. Plaintiffs (people looking to take action by way of a claim for compensation) would need to prove that the negligence involved here takes the conduct below the professional standard expected of radiologists. Importantly, it is not enough for a claim to succeed just to establish that you were misdiagnosed. It would need to be proven that, on the balance of probabilities, a correct diagnosis would have led to a different medical outcome. That is, a plaintiff would need to prove that if their mammogram had been performed properly they would not need medical treatment for breast cancer now. Any loss they had suffered, including emotional pain and suffering as well as medical costs, would be compensable. If you believe you are entitled to compensation as a result of misdiagnosis or if you have any other inquiry about possible medical negligence , Andersons has a team of solicitors experienced in this area of law. Today's blog writer, Parter in Civil Litigation , David Fabbro is highly experienced in medical negligence litigation.   David Fabbro - Partner Civil Litigation      Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/december/95-cancers-may-have-gone-undetected-in-south-australia-breast-screening.aspx http://andersons.com.au/lawtalk/posts/2012/december/95-cancers-may-have-gone-undetected-in-south-australia-breast-screening.aspx Fri, 14 December 2012 Michael Irvine http://andersons.com.au/lawtalk/posts/2012/december/do-not-let-work-christmas-drinks-turn-to-christmas-drunks.aspx At some stage during our working lives, it is likely we will witness the silly, drunken antics of work-colleagues at parties and social gatherings. Most of the time, this behaviour is just harmless fun, but sometimes it can lead to embarrassment, distress and even physical injuries. The impressions and the stories following a drunken night out will often last longer than the fun and hysterics of the evening. Sometimes, especially when it comes to work functions, the consequences remain long after the hangover has subsided. Socialising with workmates is especially prevalent during the festive season. During December, barely a day goes by where you don't see workers walking through the city in fancy-dress costumes or enjoying a long lunch with beer, wine and champagne being generously poured. But more than ever, it's important to remember that work functions are just that, work functions, and as work functions the employer is responsible for what happens to employees (and other attendees) at work . Christmas parties and other social events that originate at work or are sponsored by the employer are often sufficiently 'work-related' to fall within the scope of a variety of laws, including: Occupational Health and Safety laws; Workers Compensation laws; Anti-discrimination laws, including those dealing with sexual harassment and racial discrimination; Criminal laws ; and of course Industrial relations laws that deal with disciplinary action and termination of employment. Not only do the workers need to be aware of their obligations, but employers too have legal responsibilities to take reasonable steps to ensure employee health and safety and to ensure the environment is free from discrimination and other inappropriate behaviour. Employers can be held vicariously liable for the injuries sustained whilst at work functions, which is obviously heightened when alcohol is served, regardless of how remote the connection may seem, or how 'harmless' the original intention. Employees also have a general duty to take reasonable precaution for their own safety and the safety of others. It goes without saying that employees should avoid becoming overly intoxicated to avoid becoming a hazard to themselves and others. Some helpful tips include:                                                                                       Employers should remind employees that the function is considered an extension of the workplace, and the same rules and standards will apply. This is even the case where the function is not hosted at the workplace; Employers should lead by example; it's not a good look when the boss is the drunkest person at the function; Remind employees about the dangers of excessive drinking. Perhaps encourage employees to space their alcoholic beverages with food, water or soft-drink or remove access to alcohol if an employee is abusing it. Employers may wish to implement aResponsible Consumption of Alcoholpolicy; People have a tendency to become more 'physical' after a few drinks. What may seem like a friendly kiss can be misconstrued and might lead to claims of sexual harassment; Similarly, some light-hearted pushing and shoving between mates may end in serious injury or even criminal charges being laid;  If giving a Kris Kringle, ensure the gift is appropriate. What you might think is a funny joke may cause humiliation and undue stress. Even if you think your specific KK will find it funny, others in the workplace might take offence; Remember that some people don't celebrate Christmas, so try to remain aware of any cultural sensitivities; Intoxicated staff should be told to stop drinking, and in some circumstances, they should be asked to leave the function. The employer should ensure safe transport has been arranged; The employer should try and set definitive start and finishing times for the function; Make sure employees can get home safely, whether it be through a pick-up, public transport or taxi. So don't allow the opportunity to socialise with colleagues be spoiled. Ensure that you are aware of the unintended consequences that may result from inappropriate behaviour at a work function, so the risks associated with these events can be mitigated. Christmas functions should be memorable - try to ensure they are remembered for the right reasons!! All that said, enjoy your Christmas period. If you'd like more information on employer and/or employee rights and responsibilities in the workplace, get in touch directly with today's blog writer, Andersons solicitor, Michael Irvine.   Michael Irvine - Solicitor Employment Law, Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian legislation State legislation.   http://andersons.com.au/lawtalk/posts/2012/december/do-not-let-work-christmas-drinks-turn-to-christmas-drunks.aspx http://andersons.com.au/lawtalk/posts/2012/december/do-not-let-work-christmas-drinks-turn-to-christmas-drunks.aspx Fri, 14 December 2012 David Fabbro http://andersons.com.au/lawtalk/posts/2012/december/my-surgeon-left-the-scissors-in-my-stomach-and-sewed-me-up-is-this-medical-negligence.aspx While it is, thankfully, a rare occurrence, it is not unheard of for patients to undergo surgery only to discover some time after the operation that the operating team have mistakenly left medical equipment inside their patient. It is not uncommon for medical equipment to go unnoticed inside a person for years. This is because quite often what is left inside people is gauze or stainless steel medical instruments, neither of which your body will react to unless they cause some blockage or pain. So, any lingering pain felt in the area of your body operated upon after an operation may signify that something is wrong. If you suspect that medical equipment has been negligently left in your body then you should seek medical advice and try and get an x-ray of the affected area to confirm whether or not some form of equipment is visible. You should also seek a full copy of your medical notes through a Freedom of Information application as these notes should include a sheet which contains a record of the number of instruments and gauze before and after the operation. What can I do if I think they've left medical instruments in me after my operation? If there is medical equipment of some kind mistakenly left inside you after your operation then you will have a claim for compensation against the hospital or the surgeon who performed the operation. If the surgeon is an employee of the hospital then the cause of action is against the hospital. But if the surgeon is not an employee of the hospital then you may have a separate action against them. If there is some doubt about which is the appropriate party to bring proceedings against it is acceptable to bring proceedings against both until it is clear who the appropriate defendant is. If you've found evidence to suggest your surgeon has left medical equipment inside you after your operation, you may be eligible for compensation and you should seek experienced legal advice. Today's blog writer is Partner in Civil Litigation , David Fabbro .  He's happy to take your inquiry or assist you with any legal action you may wish to take.   David Fabbro - Partner Civil Litigation       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/december/my-surgeon-left-the-scissors-in-my-stomach-and-sewed-me-up-is-this-medical-negligence.aspx http://andersons.com.au/lawtalk/posts/2012/december/my-surgeon-left-the-scissors-in-my-stomach-and-sewed-me-up-is-this-medical-negligence.aspx Fri, 14 December 2012 Michael Irvine http://andersons.com.au/lawtalk/posts/2012/december/union-right-of-entry-for-work-health-and-safety-purposes.aspx In November 2012, after 19 months of heated political debate, the South Australian Parliament passed the Work Health and Safety Act to replace the then Occupational Health Safety and Welfare Act . The new law is effective from 1 January 2013. One of the most controversial aspects of the introduction of Work Health and Safety (WHS) laws in South Australia concerned Union right of entry to workplaces. This controversy existed even though Union representatives in the State of South Australia are already able to enter worksites for industrial relations purposes. Also, Union right of entry for work health and safety purposes has been in place in all other states and territories of Australia; in some cases for many years. This has proven to work well and improve safety in other states by providing another set of eyes to monitor workplace safety. Under the new law, a Union official who has undergone prescribed training and has been issued a permit from the Industrial Relations Commission of South Australia may enter a workplace to inquire about a suspected contravention, inspect employee records and consult with and advise workers in relation to work health and safety. However, this new right should not be abused, and misuse of right of entry (such as improper behaviour or contravention of any permit conditions) may result in revocation of the permit and the permit holder may receive a penalty of up to $10,000. A permit holder may enter a workplace in order to inquire into a suspected contravention of the Act. But, the permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. Although no prior notice is required before entering to inquire into a suspected contravention, the permit holder must notify the Person Conducting the Business or Undertaking (PCBU) and the person with management or control of the workplace as soon as is reasonably practicable after entering a workplace, that they are in fact on the work site for WHS purposes Also, prior to entering to inquire into a suspected contravention, the permit holder must contact SafeWork SA about the proposed entry, and must also provide a report to SafeWork SA following the attendance at the workplace (if they weren't accompanied by a SafeWork Inspector). While at the workplace, the permit holder may inspect anything relevant to the contravention, consult with workers and managers, require the production of relevant documents and warn people about serious risks to health and safety. The permit holder may also enter a workplace to specifically inspect, or make copies of, employee records that are directly relevant to a suspected contravention, or consult with and provide advice to relevant workers. However, in these instances the permit holder must provide at least 24 hours notice to the PCBU and any particular person from whom any documents are requested. It is very important that people at the worksite don't hinder, obstruct or delay entry to the worksite, or else they and the business may be fined (maximum $10,000 for an individual and $50,000 for a body corporate). Similarly, the permit holder may be fined a maximum of $10,000 and stripped of their permit if they unreasonably and intentionally disrupt work or act improperly. Permit holders are also forbidden from entering any parts of a workplace used solely for residential purposes, or from entering outside the usual working hours of the specific workplace. They are also obliged to adhere to reasonable requests to comply with health and safety requirements, for example, wearing protective clothing. Despite these strict rules about Union right of entry, having another set of eyes looking out for the health and safety of South Australian workers is surely a positive development. Unions have experience across many workplaces, and the information they obtain about health and safety matters may assist in the prevention of injury or illness, the prevention of exposure to asbestos, dangerous dusts or unacceptable levels of chemical exposure , the early resolution of disputes, and help workers identify whether the law has been complied with. It is important that bosses, workers and Union officials familiarise themselves with the right of entry provisions to ensure that they all adhere to the requirements under the Act. If you work in an environment that you believe poses a threat to the health, safety and security of you or your workmates, contact the relevant Union about your concerns. You may also wish to contact SafeWork SA directly. If you need to take your concerns further, feel free to get in touch directly with today's blog writer, our solicitor in Civil Litigation matters, Michael Irvine .   Michael Irvine - Solicitor Civil Litigation Department      Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . All penalties referred to in this blog posting are current as at December 2012 but may change in the future.   http://andersons.com.au/lawtalk/posts/2012/december/union-right-of-entry-for-work-health-and-safety-purposes.aspx http://andersons.com.au/lawtalk/posts/2012/december/union-right-of-entry-for-work-health-and-safety-purposes.aspx Thu, 13 December 2012 Camille McDonald http://andersons.com.au/lawtalk/posts/2012/december/my-husband-and-i-just-separated-does-he-automatically-get-half-of-the-assets-of-the-marriage.aspx My husband and I have just separated Fred and Ginger were married in 1979. They separated in January 2012 and Ginger wants to sort out their matrimonial property settlement . Ginger is concerned that Fred will automatically get half of the assets of the marriage. Ginger owned her own home when she married Fred, which was not subject to a mortgage. Fred and Ginger lived in this home throughout the marriage. Fred and Ginger have two children aged 10 and 12 who live with Ginger and spend time with Fred every second weekend.  Under the Fam ily Law Act will Fred automatically get 50% of the assets of the marriage? How might the assets be distributed? The assets that each party are entitled to in a matrimonial property settlement are calculated and worked using a four step formula as follows: Step 1 Identify and value the net property and financial resources of the parties (this is known as the "asset pool") Step 2 Consider the contributions of the parties both financial and non-financial. Non-financial contributions could include things such as renovating a property, domestic duties and care of children. Step 3 Consider the future needs of the parties; and then Step 4 Determine if the proposed division of property is just and equitable. As you can see from the four step formula, a matrimonial property settlement is not automatically a 50:50 division of the matrimonial assets. The four step process above must be followed prior to making any evaluation of the division of the matrimonial assets. Therefore Fred will not automatically get a 50% share of the matrimonial assets. A division of assets can range from 0 - 100% depending on the circumstances unique to that case. If you would like some more information or advice about your rights in relation to a matrimonial property settlement or any other Family Law matter, at Andersons Solicitors we have a team of solicitors working solely in the Family Law area of practice.  You can get in touch with today's blog writer, our solicitor, Camille McDonald and she would be more than happy to discuss your particular circumstances and assist you with the options available to you.   Camille McDonald - Associate Family Law Department       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/my-husband-and-i-just-separated-does-he-automatically-get-half-of-the-assets-of-the-marriage.aspx http://andersons.com.au/lawtalk/posts/2012/december/my-husband-and-i-just-separated-does-he-automatically-get-half-of-the-assets-of-the-marriage.aspx Tue, 11 December 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/december/how-do-i-share-the-roads-safely-and-legally-with-cyclists.aspx As we have previously written in " Cyclists responsibilities on the road ", cyclists have the same rights and responsibilities as any other road user.  Cyclists are legitimate road users and should be treated accordingly. However with research showing that over 30 per cent of Adelaide drivers have had a near miss with a cyclist, it is clear that cyclists are vulnerable road users.  Therefore it is important that both cyclists and motorists share the road safely. So what can drivers do to share the road safely with cyclists: Look out and be conscious of cyclists, particularly at night when they may be less visible When turning or entering an intersection give way to cyclists; they are like any other road user Give cyclists plenty of room when overtaking; keep a safe distance of at least a metre clearance when overtaking Do not drive (unless for a short distance which is less than 50 metres), stop or park in bicycle lanes.  The only exceptions are: while turning left, entering private property, parking in a parking lane, driving a public bus, public minibus or taxi, and dropping off or picking up passengers.  Bicycle lanes are for the exclusive use of cyclists at all times when operational. Cyclists can legally ride two abreast.  Cyclists must not ride over 1.5 metres from the other rider so, be patient and remember the one metre guideline when overtaking.  Before opening a car door, look behind you and in your blind spot for cyclists (commonly referred to as a head check). Cyclists and drivers should work together to make our roads safer.  Both need to be aware of what's happening around them. Whilst a lot of these suggestions are purely courtesy, there are some that will result in a breach of the Australian Road Rules which in turn may lead to fines and or loss of demerit points. If you're a road user either in a motor vehicle, motorbike, bicycle or as a pedestrian and you've either fallen foul of the road traffic rules or you've been injured due to the negligence of another road user, get in touch with Andersons Solicitors. Today's blog writer is Leesah Randall who works in our Criminal Law practice.  If you have a personal injury related query, you can get in touch with one of our Partners in Civil Litigation , Dion McCaffrie .   Leesah Randall - Solicitor Criminal & Police Matters       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/december/how-do-i-share-the-roads-safely-and-legally-with-cyclists.aspx http://andersons.com.au/lawtalk/posts/2012/december/how-do-i-share-the-roads-safely-and-legally-with-cyclists.aspx Fri, 07 December 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/december/facebook-at-work-what-can-i-do-what-can-i-not-do.aspx As Facebook, Twitter, YouTube, LinkedIn, Pinterest and other social media platforms become more common, we see more people having trouble at work because of things they have said, or because they have said anything at all! The law isn't crystal clear on social media and the workplace as yet, and a lot of emphasis is put on the individual situation when it arises. To help you work out what you can and can't do, here are a few tips to help you use social media while minimising your chances of being in trouble at work. Read your workplace Social Media and Internet policies Many workplaces will have a policy which outlines how you can use the Internet at work and also what you can and cannot say on social media. If your policy doesn't allow for personal internet use, or only allows it during breaks, you should stay off Facebook and other social media sites at all other times. Likewise, if your policy says you shouldn't talk about work on your Twitter, then keep the shop talk for the break room. Unfortunately not all policies are clear, and if that is the case you should ask for clarification from your supervisor or HR Manager. Your policy should say what is allowed, when it is allowed, and what the consequences are for a breach. Use your social media privacy settings and your head If you absolutely have to share something about your work day with your mates, keeping it under wraps by making it "friends only" is a really good idea.  Make sure information posted complies with your employer's Code of Conduct and any laws. But remember if you have workmates on your friends list, the posted information is likely to be circulated within the workplace! If you are saying something about a workmate, even if they don't see it, you run the risk of a harassment complaint against you. Also, your employer will not be amused if you post something negative about them, even if you keep it vague enough to not identify them or your workmates. Anything that you say, even after work, that could affect your employer's reputation, can also result in disciplinary measures. Know how to use your social media accounts and use them wisely Fair Work Australia have shown through recent cases that while they will accept that some people may not know how to use Facebook and other platforms, this excuse will not last forever. As social media becomes more entrenched in society, people will be expected to take more responsibility for their actions. Know how to use your privacy settings, how to delete posts, and how to friend and de-friend or block people. Chatting with your friends on Facebook is not the equivalent of a chat over beers on a Friday night, as it is it is in writing and can have far reaching repercussions!  But if you are careful about what you post, and you stay away from Facebook when you're meant to be working, it's unlikely that you will ever run into trouble. If you do, make sure you keep a copy of the original posts, and seek legal support as soon as possible. At Andersons , our team in Employment & Industrial law are there to help you if you run into problems with your employer about your use of social media platforms. Today's blog writer, Senior Associate Sorna Nachiappan can provide you with advice or assistance about any issues you have in the workplace.   Sorna Nachiappan - Senior Associate Employment & Industrial Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/facebook-at-work-what-can-i-do-what-can-i-not-do.aspx http://andersons.com.au/lawtalk/posts/2012/december/facebook-at-work-what-can-i-do-what-can-i-not-do.aspx Thu, 06 December 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/december/christmas-bonus-for-600-workers!.aspx Christmas has come early for 600 workers who will be receiving a backdated pay rise. Andersons Solicitors represented the Transport Workers Union (TWU) to achieve a pay rise for 600 of its member drivers at one of their large work sites.  This dispute has been ongoing for several months now.  Fair Work Australia delivered its decision on Tuesday 27 November 2012. The result was that the workers get their pay rise backdated to the start of October 2012. The Greenfields Agreement A Greenfields Agreement is an enterprise bargaining agreement certified before a company has employed any workers.  The issue in this case was that the workers were covered by a Greenfields Agreement which said that the workers would get a pay rise every twelve months from the agreement being approved by the workers.  This is ambiguous due to the fact that the Agreement was certified before any workers were employed! The employer's position was that they would give a pay rise on the anniversary of the Agreement being certified, which was at the end of December 2010. This was complicated further by multiple factors: a transfer of business from one tendering employer entity to another; Union officials who negotiated the agreement were no longer part of the Union; employer business entity had undergone significant restructuring. The Employer provided a wage increase to all the drivers in October 2011 but for the subsequent year they relied on the written agreement whereby a wage increase was to take effect on 28 December 2012, being the 15 months from previous wage increase. Our client's position was that the pay rise should take effect twelve months from the original wage rise in October 2011; that is, at the start of October 2012.  Andersons Solicitors made submissions on various factors including the frustration of the workforce due to the prolonged dispute and uncertainty it gives rise to. This is a real win in the area interpretation of an Enterprise Bargaining Agreement. Fair Work Australia found that when an agreement clause is ambiguous or incomplete, surrounding factors and intention of the Agreement are to be taken as more significant than the literal meaning of the words in the Agreement.   Resulting form the Fair Work Australia decision, the employer is giving all of the workers a backdated pay increase, which means there is a nice bonus by way of back pay for each worker to help out with the Christmas rush!  The wage rise is to be calculated on each worker's hourly rate and penalty rates. This decision can also be relied on in later cases with similar facts, so it is a win for all workers. Are you covered by an Agreement in your workplace?  Do you find that some of your entitlements under Agreement are not being met by your employer? If so, you should seek advice from a solicitor experienced in Employment and Industrial Law. Today's blog writer is Andersons fighter for workers' rights , Senior Associate Sorna Nachiappan .   Sorna Nachiappan - Senior Associate Industrial & Employment Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/december/christmas-bonus-for-600-workers!.aspx http://andersons.com.au/lawtalk/posts/2012/december/christmas-bonus-for-600-workers!.aspx Tue, 04 December 2012 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2012/november/minor-civil-claims-in-the-small-claims-court-of-south-australia.aspx The Minor Civil Claims jurisdiction of the South Australian Magistrates Court, which is commonly referred to as the "Small Claims Court" is about to see significant change. At the moment, only claims of $6000 or less can be heard by the Small Claims Court. Next year, that will change to claims less than $25,000. What is the Small Claims Court? The Small Claims Court is an important jurisdiction for debt recovery matters. It is different to the normal jurisdiction of the Magistrates Court because ordinarily in the Small Claims Court, none of the parties are entitled to have legal representation and the Court tries to reach a fair and quick result without following the strict evidential and procedural rules which govern larger claims. Can I have my lawyer in court with me at the Small Claims Court? Many people confuse the above restriction by understanding it to mean that they are not allowed to have legal advice from a solicitor if they are involved in litigation in the Small Claims Court. Nothing could be further from the truth, and legal advice from an experienced solicitor should always be taken prior to issuing legal proceedings of any nature. A poorly drafted or misconceived claim or defence will always fail, irrespective of which Court it is being heard by. However, the changes (for which we are still awaiting a date for them to come into effect) mean that if you have a claim before the Court for $25,000.00 or less, your lawyer is not permitted to stand in Court and to present your case to the Court on your behalf. You now will need to do that yourself.  You are, however, entitled to engage your lawyer to receive advice. If I win my Small Claims Court case, who pays be legal fees? On the basis that you do not have a lawyer appearing for you in Court, if you are successful in your claim (or defending a claim against you) the ordinary presumption by the Court will be that you have not incurred any legal costs and therefore an order for the reimbursement of your legal costs is often not made. Your lawyer can and should nevertheless advise you as to how to present your case, the likely outcomes and what procedural steps you need to follow to ensure the best prospects of success. At Andersons, our Commercial Law solicitors can advise you how to strategise your litigation in a minor civil claim, draft the documents for you (or check your version for any concerns) and support you as your legal advisor during a small claim matter. If you'd like to know a bit more about the Small Claims Court or you have a small claim you would like to pursue, get in touch with today's blog writer, Partner in Commercial Litigation , Felix Hoelscher .   Felix Hoelscher - Partner Commercial Litigation         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/november/minor-civil-claims-in-the-small-claims-court-of-south-australia.aspx http://andersons.com.au/lawtalk/posts/2012/november/minor-civil-claims-in-the-small-claims-court-of-south-australia.aspx Fri, 30 November 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/november/sole-company-directorsshareholders-must-have-a-will.aspx Many difficulties can arise when someone dies without leaving a Will .  Their estate may be managed (administered) by someone not of their choosing and the distribution of their assets may occur in a way which they did not approve of. It is more common these days for people who operate their own business to do so as a company or via a discretionary (family) trust or a combination of both.  Gone are the days of running a business in your own name; its just too risky. Unfortunately, the complexity of the law which allows separate entities such as companies and trusts to operate the business and provide such great asset protection and tax advantages, offers a difficulty when the person operating the business dies. The death of that person will often leave the company and trust without anyone in a position of authority to continue operating it, paying the bills, receiving money and so on.  That may have disastrous consequences on the value of that business.  Where the sole director is also the sole shareholder, however, the risk of uncertainty is much greater. Section 201F of the Corporations Act 2001 does provide that, in the event of the death of a single director/shareholder the executor (appointed by their Will) may appoint a new director to the company. The director has all the powers, rights and duties of the deceased director and can keep the company running until shares are transferred to beneficiaries who may then appoint new directors. In the absence of a Will it may take many months for the Supreme Court to formally appoint an administrator which could then take some authority over the company and business.  In the interim, there is potential for the company to fold. A valid Will must meet certain criteria set out in theWills Act.  There are significant dangers in using Will Kits . Do you own your own business and are the single shareholder? Have you got your Will and all your other estate planning documents in place to protect your family and your business? If not, you should speak with a solicitor experienced in Estate Planning .  Our Senior Associate, Greg Welden is available to take your calls on any queries about your estate planning.   Greg Welden - Senior Associate Wills & Estate Planning         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation and South Australian legislation State legislation. http://andersons.com.au/lawtalk/posts/2012/november/sole-company-directorsshareholders-must-have-a-will.aspx http://andersons.com.au/lawtalk/posts/2012/november/sole-company-directorsshareholders-must-have-a-will.aspx Thu, 29 November 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/november/the-dangers-of-diy-will-kits!!!.aspx We are often asked why a Will prepared by a lawyer costs so much where a Will Kit might be purchased for a fraction of the price. First things first, a document must comply with the conditions set out in theWills Actto be considered a legal Will; for example, it must be in writing and executed by the testator and in the presence of two or more witnesses present at the same time.  So yes, something written on the back of the proverbial corn flakes packet might be a valid Will. The issues with Will Kits arise after the person who wrote it has died and their family or loved ones are attempting to administer their estate.  It is usually necessary for an executor named in a Will to apply for Probate (a formal process of proving the Will through the Supreme Court of South Australia).  It is at this time problems might arise which can often lead to delays in administering or finalising an estate and also lead to additional expense in trying to rectify or resolve the issues that arise. Some "DIY Will Kit" issues that we have seen over the years are; the executor nominated has since died and there is no substituted executor named; the testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing and no other provision provided; the testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament); the document not being signed correctly (or at all) and not being dated correctly (or at all); the names of executors or beneficiaries being incomplete or incorrect leading to confusion and subsequently, delays; salacious and scandalous comments being made in a Will requiring an application to a Judge to have them removed; conditions being placed on certain gifts (for example, "X can have the car but only if he leaves that wife of his that I hate"...) which are either offensive, against public policy or impossible to meet or enforce; a testator wishing to gift property which they own jointly with another, such that the property never falls into their estate and is not capable of being gifted; the Will being revoked by marriage resulting in a distribution the testator did not want; Divorce (not simply separation but the formal legal act of divorce) revokes any reference to the former spouse by way of executor or beneficiary or power of appointment in the Will. A solicitor will take you through the myriad of possibilities (both now and into the future) to ensure your Will is as robust as possible and can stand the test of time.  All of your questions can be answered and an approach to writing your Will may be raised which had not previously been thought of. There may also be other strategies available to you to avoid unwanted consequences or avoid a potential inheritance claim. One final, very relevant point to make is that you may save a few dollars now by trying to write your own Will but the risk is that it will cost your family and loved ones many thousands of dollars after you die to fix it up. Is it really worth doing a DIY Will Kit? We always recommend you have your Will and estate planning documents prepared by an experienced solicitor who works in this area of practice.  Want to know more?  Get in touch with our Senior Associate, Greg Welden , who works in the Andersons Wills & Estate Planning team.   Greg Welden - Senior Associate Wills & Estate Planning         Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/november/the-dangers-of-diy-will-kits!!!.aspx http://andersons.com.au/lawtalk/posts/2012/november/the-dangers-of-diy-will-kits!!!.aspx Mon, 26 November 2012 Tyne Beeby http://andersons.com.au/lawtalk/posts/2012/november/a-rider-is-knocked-off-his-bike-and-suffers-an-injury-he-has-no-idea-who-the-driver-is-what-now.aspx Michael's "hit and run" bike accident Michaelwas on a training ride on his in the Adelaide Hills when he was knocked off his bike by a vehicle that overtook him at high speed without leaving enough room to safely overtake. Michael sustained serious injuries to his arm and shoulder and was transported to hospital by ambulance. Michael's bike was written off in the accident as being completely uneconomical to repair and doctors have advised him that he will continue to require ongoing medical treatment for some time. As a result of the accident Michael has also suffered a psychological injury and has been unable to ride his bike since the accident. He has therefore had a significant amount of time off work as a result of his motor vehicle accident injuries and is suffering financially. The vehicle that knocked Michael off his bike did not stop at the scene and there were no witnesses who could identify the vehicle. Michael has no idea who the driver is.    Can Michael still claim motor vehicle accident compensation? Michael can still make a claim through Allianz Australia Insurance Limited (Allianz). Allianz provide insurance for personal injuries that a driver may cause to other road users. This includes injuries to other drivers, passengers, pedestrians, motor cyclists, cyclists and pillion passengers. As Michael cannot identify the driver at fault he will need to lodge a claim against the "Nominal Defendant". The Nominal Defendant is a provision that covers uninsured or unidentified drivers. For such a claim to be accepted Michael will need to be able to demonstrate that he has attempted to try and identify the unknown vehicle and driver, but without success.  This is normally established by obtaining police records and witness statements. Although the driver at fault may be unidentifiable, the Nominal Defendant will still investigate whether the driver can be found negligent on the evidence available. Most commonly a driver will be found negligent if it can be proven that he or she did one or more of the following: Failed to keep a proper look out for other road uses (including cyclists and pedestrians); Driving at an excessive speed; Failing to abide by road rules; Driving without due care; Failing to give way; Driving under the influence of drugs and/or alcohol. If the driver is found to be negligent there are a number of things that Michael will be entitled to receive compensation for, such as the following: Pain, suffering and loss of enjoyment of life; Medical and hospital expenses; Loss of past wages; Loss of future wages; Loss of superannuation; Future medical expenses; Voluntary services provided by a spouse, parent or child; Special care for past and future costs; Contribution towards legal fees. In South Australia a time limit of three years from the date of the accident applies to issue a claim (excluding minors where the three year period begins from the date of their eighteenth birthday).  As Michael was injured by an unidentifiable/uninsured vehicle it is crucial that he seeks experienced legal assistance at the earliest opportunity to ensure that the correct steps are followed to enable a claim to be made to ensure that he receives the compensation he is entitled to. You can receive experienced legal advice from the Civil Litigation team at Andersons Solicitors for any assistance with your motor vehicle accident claim.  You can get in touch directly with today's blog writer, Tyne Beeby who is available to answer all your questions or assist you with your claim.     Tyne Beeby - Solicitor Civil Litigation Department         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .             http://andersons.com.au/lawtalk/posts/2012/november/a-rider-is-knocked-off-his-bike-and-suffers-an-injury-he-has-no-idea-who-the-driver-is-what-now.aspx http://andersons.com.au/lawtalk/posts/2012/november/a-rider-is-knocked-off-his-bike-and-suffers-an-injury-he-has-no-idea-who-the-driver-is-what-now.aspx Fri, 16 November 2012 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2012/november/i-have-been-injured-in-a-car-accident-in-south-australia-will-allianz,-the-insurance-company,pay-for-my-medical-treatment.aspx Allianz is the compulsory third party insurance company that covers you, where eligible, if you sustain injuries in a motor vehicle accident in South Australia. Most commonly, after you have been involved in an accident, and have suffered injuries, you will require initial medical treatment.  This treatment may well take the form of a visit to your local GP, resultant X-Rays, or a referral for physiotherapy, chiropractic treatment or some other form of treatment. Who pays for this medical treatment of my injuries sustained a motor vehicle accident? Whilst there is no obligation on the part of Allianz to make payment of medical expenses as they are incurred, most commonly they are prepared to do so.  They do however require some initial time to investigate the claim.  In this regard it must be remembered that they are only liable to make payments in claims where they are ultimately going to be responsible in a liability sense. It is important to advise Allianz as soon as possible that you are intending to lodge a claim so that they can open a file in relation to it and create a claim number which they will give to you and which you can use for the purposes of having your medical bills paid.  If, in the early stages, you have incurred medical expenses prior to the file being opened with the insurer, then by producing receipts showing payment, you can have this amount returned to you. Once a claim is up and running, you will often require ongoing medical treatment.  This treatment may change from time to time as not everyone responds to initial treatment. It is important when you are considering a change of treatment that you obtain a referral from your general practitioner.  At Andersons , our experience is if you do not do that, and simply produce invoices for Allianz to pay, then they will often refuse to do so.  They even require notice that you are about to change medical providers or produce a referral from your GP prior to doing so. In summary, once early notice of a claim has been given to the insurer, then it is usually the case that they will attend to payment of reasonably incurred medical expenses. If you've been involved in a motor vehicle or pushbike accident that results in personal injury and a subsequent claim to Allianz and your claim is rejected, or your medical treatment is not being paid for or you have any other issues with the claim, seek experience legal advice.  Today's blog writer is Andersons partner in Civil Litigation , Dion McCaffrie .  He can assist you with your inquiry or pursuing your entitlements to benefits from your motor vehicle accident.   Dion McCaffrie - Partner Civil Litigation Department       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/november/i-have-been-injured-in-a-car-accident-in-south-australia-will-allianz,-the-insurance-company,pay-for-my-medical-treatment.aspx http://andersons.com.au/lawtalk/posts/2012/november/i-have-been-injured-in-a-car-accident-in-south-australia-will-allianz,-the-insurance-company,pay-for-my-medical-treatment.aspx Tue, 13 November 2012 Catherine Clark http://andersons.com.au/lawtalk/posts/2012/november/own-your-home-as-joint-tenants-or-tenants-in-common-what-is-the-difference.aspx A question we are regularly asked is whether a Certificate of Title for property ( which we call land), should be held by two persons as 'joint tenants' or as 'tenants in common'. Many people don't know the options exist or don't know the differences between the options. What does "Joint Tenants" mean? Where a person holds land as a 'joint tenant', it means that they hold an interest in the land jointly with one or more other people. You cannot leave your share of land held as a joint tenant with another to somebody else in your Will , as the land held as joint tenants is subject to the 'right of survivorship'.  That is, where one of the joint tenants dies, the surviving joint tenant will receive the deceased's joint tenants share.  For example, Suzie and Craig who are married, own a block of land together as joint tenants.  Craig dies before Suzie, but in his Will Craig has given the block of land to his son Greg. As Suzie and Craig owned the block of land together as joint tenants, Suzie will become the sole owner of the block of land as she is the survivor. Greg will not receive the block of land, even though it was written in Craig's Will that he was to receive the block of land. Holding land with another person as joint tenants means you do not have a separate interest in the land that you can deal with.  For example, you cannot sell the land without the other joint tenant agreeing to that and signing the appropriate paperwork. What does "Tenants in Common" mean? Where land is held between two persons as "tenants in common", it is a type of co-ownership of land where each person has their own distinct interest in the same piece of land.  However, you do not have exclusive possession of any part of the land.  There may be more than two people who own the land as tenants in common, and each may own different proportions of shares in the land. It is a good way for land to be held if you do not want the other owner of the land to automatically get your share of the land if you die before them. Going back to the example above, if Craig and Suzie owned the block of land together as tenants in common, and then Craig passed away,  Craig's share of the block of land would be given to his son Greg through Craig's Will.  Then Greg and Suzie would own the block of land together as tenants in common. Can you change the way you own land from "Joint Tenants" to "Tenants in Common"? It is possible to sever the tenancy of land held between people as joint tenants, and change it to being held as tenants in common.  Going back to the example above, if Craig and Suzie separated (before Craig died), a family law solicitor would strongly advise Craig or Suzie to sever the tenancy, and change how the block of land is held from joint tenants to tenants in common.  Both Craig and Suzie would then have a separate interest in the land, which they could leave to someone in their Will. To see whether your land is held as joint tenants or tenants in common, a search of the Certificate of Title for the land will show how it is held.  You can arrange this yourself or have a solicitor do the search for you.  There is a cost involved with either option. If you're unsure and you'd like to know how you own your property with another person or you'd like any advice or assistance about property settlements, conveyancing, building disputes or any other issue involving property, Andersons Solicitors can help.  Fee free to get in touch directly with today's blog writer, Catherine Clark , who can point you in the right direction on any of these inquiry types.   Catherine Clark - Solicitor Andersons Mt Gambier Office         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats.   http://andersons.com.au/lawtalk/posts/2012/november/own-your-home-as-joint-tenants-or-tenants-in-common-what-is-the-difference.aspx http://andersons.com.au/lawtalk/posts/2012/november/own-your-home-as-joint-tenants-or-tenants-in-common-what-is-the-difference.aspx Thu, 08 November 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/november/my-ex-husband-is-not-complying-with-family-law-court-orders-in-relation-to-our-children-how-do-i-get-him-to-comply.aspx This blog looks at the use and occupation of the family home. We look at a situation of a married couple, John and Jenny, who have been married for 20 years, with two teenage children.  John works full time and Jenny works part time.  They own a home which has a substantial mortgage.  John and Jenny's marriage has been on the rocks for the past 12 months.  Tension has been building in the house and they have been having regular heated arguments. One Friday night John comes home from the pub where he has been drinking with his work mates.  Jenny and John have a big argument and Jenny tells John that the marriage is over and asks him to leave the house.  John refuses to leave saying "it is my house".  What can Jenny do to make her husband leave the home? The question of whether Jenny can force John to leave the home is a difficult legal issue.  Ordinarily, the marital home is considered matrimonial or joint property.  This means that the property forms part of the matrimonial asset pool to which both parties have rights and entitlements.  Ultimately the parties will either negotiate an agreement that determines what property each party is to receive or if they cannot agree the matter will be determined by the Court.  In the meantime, what we often see is situations where both parties remain living in the same home.  One option for Jenny would be to apply to the Federal Magistrates Court for an Order granting her exclusive use and occupation of the matrimonial home.  Such an Order would mean that John would have to leave the home and would not be able to return to the home.  There have been a number of legal cases (which we call precedents) that have looked at under what circumstances an Order for exclusive use and occupation will be granted.  The cases state that to be successful in such an application: The reason behind the application must be more than mere convenience to Jenny. Jenny would have to demonstrate to the Court that a proper case exists for the order.  Having regard to her needs both physical and emotional and the needs of the children.  Jenny does not have to show that the situation is intolerable or impossible. The test is that the Court is satisfied that it is not reasonable to expect both parties to continue to remain in the premises together. If the Court is satisfied it's not reasonable to expect both parties to live in the house at the same time, Jenny has grounds to bring an application to the Court for exclusive use and occupation of the home. The history of heated arguments ending with the big argument after John had been drinking at the pub should be sufficient grounds to apply for such an order. In the event there are ever any immediate safety concerns to Jenny and/or children or other people living in the house, the police should be contacted immediately for assistance as they are able to remove John from the premises forthwith without the need for the above application.  They can also grant an Intervention Order to prevent John from returning. So there's a lot to consider but you can see, there are avenues for dealing with this situation.  Want to know more about your rights and entitlements in Family Law matters? Contact Ryan Thomas at Andersons Solicitors.  Ryan is a Partner in our Family Law department and works on all types of Family Law matters.   Ryan Thomas - Partner Family Law       Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/november/my-ex-husband-is-not-complying-with-family-law-court-orders-in-relation-to-our-children-how-do-i-get-him-to-comply.aspx http://andersons.com.au/lawtalk/posts/2012/november/my-ex-husband-is-not-complying-with-family-law-court-orders-in-relation-to-our-children-how-do-i-get-him-to-comply.aspx Tue, 06 November 2012 Nicole Kelly http://andersons.com.au/lawtalk/posts/2012/november/where-will-the-children-spend-christmas.aspx Christmas is supposed to be about making enjoyable and memorable experiences for families and especially for children. Unfortunately though, for separated families Christmas can be an especially difficult time. Parents may have agreed to share time in the school holidays but forgot to specifically negotiate special holidays such as Christmas. So in difficult circumstances, where will the children spend Christmas? In making decisions about where a child lives and with whom a child spends time, the Court must determine what is in the child's best interests. In determining the child's best interests, the Court must take into account the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. In cases where family violence is not an issue, it is usually considered to be in a child's best interests to be able to share Christmas or other special, religious or cultural occasions with each of their parents. Such sharing may involve dividing the special day in half or the children spending the special day with one parent one year and the other parent the following year. That way both parents have the opportunity to 'play Santa' at least every two years. For separated parents who are having difficulty resolving the issue of Christmas arrangements for the children an Application to the Family Court or the Federal Magistrates Court might need to be considered. The cut off time for filing an Application in the Family Court of Australia seeking parenting orders for Christmas and/or long school holidays is4 pm 9 November 2012 . There is no cut off date in the Federal Magistrates Court of Australia, however the Court date given to an Application filed towards the end of the year will be at the Registrar's discretion and may not be heard before Christmas. It is therefore extremely important that should a parent require orders for the upcoming Christmas 2012, period they seek urgent legal advice. To be absolutely sure, you must get your application in by 9 November 2012 . Would you like to make an application for orders about your children for the Christmas 2012 period? If so, get in touch today with our blog writer, Nicole Kelly , a highly experienced solicitor practising in all areas of Family Law .   Nicole Kelly - Solicitor Family Law         Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation.   http://andersons.com.au/lawtalk/posts/2012/november/where-will-the-children-spend-christmas.aspx http://andersons.com.au/lawtalk/posts/2012/november/where-will-the-children-spend-christmas.aspx Fri, 02 November 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/november/what-are-the-rules-in-relation-to-riding-your-pushbike-on-footpaths-and-shared-paths.aspx You may only ride your bike on a footpath and across pedestrian crossings if: 1. you are under the age of 12; or 2. if you are an adult accompanying a child under the age of 12; or 3. if you are carrying and complying with a certificate issued by your doctor. Even if you do fall within one of these categories you still must not ride on a footpath or road that has a sign forbidding all bicycle riding. There are also some other requirements if you are riding on a footpath due to a disability or medical condition.  A medical certificate from your doctor must name you and it needs to say that you are permitted to ride your bike on the footpath and across pedestrian crossings due to your disability or medical condition.  The certificate must be carried while riding your bike and it can be valid indefinitely or for a period specified by your doctor. Shared paths are off road paths that bike riders and pedestrians share.  There is a number of "shared paths" throughout South Australia including: opening of Gallipoli Drive, Regency Park, linking to Grand Junction Road, Regency Road and a significant shared use path running north-south between Regency Road and Pym St, Dudley Park addition of over 2km of sealed shared use path paralleling Lonsdale Road between Lander Road, Sheidow Park and Oval Road, Hallett Cove - it also intersects the Coast to Vines Trail addition of over 2.5km of unsealed shared use path at Hewett, paralleling the North Para River addition of some of the Mitcham mountain bike & hike trails new off-road shared use paths paralleling Golden Grove Road, Modbury Heights and Martins Road, Salisbury improving cycling connections through Kingfisher Reserve along the Little Para River Linear Park shared use path extended along Sportsmans Drive, West Lakes   shared use path extended along Beach Road connecting to the Noarlunga Centre and the public transport interchange A bike rider, riding on a shared path, must keep to the left of the shared path unless impracticable to do so and give way to any pedestrian on the shared path.  This means the cyclist must slow down and, if necessary stop to avoid a collision.  Cyclists must also keep to the left of any oncoming bicycle rider on a shared footpath.     There are signs posted that indicate both pedestrians and cyclists must share a path.       There is also a path that is divided into sections. There is a sign to indicate a separated path that is divided into sections.  One path is for the exclusive use of pedestrians and one for cyclists.  Cyclists must not ride along the section of the path specifically for pedestrians and vice a versa.     Want to know about your rights and responsibilities for riding your bike on a footpath or shared path?  Or maybe you want to know the rights of your children for riding their bikes.  For more information about your legal responsibilities while riding your bike in a public area, whether it be on a road, a footpath or a shared path, our solicitor in Criminal & Police Matters , and today's blog writer, Leesah Randall would be happy to assist you with your inquiry.   Leesah Randall - Solicitor Police Matters and Criminal Law       Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .  http://andersons.com.au/lawtalk/posts/2012/november/what-are-the-rules-in-relation-to-riding-your-pushbike-on-footpaths-and-shared-paths.aspx http://andersons.com.au/lawtalk/posts/2012/november/what-are-the-rules-in-relation-to-riding-your-pushbike-on-footpaths-and-shared-paths.aspx Thu, 01 November 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/november/what-will-a-judge-consider-when-imposing-a-penalty-for-child-pornography.aspx We often hear comments, sometimes directly to us, sometimes in the media and sometimes in another public forum, querying the leniency of penalties or the delivery of suspended sentences in cases where child pornography charges have been laid. This blog article is aimed at explaining how sentencing Judges consider the penalty to impose. The content of this article outlines facts of law only. There is a number of factors that Judges consider when imposing a sentence on a defendant who has been charged with child pornography.  A sentencing Judge has a number of matters that they must weigh up against one another.  Personal and general deterrence To deter is to discourage or to prevent someone from committing further crimes.  The law states that paramount consideration needs to be given to the need for deterrence in crimes of this nature involving children.  There is also a need for denunciation; to formally express to the defendant and to the community that this behaviour is not acceptable. The sentence needs to reflect the serious nature of the offence.  It must act as a deterrent to the defendant and also to the greater community. Seriousness of the offence Not all charges relating to possessing child pornography will be the same.  The seriousness will depend on: the number of images downloaded; how long the person has been engaging in this activity; and whether they have taken active steps to distribute images. There are also five recognised categories of child pornography that act as a guide for a sentencing Judge.  The categories reflect what the image depicts and therefore the order of seriousness.  Category one is the least serious and category five the most serious.  The charges are also aggravated if the children depicted are below the age of 14.  An "aggravated offence" attracts harsher penalties in recognition of the circumstances of the offending.  For example, in a situation where the children depicted are less than 14 years of age the penalties will be harsher than if they are under the age of 18. Restorative justice is also an important sentencing consideration.  Restorative justice is an approach to justice that involves the victim, the offender and the community.  It is often an opportunity for the victim to have more of a role in the sentencing process.  It is often mistakenly thought by defendants that child pornography is a victimless crime.  This is of course completely false.  Offences involving child pornography are not victimless crimes.  The market for this type of material contributes to the degradation and suffering of children who are exploited.  Each image represents an abuse on a child. Rehabilitation What rehabilitation the defendant has participated in is also a sentencing consideration.  There is a number of well respected sexual offenders rehabilitation treatment programs in South Australia for adults as well as youths.  Treatment ranges from live in, structured, intense rehabilitation to external rehabilitation with a counsellor.  One of the Sentencing Judge's concerns in sentencing is what the risk of the defendant re-offending is.  Is there cause for concern should this defendant be given the benefit of a suspended sentence?  If a defendant actively involves themselves in rehabilitation, the law gives weight to the consideration that they are significantly reducing their risk of re-offending. Personal Circumstances The defendant's personal situation will also be taken into account.  It is less of a consideration with a serious matter but nonetheless a consideration for the Sentencing Judge. Whether the defendant has been charged with the same offence or like offences before will be a consideration.  Another factor for the Judge to take into account is whether the defendant is employed, whether they have a stable lifestyle, the age of the defendant and whether they have support in the community or within their family. If you require advice or assistance for any police or criminal matters including investigations or charges, ensure you speak with a criminal law solicitor.  Today's blog writer, Leesah Randall is available to assist you with your inquiries.     Leesah Randall - Solicitor Criminal Law and Police Matters         Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/november/what-will-a-judge-consider-when-imposing-a-penalty-for-child-pornography.aspx http://andersons.com.au/lawtalk/posts/2012/november/what-will-a-judge-consider-when-imposing-a-penalty-for-child-pornography.aspx Wed, 31 October 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/november/what-is-a-testamentary-trust-will-and-do-i-need-one.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets after they die and who they want as the executor of the Will, being the person (or people) who will look after securing and distributing their assets and ensuring the terms of the Will are carried out lawfully. A " Testamentary Trust Will " includes what is called a discretionary trust created within the Will which can sometimes allow a more effective strategy to leave assets to a person instead of making the gift directly. What are the advantages of a Testamentary Trust Will? Protection from divorce A common fear amongst Will makers is that their estate (everything they own) may unwittingly be passed onto a child's spouse or partner in the event of a breakdown of relationship. Assets or monies received by a beneficiary through a deceased estate and used for the mutual benefit of your child and their spouse are often difficult to trace and/or isolate from the jurisdiction of the Family Court if that child subsequently separates from their spouse. The powers of the Family Court are quite broad, but it may be possible to reduce the ability of your inheritance being split between a separating couple if, instead of giving your child a direct gift in your Will, you provided for them via a Testamentary Trust. Protection from bankruptcy The risk of being sued, particularly for those whose employment or profession makes them vulnerable such as doctors, lawyers, accountants, sole traders and so on, is ever present and usually results in them not owning any assets in their sole name. If a beneficiary experiences financial difficulties and receives a windfall from your estate it is possible that your gift can be attacked by creditors instead of being used to the direct and personal advantage of your chosen beneficiary. With a Testamentary Trust the trustee (who is chosen by the Will maker) determines who receives the income and/or capital of your estate and can decide what (if anything) to pay to a bankrupt beneficiary, including nothing. Protection for a person suffering an incapacity Sometimes testators (the person making a Will) wish to bequeath something to someone who suffers from an intellectual handicap or perhaps suffers from a significant drug or alcohol dependency.  Rather than providing a direct gift to them which may be squandered or otherwise not able to be handled, you may provide for their benefit through a Testamentary Trust where your appointed trustees remain in control. Taxation advantages One of the most significant advantages to establishing a Testamentary Trust within your Will is that your trustee has powers which assist to maximise the benefit your whole family receives from your assets, by taking into consideration greater tax burdens which some beneficiaries might face. In addition to this the tax free threshold of minor children is significantly higher than that of distributions from discretionary or family trusts. Anderson's Recommendations If you are contemplating the creation of a Testamentary Trust Will you should first speak with one of Andersons' experienced solicitors to ensure it is the right model for you, that your assets will comprise part of your estate for your family to benefit from and that the right provisions for control of the Testamentary Trust and protection for your beneficiaries are adequately catered for in the Testamentary Trust Will. Caution This blog is a guide only and is not intended to provide comprehensive legal advice.  Taxation laws and those concerning trusts including Testamentary Trusts may change in the future. Want to know more about Testamentary Trust Wills or making sure all your estate planning is in order?  Today's blog writer, Andersons Senior Associate practising in Wills & Estate Planning is Greg Welden . Greg is highly experienced in all aspects of estate planning and is available to take you call or email inquiry for advice or assistance.   Greg Welden - Senior Associate Wills & Estate Planning        Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/november/what-is-a-testamentary-trust-will-and-do-i-need-one.aspx http://andersons.com.au/lawtalk/posts/2012/november/what-is-a-testamentary-trust-will-and-do-i-need-one.aspx Mon, 29 October 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/october/workplace-injury-or-not-has-your-job-been-affected-because-of-an-injury-or-illness.aspx What's the first step if an illness or injury is affecting my ability to do my job? Workplace health and safety should be a priority for all employers and employees.  If you're an employee and you suffer an injury or illness that affects your employment, the first step is to get a medical certificate which states what your work restrictions are and how long you are expected to be ill. A certificate is usually a requirement for accessing extended sick leave.  However, sometimes even with a certificate, your employer may decide to give you inappropriate work, cut your hours or even dismiss you. If that happens, there are things you can do about it. What if my injury or illness entitles me to claim workers compensation? If you sustained your injury or illness at work and you are on workers compensation, otherwise known as WorkCover payments then your employer is obliged to provide you with suitable duties. If they cannot provide suitable duties then your employer may get approval from WorkCover to terminate your employment.  If this occurs you may be able to challenge the termination if you believe that there are suitable duties available and you should seek legal advice if this occurs. However, if there are no suitable duties available and your employment is terminated then you should continue to receive weekly payments of income maintenance paid by the insurer whilst you are seeking alternative and suitable employment.  Alternatively, you may be eligible for a redemption, which is a lump sum payment finalising your entitlements under the SA Workers Rehabilitation and Compensation Act, 1986 , although there are legislative requirements that must be met in regard to redemption. What if my injury or illness is not a workplace injury? However, if your injury or illness isn't work-related, or you want to explore other options, depending on your individual circumstances, you can look at filing a General Protections claim with Fair Work Australia, or making a complaint on the grounds of discrimination in the Equal Opportunity Commission (EOC) or the Australian Human Rights Commission (AHRC). These are all also available to you if you are treated differently because of your injury or illness, not just if you lose your job. You can make a General Protections claim if you suffer "adverse action" in the workplace, which includes being dismissed but can also mean a pay cut, change in duties, or being prevented from doing the same job you did before. Fair Work Australia will hold a conference to try to find a solution, and you will be able to present your side of the story to your employer then. If that doesn't work, you can then lodge a claim in the Federal Court. A complaint in the EOC or AHRC will be investigated by a complaints officer and the employer can put forward a written response. After that you will usually go to a conciliation conference, where you'll be able to negotiate a solution with your employer with the help of one of their conciliators.  If that doesn't work then you may be able to opt for a hearing. What results might I get if I lose my job for unfair reasons? The kind of result you want will influence what and where you can lodge, as well as your individual circumstances. You might be looking for reinstatement or compensation for lost wages, an apology, assistance in making your workplace accessible, or even a change in the employer's policies. Each forum has its own individual benefits and quirks, so it is best that you seek legal advice as to which is best for you. For more information about your general rights and entitlements in the workplace, call Sorna Nachiappan , Senior Associate with Andersons Solicitors .  Sorna is highly experienced and well respected in her specialised field of Employment & Industrial Law and works very closely with our personal injury solicitors who can assist with workers compensation matters.     Sorna Nachiappan Senior Associate - Employment & Industrial Law       Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/october/workplace-injury-or-not-has-your-job-been-affected-because-of-an-injury-or-illness.aspx http://andersons.com.au/lawtalk/posts/2012/october/workplace-injury-or-not-has-your-job-been-affected-because-of-an-injury-or-illness.aspx Thu, 25 October 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/october/workcover-my-weekly-payments-have-stopped-but-i'm-still-injured.aspx WorkCover weekly payments of income maintenance can be stopped for a variety of reasons, including (amongst others): The injured worker has returned to work and is earning more than their average weekly earnings. The injured worker has "breached mutuality" - for example, they may have failed to attend medical appointments, refused to perform suitable duties or been dismissed from employment as a result of serious and wilful misconduct. The worker has reached the end of the "third entitlement period" (that is, the worker has been incapacitated for work for a period in excess of 130 weeks) and has a partial capacity for work but is not actually working. The worker has turned 65 years of age. The worker is residing outside of South Australia, or has travelled and remained outside of South Australia for more than 2 months. If you receive a Notice from the insurer stating that your payments are to be discontinued you should seek immediate legal advice.  There are strict time frames within which a dispute should be lodged and the sooner you seek legal advice the better. In most cases when weekly payments are stopped, an injured worker is still entitled to have any reasonable medical expenses incurred as a result of their work related injury paid for by the insurer.  If the insurer declines to pay for this treatment then you may be entitled to challenge their decision in the SA Workers Compensation Tribunal.  Therefore it is important to seek legal advice if the insurer refuses to pay for your medical expenses related to your workplace injury. Workers compensation matters can get complex but at Andersons we've got a great team in Workers Compensation able to assist you with any of your compo inquiries.  Alternatively, you can get in direct contact with our blog writer today, our Senior Associate Marion Williams .   Marion Williams Senior Associate - Civil Litigation Department       Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.  http://andersons.com.au/lawtalk/posts/2012/october/workcover-my-weekly-payments-have-stopped-but-i'm-still-injured.aspx http://andersons.com.au/lawtalk/posts/2012/october/workcover-my-weekly-payments-have-stopped-but-i'm-still-injured.aspx Fri, 19 October 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/october/employment-law-what-is-continuous-service-and-why-does-it-matter.aspx "Continuous service" in the Fair Work Act means how long you have been working for that one employer.  It's important because your length of continuous service is taken into account when working out whether you are entitled to rights such as parental leave and flexible working arrangements. Continuous service is also used to work out the notice period in the event your employment relationship ends, and how much redundancy pay you are owed. The amount of continuous service you need depends on what you want to claim. For parental leave, or flexible working arrangements, you will need 12 months (one year) continuous service. You can make an unfair dismissal claim after 6 months of continuous service, unless your employer is a small business. To make an unfair dismissal claim against a small business you need 12 months. A small business is one that employs less than 15 employees. Some kinds of leave can affect the amount of continuous service you have. Workers' compensation leave will not affect your continuity of service, because Fair Work Australia considers WorkCover payments an obligation on the employer and therefore it is authorised leave under the Fair Work Act . However, taking an unpaid leave of absence, such as going on an extended overseas holiday, may mean that the time that you are not paid for is not counted towards your service. This can affect you if you lose your job, because the amount of notice your employer needs to give depends on your length of service. Someone with 1 year continuous service is entitled to one week's notice, but someone with five years continuous service is entitled to the maximum of four week's notice. Redundancy pay is also worked out according to length of service up to ten years or more. A scenario for working out continuous service: You started working with Joe Smith & Sons in 2003.  In 2009 you took six months leave without pay to travel overseas to visit family and friends.  Although you have been employed by Joe Smith & Sons for nine years, your continuous service with them until now (2012) is the nine years minus the six months you took off.  In late 2012 you are made redundant.  Your notice pay and your redundancy pay may be calculated for less than nine years service. Long service leave is also calculated on length of continuous service, and kicks in at ten years continuous service, but this comes under the South Australian Long Service Leave Act . The definition of 'continuous service' is slightly different but usually they appear to point to the same conclusion. Other things that can affect your continuity of service or your entitlements may be contained in your Modern Award, employment contract or Enterprise Bargaining Agreement or you may for example, at the time of arranging an extended unpaid absence from work, to have the time considered as continuous service. If you are a casual employee or have a fixed-term contract, you might also miss out. If you are unsure which applies to you or whether you are able to access your entitlements, we recommend you seek personalised legal advice. So you can see there is a lot to consider when working out your continuity of service.  If you have any queries or concerns about your own circumstances, you can speak directly with today's blog writer, Industrial and Employment Law Senior Associate at Andersons Solicitors, Sorna Nachiappan .     Sorna Nachiappan Senior Associate - Employment & Industrial Law       Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation and South Australian State legislation. http://andersons.com.au/lawtalk/posts/2012/october/employment-law-what-is-continuous-service-and-why-does-it-matter.aspx http://andersons.com.au/lawtalk/posts/2012/october/employment-law-what-is-continuous-service-and-why-does-it-matter.aspx Tue, 16 October 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/october/what-can-i-do-if-i-have-been-fined-for-using-my-mobile-phone-while-driving.aspx If you've received a fine from police, there are a number of options available to you depending on your circumstances: You deny that you used your mobile phone while driving On your fine will be a section on the back titled 'elect to be prosecuted'.  You need to fill out the relevant section and return it to the Expiation Notice Branch before the due date of the fine.  You will then receive a letter from the Expiation Notice Branch with a court date.  As a part of the court process you will receive from prosecution all the evidence that they will seek to rely upon. Eventually you will have the opportunity to have a trial about whether or not you used you mobile phone.  Prosecution will need to prove, beyond reasonable doubt, that you used your phone whilst driving. . You admit that you were using your mobile phone while driving but you want to keep you licence Trifling Application Using a mobile phone while driving carries with it a whopping 3 demerit points.  If these extra demerit points will push you over the line and cause you to be disqualified and lose your licence, there are some options available to you. The options require you to elect to be prosecuted, using the process that has already been set out above.  The difference is this time you concede that you committed the offence but the nature of the driving was "trifling".  This can be done by making a trifling application which is when you give evidence on oath in relation to your driving.  If the Magistrate finds that your driving was trifling or if other proper cause exists then they can reduce your demerits points to something less than the 3.  It's important in this situation to have an experienced solicitor with you as they will know what the Magistrate wants to know and what the test is. Making an Application Without Recording a Conviction Traffic offences ordinarily attract a conviction.  However in exceptional circumstances a Magistrate may decline to record a conviction and then the Department of Transport will not record any demerit points against your licence.  Unless the courts make a specific order, then the Department of Transport will record three demerit points for using your mobile phone.  There are many different factors that a court will take into account when determining whether to record a conviction including the nature of the driving and circumstances relating to you personally.  Naturally, the easiest way to not be fined for using a mobile phone while driving, is not to illegally use a mobile phone while driving.  Check out when you can legally use a mobile phone when driving . If you wish to take advantage of the options outlined above, at Andersons we think it is very important that you obtain experienced legal representation with a solicitor who knows criminal/police law.  Today's blog writer, Leesah Randall is highly experienced in  criminal and police matters so feel free to get in touch directly with Leesah to discuss your specific circumstances.   Leesah Randall Solicitor - Criminal and Police Matters       Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/october/what-can-i-do-if-i-have-been-fined-for-using-my-mobile-phone-while-driving.aspx http://andersons.com.au/lawtalk/posts/2012/october/what-can-i-do-if-i-have-been-fined-for-using-my-mobile-phone-while-driving.aspx Thu, 11 October 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/october/can-i-travel-interstate-whilst-on-workcover.aspx If you are injured at work in South Australia then the SA Workers Rehabilitation and Compensation Act, 1986 requires that you reside in the State in order to receive weekly payments of income maintenance. If you are in receipt of workers compensation payments and you wish to travel interstate, such as on a holiday etc, then you are allowed to do so, as long as it does not conflict with any rehabilitation or medical appointments.  In general, it is best to advise your case manager or rehabilitation provider of your intention to travel interstate and ask that they do not make any appointments for the period that you will be away. The insurer may ask you to sign a "Voluntary Discontinuance of Income Maintenance" for the period of time that you intend to be interstate.  You are not always obliged to sign this, and you should always seek legal advice before signing any document that states that your income maintenance will cease for any reason. Sometimes an injured worker wants to move interstate following a work related injury.  This may be so that they are closer to family members who can provide them with support and assistance needed because of their injury. If you wish to live interstate and continue to receive weekly payments of income maintenance then you must get consent from the insurer to reside outside of South Australia.  If you reside outside of South Australia or travel and remain outside of South Australia for more than two months without the consent of the insurer then they may be entitled to stop paying your income maintenance.  This decision can be challenged and you should seek legal advice as soon as you receive notice from the insurer that they intend to stop paying you. If your weekly payments are ceased as a result of you residing outside of the State for more than 2 months then you are still entitled to have your reasonable medical expenses incurred as a result of your work related injury paid for by the insurer. If you request consent to either travel or live interstate while on WorkCover and it is refused by the insurer, you can challenge the insurer's decision by filing a Notice of Dispute at the Workers Compensation Tribunal.  Again, you should seek legal advice in regard to this as these issues can get complex but at Andersons we've got a great team in Workers Compensation able to assist you with any of your compo inquiries.  Alternatively, you can get in direct contact with our blog writer today, Senior Associate in Civil Litigation matters, Marion Williams .       Marion Williams Senior Associate - Civil Litigation Department       Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/october/can-i-travel-interstate-whilst-on-workcover.aspx http://andersons.com.au/lawtalk/posts/2012/october/can-i-travel-interstate-whilst-on-workcover.aspx Wed, 10 October 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/october/when-can-i-use-my-mobile-phone-while-driving.aspx At the moment there is a big campaign from the Motor Accident Commission in South Australia (MAC); "You can live without it" in relation to mobile phone usage in cars. The statistic quoted on the MAC website is: In 2005 South Australia Police detected over 4,000 mobile phone offences, rising to over 14,000 offences in 2011. So when exactly can I use my mobile while driving a vehicle? You can only use a mobile phone for making (making a call includes dialling a number or touching the phone to make or receive calls) or receiving calls if: you have a blue tooth or other hands free device; and you have a full licence; and the phone is secured in a commercially designed and manufactured cradle or mounting fixed to your car and it was fixed to your car while the car was parked. In short you can only answer or make calls if your mobile is remotely activated via a hands free device securely mounted to your car.  Drivers who are on their learners permit or P1 licence cannot use any mobile phone function at any time while driving. No drivers can receive or read emails or texts or utilise any of the phone's other functions.  That means looking at Facebook, Twitter or Google Maps is all off limits if you want to keep your licence. Also you cannot rest or hold the phone on any part of your body.  That means loud speaker in the lap or being held is not allowed. Just because a vehicle is stationary at lights or at an intersection does not mean that you can then look at your phone.  Your vehicle must be legally parked. So if you don't have a hands free device the answer is simple; you must pull over if you wish to use your mobile phone. The penalty for using a mobile phone is a $351.00 fine and three demerit points. Have you fallen fowl with these laws or would you like some more clarification? Get in touch with one of lawyers practising in criminal/police law . Today's blog writer, our Andersons solicitor, Leesah Randall can assist with your inquiries. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/october/when-can-i-use-my-mobile-phone-while-driving.aspx http://andersons.com.au/lawtalk/posts/2012/october/when-can-i-use-my-mobile-phone-while-driving.aspx Tue, 09 October 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/october/been-charged-with-a-criminal-or-a-serious-traffic-offence-what-now.aspx When you have been charged with a criminal or serious traffic matter police have two options: They can arrest you and place you on a bail agreement compelling you to attend a specific court on a specific date and time; or They can serve you with a summons compelling you to attend a specific court on a specific date and time; Police will often opt for a bail agreement for serious matters.  For example, dangerous driving to evade police, causing death or harm by dangerous driving. On your first court date you will appear in a Magistrates Court before a Magistrate or Special Justice.  A police officer will be present in court, prosecuting the matter. When you arrive at the entrance of the court you will go through security.  Then you will see a list of all the names of those who will be appearing in court that day.  The list is in alphabetical order and once you find your name you will see what court room you are to appear, next to your name. Once you enter the court room you will sign in with the court staff, a Sheriff's officer.  You need to tell them your name, the name of the person representing you and what you intend to do with your matter (plead guilty, plead not guilty, or have the matter adjourned for legal advice). Your name will then be called by the Magistrates Clerk and you will be directed to stand in the dock.  The Magistrate will ask you or your solicitor what you intend to do with the matter; plead guilty, not guilty or adjourn the matter for legal advice.  At this time you will receive an 'Apprehension Report' which is a summary of the allegations that prosecution seek to rely upon. If you are charged with a serious offence and you do not have representation, Magistrates often advise defendants that it would be in your best interest to obtain legal advice before proceeding to a guilty plea. First court dates are usually anti-climatic as matters are normally adjourned on the first court date to allow you time to read the Apprehension Report with your solicitor and discuss what you intend to do with the matter. If you've been charged with serious traffic offences, you should have experienced legal representation.  Today's blog writer is one of our Criminal Law solicitors. Leesah Randall can assist you with any criminal charges (serious matters, traffic offences, minor offences).  Feel free to contact Leesah directly. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/october/been-charged-with-a-criminal-or-a-serious-traffic-offence-what-now.aspx http://andersons.com.au/lawtalk/posts/2012/october/been-charged-with-a-criminal-or-a-serious-traffic-offence-what-now.aspx Fri, 05 October 2012 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2012/october/my-new-house-has-defects!-what-are-my-options.aspx Unfortunately, when building a new house or renovating an old one, the construction work can have defects. Many of those defects are not serious and they often include things like loose door handles, poor paintwork, dripping taps and poor finish on tiles or woodwork. Very often such defects are not immediately noticed or only become apparent after a short period of use. Minor defects are usually not expressly covered by Statutory Warranties and instead most building contracts have a term saying that at practical completion or for a period of three months after practical completion the builder will return to site to inspect your new house and fix up all the minor defects, typically at no cost to you. In the first instance, if you have found a defect and you are within that three month period, you should contact the builder and invite the builder to return to your home and fix the defect. Most reputable builders will not object to doing that. Occasionally, a dispute about defects arises. Typically, that is because either the builder is unwilling to return and fix the defect or alternatively because the builder says the defect was caused by you after practical completion. We recommend that you photograph your new house or renovation immediately upon practical completion and also that you have a "handover building inspection" performed by a reputable building inspector, so that disputes about the cause of a defect can be avoided. If an agreement cannot be reached between yourself and the builder about defects, you are entitled to bring an application to the Magistrates Court under theBuilding Work Contractors Act 1995seeking orders from the Court that the builder rectify the defects or pay to you a sum of money to allow you to rectify the defects yourself. It will assist you to have a building inspection report and photographs of the defects and the condition of the premises at practical completion in any application which you make to the Magistrates Court. Andersons Solicitors have access to a range of respected building inspectors, engineers and surveyors who are aware of common construction defects and what to look out for. Andersons can also assist you in writing to your builder in respect of defects and advising the builder of their obligation to return to site and fix them, or we can prepare and issue an application under theBuilding Work Contractors Act 1995if the builder refuses to do so. Have you had a problem with defects in your new home or renovations and want some advice or legal assistance? You can contact today's blog writer directly, Andersons Partner in Commercial Litigation, Felix Hoelscher . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .   http://andersons.com.au/lawtalk/posts/2012/october/my-new-house-has-defects!-what-are-my-options.aspx http://andersons.com.au/lawtalk/posts/2012/october/my-new-house-has-defects!-what-are-my-options.aspx Tue, 02 October 2012 Bill Connelly http://andersons.com.au/lawtalk/posts/2012/september/port-adelaide-office-on-the-move!.aspx After many memorable years in our Lipson Street, Port Adelaide office, for a number of reasons, it was time to bite the bullet and move on to bigger and better premises. And we did just that today, Friday 28 September 2012. Our staff are very excited about our fresh new offices at 17 Divett Street, Port Adelaide and we're certain our clients, friends and contacts will be equally as happy when they next come to visit us. We're still sporting a heritage building look on the exterior (what else would we do in beautiful old Port Adelaide) but inside we've got a fresh and modern new look. We urge our clients and contacts to drop by for a look when you're next in the neighbourhood. We'll be open fully for business first thing Tuesday morning 2 October (after the Monday public holiday). We take this time to thank our staff and contractors for their tireless efforts in getting us prepared for today's relocation and participating in a smooth sailing move. We look forward to many more years of working with the Port Adelaide and surrounding communities in the provision of legal services. Although our address may have changed (and even then it is only about 70 metres along Lipson Street on the corner of Lipson and Divett), our phone, email and fax contact details remain the same. Regards Bill Connelly Partner Andersons Port Adelaide Office http://andersons.com.au/lawtalk/posts/2012/september/port-adelaide-office-on-the-move!.aspx http://andersons.com.au/lawtalk/posts/2012/september/port-adelaide-office-on-the-move!.aspx Fri, 28 September 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/september/can-i-quit-my-job-while-i'm-on-workcover.aspx Resigning from your employment with your pre-injury employer for reasons unrelated to your work related injury is considered a "breach of mutuality".  This means that you are not making yourself "ready, willing and able" to perform any suitable duties offered by your employer.  As a result, you may not be entitled to receive any further weekly payments of income maintenance.  For example, if you quit your job with your pre-injury employer because you want to accept a new job, then you would be breaching your obligation to perform suitable duties with your pre-injury employer.  This is not an issue if the new job pays more than your Average Weekly Earnings, but if the new job pays less than Average Weekly Earning's you will not be entitled to receive any "top up" payments. However, if you have ongoing restrictions and you resign from your pre-injury employment as a result of your injuries and disabilities and start a new job with a different employer that is suitable but pays less than your Average Weekly Earnings, then you may be entitled to be paid "top up" payments of income maintenance by the workers compensation insurer.  It is very important to tell your employer that you are resigning because of your injury in this type of case. If you are not able to maintain the new job as a result of your injury, then you could bring a further claim for income maintenance if you "restore mutuality" with your pre-injury employer.  To do this you need to demonstrate that you are ready, willing and able to return to work and carry out suitable duties with your pre-injury employer.  This can be done by presenting a WorkCover Medical Certificate and a new claim form to your pre-injury employer and asking them to provide you with suitable duties.  However, your previous employer may not take you back. If they refuse to take you back, this could result in your claim being rejected and if this happens, make sure you seek legal advice from an experienced WorkCover solicitor . Even if you obtain alternate employment elsewhere and give up your entitlement to weekly payments, you are still entitled to have any reasonably incurred medical expenses paid for by the insurer. This entitlement continues indefinitely, or until you agree to accept a lump sum redeeming those entitlements. You may also still be entitled to a lump sum payment for permanent disability, provided that you have not received such a payment prior to ceasing your employment and provided that you are assessed by an Accredited Permanent Impairment Assessor as having a 5% or more Whole Person Impairment as a result of your compensable injury. At Andersons, we can sort all this out for you. Today's blog writer, our Senior Associate in Civil Litigation , Marion Williams is totally on top of your rights in WorkCover matters.  Feel free to contact Marion directly.  We strongly recommend at all times, that if you want to change your conditions of employment while on WorkCover, you really should get experienced legal advice before proceeding. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/september/can-i-quit-my-job-while-i'm-on-workcover.aspx http://andersons.com.au/lawtalk/posts/2012/september/can-i-quit-my-job-while-i'm-on-workcover.aspx Thu, 27 September 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/september/help!-i've-been-called-into-a-workplace-disciplinary-meeting!.aspx You don't always get told in advance of a disciplinary meeting, or get a fair chance to respond.  The first time you may hear of the allegations or issues is when you are told of them in the meeting. Here are a few things to keep in mind if you get called into a meeting: Do not respond straight away. Ask for the allegations to be given to you in writing and for a reasonable time to respond. If you have been given the allegations in advance, make sure you have enough time to read them and prepare any response, before the meeting. Ask for a support person to attend with you at any meetings, even the first one.  You are entitled to have a support person with you.  It can be a close friend, colleague or solicitor. Make sure the disciplinary meeting is at a time your support person is available. Respond in writing, even if you attend a meeting and respond in person.  Your written response can be kept on your file, and will help you remember what you want to say.  Make sure you keep a copy of all written notes, either from the employer or ones you have done yourself.  A written response will also mean that everything you want to say is recorded, even if you stumble or get stressed in the meeting itself. When you are notified of the outcome, ask questions about what it means for you. You don't have to sign a written warning, especially if you don't understand it. Make sure you get copies of all documents, evidence and meeting notes. You are entitled to a chance to tell your side of the story. This includes being given time to assess all the evidence and prepare. The result of an investigation and the events of a meeting may be taken into account if something happens later on. If you are unsure in any way, if you have not been allowed a support person, or if you have not been given a proper chance to respond, it is best to seek legal advice as soon as possible.  A solicitor can help you prepare, speak on your behalf, and advise you what other options are available, including a Fair Work Australia application. At Andersons we have a dedicated team of solicitors in Employment & Industrial Law .  If you need any advice or assistance in this area, why not contact today's blog writer, Senior Associate Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/september/help!-i've-been-called-into-a-workplace-disciplinary-meeting!.aspx http://andersons.com.au/lawtalk/posts/2012/september/help!-i've-been-called-into-a-workplace-disciplinary-meeting!.aspx Sun, 23 September 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/september/workcover-work-capacity-reviews.aspx If you have been incapacitated for work, as a result of a workplace injury, for over 130 weeks then the compensating authority (the insurer covering your WorkCover entitlements) may conduct a "Work Capacity Review" to determine whether or not you are entitled to continue to receive weekly payments of income maintenance after the end of the "third entitlement period" - that is, 130 weeks after the date of injury. If the compensating authority determines that you are totally incapacitated for work after 130 weeks then your weekly payments should continue at the rate of 80% of your notional weekly earnings. Notional weekly earnings are the amount of income maintenance you are entitled to receive for periods of time when you are unable to work as a result of a work related injury. If the Compensating Authority determines that you have a "current capacity for work" then weekly payments of income maintenance may cease. In you have a current capacity for work, and working to your maximum capacity, but have not been cleared as fit for your pre-injury duties then you may make an application for payments to continue in accordance with Section 35C of the SA Workers Rehabilitation and Compensation Act, 1986 . The section 35C application will be approved if the compensating authority finds that you have a current capacity for work, are working to your maximum capacity in suitable employment and you are unable to earn more income. Suitable employment is employment in work for which you are currently suited, whether or not the work is available, and takes into account the following: a)          the nature of your incapacity and previous employment; b)          your age, education, skills and work experience; c)          your place of residence; d)          medical information relating to you that is reasonably available, including in any medical certificate or report; e)          if any rehabilitation programs are being provided to or for you; f)          your rehabilitation and return to work plan, if any; Suitable employment also includes: a)          waiting for a response to a request for suitable employment made by you and received by your employer; b)          if your employer's response is that suitable employment may or will be provided at some time,  waiting for suitable employment to commence;  c)          waiting for a response to requests for suitable employment from other employers; d)          waiting for the commencement of a rehabilitation and return to work plan, after approval has been given. In these situations you should still receive weekly payments of income maintenance. You will not be considered to be making every reasonable effort to return to employment if you: a)          refuse to have an assessment made of your employment prospects; or b)          refuse or fail to take all reasonably necessary steps to obtain suitable employment; or c)          refuse or fail to accept an offer of suitable employment from any person; or d)          refuse or fail to participate in a rehabilitation program or a rehabilitation and return to work plan. If you are not considered to be making every reasonable effort to return to employment then the insurer may make a decision to cease paying you weekly payments of income maintenance. If you are currently in receipt of weekly payments of income maintenance and the end of your third entitlement period is approaching, or has past, you may still be entitled to weekly payments.  It is important that you seek experienced legal advice from a solicitor that specialises in WorkCover matters. Today's blog writer, Andersons Senior Associate Marion Williams can assist you with any or your WorkCover requirements.  Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/september/workcover-work-capacity-reviews.aspx http://andersons.com.au/lawtalk/posts/2012/september/workcover-work-capacity-reviews.aspx Thu, 20 September 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/september/what-is-probate-and-do-i-need-it.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors.  Executors are the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully. What is the role of an executor? An executor has many important duties when acting on behalf of the estate of the deceased person.  They include notifying banks and other organisations, identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the Grant of Probate from the Supreme Court of South Australia (or in another State). What is a Grant of Probate? A Grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person. There are two types of Grants: Grants of Probate and Grants of Letters of Administration.  Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason. All applications for Grants must be in accordance with the Rules of Court which govern who is entitled to a Grant and the manner in which the application must be made. When is a Grant required? Whether a Grant is needed will depend on the assets of the estate.  For example, a bank holding money belonging to the deceased will need to know who that money should be paid to and the Grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.   If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the Grant before it will transfer the shares. A Grant will be required if the deceased owned a house in his or her own name or held an interest with another party as tenant in common.  The Lands Titles Registration Office will not transfer land to another person without a Grant. However, real estate owned by the deceased as a joint tenant with another person cannot and will not form the subject of a Grant or part of the deceased estate as the surviving joint tenant(s) are automatically entitled to the property. On the other hand if the deceased had very minimal assets it may not be necessary for the executor or administrator to apply for Probate. What does the process involve? The process to apply to the Probate Registry seeking a Grant of Probate or Administration is very complicated and difficult for most general members of the public.  The application may become even more difficult if, for example; the validity of the last Will is in question, there is uncertainty as to what constitutes the last Will the intended last Will has been completed incorrectly (undated or signed wrongly). The list is endless.  These problems may create significant delays in dealing with estate assets and finalising the role of the executor.  The Andersons Wills & Estate Planning team always recommend you speak to a solicitor concerning the Will of a deceased, particularly if you are named as an executor. Would you like more information on Wills & Estate Planning ?  Why not get in touch directly with today's blog writer, Senior Associate, Greg Welden . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/september/what-is-probate-and-do-i-need-it.aspx http://andersons.com.au/lawtalk/posts/2012/september/what-is-probate-and-do-i-need-it.aspx Tue, 18 September 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/september/discrimination-when-does-it-cross-the-line.aspx If you feel like you are being treated differently to everyone else in your workplace, then you may be being discriminated against. Discrimination may include treatment such as: being singled out and disciplined for things that everyone does; being made fun of or bullied; not being chosen for promotions or special training; being denied a job or transfer; and it can happen to someone applying for a job, between co-workers, and to contractors and volunteers; not just employees. For these to be considered as discrimination under the law, rather than harassment or pure bad luck, the reason for that treatment needs to be, at least in part, one that is covered by an anti-discrimination law. Some examples are: your race or ethnicity; your gender or sexuality; whether you are married; any disability or illness; your age. It is not enough to cite being treated differently as evidence of discrimination, even if it is workplace bullying (you also have rights in relation to workplace bullying and harassment).  You need to have some idea as to why you are being treated that way. Depending on the reason, and the kind of treatment you are receiving, you can pursue a discrimination claim through the state Equal Opportunity Commission or the Australian Human Rights Commission. If your job has been affected; for example if you have been demoted or your job description changed, you may also be able to make a general protections claim with Fair Work Australia. Each of these options has its own range of remedies which you will need to take into account.  You may be able to ask for compensation, an injunction against the discriminatory treatment, or even for your job back if you were dismissed.  To work out which is the best option for you, Andersons recommends you seek experienced advice from someone who specialises in Employment & Industrial law. Why not get in touch directly with today's blog writer, our Senior Associate, Sorna Nachiappan. Please note, this Blog is posted in Adelaide, South Australia. It relates to both South Australian legislation and Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/september/discrimination-when-does-it-cross-the-line.aspx http://andersons.com.au/lawtalk/posts/2012/september/discrimination-when-does-it-cross-the-line.aspx Tue, 18 September 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-is-it-worth-lodging-a-caveat.aspx A caveat is a relatively cheap way to note your interest in a property. The filing fee is $144.00 (current as at July 2012) and the fees for preparing it are relatively small. In most cases the party who owns the land will accept that a caveat has been lodged and negotiate a settlement with the other party without applying to remove the caveat. If they do apply to remove the caveat then the person who lodged it either lets it lapse or applies to one of the Courts as discussed in our earlier blog "How to keep a caveat on". In that case all that is lost is the filing fee and the cost to prepare the caveat. It is much quicker, cheaper and easier to lodge a caveat then to apply to the Court for an injunction and in most cases that will be enough to protect your interest. It is important to either lodge a caveat or seek an injunction over property if it is not registered in your name so that your interest in the land is noted. Ina de facto or matrimonial property settlement, if one party has sold a property for less than its true value or borrowed as much money against it as possible, then that money will not be available for the property settlement.  While ultimately those monies should be taken into account by the Court, once it is done there is no guarantee that the money can be found or accounted for. It can be much more costly and time consuming to try and track down money after the damage has been done rather then to lodge a caveat and stop the dealing from happening in the first place. Another important thing to note is that lodging either an unjustified caveat or injunction can leave you open to a claim for damages, so it is important to get experienced legal advice before attempting these steps. We've got a series of blogs on caveats when working through your Family Law property settlement.  For more information: " To caveat or not to caveat " " Who can lodge a caveat?" " How can a caveat be removed?" " How to keep a caveat on " Caveats and Family Law property settlements in general can be complex.  Our experienced Family Law team at Andersons strongly recommend you seek experienced legal advice prior to finalising any of your Family Law property settlement .  For more information or advice, why not get in touch directly with Partner in Family Law, Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats. http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-is-it-worth-lodging-a-caveat.aspx http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-is-it-worth-lodging-a-caveat.aspx Mon, 17 September 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/september/what-happens-if-there-is-no-will-when-someone-dies.aspx When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death and who are executors.  An executor is the person (or people) whose role it is to secure and distribute assets of the deceased and ensure the terms of the Will are carried out lawfully. So what happens if there is no Will? A role of the executor (named in the Will) includes notifying banks and other organisations, identifying who the beneficiaries of the estate are and determining what their entitlements are, paying the liabilities of the deceased and any estate claims (from the value of assets held by the estate) and most importantly obtaining the grant of Probate from the Supreme Court of South Australia (or in another State). If there is no Will, the estate will require an Administrator which carries out the very same role as an executor.  The law determines who the Administrator will be and follows a strict hierarchy starting with spouses, then children and further out towards parents and siblings. What is a Grant? A Grant is the official recognition by the Supreme Court of what document or documents constitute the last Will and the right of the personal representative named to administer the estate of a deceased person. There are two types of Grants: Grants of Probate and Grants of Letters of Administration.  Grants of Letters of Administration are needed where there is no Will or the executor who has been appointed is not able to act for some reason. All applications for Grants must be in accordance with the Rules of Court which govern who is entitled to a Grant and the manner in which the application must be made. When is a Grant required? Whether a grant is needed will depend on the assets of the estate.  If the deceased owned a substantial number of shares in a company, the company will usually insist on seeing the grant before it will transfer them. A grant will be required if the deceased owned a house in his or her own name or held an interest with another party as tenant in common.  What does the process involve? The process to apply to the Probate Registry seeking a Grant of Probate or Administration is very complicated and difficult for most lay people.  The application may become even more difficult when there is no Will if; there are young children who will inherit there are beneficiaries who do not reside in South Australia there are beneficiaries who are unable to be located. Spouses and children will ordinarily share in the intestate estate of a deceased person, but if any beneficiary is a minor, then the Public Trustee have a duty to maintain the financial interests of that minor child. There is a quite a bit to get your head around if you wish to choose an executor or if you are an executor or beneficiary to a deceased estate. Our team in Wills & Estate Planning strongly recommend you seek experienced legal advice if you become involved in this area of law. For more information, get in touch directly with today's blog writer, Senior Associate in Wills & Estate Planning , Greg We lden. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/september/what-happens-if-there-is-no-will-when-someone-dies.aspx http://andersons.com.au/lawtalk/posts/2012/september/what-happens-if-there-is-no-will-when-someone-dies.aspx Wed, 12 September 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-to-keep-a-caveat-on-a-property.aspx As stated in our blog " How can a caveat be removed?", after an application to remove the caveat is filed, the person who lodged the caveat has 21 days from the date that the notice was sent to apply to either the District Court or Supreme Court of South Australia in order to maintain the caveat. An application to the District Court or Supreme Court is very expensive, as the filing fee alone is $1,064.00 in the District Court and $2,126.00 in the Supreme Court (figures current as at July 2012). There are also the legal fees (engaging a lawyer) involved in making the application. It is therefore an expensive process and the only ultimate benefit is that the caveat is maintained. If the application is not successful then the party seeking to maintain the caveat will most likely have to pay some of the legal costs of the other party, making it a very expensive exercise. Another option would be to commence proceedings for either matrimonial or de facto (family law) property settlement in the Federal Magistrates Court. The Federal Magistrates Court has the power to grant an injunction restraining the owner of the land from selling or encumbering the property. This has a similar effect to a caveat and the injunction can be lodged over the title of the property with the Land Titles Office. It is also much harder for the owner to remove an injunction as they will need to apply to the Court for the injunction to be lifted. There is no simple form to apply to have the injunction removed. There are also legal costs involved in an application to the Federal Magistrates Court but the filing fee for an application in the Federal Magistrates Court is only $243.00 (current as at July 2012), and the documents required to be filed are essentially the same documents required to file an application for property settlement with an additional part to an affidavit setting out the basis for the injunction. There may also be an additional one or two hearings at Court to argue the application for the injunction, but often the hearing for the injunction can be dealt with at the first hearing at the Court which would have happened in any event. Clients therefore often chose not to apply to the District Court or Supreme Court to maintain the caveat but simply to apply to the Federal Magistrates Court for the orders of the property settlement and injunctions. As stated in " How can a caveat be removed ?", if they do nothing then the caveat is removed. This leaves the other party free to transfer or deal with the property as they see fit. You should also check out our blog postings " To caveat or not to caveat " and " Who can lodge a caveat?" So now you have choices to protect your interests in your Family Law property dispute .  At Andersons , our Family Law team strongly recommend you seek experienced legal advice before finalising your property settlement.  Today's blog writer, Partner in Family Law, Ryan Thomas , is available to assist you with your matter. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats. http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-to-keep-a-caveat-on-a-property.aspx http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-to-keep-a-caveat-on-a-property.aspx Sun, 09 September 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/september/lump-sum-payments-for-multiple-injuries.aspx Sometimes people suffer multiple injuries when they are injured at work. These injuries may happen in one event or over the course of time. When it comes to assessing a lump sum payment for permanent impairment, injuries sustained in the same calendar year are "combined". For example if you suffer a knee injury in February 2011 and a back injury in August 2011 then the lump sum you are entitled to will be based on an assessment of "Whole Person Impairment" (WPI) that combines the two individual assessments. The combined WPI must be 5% or more of your whole body (there is a set assessment tool for calculating this) in order for you to be entitled to a lump sum payment. If your knee injury was in February 2011 and your back injury was in August 2012 then you would not be entitled to have the assessments combined, and you would have to be assessed as having 5% WPI or more in relation to each injury in order to receive any lump sum payment. But...using the example of both injuries in the same year, what happens if the knee injury you sustained in February 2011 is stable, but your back injury sustained in August 2011 is not? Can you be assessed twice for injuries sustained in the same year? The answer is yes. There is no reason why an injured worker cannot have each injury assessed as those injuries reach maximum medical improvement.  It will actually make no difference to the actual amount of money they will receive in the long run. For example: If all of your injuries occurred in the same year the assessments will be combined.  If one injury is stable and you are assessed as having a 5% WPI for that injury but your other injuries have not reached maximum medical improvement then you would be entitled to a lump sum payment for that injury.  For example, the knee injury is considered to have reached maximum medical improvement and is assessed as causing a 5% WPI, which entitles you to a lump sum of $10,936.00*. Then, when your next injury reaches maximum medical improvement, you would be sent for a further assessment and another WPI assessment would be made.   The second assessment will combine the values of the WPI's for each injury that is now stable, for example the knee at 5% WPI and the back at 5%, resulting in a combined WPI of 10%, which equates to a lump sum of $19,138.00*.  However, the $10,936.00* that was already paid for the knee injury would be deducted, leaving you with a "top up" payment of $8,202.00. Have you sustained more than one workplace injury in a single year?  If so, make sure you get the compensation you deserve.  Why not get in touch directly with today's blog writer, Andersons Senior Associate, Marion Williams who works in our Civil Litigation Department. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   * All dollar figures quoted in this blog relate to an injury suffered in calendar year 2011 and are correct as at July 2012. http://andersons.com.au/lawtalk/posts/2012/september/lump-sum-payments-for-multiple-injuries.aspx http://andersons.com.au/lawtalk/posts/2012/september/lump-sum-payments-for-multiple-injuries.aspx Fri, 07 September 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-can-caveats-be-removed.aspx We had previously looked at the effect of lodging a Caveat over a property and in what circumstances a party to a marriage or de facto relationship can lodge a caveat. Now we look at how to get them removed. Once a caveat is lodged, the owner of the property gets sent a notice to advise that a caveat has been lodged on the title and the certificate of title shows that a caveat has been lodged by that party. The owner of the land would need to either have the caveat removed or to deal with the land subject to the consent of the person who lodged the caveat. What this means is that the owner of the property will not be able to sell the property or grant a mortgage over the property (such as borrowing money from a bank using the property as security). The person that owns the land can apply to the Registrar of the Land Titles Office to remove the caveat. This can be done by completing a simple form. The application to remove the caveat is then sent to the person who lodged the caveat. The person who lodged the caveat has 21 days from the date that the notice was sent from the Land Titles Office to apply to either the District Court or the Supreme Court of South Australia to  obtain an order to maintain the caveat. If the person does nothing then at the expiry of 21 days from the date of the notice the caveat is withdrawn. We've got a series of blog postings on caveats.  Why not have a read of " To caveat or not to caveat " or " Who can lodge a caveat?". Have you had a caveat placed on your property or would you like more information on placing a caveat on a property to protect your interests.  For more information on caveats of Family Law matters, contact our Partner in Family Law at Andersons Solicitors , Ryan Thomas. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats. http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-can-caveats-be-removed.aspx http://andersons.com.au/lawtalk/posts/2012/september/family-law-property-dispute-how-can-caveats-be-removed.aspx Wed, 05 September 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/september/simultaneous-deaths-how-does-the-distribution-of-the-deceased-estates-work.aspx The word "commorientes" means simultaneous deaths and although it is almost unheard of (there is certainly no Court case where that has actually been cited to have occurred), the term is also used in circumstances where the order of 2 deaths is unclear or where deaths occur as a result of a common disaster. If the order of 2 deaths is uncertain there can be significant issues when dealing with the legal consequences. For instance say husband "H" and wife "W" both die in an accident and they both have the usualmirroredWills which provide that if their spouse does not survive then their children benefit from their entire estate.  The problem is you cannot prove who died first and therefore you cannot establish whofailed to survive. A well drafted Will by a solicitor can avoid this issue by including a provision that deems the eldest of the 2 died first. It is also important to understand the mechanics of how jointly owned property devolves to an estate after both owners die.  Usually it is the survivor who inherits the entire property after the death of a joint owner (it is not something that passes through the deceased's estate or can be gifted by their Will).  It makes no difference if the survivor survived for years or for only for seconds. If a survivor, who has inherited a formerly jointly owned property, then dies, it is their estate that benefits from the property.  The risk is obvious when put into practice.  Say that H and W own property jointly but each have children from a previous marriage.  If H dies before W, by a few seconds or even years, then W inherits the property and upon her death the property passes to her estate.  In that situation the children of H are unable to make a claim pursuant to the Inheritance (Family Provision) Act. However, if W dies before H, then the property passes to H's estate and it is his children who may inherit and W's children are prevented by legislation to make an inheritance claim. Because no one can predict who may die first it is important to have a Will professionally prepared to ensure there are no nasty surprises. Yes, it can become a complex puzzle.  But still it's easier to deal with it all now, rather than waiting to deal with it as part of a deceased estate.  Want to know more? Get in touch with our Senior Associate, Greg Welden , who works in the Andersons Wills & Estate Planning team. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/september/simultaneous-deaths-how-does-the-distribution-of-the-deceased-estates-work.aspx http://andersons.com.au/lawtalk/posts/2012/september/simultaneous-deaths-how-does-the-distribution-of-the-deceased-estates-work.aspx Mon, 03 September 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/august/family-law-property-dispute-who-can-lodge-a-caveat.aspx The question of whether a person can lodge a caveat is a complex legal question. The fact that there has been a de facto relationship or marriage in itself is not sufficient. It is an interest in the land that is required to lodge a caveat.  Legal advice is required to determine whether a person can lodge a caveat over a property and the caveat should be prepared by a lawyer as the interest needs to be described correctly. One of the leading cases is Baumgartner . In this case a de facto couple had purchased a property which was purchased only in one party's name (Party A). Party A had put down the deposit for the property and the mortgage was solely in his name. The couple then pooled their financial resources to pay for their household expenses, including payment of mortgage instalments. The Court ruled that even though the property was owned solely in Party A's name, that Party B had an interest in the land. This is known as an equitable interest and is the basis for being able to lodge a caveat over the property in family law matters. In a later case of Parig ,the Court had regard to both financial and non financial contributions of the parties as in this case Party B did not make significant financial contributions to the land. Substantial regard however was given to the contribution of Party B who was a home maker and caregiver of the children. As a general rule the domestic contributions of one partner are regarded as contributing to the acquisition of property by the other partner. It is questionable whether these principles extend to a property that is owned outright by the other partner prior to the relationship or in very short relationships with no significant contributions. For more information on caveats, take a look at " To caveat or not to caveat " on this blog site or get in touch directly with the writer, Partner in Family Law at Andersons Solicitors , Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats. http://andersons.com.au/lawtalk/posts/2012/august/family-law-property-dispute-who-can-lodge-a-caveat.aspx http://andersons.com.au/lawtalk/posts/2012/august/family-law-property-dispute-who-can-lodge-a-caveat.aspx Sun, 02 September 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/august/how-do-i-apply-for-parental-leave.aspx The right to 12 months parental leave is part of the National Employment Standards ("NES"). This is a period of unpaid leave.  "Paid parental leave", if you do not have an entitlement under your contract or enterprise agreement, is a Government payment which you can access from Centrelink. You may also be able to take some of your annual leave at the same time as your parental leave. The NES entitlement is available to you if you are employed full or part time, and have worked with the same employer for 12 months or more on the date that your child is due. If you are a casual employee, you may also be entitled to parental leave if you have regular hours and the ability to expect continued employment. It is available to both parents. People who adopt are also entitled to ask for parental leave. The time for parental leave is calculated from the date of birth or arrival of the child.  It should begin within 12 months after that day.  Mothers are able to take leave from 6 weeks before their baby's due date. Parental leave notice requirements Ideally you should give as much notice as possible to your employer. The NES says you should give notice in writing 10 weeks before the day you want to start your leave, or as soon as you can after that. You need to tell your employer when you want to start and what day you expect to return. If you give the 10 weeks notice, you should also confirm 4 weeks before you go on leave. You only need to give evidence if your employer asks you, and you only need to give evidence of the expected date of arrival of the child. If you are pregnant and working within 6 weeks of your due date you may also be asked for a medical certificate saying you are fit to work. You should negotiate a handover to your relief person at this time as well. What happens when I want to come back to work after parental leave? A month before the day you told your employer you would be back you need to write to your employer again, to confirm your return to work and make arrangements.  If you have not taken the whole 12 months, you can ask for an extension of your leave at this time and it must be approved. You also have an option to apply for a further twelve months parental leave but you must have this approved by the employer in advance and can only refused for genuine business reasons (such as understaffing). If you need assistance with writing to your employer, or your employer is not letting you return to work, or you have any other query about your parental leave entitlements, it is recommended that you seek legal advice. At Andersons , we have a team of solicitors who specialise in Employment & Industrial law.  For advice or assistance, you can also get in touch directly with today's blog writer, Senior Associate, Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/august/how-do-i-apply-for-parental-leave.aspx http://andersons.com.au/lawtalk/posts/2012/august/how-do-i-apply-for-parental-leave.aspx Tue, 28 August 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/august/to-caveat-or-not-to-caveat.aspx When a relationship breaks down the parties often lose trust and faith in each other. If the property the parties lived in is owned in one of the parties names solely (Party A), the other party (Party B) needs to be aware that Party A may try and do something with the property, such as to sell it or refinance it without the other party's consent. In this situation Party B should consider whether to lodge a caveat over Party A's property. We're going to run a series of blog postings on this topic and this series will explore the pros and cons of taking that approach. A caveat is a way that an interested party can record their interest in a property on the certificate of title. The certificate of title is the document that records important information about the property such as ownership and any mortgages etc. The most common circumstance for lodging a caveat on a property is where the parties have been in a de facto relationship or married yet the property is owned in only one party's name. This means that when they separate Party A can deal with the property in any way they like such as: Selling the property (for example to a friend or acquaintance at less than it is worth.) Borrowing against the property, referred to as "encumbering" the property (such as borrowing money secured against the property and thereby reducing the equity in it) In each of the above examples Party A will get access to money from the property which they could then hide or spend. If a caveat is registered on the property, Party A will not be able to follow through with any sale as the transfer of the property can not be processed while the caveat is on the title. When lending money, a lender will want to protect the loan to reduce the risk that they won't be paid back. This process is known as "security" and a mortgage over a property is the preferred form of security for lenders. If you want to borrow money against your property, the lender will check the certificate of title of the property when determining whether to lend money. In this case, without a caveat, Party B would not be mentioned at all on the certificate of title for the property as it is registered solely in the name of Party A and the lender would have no idea that Party B has an interest in the property. If there is a caveat, the lender would be alerted to the interest of Party B straight away and would not be able to register their mortgage on the property. This preserves the equity in the property and means that the lender would be far less likely to lend the money to Party A. If you'd like more information on caveats or you wish to obtain advice on getting a caveat put on a property to protect your interests, you should contact our Partner in Family Law , Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats. http://andersons.com.au/lawtalk/posts/2012/august/to-caveat-or-not-to-caveat.aspx http://andersons.com.au/lawtalk/posts/2012/august/to-caveat-or-not-to-caveat.aspx Mon, 27 August 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/august/i-have-been-served-with-an-interim-intervention-order-what-do-i-do.aspx An intervention order (formerly referred to as a restraining order) is a court order to prohibit a person (the defendant) from committing an act of abuse on a protected person and to protect any child who may be exposed to the effects of abuse committed by the defendant against the protected person. An intervention order can be sought in domestic (family) situations and also in non-domestic (non family) situations.  Court ordered intervention orders are generally to protect people from domestic or family abuse.  An intervention order may be coupled with criminal charges or may proceed alone.  If you have been served with an intervention order it would have been issued by a court or a police officer.  Once you have been served with the interim order it is important that you comply with all the conditions of the order.  If you fail to comply you may be charged with breaching the interim intervention order.  This is a criminal offence with a maximum penalty of imprisonment. When you were served with the interim intervention order you would have been provided with a summons notifying you of the time, date and place of the court hearing. At court the intervention order will be heard by a Magistrate who has the power to confirm the order, vary or substitute the order or revoke the order.  If you do not agree with the content of the intervention order you may seek to have the matter listed for a trial. It is important to seek experienced legal advice if you have been served with an interim intervention order. Why is it important to seek legal advice about your intervention order? If the intervention order is from your former spouse or partner it is important to obtain advice as to how intervention orders operate with Family Law Act orders .  An intervention order may prejudice you in family law proceedings.  However if an intervention order is inconsistent with a Family Law Act order, those parts of the intervention order will be invalid.  A court may resolve any inconsistency by reviving, varying, discharging or suspending the Family Law Act order.  This is particularly important when children are involved. There is no sunset clause (expiry date) to intervention orders.  There is the potential an intervention order could last indefinitely.  The court will fix a date (minimum period of 12 months) and after that period ends, the defendant may apply to vary or revoke the order.  An intervention order may effect you in many different ways that may not be as apparent on the face of it.  An intervention order may restrict access to property even if you are living at the property, owning or renting the property. As a defendant you are prevented from cross examining (asking questions of) the protected person.  You must write down a list of questions that the Magistrate will ask the protected person. So you can see there are a lot of things to consider if you've been served with an intervention order.  For more information on intervention orders or any other police charges or criminal matters , why not get in touch with our solicitor in Criminal Law, Leesah Randall to ensure you look after your interests. Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/august/i-have-been-served-with-an-interim-intervention-order-what-do-i-do.aspx http://andersons.com.au/lawtalk/posts/2012/august/i-have-been-served-with-an-interim-intervention-order-what-do-i-do.aspx Thu, 23 August 2012 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2012/august/i-was-a-passenger-in-a-car-accident-can-i-get-compensation.aspx The answer to the above question is almost always "yes". Claims for damages, commonly known as motor accident compensation, are based on fault.  It is a very rare case when a passenger can be found to have been at fault in how a car, motorbike, truck or other motor vehicle accident is caused.  Almost invariably an accident is caused either by the driver of the vehicle in which the injured passenger is sitting or alternatively the driver of another vehicle involved in the accident.  If the injured passenger is in a car where the driver simply loses control and drives off the road and has an accident, then that passenger can bring a claim for compensation because they can base their claim on the negligent driving of the driver. There are circumstances where a passenger can have his or her claim reduced though.  Examples of this occur when: The passenger is not wearing a seatbelt. There is a reduction in that circumstance of at least 25% regardless of whether the not wearing of the seatbelt has had any effect on the injuries sustained by the person; If the passenger has got into a vehicle knowing that the driver is affected by alcohol or drugs and they have an accident, then that passenger is assumed to have taken some risk of getting into a car with an affected driver and the passenger's claim for compensation will be reduced accordingly. All that said, the overwhelming number of injured passengers will recover their full entitlement to compensation for their injuries sustained in a motor vehicle accident. Perhaps you've been a passenger in a car crash?  You should make sure you get the compensation you deserve.  For more information and experienced advice and assistance, contact Andersons Partner in Civil Litigation matters and today's blog writer, Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation .   Flickr Creative Commons image used in this blog provided by Lite Touch Photography http://andersons.com.au/lawtalk/posts/2012/august/i-was-a-passenger-in-a-car-accident-can-i-get-compensation.aspx http://andersons.com.au/lawtalk/posts/2012/august/i-was-a-passenger-in-a-car-accident-can-i-get-compensation.aspx Wed, 22 August 2012 Anita King http://andersons.com.au/lawtalk/posts/2012/august/guardianship-law-–-understanding-capacity-and-undue-influence.aspx In the case of Powers of Attorney , understanding the nature and effect of the act of giving a Power of Attorney is met when a person (the Donor) understands that the Attorney (the person you are giving the power to, to make decisions on your behalf), once the document is signed, will be able to assume complete authority over the financial affairs of the Donor. The Attorney can do anything with the property that the Donor could ordinarily do and the authority can continue even when the person becomes mentally incapacitated.  In that event, the Power of Attorney becomes irrevocable.  It is implied that the Donor of the Power of Attorney must understand the nature and extent of assets to be managed, at least in a general sense.  Issues of capacity are often raised when there has been an allegation by a family member of unfair advantage being taken by a stronger party against a weaker party.  In those circumstances, the Courts can intervene when the facts give rise to any unfair advantage.  However the independence to enter into a whole range of transactions, by not only the elderly but those foreshadowing a potential decline in mental capacity, must be respected.  The Court cannot set aside a transaction merely because it was a poor decision by the Attorney.  Courts will only intervene where a party is shown to have lacked understanding of a matter and was taken advantage of. In general terms the law does not describe any fixed standard of sanity in regard to a person's ability to make a Will , give a Power of Attorney or appoint a guardian.  It will look at the individual circumstances of every particular case.  It requires, in relation to each matter, that each party shall have soundness of mind and be capable of understanding the general nature of what he or she is doing.  In cases where a Will is being made, old age, senility, dementia or the existence of a mental illness do not, in themselves, necessarily indicate a problem with capacity or that the testator (the person making the Will) lacks capacity.  These things, however may lead to a Court considering the integrity of the Will closely.  The same can be said for Testators who exhibit certain eccentric behavior or can be said to be mean. A Will for example can be made during a lucid interval when the testator is clearly of sound mind but they may become senile or suffer dementia after the Will has been signed.  Similarly where a person has been made a protected person pursuant to the Guardianship and Administration Act 1993 in South Australia (that is, someone declared to have lost capacity like an aged or infirm person), this does not automatically lead to a conclusive presumption that the person does not have capacity to make a Will or to decide some things for themselves.  Unless there is an Order by the Guardianship Board stating that a person may not make a Will, a protected person is able to do so.  A sound mind in these circumstances does not mean a perfectly balanced mind.  If so which of us would be competent?  The Court does not intervene to correct any perceived injustices between family or friends.  The duty or powers of a Court to intervene are those limited by relevant legislation. In circumstances where there is some doubt as to capacity, the assistance of a medical opinion is helpful.  A lawyer can then assist in determining capacity for certain choices and decisions and the correct procedures to follow.  The reality is that there is no "capacity meter" in difficult circumstances where capacity is an issue.  At the end of the day, if the integrity of a person is challenged then this may lead to a hearing before the Guardianship Board or the Courts.  In those circumstances an experienced solicitor will be able to assist as needed. It's an extremely complex area of law and not clearly "black and white".  If you find yourself or someone you know having their capacity challenged, it is imperative you seek experienced legal advice.  At Andersons we have solicitors who practice in Guardianship and Mental Health matters.  If you'd like more information or some advice, we recommend you get in touch directly with today's blog writer, our in-house Consultant, Anita King or her colleague Lesley Jorgensen . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/august/guardianship-law-–-understanding-capacity-and-undue-influence.aspx http://andersons.com.au/lawtalk/posts/2012/august/guardianship-law-–-understanding-capacity-and-undue-influence.aspx Tue, 21 August 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/august/afl-finals-frenzy-in-the-workplace!.aspx Sledging is not acceptable on the sporting field, so there is no reason to tolerate it in the workplace. As the footy finals approach and people's allegiances become more obvious, now may be a good time to refresh your knowledge of what you can do if you are being harassed at work, or have been accused of bullying or harassment. It is generally considered to be harassment to regularly tell someone that they are stupid or a bad person because they support a team you don't like, or to treat them differently because of their team choice. Broad comments about the stereotypical supporter of that team may also be hurtful, as can criticising their work performance or personal choices (for example, whether they go to the game or watch on it on TV). People in your workplace may also be playing for local teams in the finals and while you can encourage them, keep it respectful if you play or support another team. Bullying and harassment policy Your first port of call may be your direct supervisor, or Human Resources department. Make sure you get copies of meeting notes and follow up on any investigation that takes place. Check your workplace policy for what steps should be followed, what evidence you might need and what should be provided to you. Support person                     This may be a good friend or your solicitor.  Having a witness or someone to assist you can give you confidence and also tells your employer that you are taking the matter seriously. Take your time Always try to respond in writing and ask for a reasonable amount of time to do that.  It may be easier to write things down than to say them, especially if you are facing someone who has hurt you.  A solicitor can help you do this effectively, but if you choose to do it yourself, remember to be concise, check for errors, and have your support person look it over. We are all entitled to our passions outside the workplace, and while friendly banter may make the day go faster, some comments may cross a line.  Play fair and have respect for others, and it's unlikely to get that far.  If it does, you can always seek legal support and advice. At Andersons , our Employment & Industrial team are always happy to assist you with your inquiries or any action you may wish to pursue.  Why not get in touch directly with today's blog writer, Senior Associate, Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/august/afl-finals-frenzy-in-the-workplace!.aspx http://andersons.com.au/lawtalk/posts/2012/august/afl-finals-frenzy-in-the-workplace!.aspx Fri, 17 August 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/august/if-i-am-successful-after-a-criminal-trial-can-i-recoup-all-of-the-costs-i-have-paid-for-the-trial.aspx The simple answer is yes. This is for all matters prosecuted by the South Australian Police that finalise in the Magistrates Court (summary and minor indictable offences).  However you are not able to make an application for your costs in serious matters prosecuted by the Director of Public Prosecutions (major indictable offences) in the Magistrates Court and higher jurisdictions. There has been a lot of controversy in the media of late in relation to defence solicitors and barristers making applications for legal costs against the South Australian Police.  With Senator Fisher seeking a reported $125,000 for her withdrawn matter of theft, to Mr Focarelli also seeking an application for costs above the Magistrates Court Criminal Court Scale for his withdrawn matter of aggravated affray. Last year the State Government even introduced a Bill to seek to deny defendants recouping costs after successfully defending a police prosecution.  The Bill was unsuccessful. Pursuant to Rule 51:00 of the Magistrates Court of South Australia Rules you are eligible to recoup legal costs after a successful trial or if your criminal matters are not proceeded with (withdrawn, dismissed or no evidence being tendered).  It is not an automatic entitlement and is always at the discretion of the presiding Magistrate.  The next question is how much can be recovered.  Well this will depend on many factors.  Usually when ordering costs, Magistrates will look to the Magistrates Court Criminal Scale of Costs and apply that.  However in some circumstance costs above the Scale will be awarded.  This depends on a number of factors including: the complexity of the matter, how long it has taken to get to the trial date, whether a barrister was briefed to appear and whether the prosecution have unreasonably proceeded with a matter. People are often outraged at the concept that defendants are able to seek their legal costs against the South Australian Police.  Although in practical terms, applications for costs are not as common as the media may have the public believe.  It must also be noted that the entitlement to make an application for costs is an important part of justice and brings accountability to the South Australian Police. Would you like to know more about costs in criminal trials or perhaps get some advice or assistance defending criminal charges?  Today's blog writer, Leesah Randall is a solicitor in Andersons Criminal Law department.  Get in touch directly with Leesah for any further information. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation . http://andersons.com.au/lawtalk/posts/2012/august/if-i-am-successful-after-a-criminal-trial-can-i-recoup-all-of-the-costs-i-have-paid-for-the-trial.aspx http://andersons.com.au/lawtalk/posts/2012/august/if-i-am-successful-after-a-criminal-trial-can-i-recoup-all-of-the-costs-i-have-paid-for-the-trial.aspx Thu, 16 August 2012 David Mullen http://andersons.com.au/lawtalk/posts/2012/august/wheel-clamping-and-impounding-of-vehicles.aspx Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 there are some 15 offences which may result in a vehicle, used in the commission of an offence or any motor vehicle of which the person charged (or is to be charged) is the registered owner, being wheel clamped or impounded. These offences are: Cause death or harm by dangerous use of vehicle or vessel Dangerous driving to escape police pursuit Misuse of motor vehicle Excessive speed (by 45 km/h or more) Reckless and dangerous driving Drive under influence of liquor/drug Exceed prescribed concentration of alcohol (exceed 0.08%) Drive with prescribed drug in oral fluid or blood Emit excessive noise by amplified sound Marking graffiti Damaging property (involving the marking of graffiti) Drive unregistered motor vehicle (other than first offence_ Unlicensed - never having held a licence (other than first offence) Drive under suspension or disqualification (other than first offence) Drive uninsured motor vehicle (other than first offence)   The vehicle can be wheel clamped or impounded for a period of 28 days.  After 28 days you can get the vehicle back but there are fees involved.  There is an administration fee or $77.00*, a transportation fee of the vehicle to a storage facility of $247.00* and a vehicle storage fee of $20.70 *per day (at 28 days this adds up to $579.60*)  The total amount for 28 days is $903.60*. If the person has committed previous offences in the past 10 years the vehicle may be subject to seizure for 3 or 6 months or possibly forfeited to the Crown.  It can be a very expensive exercise.  Do the maths on having your vehicle impounded for 6 months at $20.70 per day.  There are provisions in the Act to not have the vehicle seized under hardship provisions but that requires proof of certain matters.  Naturally, our recommendation is to not put yourself in a position of having your vehicle impounded but in the event that you do and you wish to obtain advice or assistance about your predicament, you can get in touch with today's blog writer, Associate in Criminal Law at Andersons Solicitors, David Mullen . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. * All figures in this blog are current as at August 2012 http://andersons.com.au/lawtalk/posts/2012/august/wheel-clamping-and-impounding-of-vehicles.aspx http://andersons.com.au/lawtalk/posts/2012/august/wheel-clamping-and-impounding-of-vehicles.aspx Tue, 14 August 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/august/i'm-being-made-redundant-what-are-my-entitlements.aspx If you are losing your job because your employer doesn't need anyone to do your job anymore, you are being made redundant . The National Employment Standards set out the minimum amount of redundancy pay, or severance, which you are entitled to. The amount varies according to how long you have been working for that employer. You must have worked there for at least one year to get redundancy pay. After that, you are entitled to a certain number of weeks' pay depending on your length of service.  These amounts are listed below and are current as at August 2012: Between one and two years = 4 weeks Between two and three years = 6 weeks Between three and four years = 7 weeks Between four and five years = 8 weeks Between five and six years = 10 weeks Between six and seven years = 11 weeks Between seven and eight years = 13 weeks Between eight and nine years = 14 weeks Between nine and ten years = 16 weeks Ten years or more = 12 weeks These amounts are incorporated into Modern Awards.  Your employment contract or Enterprise Agreement may set out something different.  The NES allow for the employer to apply to Fair Work Australia to have the amount reduced, and also for small businesses (with under 15 full time employees) to be exempt.  It is best to ask legal advice if you are unsure or if you think you are not receiving the redundancy entitlements you deserve. You are also entitled to a notice period, or payment in lieu of notice. For employees with between one and three years' service, it is 2 weeks pay. Employees with between three and five years' service, it is 3 weeks. Employees who have worked five years or more are entitled to 4 weeks notice. An extra week is given to workers over 45 years old who have at least two years of service. You are also entitled to any annual leave and long service leave that you have earned but haven't taken yet. Can I negotiate a higher redundancy pay than is being offered? Sometimes, for example, if there is a large-scale redundancy, an employer may offer more than the minimum entitlement. You may think you deserve more because of the effort and time you have put into your job, because you may not get another job in a specialised field, or because you are close to retiring. It can be tricky to ask for more redundancy pay, so it will help if you ask a solicitor to assist you and to negotiate on your behalf. What if I haven't been paid all my entitlements including annual leave accrual? You have six years from your final day to make an underpayment claim for any entitlements you haven't received. For help in preparing your claim and assessing the amount you have not been paid, it is recommended to seek legal advice. There are quite a few things that need considering to ensure your redundancy settlement is appropriate.  At Andersons we have a team of solicitors in Employment & Industrial law who can assist you with your redundancy entitlements.  Or you can get in touch directly with today's blog writer, Senior Associate, Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/august/i'm-being-made-redundant-what-are-my-entitlements.aspx http://andersons.com.au/lawtalk/posts/2012/august/i'm-being-made-redundant-what-are-my-entitlements.aspx Tue, 07 August 2012 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2012/august/what-does-discovery-or-disclosure-of-documents-actually-mean.aspx If you are engaged in litigation in South Australia, chances are that at some stage the Court will, or already has, ordered you to make "discovery" or disclosure of documents. If you are representing yourself in Court, the order for discovery can often be daunting and difficult to understand. The process of discovery and disclosure is intended by the Court to avoid any party in the litigation from being surprised by evidence at trial. The rules of discovery are in place so that when you present your case to the Court, your opponent knows about the material you are intending to rely on or that you will hand up to the Court as evidence in support of your case. Discovery and disclosure (the terms are used interchangeably, depending on which Court you are in) involve filing a "List of Documents" which are directly relevant to any issue raised in the pleadings (being the claim or defence). The list must also list documents that you once had but no longer have in your possession and a brief description of what happened to those documents. Once the List of Documents is filed, you must then serve a filed copy of the list on your opponent, who may then request to view the actual documents. There are certain types of documents which you do not need to put in your List of Documents in most instances. Examples include any written communication between you and your legal representatives (including your notes of conversations with your lawyers) and Court documents already filed in the litigation. If, having filed your List of Documents, a new document which has to be disclosed comes into your possession, you must file a further List of Documents containing that new information. The obligation to make discovery is ongoing and if you do not comply with the rules of disclosure, the Court may refuse to allow you to produce a document as evidence to support your case at trial. At Andersons we have a team of lawyers that can assist you in fulfilling your discovery and disclosure obligations. We can assess the relevance of documentation, your obligations to disclose them and prepare the List of Documents for you in a manner which complies with the Rules of the Court.  Your List of Documents is a very important part of your litigation.  We strongly recommend you seek experienced legal advice to ensure you get it right.  If you'd like more information on this blog or litigation matters in general, please get in touch directly with our Partner in Commercial Litigation , Felix Hoelscher (pictured above). Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/august/what-does-discovery-or-disclosure-of-documents-actually-mean.aspx http://andersons.com.au/lawtalk/posts/2012/august/what-does-discovery-or-disclosure-of-documents-actually-mean.aspx Fri, 03 August 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/august/costs-in-deceased-estate-litigation-matters-who-pays.aspx The costs involved in court litigation usually put a lot of people off making a claim or even seeing a lawyer. A lot of people still believe that if you win your case the other side will end up paying all of your legal costs.  This is not strictly correct.  In some circumstances a successful party may not recover any costs at all from the other side. Where they do, it is expected that perhaps only 60% of the actual costs incurred by you would be recoverable from the other side. It is also possible that in a complex action both sides may win on some points and lose on other points meaning the calculation for "who pays what costs" becomes more complicated. Is this the view held in deceased estate litigation? Perhaps you have been left out of a parent's Will or your deceased spouse has not provided adequately for you in their Will and you wish to challenge the content of the Will .  These actions are commenced under the Inheritance (Family Provision) Act and are limited to certain people making such claims and within very short time frames.  See our previous blog posting, " Can a grandchild make an inheritance claim?" There is an urban myth that in these types of claims the estate pays for everyone's legal costs and so it is often seen as an easy (safe) jurisdiction to go to Court. So what's the truth about deceased estates legal costs? Decisions made in family provision cases involve a discretionary judgement of a very broad kind made by reference to the circumstances of the particular case and not by reference to a rule or rules which direct the decision one way or another.  The Court has a wide discretion to do justice in all the circumstances of the facts of the case. There is a specific practice direction given to courts and to solicitors which deals with costs in estate matters.  In essence it places a far higher standard on inheritance claims when dealing with the questions of costs and in circumstances where the value of the estate is considered small, the chances of success light, reasonable offers made but rejected or where one party's actions during the court process causes such costs to increase unnecessarily, the court will more likely not award an unsuccessful party's costs be paid out of the estate. We are seeing more and more judgements out of the court where people have not been successful in making a claim against a deceased estate, seeking further provision and so the once held view that the estate will pay everyone's legal costs can no longer be relied upon. Do you or someone you know want to look at your options for contesting a deceased estate?  Our blog writer today, Senior Associate Greg Welden is highly experienced in all aspects of Estate Planning .  Why not get in touch. Please note, this Blog is posted in Adelaide by Andersons Solicitors , South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/2012/august/costs-in-deceased-estate-litigation-matters-who-pays.aspx http://andersons.com.au/lawtalk/posts/2012/august/costs-in-deceased-estate-litigation-matters-who-pays.aspx Thu, 02 August 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/july/injured-at-work-what-now.aspx If you are hurt at work in South Australia then you should notify your employer immediately and complete a "WorkCover Claim Form" so that your employer can forward the claim form to the appropriate compensating authority. The compensating authority (usually Employers Mutual Limited or the employer if they are self-insured) will usually send you a letter within 7 days confirming that they have received the claim form. Unless there is good reason to think that the injury may not be compensable the compensating authority should start paying what is called WorkCover provisional liability payments to you.  These payments, in the first instance, may include income maintenance for up to 13 weeks and medical expenses to the value of $5,000.00. Provisional liability is not a formal determination of your claim.  If the claim is rejected then all payments will cease; income maintenance and medical expenses.  The payments already made will not have to be paid back to the compensating authority, unless you have committed fraud in relation to the claim. If your claim is accepted then you will be entitled to receive weekly payments of income maintenance calculated as the average of your earnings over a period of twelve months prior to your injury.  For example, if you earned $52,000.00 over the twelve month period leading up to your injury, then your average weekly earnings would be calculated as being $1,000.00 per week.  It should, however be noted, that you may have received other benefits as part of your "package" and these may be able to be considered when calculating your average weekly earnings.  For more information, check out our blog "When is a non cash benefit a "benefit" under the SA Workers Compensation Scheme?". You are entitled to receive income maintenance for any periods where you have a WorkCover Medical Certificate stating that you have an incapacity for work. For the first 13 weeks of incapacity you are entitled to receive 100% of your average weekly earnings.  If you are able to perform some work, you should be "topped up" to your average weekly earnings rate. For the second 13 weeks you are entitled to receive 90% of your average weekly earnings.  If you are able to perform some work you should be paid at your normal rate for the work actually performed (actual earnings) and then "topped up" by income maintenance at the rate of 90% of the difference between your actual earnings and your average weekly earnings. After 26 weeks you are entitled to receive 80% of your average weekly earnings. If you are able to perform some work you should be paid at your normal rate for the work actually performed (actual earnings) and then "topped up" by income maintenance at the rate of 80% of the difference between your actual earnings and your average weekly earnings. If your WorkCover Medical Certificate states that you are able to perform modified duties, then your employer is obliged to provide you with suitable duties, and you are obliged to perform them.  If you do not do so, the compensating authority may cease your weekly payments of income maintenance on the basis that you have "breached mutuality". If you have lodged a claim and it has not been formally accepted then an application can be made at the SA Workers Compensation Tribunal in order to force the compensating authority to make a decision.  Or, if your claim has been accepted but you disagree with the rate of average weekly earnings a dispute can be lodged in the Tribunal. WorkCover claims can get complex but at Andersons we've got a great team in Workers Compensation able to assist you with any of your compo inquiries.  Alternatively, you can get in direct contact with our blog writer today, our Senior Associate Marion Williams . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/july/injured-at-work-what-now.aspx http://andersons.com.au/lawtalk/posts/2012/july/injured-at-work-what-now.aspx Fri, 27 July 2012 Dion McCaffrie http://andersons.com.au/lawtalk/posts/2012/july/i-slipped-and-fell-in-a-supermarket-can-i-claim.aspx We receive many enquiries from people who have slipped in a supermarket or shopping centre.  Quite often, a serious injury can result from such a fall. The question of whether a claim for damages will arise from such an accident is determined by the "law of negligence'.  It is the same law that governs motor vehicle accidents.  In essence, in South Australia we have a fault based system where the injured person needs to establish that the trip and fall occurred through the negligence of the shop owner or shopping centre owner. As a practical matter it is always important to try and ascertain whether you slipped on a substance or an object.  It is not enough, for example, to simply say I fell over and therefore I should be entitled to make a claim.  This is often the starting point of injured people particularly if the injury is serious. The first issue, however, we have to look at is how did the accident happen?  The most common example is that the person slipped on a substance which was lying on the ground.  Usually it is something that has spilt one way or the other.  So it is a starting point for an injured person to say that they slipped on a wet or slippery substance which was lying on the floor and which was difficult for them to have seen.  This is particularly if their attention is diverted and they are usually looking at the shelving nearby for what they are intending to purchase. From the perspective of the shop owner or the supermarket owner, the defence they usually raise in general terms is that they have a reasonable cleaning system in place.  It is fair to say that some supermarkets or shops do have a reasonable cleaning system in place whereas many do not.  The law seeks to impose a duty as to what is reasonable for a shopping centre to do.  It is not reasonable for them, for example, to clean up every spill immediately it occurs.  They firstly either have to be notified of it or have a regular cleaning system in place which can pick up the problem relatively quickly. Such claims are often decided more on a factual basis than they are on a legal basis.  The law is relatively clear.  It is more often the case that the facts are less clear. We have a number of solicitors at Andersons who are well able to advise you of the likely merits of success in a public liability claim.  You can contact us or get in touch directly with today's blog writer, Partner in Civil Litigation, Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/july/i-slipped-and-fell-in-a-supermarket-can-i-claim.aspx http://andersons.com.au/lawtalk/posts/2012/july/i-slipped-and-fell-in-a-supermarket-can-i-claim.aspx Fri, 20 July 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/july/sham-contracting.aspx Being a contractor, for some people, represents freedom and flexibility.  They have the ability to control their own work and to adapt their workload to suit their lifestyle.  For other people, being a contractor means that they have responsibilities that they would prefer not to have, and find it overwhelming. "Sham contracting" is the term used to describe a situation where an employee is described as, or treated like, a contractor, when in fact they are not.  This may not necessarily be intentional on the part of the employer, but it can also be an attempt by the employer to avoid paying leave entitlements. Generally, a contractor is someone who provides their services on a contractual basis to another person or company.  A contractor will generally invoice that person for the work they have done, and then be responsible for paying their own taxes.  They will also have to purchase and maintain their own insurance, their own superannuation, and won't be able to claim workers' compensation.  Contractors usually arrange, maintain and pay for their own training and their own equipment or tools of trade; for example, an electrician who contracts out his service is expected to have his own work tools. However, a contractor may choose their own hours as long as they meet any deadlines or thresholds set in the contract, or may delegate it to someone else, either in their own company or by sub-contracting.  A contractor is usually also able to perform work for more than one person or company at a time. An employee, on the other hand, will be employed by a company to perform that work.  The company will provide the equipment and training, and may even also supply a uniform.  The employee will usually be paid by the time/hours they have worked, and will not have much flexibility in their hours beyond that required by law or an enterprise agreement. They will be entitled to leave (sick/personal leave, annual leave, carers leave etc), and the employer is responsible for providing superannuation guarantee payments, insurance, including workers compensation. An employee will generally not be allowed to work for other companies, and is also responsible to behave in a way that reflects positively on their employer.  They won't be able to delegate the work assigned to them to someone outside the company or to sub-contract the work. If you are called a contractor by the company, but, for example, they provide you with a truck, pay you by the hour, and require you to wear a uniform and work only for them, Fair Work Australia may decide that you are an employee.  This would mean that you are entitled to claim for leave that you have not been paid, and would also be able to make a workers compensation claim if you are injured.  Usually this is decided on a case-by-case basis, taking all the facts into account. Sham contracting is covered by theFair Work Act 2009(Cth).  The Act makes it illegal for employers to do three things: to hire employees as contractors when they are not; to dismiss employees and rehire them as contractors; and lie to an employee to convince them to sign a contract that states they are a  contractor. To pursue a claim against an employer for sham contracting, you need to file a 'General Protections dispute with Fair Work Australia.  You can also consider claiming any unpaid entitlements by lodging an underpayment claim.  If you think you're being treated as a contractor as opposed to an employee, at Andersons we recommend you seek experienced Industrial & Employment Law legal advice.  Why not get in touch with our Head of Department, Senior Associate Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/july/sham-contracting.aspx http://andersons.com.au/lawtalk/posts/2012/july/sham-contracting.aspx Tue, 10 July 2012 Camille McDonald http://andersons.com.au/lawtalk/posts/2012/july/my-husband-and-i-have-separated-and-he-refuses-to-leave-the-home.aspx Is there any legal avenue available to me to force him to leave? Scenario: Adam and Belinda have been married for 10 years. Adam owned a house prior to marrying Belinda, which Adam and Belinda now live in and have lived in for the entirety of the marriage. Adam and Belinda have three children. Adam and Belinda separated two months ago and are both still living in the former matrimonial home. Adam is refusing to leave the home. Belinda is the primary carer of the three children and feels that Adam should leave the home so the children are not forced out of their normal environment. Is there a legal avenue available to Belinda to force Adam to vacate the home? Answer: In the family law jurisdiction there is a common injunction (legal option) known as 'sole use and exclusive occupancy', which may force Adam to vacate the home. Belinda would be required to complete an application in the Federal Magistrates Court seeking an injunction for 'sole use and exclusive occupancy', meaning Belinda would continue to live in the former matrimonial home and Adam would have to find alternate accommodation. It does not mean that Belinda "wins" the home in a family law property settlement sense. It simply means that Belinda can live in the home with the children but without Adam, until the property matters are finalised. Many factors will determine whether a 'sole use and exclusive occupancy' injunction will be granted including who is the primary carer of any children of the relationship, the availability of alternate accommodation and the financial capacity of each party. Alternatively, in situations of domestic violence the police may assist Belinda to obtain an intervention order through the Magistrates Court which would also require Adam to vacate the home. As you can see, it's not a simple "yes or no" answer.  If you find yourself or someone you know, in this situation, at Andersons , we always recommend seeking experienced advice in relation to Family Law matters.  Today's blog writer is Camille McDonald and we invite you to contact her directly if you would like further advice or assistance. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/july/my-husband-and-i-have-separated-and-he-refuses-to-leave-the-home.aspx http://andersons.com.au/lawtalk/posts/2012/july/my-husband-and-i-have-separated-and-he-refuses-to-leave-the-home.aspx Fri, 06 July 2012 Felix Hoelscher http://andersons.com.au/lawtalk/posts/2012/july/building-a-new-home-when-is-it-deemed-practically-complete.aspx The terms "practical completion" and "handover" are commonly used in domestic building contracts. They are intended to mean the time at which the builder receives the final progress payment under the contract and hands to the owner the keys and paperwork for the newly built house. However, building disputes occasionally arise between builder and homeowner as to whether a building is in fact practically complete as asserted by the builder. Such disputes are generally related to two distinct issues, namely construction defects or contractual failings. Construction Defect A construction defect may be minor, such as incomplete painting or fixtures, or major, such as an engineering fault causing structural weakness to the frame or slab of the house. Contractual Defect A contractual defect may be an unlawful substitution of materials, such as using inferior windows or bricks. It could also be a purely legal matter; for instance, a failure to comply with an aspect of development approval or to obtain the necessary insurance. The Courts gives consideration to building dispute matters, most frequently in applications to the Court by dis-satisfied homeowners pursuant to theBuilding Work Contractors Act 1995. The Court when assessing building dispute matters places weight on whether, notwithstanding the defects alleged, the house is reasonably fit for use and whether it is substantially complete. If the Court finds that the house is both reasonably fit for use and substantially complete, the finding will be that practical completion has occurred and handover is appropriate. Most building contracts have provisions for a "defects period", which is commonly three months after practical completion and handover. In that time, the home owner notifies the builder of any defects and the builder is obligated to return to the building and fix the highlighted building defects. In the event that a contractual breach (as opposed to a construction breach) has occurred, the Court can order the builder to remedy that breach where possible, or alternatively to financially compensate the homeowner for the breach. It is noteworthy, however, that a contractual breach does not automatically result in practical completion not having been reached. Major construction defects invariably result in a finding that practical completion has not been achieved. If rectifying a defect involves the homeowner being unable to take possession and reside or sell premises which are reasonably fit for use, handover should not be accepted and the final progress payment should not be made. In the event that you are a party to a construction contract, either as builder or homeowner, and a building dispute has arisen as to whether the final progress payment is due or  the premises are practically complete, at Andersons , we strongly recommend you seek experienced legal advice.  Would you like to more or get some advice?  You can get in touch directly with today's blog writer, Partner in Commercial Litigation , Felix Hoelscher . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/july/building-a-new-home-when-is-it-deemed-practically-complete.aspx http://andersons.com.au/lawtalk/posts/2012/july/building-a-new-home-when-is-it-deemed-practically-complete.aspx Thu, 05 July 2012 Greg Welden http://andersons.com.au/lawtalk/posts/2012/july/estate-planning-more-than-just-a-will.aspx Life has become significantly more complicated over recent years.  Once upon a time a Will would have been sufficient to deal with all of your interests upon your death, in a way that you described and had wished for.  These days, however, estate planning means so much more than just completing a simple Will, here a just a few of the features that may need to be taken into consideration; 1.     Blended Families / Children from Previous Relationships         Second marriages and subsequent relationships are more common than ever.  When thinking about your estate planning it is important to knowwhomay be entitled to claim or seek further provision from your estate upon your death.  It may be that you do not wish for a child from a previous relationship to benefit from your estate.  It is not as simple as excluding them from your Will. 2.     Joint Tenancy It is very common for spouses to own real estate (or other assets) as joint tenants, but what does that mean?  Simply put, if a joint tenant dies the surviving owner is entitled to the whole of the property or asset.  The asset does not pass through their estate and is therefore not capable of being gifted to a particular beneficiary. You may need to investigate how you and your spouse own particular assets to ensure your wishes can actually be carried into effect upon your death. 3.     Discretionary or Family Trust Deeds A common vehicle for owning assets, often suggested by accountants and other solicitors, is a Family Trust or Discretionary Trust Deed.  Did you know that the assets that comprise the Trust are not able to be gifted by you in your Will? Many people who own assets through a Trust do not know how to ensure their wishes are to be carried into effect upon their death.  This can be done but will require legal expertise to ensure it is suitable. 4.     Superannuation Similarly to the issues involved with Family Trust Deeds, the balance of your superannuation fund (including any associated death benefit) is not automatically able to be gifted by you in your Will.  It may well be that the money never reaches your estate in which case it has been taken out of your hands. Depending on the fund with which your superannuation is held you may be entitled to nominate a beneficiary to receive the balance upon your death. Is the nomination you make binding or non-binding?  This is a critical factor. Are there other strategies available to you in dealing with your superannuation that may benefit your estate and even eliminate the possibility of an inheritance claim being made? 5.     Companies, Businesses and Partnerships Do you operate a company or is it simply a registered business name which you operate?  Do you control the business by way of partnership with one or more partners?  In each of these circumstances further legal advice is needed to ensure your wishes concerning the business and your estate are legally binding and carried out accordingly. So you can see that there is a myriad of options and possible issues to be taken into consideration with your Estate Planning.  First and foremost, however, is that every adult should have a Will.  To have a Will that accurately reflects your wishes and removes or significantly reduces the potential for contesting, Andersons Solicitors strongly recommend you have your Will professionally drafted. Want to know more?  You can get in touch directly with our Senior Associate in Wills and Estate Planning , Greg Welden . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/july/estate-planning-more-than-just-a-will.aspx http://andersons.com.au/lawtalk/posts/2012/july/estate-planning-more-than-just-a-will.aspx Wed, 04 July 2012 David Mullen http://andersons.com.au/lawtalk/posts/2012/june/changes-to-speeding-fines-and-demerit-points.aspx From 1 September 2012, penalties for speeding offences are about to change.  Lower level speeding will attract a lower fine but incur an extra demerit point and higher level speeding offences incur increased fines and an increase in demerit points.  Motorists who break the speed limit by a small margin repeatedly will lose their licence quicker.  So even if they can afford to pay the fines there is the possibility that they will be deterred from driving just over the speed limit because it will eventually lead to a loss of licence. A comparison of the current penalties and the new penalties that come into effect from 1 September reveals the difference. Speeding penalties that apply until 31 August 2012:   Exceeding the speed limit: Demerit Points Expiation Fee* By less than 15 kph over the speed limit 1 $260.00 By 15 kph but less than 30 kph 3 $383.00 By 30 kph but less than 45 kph 4 $550.00 By 45 kph or more (excessive speed) 6 $671.00 *Fees current from 1 July 2012 Speeding penalties that apply from 1 September 2012:   Exceeding the speed limit: Demerit Points Expiation Fee By less than 10 kph over the speed limit 2 $150.00 By 10 kph but less than 20 kph 3 $330.00 By 20 kph but less than 30 kph 5 $670.00 By 30 kph but less than 45 kph 7 $800.00 By 45 kph or more (excessive speed) 9 $900.00   In addition to the fines incurred a $60.00 victims of crime levy will also apply. Speeding is a problem.  The Government has introduced these new penalties to reduce speeding, save lives and prevent injury. If you don't exceed the speed limit you don't get a fine and you don't incur any demerit points.  It is that simple. If you've been booked for speeding offences or any other traffic violations and you want to know your rights, feel free to get in touch directly with today's blog writer, Solicitor in Criminal & Police Matters at Andersons Solicitors, David Mullen . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/june/changes-to-speeding-fines-and-demerit-points.aspx http://andersons.com.au/lawtalk/posts/2012/june/changes-to-speeding-fines-and-demerit-points.aspx Wed, 27 June 2012 Jason Coluccio http://andersons.com.au/lawtalk/posts/2012/june/why-do-my-criminal-charges-take-so-long-to-come-to-court.aspx So you have been charged with a major indictable matter being those matters that can only be dealt with in the District or Supreme Court, such as trafficking a commercial quantity of a controlled drug. You have gone through all the preliminary hearings at Magistrates Court level and also arraignment which is where your matter formally enters the District Court jurisdiction.   You have pleaded not guilty.  You may have had your name published in the media.  You eagerly await your day in court so that you can have the matter resolved one way or the other. Your matter is listed for trial. You are shocked at the delay in the 4 to 6 months between the last hearing and the listed trial date. Given the back log in the court system, it can be difficult to find available dates especially when extended trials are required. Finally, a month before the trial you and your solicitor and barrister get together and finalise preparation for the trial.  Meetings become more frequent, phone calls more urgent, answers required in great detail. The night before a trial is to begin you can't sleep; your mind is going a hundred miles an hour about what is going to happen the following day. The day of trial arrives.  You are psyched.  You attend court with your solicitor, your barrister and you see your name on the court list for trial. And then you get the news….. your trial will not be "reached" today. It needs to be relisted.  You ask "how can this happen? How can they put me through all of this AGAIN and most importantly, why?" It is quite common for District Court matters to have multiple trial listings on the same day.  The basis for doing this is that a large number of matters resolve prior to the commencement of the trial proceedings.  The courts are acutely aware that court time is extremely valuable and therefore there is a desire not to waste any available sitting time.  As such, multiple trials are listed for the same day with the hope that upon that date arriving, there will be sufficient judges and courtrooms available to hear the matter. However, with proliferation of new legislation, combined with a tougher stance on crime, more and more matters are proceeding to trial.  Consequently, it is very likely that matters will not be heard on their first listing. In addition to multiple trial listings, there are certain matters that take precedent over other matters, called 'priority listings'.  Priority listings are predominantly for offences where the alleged victim is a minor. The policy is that such matters be resolved promptly and therefore take priority. If your matter falls outside of a priority listing, is there anything you can do?  The simple answer is no.  All you can do is wait until there is time and an available court for your matter to run to trial and hope that your matter runs to trial on the second listed occasion. This posting has been provided by Andersons solicitor in Criminal and Police Offences, Jason Coluccio . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/june/why-do-my-criminal-charges-take-so-long-to-come-to-court.aspx http://andersons.com.au/lawtalk/posts/2012/june/why-do-my-criminal-charges-take-so-long-to-come-to-court.aspx Fri, 22 June 2012 Leesah Randall http://andersons.com.au/lawtalk/posts/2012/june/what-are-my-legal-responsibilities-as-a-cyclist-on-public-roads.aspx A bicycle is defined as a vehicle by the Road Traffic Act . Therefore cyclists must obey all road rules just like any drivers of motor vehicles.  Cyclists have the same rights on the road but with that come the same responsibilities as any other road user. As a cyclist you must obey by the Australian Road Rules.  If you do not, you can be charged with a traffic offence in the same way as the driver of a motor vehicle.  Penalties for committing offences as a cyclist can range from $ 18 to $1,250 depending on the offence.  And yes, as a cyclist you can incur demerit points that accrue against your drivers licence.  It's particularly noteworthy that if you don't have a drivers licence, you will still incur demerit points which may prevent you from obtaining a drivers licence in the future. As a cyclist you must keep as reasonably practicable to the left hand side of the road and use bicycle lanes when available and operational.  There are of course exceptions, for example: you are turning right or about to turn right; when the road is divided into lanes; or to avoid debris or when overtaking.  In a bicycle lane if there is insufficient room to ride two abreast you must ride in single file, unless overtaking.  Where a bicycle lane does not exist cyclists may ride two abreast but no more than two abreast. You must give hand signals to indicate to other road users you are preparing to turn right, diverge right or when changing lanes to the right. You do not have to give hand signals when preparing to turn left or when stopping; you may however want to for safety. You must not ride on footpaths.  The only exemptions are: "shared paths" which are shared pathways for cyclists and pedestrians as indicated by a sign; if you are under 12 years old; or if you have a valid medical certificate stating you have a medical condition or disability and therefore should be permitted to ride on the footpath. If you so fall within one of the exemptions you must keep as reasonably practicable to the left, must give way to any pedestrians and must take every precaution to avoid accidents by ringing your bell or calling out. As a bicycle is defined as a vehicle you must not ride your bicycle in an intoxicated state.  If you are so intoxicated and considered to have no capable control over your bicycle you could be charged with driving under the influence.  Penalties for a first offence are a $ 700 to $ 1,200 fine or imprisonment for no more than 3 months and licence disqualification for no less than 12 months as well as incurring 6 demerit points.  Penalties increase substantially if the offence is a second or subsequent offence. So you can see, the legal obligations on bike riders using public roads are significant.  If you find yourself in trouble with the police over the use of your bike on public roads, we recommend you seek experienced legal advice.  The Andersons blog writer today is one of our solicitors in Criminal Law , Leesah Randall.  If you'd like more information or clarification on any aspect of this article, feel free to get in touch with Leesah . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/june/what-are-my-legal-responsibilities-as-a-cyclist-on-public-roads.aspx http://andersons.com.au/lawtalk/posts/2012/june/what-are-my-legal-responsibilities-as-a-cyclist-on-public-roads.aspx Wed, 20 June 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/june/do-non-biological-parents-have-rights-after-separation.aspx Aladdin and Jasmine were in a de facto relationship for five years. Jasmine has a 12 year old son from a previous relationship, Rajah, whom Aladdin has developed a close relationship with as a father figure. Aladdin and Jasmine have just separated. Does Aladdin have any rights to continue seeing Rajah? Under the Family Law Act , Court orders in relation to having time with a child are referred to as 'parenting orders'. It is not only biological parents that can make an application to the Federal Magistrates Court for parenting orders. Grandparents, other family members and any other person concerned with the care, welfare or development of a child may make an application. Consequently, Aladdin would be able to make such an application to see Rajah if he and Jasmine could not come to an agreement themselves. How often Aladdin would get to see Rajah would depend on what the Court considered was in his best interests. A range of criteria would be used to help determine this, including the relationship that they share and Rajah's wishes, as he is of a mature age.     While several of the matters to be considered under the Family Law Act when making a parenting order refer specifically to a 'parent', a case called Mulvany & Lane in 2008 which involved a non-biological father confirmed that these matters may still be considered where a non-parent has made the application. It is also important to note that a case called Aldridge & Keaton in 2009 established that a biological parent will not necessarily triumph over a person who was in a relationship with that biological parent. The best interest of the child itself is indeed the Court's paramount concern. It can be human nature to listen to the "grapevine" as opposed to seeking experienced advice.  Naturally, we think getting that experienced legal advice in Family Law matters will provide you with a much better chance of getting the fairest outcome. If you'd like advice or assistance on any family law issue, hop onto the Andersons website or get in touch directly with today's blog writer, Andersons Senior Associate in Family Law , Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/june/do-non-biological-parents-have-rights-after-separation.aspx http://andersons.com.au/lawtalk/posts/2012/june/do-non-biological-parents-have-rights-after-separation.aspx Tue, 19 June 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/june/seeking-an-annulment-of-your-marriage-in-australia.aspx Although we did a blog on annulment not that long ago, it is a Family Law topic that we get asked about regularly. So we thought we might follow up on that original article from a slightly different angle. Our annulment scenario: Mary met Josef in Australia many years ago. They got married and were to live happily ever after (or so they thought). Josef had an affair with another woman and ran off with her back to his home country, Germany. What are Mary's options? Can she have her marriage annulled? Generally speaking, "annulment" is an American legal procedure that effectively cancels a marriage and declares it null and void, almost as if it never existed. In Australia, we do not use the term "annulment" but rather "nullity" of marriage. Essentially, nullity of marriage has the same meaning as annulment but there are not as many grounds under which it can be sought. The Family Court of Australia may declare a marriage null and void where: one of the parties was married to another party at the time of marriage; the parties are in a prohibited relationship, such as being brother and sister the marriage laws in the place they were married were not adhered to; one of the parties was not of legal age to marry; or proper consent was not given by one of the parties. Unlike in America, adultery committed by a spouse is not a ground for a marriage to be declared null and void in Australia. Therefore, Mary would need to wait until her and Josef had been separated for a period of 12 months and then apply for a divorce. If you or someone you know is seeking nullity of their marriage, make sure you seek experienced Family Law legal advice.  You can get more information at Andersons or have a chat directly with today's blog writer, Andersons Senior Associate, Ryan Thomas Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/june/seeking-an-annulment-of-your-marriage-in-australia.aspx http://andersons.com.au/lawtalk/posts/2012/june/seeking-an-annulment-of-your-marriage-in-australia.aspx Fri, 15 June 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/2012/june/australia-has-new-family-violence-amendments-to-the-law.aspx The family violence amendments to the Family Law Act 1975 started 7 June 2012 . The amendments are significant, in that they redefine definitions that relate to family violence under the Family Law Act and the way the best interests of the child is determined under the Act. Some of the amendments (this is not an exhaustive list) are that there is a new definition of family violence which now includes social and financial controlling behaviour and exposing a child to family violence. This means a child being exposed to (such as witnessing) domestic violence between the parents. The definition of abuse has been amended to include serious neglect and causing a child serious psychological harm, which includes being subjected to or exposed to family violence. The Family Court must now give more importance to the need to protect a child from physical harm versus the need to have a meaningful relationship with both parents. The involvement of parents and fulfilling their obligations to look after a child, be involved in decision making and spend time or communicate with the child are also added as additional considerations. Parties are also required to notify the Court of any child protection matters, including notifications (such as to Families SA) and investigations. These are just some of the key changes to theFamily Law Actwhich came in last week (7 June 2012). The object of the changes is to give greater protection to children in circumstances of family violence, by changing some of the key definitions of family violence and abuse, changing the way the court determines the best interests of the child in a situation of family violence and providing greater obligations on the parties to notify the court in respect of child protection matters. These Family Law changes are significant.  If you have a family situation involving children where you think these amendments may have an impact or you'd like some general family law advice or assistance, get in touch with today's blog writer, Andersons Senior Associate in Family Law, Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/june/australia-has-new-family-violence-amendments-to-the-law.aspx http://andersons.com.au/lawtalk/posts/2012/june/australia-has-new-family-violence-amendments-to-the-law.aspx Wed, 13 June 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/2012/june/bona-fide-redundancy-what-it-means-for-you.aspx 'Bona fide' is a Latin term which means 'genuine' or 'without fraud or deceit'.  TheFair Work Actdoesn't actually use the term, and instead talks about redundancy in terms of whether it is genuine or not - the same thing, but in English. A genuine redundancy is when someone's employment is terminated because the employer "no longer requires their job to be performed by anyone" and must be because of "changes in the operational requirements".  An employer must also have consulted with employees if required to by an agreement or award. This may happen, for example, if your employer closes a branch or division, or when there is a restructure or reallocation of work.  A redundancy is a lot less likely to be genuine if someone is hired to take a similar job with a different title and lower pay, or if there were other opportunities for you available within the company, such as being transferred to a similar role in another office.  National Employment Standards The National Employment Standardsset out minimum entitlements for when someone is made redundant .  You must have worked there for one year before being entitled to redundancy pay.  For that one year, you are entitled to four weeks pay.  The entitlements range from 4 weeks up to 16 weeks pay for 9 years of service.  You are also entitled to be paid for whatever annual leave you have not used and, depending on how long you've been there, long service leave.  You are also entitled to notice, or payment in lieu of notice, in line with how long you've worked there. If you are covered by an award or agreement, or if your contract says otherwise, this may be different.  There are also exceptions, such as for small businesses with less than 15 full time employees, in some cases involving a transfer of employment, if you have a fixed-term contract, or if you are a casual employee. If you are told you are being made redundant and you are unsure in any way about whether it is genuine or if you are being paid correctly, seek legal advice.  You might be able to lodge an unfair dismissal application, or negotiate a fairer outcome.  You may also want to seek financial advice, especially given the tax implications of a 'bona fide' redundancy payment (a place where the Latin term still survives!).  You can also claim unpaid redundancy entitlements for up to 6 years after your employment ended by lodging an underpayment claim. Even if your redundancy is 'bona fide' and you are happy with your package, it is still a time which may be very stressful and uncertain. We strongly recommend you seek suitable advice to ensure you get the entitlements you deserve. If you'd like some more information on this topic or clarification of what we've written, why not get in touch directly with our blog writer, Sorna Nachiappan .  Sorna is a Senior Associate in the Andersons Employment and Industrial Law Department. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/2012/june/bona-fide-redundancy-what-it-means-for-you.aspx http://andersons.com.au/lawtalk/posts/2012/june/bona-fide-redundancy-what-it-means-for-you.aspx Fri, 08 June 2012 Marion Williams http://andersons.com.au/lawtalk/posts/2012/june/stress-claims-and-workers-compensation.aspx Many injured workers suffer psychological symptoms following a work related injury.  These symptoms can include anxiety and depression and can impact on their ability to return to work. If you are an injured worker and you are experiencing symptoms of anxiety or depression, then it is important that these symptoms are reported to your doctor and a claim for workers compensation ( WorkCover or ComCare ) is made. If you have an accepted claim for workers compensation for psychological injuries then you are entitled to have any medical expenses, such as medication or treatment with a psychologist or psychiatrist paid for by the compensating authority (eg EML in the case of WorkCover claims in South Australia).  They are not obliged to pay for this treatment if you do not have an accepted claim. Having an accepted claim for psychological injuries also means that your rehabilitation needs to take this condition into account when determining what is suitable employment for you. For example, if you have always worked outside in a labouring position and you suffer a physical injury that means you can no longer do this then you may be required to perform duties in an office or sedentary position.  However, if you are already feeling depressed because of your pain and disability and your depression is likely to become worse if you are required to perform office duties, this will only be taken into account if you have an accepted claim for psychological injuries when deciding if office work is suitable employment for you. Sometimes workers suffer psychological injuries as a result of their employment.  For example, a bank teller that is threatened during an armed robbery may suffer Post Traumatic Stress Disorder and that would result in a claim for workers compensation. A person may be bullied or harassed at work by a co-worker or superior and may suffer anxiety or depression as a result of that.  The circumstances of the bullying and harassment may result in that person being entitled to a claim for workers compensation. Not all work related stress, anxiety or depression means that a person is entitled to compensation. Being depressed or upset that you were refused a pay rise or promotion is not generally considered to result in a workers compensation claim.  Suffering emotionally after being disciplined for poor work performance would not normally result in workers compensation claim being accepted, unless you could show that the way you were disciplined was not reasonable. If the compensating authority finds that your psychological condition has arisen as a result of "reasonable administrative action taken in a reasonable manner" then your claim for compensation for psychological injuries is likely to be rejected. If a claim for workers compensation is rejected you may be entitled to challenge that decision. If you need assistance in lodging a WorkCover or ComCare claim for psychological injuries, or you have had a claim rejected that you would like to challenge, then you should contact Andersons Solicitors so that we may help you.  Or you can have a bit more of a read about WorkCover rights and entitlements or get in touch directly with today's blog writer, Andersons Senior Associate in Civil Litigation, Marion Williams . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/2012/june/stress-claims-and-workers-compensation.aspx http://andersons.com.au/lawtalk/posts/2012/june/stress-claims-and-workers-compensation.aspx Fri, 01 June 2012 Francis De Sousa http://andersons.com.au/lawtalk/posts/do-you-want-to-make-a-claim-for-injuries-suffered-in-an-accident-how-soon-should-you-get-legal-advice.aspx If you suffered an injury in a motor vehicle accident or in a slip and fall accident in a public place or in any other similar accident and you intend to make a claim for the injuries suffered, you should get legal advice as soon as possible. Why should you get legal advice as soon as possible? There are many reasons for getting legal advice as soon as possible. Some of such reasons are: Firstly, you have to give written notice of your intended claim as soon as possible to the person or any entity that you hold responsible for your accident and your consequent injuries. If your intended claim relates to a motor vehicle accident, then, you will have to give written notice of your claim as soon as practicable to the insurer of the vehicle that you hold responsible for your accident and injuries. Such written notice should include the following: That an accident occurred; The date and time of the accident; The place where the accident occurred; The circumstances of the occurrence of the accident; The names and addresses of the drivers and registration numbers of the vehicles involved in the accident; The injuries suffered as a result of the accident; Any time taken off work because of the injuries; And other relevant details regarding your claim. It is prudent to get legal advice before you give the above notice to the person or any entity that you hold responsible for your accident and your consequent injuries or to the relevant insurer in case of a claim arising out of a motor vehicle accident, as, any inadvertent error made whilst giving such notice may cause you problems with respect to your claim at a later date. If you obtain prompt legal advice with respect to your intended claim, a lawyer can advise you at the very outset, whether there is any merit in the claim and either assist you to give the above notice or give the above notice on your behalf. For the purposes of making a claim, you have to gather all the relevant evidence to support your intended claim. A lawyer can advise you what evidence is required in support of your claim and either obtain such evidence on your behalf or assist you in obtaining such evidence. Sometimes, if you delay in obtaining the required evidence promptly, it may be difficult to obtain such evidence at a later date and in some extreme situations, the evidence may not be available at a later date.  This in turn will cause significant difficulties in your claim. If there is any doubt that liability for the accident will be in dispute, the lawyer will need to inspect the site of the accident with an expert who can comment on the accident and advise on the cause of the accident. In such circumstances, the lawyer and the expert will want to conduct the site inspection as soon as possible after the accident and before any evidence at the site of the accident is lost or disappears. A claimant, who wishes to make a claim for personal injuries suffered in an accident in South Australia, has a specified period of time which is known as "limitation period", pursuant to the Limitations of Actions Act (South Australian Law), within which to either settle the claim with the insurer amicably or alternatively, if settlement is not possible, to issue proceedings in Court.  If the claimant has not settled the claim amicably by negotiations with the insurer or alternatively if settlement is not possible, has not issued proceedings in Court within the limitation period, then, after the expiry of the limitation period, the claim will become what is known as "time barred" pursuant to the Limitations of Actions Act (South Australian Law) and the claimant will not be able to make the claim for the injuries suffered in the accident. If you seek prompt legal advice, a lawyer can advise you on the limitation period and the consequences of not acting within that limitation period and can help you to prepare your claim as soon as possible, to ensure that your claim does not become time barred. As you can see, at Andersons Solicitors , it is our strong recommendation that if you suffer injuries in an accident , you should seek experienced legal advice as early as possible. We offer a first free interview to enable you to obtain preliminary legal advice in relation to your potential claim. If you would like to know more about this topic, visit our website section on accidents or motor vehicle accident law or get in touch with the writer of today's blog, Andersons Consultant, Francis De Sousa . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/do-you-want-to-make-a-claim-for-injuries-suffered-in-an-accident-how-soon-should-you-get-legal-advice.aspx http://andersons.com.au/lawtalk/posts/do-you-want-to-make-a-claim-for-injuries-suffered-in-an-accident-how-soon-should-you-get-legal-advice.aspx Thu, 31 May 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/high-fees-limiting-access-to-justice.aspx South Australian Court filing fees have been steadily increasing but 2011/12 sees more changes and increases which are far beyond what is typical. The Magistrates, District and Supreme Courts have all seen rises in the filing fees of at least 18% for standard claims. Companies (other than non-profits and small businesses) have been hit with a massive 66% rise in the claim fee for District and Supreme Courts and in the Magistrates Court the fee has doubled. The highest fee is now $3,000.00 in the Supreme Court! The increases for standard claims are 5 times the increase in the CPI inflation index from March 2010 to March 2011.  South Australian Court fees are growing much faster than the cost of everyday goods or wages, whilst the Courts  themselves remain underfunded. Some relief is available for individuals and small businesses with the introduction of a two-tiered scheme and only a small increase for minor civil claims, for example neighbourhood disputes and consumer disputes below $6,000.00. Subject to a means test, individuals may be able to request filing fee reductions from the Courts. We think these high fees hinder justice in many ways. Whilst Courts should generally be the place of last resort for civil disputes, filing fees can discourage aggrieved people from pursuing legitimate claims. When parties do settle proceedings, they often bear their own costs as part of the settlement terms, which cuts into the  compensation they might receive. Additionally, if you sue someone who turns out to not have any available assets, then you must wear the filing fee.  Doesn't that sound a bit unfair to you?  Share your thoughts. For more info on what we do, visit our home page at: / http://andersons.com.au/lawtalk/posts/high-fees-limiting-access-to-justice.aspx http://andersons.com.au/lawtalk/posts/high-fees-limiting-access-to-justice.aspx Thu, 31 May 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/equal-shared-time-with-your-children-do-the-family-courts-favour-women-in-a-relationship-breakdown.aspx Section 61DA of the Family Law Act 1975 contains a presumption that both parents have equal shared  parental responsibility for children of the relationship. It's not just referring to the time you spend with your children.  It means that both parents are presumed to have equal responsibility for making decisions about matters that will affect the long term welfare of your children such as education, health and religion. This presumption is applied to nearly all cases unless certain circumstances exist, such as abuse or family violence. If the court decides that shared parental responsibility is going to be applied, it must consider whether  spending equal time with both parents is in the child's best interests. In practice, fathers are regularly given equal shared time or substantial and significant time with their children. The court makes decisions based on what it considers to be in the best interests of the children. Specifically, the family courts do not favour the sex of either parent when making decisions that affect the children of the relationship but rather focus on what is most suitable for the children. Do you feel that equal shared time may be appropriate in your situation? Contact Andersons Solicitors on (08) 8238 6666 to obtain further advice or visit us at  http://andersons.com.au/family-law.asp .  If perhaps you'd like to get in touch directly with today's blog writer, Andersons Senior Associate in Family Law, Ryan Thomas . http://andersons.com.au/lawtalk/posts/equal-shared-time-with-your-children-do-the-family-courts-favour-women-in-a-relationship-breakdown.aspx http://andersons.com.au/lawtalk/posts/equal-shared-time-with-your-children-do-the-family-courts-favour-women-in-a-relationship-breakdown.aspx Thu, 31 May 2012 Dion McCaffrie http://andersons.com.au/lawtalk/posts/injured-in-a-bicycle-or-car-accident-do-you-need-a-lawyer-to-claim-compensation.aspx Clients will often call us after being injured in a motor vehicle accident or bicycle accident to discuss their situation.  We can often detect a reluctance to engage a lawyer.  Some people are concerned about the potential costs and feel that it is simply going to cost too much.  Others think that with a little bit of help or initial advice, they can then handle the claim process themselves. If you've been injured in a car or bicycle accident, here are some points which may help you make up your mind about engaging experienced personal injuries legal advice: Engaging a lawyer at an early stage will help control the flow of information to the insurer.  When this does not happen there can be, over the course of several months, a lot of contact between the Claims Officers at Allianz and the injured person.  At Andersons we have seen a number of examples where this has worked to the detriment of the claimant.  A person can unwittingly provide give the wrong impression to the insurer.  They can also allow the Claims Officer to reach conclusions on matters associated with the injured person that are simply not correct.  Sometimes personality differences between the Claims Officer and the injured person can cause unnecessary conflict. Engaging a lawyer at an early stage removes stress from the injured person.  The lawyer is well able to assume the responsibility of conducting the claim and will, after being appointed, exclusively deal with the insurer.  This allows the injured person to concentrate fully on rehabilitation and recovery. Concerns about legal costs associated with motor vehicle accident claims are really not valid.  The majority of legal costs are paid by the insurer at the end of the claim and most lawyers will not render any accounts at all until the matter finalises.  Solicitors will explain how costs on the claim work and will keep you apprised if you wish, of the amount of costs incurred from time to time. It is really difficult for a lay person to work his/her way around the complexities of the system that gives rise to compensation.  For an experienced personal injury lawyer dealing with these matters on a day by day basis, most problems can be dealt with as they arise.  There is really no substitute for knowledge and experience in this area. The insurer, Allianz, is not there to help injured people; their interests are not the same as the injured person's interests.  Their job is to minimise the payment on claims.  It is often remarked to us that an injured person has quite reasonable dealings with Claims Officers at Allianz.  That is indeed often the case.  However it leads to a relationship that can be unhealthy because the injured person has to understand that the Allianz representative is "on the other side of the fence". We understand that the claims process after injuries from a car accident can be daunting and frustrating.  All the more reason we think it's in your best interests to let experts look after that side of things for you.  For more information on motor vehicle accident and bicycle accident claims , you can visit us on the web or get in touch directly with today's blog writer, Andersons Partner, Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/injured-in-a-bicycle-or-car-accident-do-you-need-a-lawyer-to-claim-compensation.aspx http://andersons.com.au/lawtalk/posts/injured-in-a-bicycle-or-car-accident-do-you-need-a-lawyer-to-claim-compensation.aspx Fri, 25 May 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/family-violence-and-spending-time-with-children.aspx In proceedings to work out parenting orders, the best interests of the child is the focal point of the Court. This includes the child's right to have a meaningful relationship with both parents. The Family Law Act is focused on ensuring that children benefit from a meaningful relationship with each parent. There are some exceptions such as in serious cases of violence or child abuse. This can be particularly distressing for parents who are victims of family violence, where the other parent, the perpetrator of the violence, is awarded time with the child. If you are experiencing family violence, it's important to be aware that while the Federal Magistrates Court may suspend contact between the perpetrator of the violence and a child, in cases of extreme violence both parents will almost always be given at least some time with a child. Therefore, the most important issue is to ensure your safety and to have your solicitor seek specific Orders or make an application to the Court on your behalf to change the arrangements in place with the perpetrator so that you don't need to see them or permit them to find out where you live when your children are picked up or dropped off for visits, otherwise referred to as 'handovers'. For example, a family member or friend could pick up and drop off the child at handovers at a nominated police station, Child Contact Centre or other public place. This will ensure that victims of family violence are not placed in situations where they may be at risk of further violence or experience unnecessary anxiety, which in turn can have a negative impact on the children involved. Children's Contact Centres aim to protect children from being exposed to conflict between their parents and potentially unsafe situations at handovers and supervised contact times. It is important that they are provided with copies of all relevant documentation, including the current Orders in place, any Family Violence Orders, Family Reports and a copy of each parent's drivers license or other photo identification. However, if these services are used for a prolonged period, it can become quite costly, with the fees for monitoring handovers being $3.00 for each attendance and $10.00 per hour for supervising visits. For parties not in a position to meet the costs of Children's Contact Services or in more serious cases of family violence, handover at a nominated Police Station may be more appropriate. This may also aid in making the victim feel safer and more at ease with the entire process. As you can see, there are options for working out the best way to deal with "child handover" if the relationship between both parents is not good. Our Family Law Department strongly suggest you seek legal advice or assistance with this are of law.  If you'd like some more information or you have a question for about the content of this blog, please feel free to get in touch directly; Contact Andersons Senior Associate in Family Law, Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/family-violence-and-spending-time-with-children.aspx http://andersons.com.au/lawtalk/posts/family-violence-and-spending-time-with-children.aspx Fri, 18 May 2012 Greg Welden http://andersons.com.au/lawtalk/posts/can-a-grandchild-make-an-inheritance-claim.aspx Inheritance claims in South Australia are covered by the Inheritance (Family Provision) Act (SA)1972 . We'll be referring to this simply as "the Act" through this article. The Act says that where a person is left without adequate provision for their proper maintenance, education or advancement in life, within a Will, that person is entitled to claim the benefit of the Act. There is only a finite list of people who can claim the benefit of the Act: a)       the spouse of the deceased person; b)       a person who has been divorced from the deceased person; c)       the domestic partner of the deceased person; d)       a child of the deceased person; e)       a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death; f)       a child of the child of the deceased person; g)       a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime; h)       a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime. So according to the Act a grandchild of the deceased is entitled to claim. The nature of the Court's task to make further provision is said to be a two-stage process.  The first calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.  The second stage, which only arises if the above determination is made in favour of the applicant, requires the Court to decide what provision ought to be made out of the deceased's estate for the applicant. That is, what should they receive out of the estate? In circumstances where the parent of the grandchild making the claim (related to the deceased) is alive, the likelihood of success is small unless there was some unusual feature to the nature of the relationship or some other financial connection. For example, irrespective of whether the grandchild's parent is alive, the deceased cared for and housed the grandchild creating some dependency on one another. Alternatively, perhaps the grandchild worked for many years on the family farm on the basis that they would receive some benefit from the farm when their grandparents die. We have seen a number of unique circumstances where the parent of the grandchild has already died and thatarmof the family have been left out of a Will altogether.  Here's an example to work through: a)     the deceased had 3 sons, A, B and C b)     C died before the deceased did but he had 2 daughters himself named X and Y c)      A and B receive a half share of the entire estate whilst X and Y receive no mention The fact that a parent of the claimant grandchild has predeceased the testator (that is, the person who made the Will) is a relevant factor in support of the claim to be made.  It can be said that they have lost any possibility of immediate or continuing support from their parent.  In that context, according to prevailing community standards and as a matter of moral responsibility to them, the deceased ought to have made some provision for them. There is no general rule limiting the claims of grandchildren, where they fall within the provisions of the Act, although it is relevant to consider what inheritance or financial support a grandchild might fairly expect from his or her parents. It is important that all potential claimants to a deceased estate seek legal advice as early as possible, strict time limits apply to these types of claims. For more information on challenging a Will, we invite you to get in touch with today's blog writer, Andersons Senior Associate in Wills and Estate Planning , Greg Welden . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation http://andersons.com.au/lawtalk/posts/can-a-grandchild-make-an-inheritance-claim.aspx http://andersons.com.au/lawtalk/posts/can-a-grandchild-make-an-inheritance-claim.aspx Tue, 15 May 2012 Anita King http://andersons.com.au/lawtalk/posts/what-is-fair-asbestos-exposure-compensation.aspx In May 2012, the High Court of Australia recently found that the Board of James Hardy failed in its Directors duties by misleading the market and breaching their duties in stating that an Asbestos Compensation Fund was "fully funded". The former Chairman and other Directors will now face years of disqualification from being able to hold Directorships and will have to pay fines, of which the exact penalty yet to be determined.  The original penalties which could now be reinstated ranged from eight Directors being ordered to pay a penalty of $30,000.00, one Director having to pay $75,000.00 and the CEO having to pay $350,000.00 by way of fines. But what about the victims? Fairness for the victims dictates that they know they will have financial security in the event they are diagnosed with an asbestos related disease.  Financial compensation will relieve some of the burden victims and their families will have to endure.  Andersons Solicitors , with their experienced team of lawyers in conjunction with Maurice Blackburn , a national law firm will work to minimise stress and maximise financial compensation.  We visit victims free of charge and without obligation at home or in hospital in order to discuss their entitlements and the claims process. Asbestos related disease includes: mesothelioma; lung cancer; asbestosis; plural plaques; plural thickening; pneumothorax; and asbestos warts The amount of compensation will depend on the symptoms of disease that a victim suffers from.  A victim is able to make a claim even if: a person is no longer employed where the exposure occurred; a person was exposed to asbestos more than 50 years ago; a person's employer at the time has since gone out of business; a person was exposed to asbestos by many employers; a person was self employed or a contractor at the time of the exposure; a person's exposure to asbestos was not at work; a person was exposed to asbestos during home renovations; or a person was not sure where they were exposed to asbestos. Claims for asbestos related malignancy usually take between three and six months although claims can be resolved in a matter of weeks when there is medical evidence to demonstrate this is warranted.  Claims for non malignant asbestos disease usually take between 12 and 18 months to resolve. If you have been exposed to asbestos but are not currently suffering from any asbestos related disease you can have your name placed on a National Register should you develop asbestos related disease in the future.  This process will assist in bringing any claim for compensation.  Please contact either Andersons Solicitors should you wish to place your name on the register.  The process of claiming compensation for asbestos related illness can be difficult and requires experienced and expert advice.  In-House Consultant at Andersons, Anita King , has such experience and we strongly recommend you get in touch with her directly if you require any information, assistance or advice about your asbestos or chemical exposure . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian State legislation and Australian Federal legislation.     http://andersons.com.au/lawtalk/posts/what-is-fair-asbestos-exposure-compensation.aspx http://andersons.com.au/lawtalk/posts/what-is-fair-asbestos-exposure-compensation.aspx Fri, 11 May 2012 Marion Williams http://andersons.com.au/lawtalk/posts/i’m-on-workcover-do-i-need-to-attend-rehabilitation-case-conferences.aspx If you suffer an injury at work you're obliged to participate in your rehabilitation, and this can include attending meetings with your rehabilitation and return to work co-ordinator, rehabilitation provider and your Case Manager. These meetings are called rehabilitation case conferences. If you do not attend these meetings then your Case Manager may attempt to cut off your weekly payments of income maintenance.  If this happens you may be able to challenge that decision in the SA Workers Compensation Tribunal.  If you require assistance with this Andersons Solicitors are able to help you. However, the meetings should be arranged on a reasonable basis and you should be given sufficient notice of the meeting in case you need to make arrangements to attend. Ideally you should have a Rehabilitation Case Conference whenever your WorkCover Medical Certificate states that your level of incapacity has changed so that a new "Rehabilitation and Return to Work Plan" can be drawn up, reflecting the change in your capacity. When you attend a Rehabilitation Case Conference you should be given the opportunity to voice any concerns you have about the way your rehabilitation and return to work is going.  For example, you may be having difficulties carrying out some of your modified or alternate duties in the workplace. This should always be reported to your doctor, your work supervisor or manager, your Case Manager and your rehabilitation provider so that everyone is aware of the difficulties you are having and your rehabilitation can be managed more effectively. It's all to your benefit if you're getting the right rehabilitation program. The obligations placed on an injured worker in a "Rehabilitation and Return To Work Plan" are binding and there are consequences for failing to comply with them. These include having weekly payments of income maintenance discontinued. If you can't comply with your obligations under your "Rehabilitation and Return to Work Plan" or your payments have been stopped then you may be able to lodge a "Dispute over the Plan" in the SA Workers Compensation Tribunal.  As you can see, being on WorkCover can throw an otherwise unknowing worker the odd curve ball.  It's always a good idea to make sure you're getting the right advice, getting the right payments and getting what you're entitled to as a result of your workplace injury.  Today's blog writer, Andersons Senior Associate Marion Williams is available if you'd like to have a chat about your rights and entitlements while on WorkCover . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/i’m-on-workcover-do-i-need-to-attend-rehabilitation-case-conferences.aspx http://andersons.com.au/lawtalk/posts/i’m-on-workcover-do-i-need-to-attend-rehabilitation-case-conferences.aspx Wed, 09 May 2012 David Mullen http://andersons.com.au/lawtalk/posts/child-restraints-in-motor-vehicles.aspx Scenario You have to attend the airport to pick up family members that include children under sixteen years of age and an infant child.  There are no baby capsules or seats fitted to your vehicle.  What do you do as a grandparent, uncle, family member or friend?  You might think you do not need a child restraint.  Anyway, you might reason, it is a short trip, a one off, it will be okay, they can nurse the child.  You might need to re-think when you consider the child's safety and the laws and penalties applicable. The Reality It is the driver's responsibility to ensure restraints are fitted and used.  Visitors can bring their own restraints or alternatively a restraint can be hired.  Section 266 of the Australian Road Rules outlines the laws applicable to the wearing of seatbelts by passengers under 16 years of age.  These laws have been in place since 2010.  The laws require children to be appropriately restrained in a motor vehicle in a suitably approved child restraint from birth up to the age of seven years and regulate the age at which children may sit in the front seat of a motor vehicle. Specifically the laws will require children: Up to age of six months to be restrained in a rearward facing child restraint (for example, an infant capsule); From six months until the age of four to be restrained in either a rearward or forward facing child restraint (for example, a child safety seat); and From four years until the age of seven years to be restrained in either a forward facing child restraint or booster seat restrained by correctly adjusted and fastened seatbelt or child safety harness. These laws also deal with children being seated in the front seat of a vehicle: Children aged up to four years of age must be restrained in the rear of the vehicle where the vehicle has two or more rows of seats; and Children aged between four years and seven years will not be permitted to sit in the front seat unless all other seating positions are already occupied by children under seven years. Bus drivers are exempt from ensuring passengers under 16 years of age are restrained.  A "bus" is defined as a motor vehicle designed to carry over 12 adults including the driver.  If the vehicle is designed to carry 12 adults or less including the driver, it is not a bus and the driver is not exempt from ensuring all passengers are appropriately restrained. The driver of a taxi will be exempt from these new provisions if there is no suitably approved child restraint available and if the vehicle has two or more rows of seats and the passenger is not in the front row of seats. Taxi drivers are responsible for ensuring passengers between the ages of seven and 16 years are appropriately restrained. The driver of a vehicle is responsible for making sure that all occupants including themselves are appropriately restrained.  A breach of these provisions will incur a fine and demerit points if passengers are unrestrained when travelling in a vehicle.  So just to be sure, the responsibility for children under 16 years to be suitably restrained in the vehicle is that of the driver.  The penalties are quite severe and failure to ensure this for one passenger incurs a fine of $305.00* and failure in relation to more than one passenger incurs a fine of $361.00*.  Levies have to be added to these fines and in addition the driver will incur three demerit points* if one passenger is not wearing a seatbelt and the driver will incur five demerit points* if more than one passenger is not wearing a seatbelt or a suitably approved child restraint. Enquiries regarding the best type of child restraints can be made with the RAA Child Safety Centre located at Mile End.  They offer a service by appointment for members and non members to establish restraints comply and are fitted correctly. The safety of children in vehicles is paramount and for that reason alone drivers should ensure that children are properly restrained.  Travelling with children in a vehicle requires preparation.  Failure to adhere to these laws will incur a very hefty penalty indeed.   We think we've been pretty clear on the obligations of a driver in relation to the security and safety of passengers in their vehicle.  But just in case you want some clarification or maybe some information on other laws relating to the use of motor vehicles, you can get in touch directly with today's blog writer, Andersons solicitor in our Victor Harbor office, David Mullen. *  The penalties outlined in this article are correct as at the time of posting; April 2012. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/child-restraints-in-motor-vehicles.aspx http://andersons.com.au/lawtalk/posts/child-restraints-in-motor-vehicles.aspx Tue, 08 May 2012 Travis Le Riche http://andersons.com.au/lawtalk/posts/getting-insurance-when-buying-a-house.aspx Many people do not realise that they need to get insurance on their new property before settlement occurs. It is the sort of risk that is difficult to fully appreciate but is capable of sending you broke or bankrupt. If your new home burns down before settlement, then without insurance you may end up purchasing a property at top dollar that is only a pile of rubble and ash. Your bank or lender may also revoke finance approval, putting you in breach of the sale contract. The risk of damage to a house becomes the purchaser's responsibility as soon as the contract is signed and before any cooling off period expires. Depending on the wording of the contract, the vendor (seller) is usually not required to repair damage or replace property unless the vendor has acted unreasonably. You also can't rely on the vendor's own insurance (if any) as that will not be paid to you. You shouldn't wait until the cooling off period expires to get insurance. Many people do this, on the basis that they might be able to use their cooling off rights to walk away from the contract if something happens during that short period. But that assumes that the vendor or the agent will inform you if the house burns down, a car crashes through the front room or the pipes are stolen. Insurance will not cover you for anything that happens before the policy comes into effect, which means that if there is something which has happened to the property that you are not told about before you get insurance or make your decision about whether to cool off, then you will be unprotected. There may also be an overnight gap period between the end of the cooling off period and getting your insurance where you are still at risk. It is therefore highly recommended that all purchasers obtain insurance before or immediately upon signing the contract. So you see it's important to sort out your home insurance.  Need some more information on this issue?  Get in touch with today's blog writer Travis Le Riche , Associate in the Andersons Commercial team . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/getting-insurance-when-buying-a-house.aspx http://andersons.com.au/lawtalk/posts/getting-insurance-when-buying-a-house.aspx Fri, 04 May 2012 Sorna Nachiappan http://andersons.com.au/lawtalk/posts/help!-i've-been-given-a-warning-at-work.aspx There are actually many forms of warnings and disciplinary procedures in the workplace, so remember when reading this article that you will always need to refer to the policies at your workplace and your individual situation. It can be hard to tell when a warning is just that or a symptom of something more, or even if you have actually been officially warned. A warning doesn't have to be in writing In fact, the first stage in many disciplinary procedures is an "informal chat" with your supervisor or manager.  This is most often the case with so-called 'minor' things, such as small mistakes, a slip in performance, or unexplained lateness. It may well be noted for later and so should definitely not be ignored, especially if it happens more than once. A warning should never be a surprise Whether you've had the "informal chat" or skipped straight to a more serious step, you should always have been given a fair chance to review the evidence against you and present your own version of events during an investigation.  The reasons for the warning and any conditions attached to it should be clearly explained to you and a copy of the warning given to you (when it is a written warning). You also have the right to have your side of the story recorded in your file, and to have a trusted friend, co-worker, Union delegate or legal representative with you in any proceedings including meetings with the supervisor or manager, even during the investigation or informal stages.  You shouldn't feel pressured to sign or acknowledge the warning, especially if you feel it is unfair. All warnings will be recorded on your file They will be taken into account in future issues, and sometimes contribute to a 'final' warning, which signifies a kind of 'last chance'.  Warnings may also come with conditions such as a monitoring period or performance management.  If you disagree with a warning you can contest it You are entitled to seek legal advice or initiate a dispute about any warnings if you think they are incorrect or unfair.  You can follow the dispute resolution procedure at your workplace and/or speak to a lawyer about your options.  A lawyer can help you with internal dispute resolution as well as actions before Fair Work Australia or the Equal Opportunity Commission, and will be able to point you in the best direction for your circumstances. For example, if you have many warnings for things other people get away with, you might have a claim for discrimination or adverse action.  It is always advisable to formulate a written response to the warning and send it to the employer.  This may become your future defence in disciplinary proceedings or to further warnings in the workplace which may eventually lead to termination. Unfortunately, warnings are not "one-size-fits-"all.  If you are unsure in any way about where you stand, it is best to seek legal advice. Today's blog writer, Andersons Senior Associate, Sorna Nachiappan is a highly experienced Industrial and Employment Law solicitor in the Andersons IR Department .  Feel free to get in touch for advice or assistance. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/help!-i've-been-given-a-warning-at-work.aspx http://andersons.com.au/lawtalk/posts/help!-i've-been-given-a-warning-at-work.aspx Wed, 02 May 2012 Marion Williams http://andersons.com.au/lawtalk/posts/workcover-are-you-being-paid-are-you-being-paid-the-right-amount.aspx If you've suffered a work related injury and you're not able to work because of that injury then you're entitled to receive weekly payments of income maintenance. How much you get will be based on a calculation known as "Average Weekly Earnings". Average Weekly Earnings are generally calculated by averaging your earnings for the twelve month period leading up to the date of your workplace injury.  Here's an example: If you worked for 52 weeks (1 year) leading up to the date of your injury and earned $52,000.00 then you would be entitled to payments of income maintenance of $1,000.00 per week. Sometimes the period of time worked prior to suffering an injury is less than 52 weeks. Then different methods for calculating your entitlement are able to be used.  For example; if you worked for 9 months prior to your workplace injury then your earnings over that period may be divided by the exact number of weeks to work out the average. So let's say you earned $49,500 in that nine months (which we will call 33 weeks), you're payments of income maintenance would be calculated at $49,500 divided by 33, giving you weekly payments of $1,500.00. If you were only employed for a few weeks then the average may be worked out by calculating what a similar worker, doing the same job, with the same employer has earned over a longer period of time. If you provide a WorkCover Medical Certificate stating that you are totally incapacitated for work then you are entitled to 100% of your Average Weekly Earnings for 13 weeks. Then if you're still totally incapacitated after the 13 weeks, you are entitled to 90% for a further 13 weeks. And then if you're still totally incapacitated your entitlement reduces to 80% of your Average Weekly Earnings. If you are able to do some work, but not your full pre-injury hours and duties then you are entitled to receive "top up" payments of income maintenance at the rate of 100% of the difference between your actual earnings and your Average Weekly Earnings for the first 13 weeks, moving to 90% of the difference for the next 13 weeks and 80% of the difference after that. It's very important that you have a current WorkCover Certificate stating your level of incapacity for work to ensure that your weekly payments of income maintenance continue and continue at the correct rate. We know we've included a lot of facts and figures in this blog and that it's not necessarily straight forward.  If you're on WorkCover and you're not sure you're getting the right level of weekly income payments, make sure you get experienced legal advice from a solicitor who works consistently on WorkCover issues.  At Andersons, our Senior Associate in Civil Litigation , Marion Williams is an experienced solicitor for injured workers. Why not get in touch with Marion by visiting her web profile. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/workcover-are-you-being-paid-are-you-being-paid-the-right-amount.aspx http://andersons.com.au/lawtalk/posts/workcover-are-you-being-paid-are-you-being-paid-the-right-amount.aspx Fri, 27 April 2012 Ryan Thomas http://andersons.com.au/lawtalk/posts/how-do-magistrates-court-intervention-orders-impact-family-court-orders.aspx When a matter is before the Federal Magistrates Court regarding children's issues, it is important the Court is made aware of any family violence issues. This includes any intervention orders, formerly knows as 'restraining orders', that are either already in place or not yet in force. This enables the Court to attempt to strike a balance between protecting either a parent or child from family violence and also the child's right to spend time with both parents. Where an order is made by the Federal Magistrates Court relating to children and it is not consistent with an intervention order, the Court is required to provide reasons for their decision.  However, in accordance with Section 68Q of theFamily Law Act 1975,a family law order will always override an intervention order. For example, if there is an intervention order in place between a mother and father stating that the father is not to approach the mother's home but there is a family law order in place saying that the father is to pick up the child from the mother's home at 6.00 pm on Saturdays, then the father will not be in breach of the intervention order if he picks up the child at this time. Where an intervention order is already in place before a subsequent family law order is made and the Magistrates Court feels that order may put the person who applied for the intervention order or a child at risk of violence or abuse, the Magistrates Court has the power to change or suspend the family law order for up to 21 days. This is known as an interim intervention order. However, in order to make these changes or suspensions permanent, the Magistrates Court would need to demonstrate that it has new evidence that was not presented to the Federal Magistrates Court when the family law orders were made. This evidence would need to regard a parent or child that has been abused or a child potentially being at risk of abuse from a parent. So you can see there is a lot to consider with the various "orders" we've discussed.  Need some more info or some help in this area?  We recommend you speak with the writer of this blog, our Family Law Senior Associate, Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/how-do-magistrates-court-intervention-orders-impact-family-court-orders.aspx http://andersons.com.au/lawtalk/posts/how-do-magistrates-court-intervention-orders-impact-family-court-orders.aspx Tue, 24 April 2012 Marion Williams http://andersons.com.au/lawtalk/posts/are-you-on-workcover-but-need-some-home-help.aspx If you've suffered a work related injury and need help with your normal household activities and chores then you're entitled to ask your Case Manager that this be included in your rehabilitation and paid for by your WorkCover. For example, if your treating doctor writes on your WorkCover Medical Certificate that you need assistance with activities such as lawn mowing or general household cleaning, then you can ask your Case Manager to implement a Rehabilitation Program which approves the costs for providing these services. If your Case Manager refuses to implement a Rehabilitation Program you may be able take out an action in the SA Workers Compensation Tribunal to force them to do so. If your treating doctor states that you require specific equipment to help with your rehabilitation, then this may be included in your Rehabilitation Program as well.  This type of equipment may include an ergonomic chair for your work station, an orthopaedic mattress for your bed or a back-brace to provide support whilst lifting at work. If these items are not included in a Rehabilitation Program then WorkCover is not obliged to pay for them, even if you have already paid for them yourself and are asking to be reimbursed. If you think you should be receiving some Home Help as a result of your workplace injury, or some specific equipment to help you rehabilitation and your Case Manager is not actioning this, you should seek legal advice.  For more information on this topic or your WorkCover case generally, you can speak with today's blog writer, Andersons Solicitors Senior Associate, Marion Williams . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/are-you-on-workcover-but-need-some-home-help.aspx http://andersons.com.au/lawtalk/posts/are-you-on-workcover-but-need-some-home-help.aspx Fri, 20 April 2012 Linna Tran http://andersons.com.au/lawtalk/posts/sexual-harassment-what-can-i-do-to-make-it-stop.aspx People often put up with behaviour that makes them feel uncomfortable.  Perhaps because they fear they may lose their job if they complain, or that because everyone else is silent they must be the only one who feels that way.  One of the kinds of harassment that people fear speaking up about the most is sexual harassment; in part because it so often leads to questions about what you did to provoke it. The question should never be 'what is wrong with me?' or 'what did I do?'  It should always be 'what can I do to make it stop?' This makes me uncomfortable but is it really harassment? Sexual harassment does not always involve touching or obviously sexual comments.  It can be something as simple as suggestive posters on someone's pin-up board, sex-related joke emails or comments on how you look.  The important factor is how it makes you feel.  If it upsets you or it makes you feel uncomfortable, intimidated or offended, it can be considered harassment; whether it was meant that way or not.  It is also important to remember that although most employers now have specific sexual harassment policies, it doesn't just happen at work, or between co-workers.  It can happen in schools, on the street, at the shops, or even in a restaurant or hotel. So what can I do? What if I can't confront them? If you think you are the subject of sexual harassment, you should make it clear that the behaviour and/or comments are unwanted. If you are not comfortable confronting the person who is sexually harassing you, talk to a Manager or a colleague who you are comfortable with.  Most workplaces have their own sexual harassment policies which prescribe a procedure for addressing concerns regarding sexual harassment and it is recommended that this procedure is to be used as a guide.  If there isn't already a policy in place where the harassment is occurring or you don't feel comfortable going through that procedure, you can make a complaint to the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission.  Both Commissions will review and investigate your complaint, and try to resolve your complaint through conciliation.  There are differences between the processes and the range of outcomes available through each Commission, so legal advice is recommended.  A lawyer can also support you and speak on your behalf, so you won't have to directly address the people who have been harassing you. In 2008, the Australian Human Rights Commission conducted a survey which showed that 84% of sexual harassment cases go unreported, nearly half because the person being harassed didn't think it was serious enough.  In half of all cases the Commission looked at, there was someone else going through the same thing.  You don't have to be silent about sexual harassment - chances are you are not alone. If you'd like some professional legal advice about harassment , you can get in touch with the writer of today's blog posting, our solicitor, Linna Tran . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/sexual-harassment-what-can-i-do-to-make-it-stop.aspx http://andersons.com.au/lawtalk/posts/sexual-harassment-what-can-i-do-to-make-it-stop.aspx Thu, 19 April 2012 Matthew Fuss http://andersons.com.au/lawtalk/posts/had-an-accident-what-compensation-might-you-expect-for-pain-and-suffering.aspx So you've had a car accident or maybe a workplace accident or you were a victim of a medical procedure gone wrong. What can you get for the pain and suffering from this personal injury? This is a common question from many of the client we see in relation to personal injury claims. They want to know there entitlement to pain and suffering compensation as a result of the effect their injury has on their daily routines.  This could be from injuries arising from a motor vehicle accident, public liability, medical negligence or another incident or accident which has lead to a personal injury. Under the present system for injury compensation, one of the elements of compensation is non-economic loss; that is the non financial loss a person has suffered because of the incident. It's often referred to as "pain and suffering".  Presently, to calculate an injured person's non-economic loss, a "prescribed scaled points allocation system" is used with a sliding scale from 0 points to 60 points depending on the severity of the injury. A rating of 0 reflects a person who has suffered minimal injuries which resolve almost immediately and have no lasting impairment, such as a bruise.  A rating of 60 points on the scale is the worst imaginable injury usually narrowly surviving and resulting in a person suffering complete loss of use of their body, mind, means of communicating and being kept alive by machine only, on a permanent basis. Each point on the scale equates to a dollar figure for a specific year; that is the scale amounts change each year, usually going up.  The amount you may be entitled to is calculated with the scale amounts set in the year of your accident. It should be noted that such amount is relatively modest in comparison to other damages which can be claimed in respect to a compensable injury. Calculating the rating (from 0 to 60) as to where certain injuries sit on the scale takes into account a number of factors including but not limited to the severity of the injuries, the effects of the injuries on that person's daily lifestyle, past and ongoing treatment, ability to undertake various tasks or functions and their need for assistance.  Points awarded in previous cases with similar circumstances and effects may also be taken into account. To make sure you get the compensation you are entitled to and deserve, it's imperative that professional legal advice is obtained. As you can see, there are a lot of factors to take into account and use of the scale is not cut and dry; it can be complex.  If you'd like some more information about this area of compensation, get in touch with the blog writer directly, Associate in the Andersons Civil Litigation department, Matthew Fuss . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/had-an-accident-what-compensation-might-you-expect-for-pain-and-suffering.aspx http://andersons.com.au/lawtalk/posts/had-an-accident-what-compensation-might-you-expect-for-pain-and-suffering.aspx Tue, 17 April 2012 http://andersons.com.au/lawtalk/posts/how-long-will-my-compensation-for-car-accident-take-to-come-through.aspx One of the most frequently asked questions at a first interview is "When will my claim be over?" It's important, early on, to understand that an injured person has only "one shot" at bringing his or her claim.  Whenever a claim is finalised, it is on a "once and for all basis".  It is virtually impossible to re-open a completed claim particularly if the argument to do so is that the injury has worsened or has not recovered the way you thought it would. From a lawyer's perspective, that is the perspective of someone trying to accurately assess a claim, we would much prefer that the injured person's treatment has concluded.  The monetary cost of treatment is high and there is always an unsatisfactory amount of guesswork in anticipating the cost of future medical treatment.  We also need to understand whether the injured person has made a complete recovery from the affects of the injuries or whether they will be left with a permanent residual disability which is capable of being accurately assessed. For these reasons we try and find the balance between not dragging claims out any longer than is necessary and of putting ourselves in a position where we can accurately assess an injured person's full entitlements. At first interview it is invariably impossible to answer the client.  It is of course, from the client's perspective a perfectly reasonable question to ask.  In the general sense the best answer is that the claim will likely conclude when the injured person completes their recovery process. So you can see it's not a "cut and dry" answer we can give.  Although we're hoping we've satisfied what you needed to know here, it may well be you'd like some further information about your car accident claim . If so, why not speak with today's blog writer, Andersons Partner in Civil Litigation, Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/how-long-will-my-compensation-for-car-accident-take-to-come-through.aspx http://andersons.com.au/lawtalk/posts/how-long-will-my-compensation-for-car-accident-take-to-come-through.aspx Tue, 03 April 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/can-i-get-my-marriage-annulled-in-australia.aspx "Annulment" of a marriage is not considered a legal term in Australia. Annulment is an American legal procedure, meaning to declare a marriage null and void. In Australia, we use the term "nullity" of a marriage, which also means that a marriage is null and void. Unlike the American procedure of annulment however, nullity can only be used in very limited circumstances.   The grounds available to satisfy nullity of marriage in Australia are as follows: one or both of the parties were already married at the time (bigamy); or   one or both of the parties were under-age and did not have the necessary approvals; or   one or both of the parties were forced into the marriage under duress. If you don't satisfy one of the above, you will have to embark on the standard procedure for divorce in Australia, which will require you to be separated for a minimum of 12 months before you can make an Application for Divorce to the Court. We're hoping we've clarified this query but perhaps not.  So if you'd like some clarification or more information, why not contact today's blog writer, Camille McDonald of Andersons Solicitors. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/can-i-get-my-marriage-annulled-in-australia.aspx http://andersons.com.au/lawtalk/posts/can-i-get-my-marriage-annulled-in-australia.aspx Fri, 16 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/causation-in-medical-negligence-claims-is-often-the-real-challenge.aspx In the last twenty years in which I have practised in the field of negligence law, almost invariably when victims of medical negligence are initially seen, they are very focused on the issue of a breach of standard of care; that is, whether the doctor or hospital concerned failed to comply with competent professional practice. However, it is important for victims of medical negligence to appreciate that you also must establish at law that any breach of the duty of care caused an injury.  Proving this link is called "establishing causation". If the injury would have happened regardless of the breach of care, no damages/compensation can be claimed.  It is necessary for the victim of medical negligence to show it was more probable than not that the breach caused the injury and any resultant loss. For example, in the case of an alleged late diagnosis of cancer, you must establish that you would have had a more favourable prognosis if the breach had not occurred.  In many cases, proving causation is a greater challenge than establishing a breach of duty of care.  This is often because the cause and likely course of injuries and medical conditions can be uncertain and unpredictable. So you can see that's causation plays a vital role in your potential medical negligence claim. It's important you have experienced and professional legal assistance if you wish to pursue a claim for compensation as a result of medical negligence. Today's writer, Andersons Solicitors Partner, David Fabbro is highly experienced in fighting for the rights of victims of medical negligence . Visit David's web profile for more information or to call him for a chat. http://andersons.com.au/lawtalk/posts/causation-in-medical-negligence-claims-is-often-the-real-challenge.aspx http://andersons.com.au/lawtalk/posts/causation-in-medical-negligence-claims-is-often-the-real-challenge.aspx Thu, 15 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/rights-of-beneficiaries-giving-or-receiving-gifts-in-a-will.aspx You may find a lot of terminology used in this blog article that you're not overly familiar with.  To assist you, we've included a short set of definitions at the end. So you wish to leave someone a gift in your Will?  Or alternatively you have been left something by a loved one or relative in their Will.  What are the dangers and risks associated with gifting in a Will? Firstly you need to work out what type of gift you wish to leave or have been given. a gift of realty (land) by Will is called a devise ; a gift of personalty (personal property) is called a legacy (or sometimes a bequest) There used to be substantial differences between devises and legacies but there is virtually no legal difference now.  There are however five types of legacy and the classification between them does have some consequences. The different types of legacy: 1.Specific legacy A "specific legacy" is a gift of a specific thing.  What marks a gift as specific is that its subject-matter is an identifiable part of the estate as at the date of death. So there are two kinds of specific legacy: (i)   Specific property as at the date the Will was written; for example, "my house at 8 Smart Street Adelaide" or "my cat Patches".  The risk of such specific legacies is that they may cease to exist by the time the death occurs.  The house at 8 Smart Street may have been sold or the cat may have died.  If that occurs the legacy is said to be adeemed; that is, taken out of the Will. The beneficiary loses his or her interest. (ii)  Specific property as at the date of Death. For example, a gift of "any house I own in Adelaide" or "all my cats". They are not liable to ademption in the same way as the example above because they are defined differently. 2. General legacy A general legacy does not allocate any particular property or fund as the subject of the gift.  In fact the gift may never have formed part of the estate; for example, a gift of a BMW car to Richard.  There may never have been such a car but the effect of this gift in the Will is to require the executor to purchase a car of this description for the beneficiary. 3. Pecuniary legacy This is a gift of money and is generally quite broad; for example $20,000 to Alice. 4.Demonstrative legacy This is a general legacy paid out of a specific fund; for example, $10,000 out of my CBA bank account.  If the bank account has less in it than the figure stated (or has ceased to exist entirely at death), the beneficiary receives what balance is left in the account and any balance required to pay the gift in full can be paid out of the residue (other assets) of the estate. The intention with this gift is that it shall be paid initially from the specified account or fund and any balance from the residue.  As it is not specific legacy, the gift cannot be adeemed simply because the fund no longer exists. 5.Residuary legacy This is the gift made up of what remains after the payment of all debts, liabilities, expenses and other legacies. In essence it is the balance of the estate which may be directed to certain beneficiaries. Beneficiaries have no immediate right to assets left to them in a Will while the executor is in the course of administering the estate. Once the duties of administration have been completed it is the executor's duty to transfer the legacies to the beneficiaries. It's important to know that gifts made to beneficiaries can fail in certain circumstances. One of them raised above is the case of ademption; the specific gift no longer exists.  Another common reason is that of abatement which means that there are insufficient funds in the estate to pay all of the debts, liabilities and legacies in full.  If that occurs the executor must follow a strict path as to what gifts fail first.  The gifts fail in the following order: a)     Residuary, b)     General and pecuniary legacies, c)      Specific and demonstrative legacies. All legacies within each category abate (are reduced) proportionally.  Here's an example of how it might look. A Will makes the following gifts; $10,000 out of a CBA account to Roger; $10,000 to each of Mary and Bob' and  the residue or balance of the estate to Graham. After payment of the funeral account and other liabilities of the estate there is only $20,000 left in the CBA account for the executor to distribute. Graham's interest in the residue will be the first gift that fails. So, unfortunately Graham gets nothing from the estate. Mary and Bob will each only receive $5,000 as there are still insufficient assets to meet all of the remaining gifts. Finally, as Roger's gift is specific he will receive the entire $10,000. Some definitions that might help you with our blog post today: Legacy A bequest or gift made in a Will Specific legacy An identifiable asset; my cat Patches or my car I own at my death General Legacy An identifiable asset that may not currently form part of the estate Pecuniary Legacy A gift of an amount of money Demonstrative Legacy A gift of something that is derived from a specific fund or account Residuary Legacy The balance of the estate Ademption / Adeemed Where the item gifted no longer exists and therefore fails to pass to a beneficiary Abatement How gifts are used to pay off estate debts and liabilities when there are insufficient funds to meet all debts and gifts made in a Will So as you can see, there's a fair bit of information contained in this article and it can be a complex area of law particularly if you're not familiar with dealing with Wills.  If you'd like some more information on "gifting" in a Will or perhaps like to clarify what we've shared with you today, why not get in touch directly with the writer of this article, Andersons Solicitors Senior Associate in Wills and Estate Planning , Greg Welden . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/rights-of-beneficiaries-giving-or-receiving-gifts-in-a-will.aspx http://andersons.com.au/lawtalk/posts/rights-of-beneficiaries-giving-or-receiving-gifts-in-a-will.aspx Wed, 14 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/flood-insurance-how-can-i-be-sure-i-have-the-cover-i-need.aspx A domestic property or small business property may be damaged by water in a number of ways and people will often just say, 'It was a flood'. Insurance policies have specific terms dealing with water damage which must be distinguished. Not everything related to water damage is considered flood damage by insurance companies. The property may suffer water damage from: (a)    Stormwater/rainfall run-off/flash flooding; (b)    Rivers, creeks or lakes overflowing; (c)    Storm surge/sea level rise/king tides; (d)    Burst pipes or equipment failure within the building. There is generally poor consumer knowledge about 'flood insurance'. Where there is a storm which causes heavy rainfall which runs off through a property towards a watercourse (say, a river or creek), any damage is treated as 'storm and tempest' and cover is usually granted. However, when a river, creek or lake rises and over flows and the water flows across normally dry land into a property, insurers usually regard this water as 'flood' and in many cases there is no insurance cover. Where there is inundation by sea water from waves or high tides, properties are generally not insured against this risk. There is usually cover against water damage caused by broken pipes or equipment. The terminology used in insurance policies by various insurers as to what is meant by 'flood' differs remarkably. Many insurers do not cover damage by 'flood' although there is an increasing number who do. The Federal Government is now working on a proposal for a common definition and a possible requirement that all insurers of domestic homes offer flood protection as part of the insurance package subject to the consumer's right to opt out of this cover. A consultation paper has been released. There are maps available which do show areas which may be subject to flooding. Some 7% of Australian homes face some flood risk. The wording of a particular policy is critical in determining whether a consumer has cover. Consumers must carefully check the definitions in the insurance policies and if they do not understand it or it is not clear, seek professional advice to ensure you are getting the insurance cover you actually want. The causes of any damage are closely examined by insurers to ascertain whether the damage is caused by rainwater run-off from the house or surrounds or by water overflowing from water courses or by being prevented from entering a watercourse which is already full. If you have insurance on a property, you need to carefully check the insurance policy to ascertain what risk is covered especially in a flood prone area. If you'd like some information or assistance about your insurance or a claim you are trying to settle, why not have a chat with the writer of this blog, John Daenke from Andersons Solicitors . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/flood-insurance-how-can-i-be-sure-i-have-the-cover-i-need.aspx http://andersons.com.au/lawtalk/posts/flood-insurance-how-can-i-be-sure-i-have-the-cover-i-need.aspx Tue, 13 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/when-is-a-non-cash-benefit-a-“benefit”-under-the-sa-workers-comp-scheme.aspx Sometimes, when a worker's weekly payments on WorkCover are set initially on a claim, the circumstances of what they get by way of income and their overall package can change down the track.  An example of this is when a worker at the start of a claim has the use of a company car and then at some point later down the track due to the worker being terminated or detached from employment the car is taken away from the worker. Once the car is taken away this leaves the worker car-less with no benefit in money terms for the loss of the car.  How then is this change in circumstance accounted for in their weekly payments? Can it get accounted for?  The answer is yes it can. In this 'change in circumstances' situation there is scope for a review to be done.  WorkCover SA, of its own initiative or at the request of a worker can request a review to look at the calculation of the workers WorkCover weekly payments. In certain circumstances an adjustment because of a change in the component of the workers income can be made. This includes a non cash benefit, for example, a company car or other company items. At Andersons , we've have been involved in 2 cases recently where sums of approximately $15,000.00 and $12,000.00 (divided into a weekly allowance) have been added to the workers weekly earnings to make allowance for the loss of a car that has been taken back by the employer. Non cash benefits can include other things such as use of a company phone, access to a discounted rate of interest on a loan, payment of school fees, payment of health insurance premiums, payment of medical benefits, a computer for personal use, access to the internet, accommodation, payment of or towards housing costs, a telephone and payment of costs associated with the using or maintaining the telephone, a credit card or a staff discount program.  Sometimes in these cases a distinction is drawn between whether or not these things can be used for private or business use only. Another case of a similar nature we have come across recently is a salary sacrifice amount which was not included in the workers WorkCover weekly payments when they were set. The workers compensation legislation however, provides for this and says it needs to be taken into account as earnings.  This is certainly something to watch out for . In these types of matters it is useful to have any documents that a worker was given when they commenced employment about their salary and packaging arrangements such as Contracts of Employment or letters of offer from the employer. It is also useful if the worker has an idea of any verbal or written offers that were made by the employer as to how much they would get for their salary if they elected not to have the company vehicle and used their own private vehicle instead. In the case of one worker, he was told, and it was confirmed by the employer that, if he chose to use his own vehicle his salary would be $15,000.00 on top of his base salary to account for running and maintaining his own vehicle. So if your income and salary packaging circumstances change throughout the course of your WorkCover claim you may have access to a right of review under the workers compensation scheme.  If any of your circumstances change it would be worthwhile at that point to seek advice from an experienced workers compensation lawyer. It can get a bit complex but at Andersons we've got a great team in Workers Compensation and you can even get in direct contact with our blog writer today, our Associate Alana Moore . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/when-is-a-non-cash-benefit-a-“benefit”-under-the-sa-workers-comp-scheme.aspx http://andersons.com.au/lawtalk/posts/when-is-a-non-cash-benefit-a-“benefit”-under-the-sa-workers-comp-scheme.aspx Tue, 13 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/living-in-south-australia-with-assets-overseas-your-“one-will-to-rule-them-all”-may-not-be-good-enough.aspx Many people making a Will may assume that their Will, validly made in South Australia is going to be effective to dispose of overseas assets they may own. That assumption might be incorrect depending on where the overseas assets are held.  To make certain the overseas assets can be adequately dealt with by a local Will care must be taken to ensure foreign laws are complied with. It may be wise or necessary for a separate Will to be made within the jurisdiction where the asset is held, such Will only dealing with that asset. If that were to occur there would be two concurrent Wills; one to deal specifically with an overseas asset (made within that jurisdiction) and the other to generally deal with the estate of the deceased. There is high danger with having concurrent Wills. There may be an unintentional revocation of an earlier Will.  Wills are generally expressed to revoke all earlier testamentary documents.  If an overseas (later) Will is also expressed to revoke all earlier Wills it may have the effect of replacing the local Will which may have undesirable outcomes. Each concurrent Will must be drawn to expressly recognise the existence of the other and to preserve its operation and effect. So what about Wills made overseas. Generally speaking, a Will made overseas that is valid according to the laws of the country where it was drafted, will be acceptable in South Australia (even if it is not strictly valid according to our local laws). In those circumstances it may be necessary to obtain a 're-seal' of the grant of probate obtained overseas.  This simply means that the foreign grant can be recognised locally. If the deceased died in a Commonwealth Country this is usually a straight forward procedure however if they died in a non-English speaking country some difficulties will naturally arise. So can you have "one Will to rule them all"?  Not necessarily.  To check the status of your Will in relation to any overseas assets you own, why not have a chat with our Senior Associate Greg Welden about where you stand. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/living-in-south-australia-with-assets-overseas-your-“one-will-to-rule-them-all”-may-not-be-good-enough.aspx http://andersons.com.au/lawtalk/posts/living-in-south-australia-with-assets-overseas-your-“one-will-to-rule-them-all”-may-not-be-good-enough.aspx Thu, 08 March 2012 Dion McCaffrie http://andersons.com.au/lawtalk/posts/who-pays-my-legal-costs-in-a-motor-vehicle-or-bicycle-claim.aspx Questions about the payment of legal fees in compensation claims are frequently asked but not always are the answers understood.  Our experience is that clients, particularly at first interview, are very concerned about legal costs to the point of being over concerned. To answer this question properly we can only do so on the basis of our firm's policy.  In taking on a motor vehicle claim we would assess it and we will assume, for the purposes of this blog that our view is that the claim will be successful.  On that basis we would never charge any legal fees to a client whilst the claim is being processed.  We know that the issue of the amount of and the payment of legal fees will be matters for discussion and determination at the end of the claim but we are happy to discuss them with clients at any time. When we come to the time of commencing negotiations with the Insurer to try and reach an agreed settlement over a claim, we include our claim for legal costs.  It is important to note that the Insurer does not have an obligation to pay all of a solicitor's legal fees in a claim but rather they are obliged to pay what are called the "party and party" costs which are in essence the costs that the loser pays to the winner. As a rule of thumb we would suggest that the Insurer would pay approximately 70% of legal fees in an average claim.  The point for any potential client to remember is that there is always a short fall in costs and that short fall is expected to be made up out of the claim but only at the end of the claim.  Part of what we do is to try and narrow that short fall to as small a figure as we can. The other aspect to costs concerns what are called "out of pocket" expenses.  Again the system is not too bad in that the major out of pocket expense would be the cost of medical reports which are needed to progress the claim.  The Insurer, generally speaking, is happy to pick up the cost of these reports and we would rarely have reason to request a client to meet these types of costs. Again, our policy is to try to ease the stress and pressure that the claimant is under as a result of the accident.  It makes no sense to us if we are to render accounts to clients in these circumstances, before the claim has settled, as almost invariably they are in no position to pay them. Have we clarified our position on costs in a motor vehicle claim? The writer of today's blog is our Partner, Dion McCaffrie .  Dion is a highly experienced litigation lawyer with a passion for delivering great results to victims of a motor vehicle accident .  Please feel free to contact Andersons if you require further information or assistance about a claim you wish to pursue. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.   http://andersons.com.au/lawtalk/posts/who-pays-my-legal-costs-in-a-motor-vehicle-or-bicycle-claim.aspx http://andersons.com.au/lawtalk/posts/who-pays-my-legal-costs-in-a-motor-vehicle-or-bicycle-claim.aspx Thu, 08 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/workplace-bullying-just-say-no.aspx In schools, children are taught to "just say no" to bullies. Walk away and ignore them because if a bully doesn't get attention, they'll stop. This attitude sets a dangerous precedent for the workplace, where the bullying may involve a power imbalance and ignoring it may only make it seem acceptable, or allow it to escalate to the point where stress leave on this ground is prevalent.  It's alright to say "sticks and stones", but when it's making your job harder, it's just as okay to find a way to speak up. Medium to large sized workplaces now have a bullying and harassment policy, which is usually available in procedure manuals or the workplace intranet.  It will usually give a brief definition of bullying and an outline of the internal complaint process.  It is a good first place to look for your options, even if you end up deciding to go elsewhere.  Some questions you might ask yourself when looking at the policy are: Who will I be making my complaint to? What will happen once I've made my complaint? What can I do if I am not happy with the outcome? A good policy will make these things clear.  For example, a good policy will have a designated complaints officer and have clearly explained processes, including how to appeal an initial decision.  There may also be counselling services available, or someone you can talk to without lodging a formal complaint. If you choose to go through the complaints process and the bullying doesn't stop, you might be able to lodge a complaint with the Equal Opportunity Commission (EOC).  The EOC requires that you be victimised , or treated differently, to be able to complain. For example, you could be being excluded from social activities, or be "sent to Coventry" (where people do not speak to you or exclude you from general conversations) or being further harassed. Another option is a General Protections claim with Fair Work Australia.  If you suffer in your job, for example, by being excluded from training, or subjected to unjustified performance management, you may be able to argue that your employer has taken adverse action against you because you made a complaint.  This extra qualification may be a bit difficult to show in some cases so it's important you seek suitable and professional advice. Alternately, if you feel the bullying is discriminatory , such as being based on your race or gender, you can make a complaint with the EOC or the Australian Human Rights Commission.  Which forum is right for you depends on your situation as they differ slightly in their jurisdiction and processes. Both will usually begin with a conciliation process in an attempt to find a solution before referring your claim for a hearing.  You don't need to have already complained through work (internal process) to lodge an external complaint on these grounds. It is important to remember that you are not alone if you are facing a bully at work.  There are other people in your situation, and there are people who can help you deal with it.  If you ask for help, or make a complaint, you've taken the first step to reducing the bully's power over you. It's not a crystal clear area of law.  It can be confusing and complex. But we urge you not to let bullying and harassment be a part of your work environment for these reasons. If you need to clarify where you might stand in relation to workplace bullying, get in touch with today's blog writer, Senior Associate at Andersons Solicitors, Sorna Nachiappan . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian State legislation and Australian Federal legislation. http://andersons.com.au/lawtalk/posts/workplace-bullying-just-say-no.aspx http://andersons.com.au/lawtalk/posts/workplace-bullying-just-say-no.aspx Wed, 07 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/unfair-dismissal-what-can-you-expect-now.aspx One of the main questions we are asked after someone has engaged us to lodge an unfair dismissal claim on their behalf is "what happens now?" Some very important time frames The first thing to do is prepare the application for Unfair Dismissal and lodge it.  Remember, you've only got 14 days from the date of your dismissal to lodge the claim with Fair Work Australia (FWA) so this needs to be done fairly quickly.  FWA will then serve your claim on your former employer.  Your former employer then has 7 days to respond, saying why you were dismissed and addressing the issues raised in your application. The "Conciliation" stage FWA will set a date for a conciliation conference at this time.  The conciliation conference lets everyone put forward their point of view and it's an opportunity to try to reach an agreement.  A majority of claims settle at conciliation. The conference is usually done by phone, which means you don't have to directly face your former employer.  Usually it's attended by you and your representative, one or more representatives of your employer, and a FWA conciliator.  The conciliator is there to help you and your employer discuss your claim and find a resolution.  The conciliator does not have powers to make an order, force a party to agree or disagree to something. At the conference, your representative will make submissions based on your position and the result you are seeking.  The types of results people are seeking include reinstatement, money, an apology, a "non-disparagement clause" or something else depending on your situation. If you settle at conciliation, you will need to sign a Deed of Settlement that explains what you agreed to and then you must abide by it.  If you weren't successful in settling your differences at conciliation, you will have to decide whether to go to a hearing. The "Hearing" stage This is often referred to in layman's terms as your "day in court".  To get there, you will have to defeat any jurisdictional objections raised by your employer. For example, if you lodged your claim after the 14 day limitation period, now is when you will have to convince FWA to hear your case.  Not everybody has to go through this stage. The hearing is in a courtroom at FWA, which is not quite as formal as the ones you see on TV!  You and your employer will need to present evidence, and afterwards the FWA member will decide your claim based on the evidence and the law.  The test for whether a dismissal was unfair is whether it was "harsh, unjust or unreasonable". The FWA member can order that you be reinstated or grant you up to 26 weeks pay in compensation.  The other remedies available at conciliation, as mentioned earlier are not available here. It can sound a bit daunting and a lengthy process but you don't have to do it alone.  We particularly want to stress to you today that the 14 day time limit is very important.  If you think you've been unfairly dismissed, act quickly.  For more information on employment and industrial law , take a look at our website.  Or perhaps you want some more information on Unfair Dismissal.  You can chat directly with the writer of today's blog, Sorna Nachiappan. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/unfair-dismissal-what-can-you-expect-now.aspx http://andersons.com.au/lawtalk/posts/unfair-dismissal-what-can-you-expect-now.aspx Fri, 02 March 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/lost-your-driving-licence-need-you-car-for-work-we've-got-an-option.aspx Can you apply for a Safer Driving Agreement? In September 2010 legislation was enacted in South Australia involving changes to the Graduated Licensing Scheme (GLS).  Not sure what this is?  The GLS is, as the name suggest, a graduated scheme enabling qualified persons to progress to obtaining a full driving licence. To be allowed to drive, applicants with a Learners Permit, progress to a Provisional licence called a P1, then to a further Provisional Licence called a P2, before finally arriving at a full driving licence. If you've have been disqualified while holding a P1 or P2 licence, depending on the circumstances, you can, under changes to the legislation in 2010, apply for a Safer Driving Agreement.  Before Safer Driving Agreements came into effect in 2010, you could appeal to the Magistrates Court on the basis of extreme and undue hardship; for example, maybe you would lose your job without a licence.  The Safer Driving Agreement replaces this appeal system. You can only apply for a Safer Driving Agreement under certain circumstances: If disqualification was for other than a "Serious Disqualification Offence"; and you have not entered into a Safer Driving Agreement in the last 5 years; and   if a Magistrates Court has not allowed an appeal against disqualification. A Serious Disqualification Offence is: an offence against the Criminal Law Consolidation Act ; or  an offence that attracts 4 or more demerit points; or  a speeding offence that attracts 3 or more demerit points if committed by a person who has whilst holding a licence previously been convicted of or expiated a speeding offence that attracted 3 or more demerit points; or  a combination red light and speeding offence arising out of the same incident; or  an offence by a person who has previously been disqualified from holding a licence or permit. If you're disqualified from driving and once you've received notice of that disqualification you must give notice to the Registrar within 21 days that you wish to enter a Safer Driving Agreement. If you're not entitled to a Safer Driving Agreement then there is one last option, but there are conditions. Provided you have not in the last 5 years been allowed an appeal by the Magistrates Court against disqualification, the Magistrates Court may allow the appeal if: the court is satisfied the disqualification would result in severe and undue hardship; and   that if the prosecution produces evidence of previous offences that evidence does not indicate the person is a substantial risk to themselves. The Graduated Licensing Scheme is onerous. P1 and P2 drivers are under strict conditions and if you're one of these drivers and you commit offences you are subject to penalties and risk of losing your licence.  Safer Driving Agreements are a means of getting permission to continue to drive, but it's important to note your conditions for driving will be restricted.  So, it's best not to commit offences in the first place and avoid the restrictions. Want to know more about Safer Driving Agreements?  You can get in touch with the writer of today's blog, one of Andersons Victor Harbor solicitors in Criminal Law , David Mullen . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/lost-your-driving-licence-need-you-car-for-work-we've-got-an-option.aspx http://andersons.com.au/lawtalk/posts/lost-your-driving-licence-need-you-car-for-work-we've-got-an-option.aspx Tue, 28 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/workcover-recipients,-are-your-medical-expenses-being-paid.aspx We often get calls from injured workers who have been told that their Case Manager won't pay any more of their medical expenses.  These injured workers often go without medical treatment that they need because of this "advice". And you know what... it's wrong.  If you have an accepted workers compensation claim then the Case Manager is legally obliged to pay all reasonable medical expenses that you incur as a result of your work related injury. If your Case Manager says they won't pay for treatment you can challenge that decision and may be able to force the Case Manager to pay the account, or reimburse you for the cost if you have already paid the doctor or physiotherapist etc. If your doctor wants pre-approval for the costs of surgery or other major treatment (because they won't proceed without this treatment until they have approval), you can ask your Case Manager to provide their approval, or you can ask for a Rehabilitation Programme that approves the cost of the surgery or treatment to be incurred.  If your Case Manager does not implement a Rehabilitation Programme then there are procedural steps that can be taken to force them to do so and Andersons can help you with that. Injured workers are entitled to receive reasonable medical treatment and the insurer is obliged to pay for that treatment.  If your medical expenses are not being paid by your Case Manager contact the writer of this blog, Marion Williams at Andersons Solicitors on 8238 6642. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/workcover-recipients,-are-your-medical-expenses-being-paid.aspx http://andersons.com.au/lawtalk/posts/workcover-recipients,-are-your-medical-expenses-being-paid.aspx Fri, 10 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/been-on-workcover-long-term-how-to-apply-for-weekly-payments-beyond-25-years.aspx Generally now under the SA Workers Compensation legislation unless a worker has no current work capacity and that is likely to continue indefinitely a worker's income maintenance (weekly payments) will stop at the 2.5 year point. At that point (or in fact just prior to that point) it is strongly urged and encouraged that injured workers seek legal advice as to how they may be able to have their income maintenance continued beyond the 2.5 year mark. The only way that this can occur at that time is if a worker lodges a form called a "Section 35C Application for Payments to Continue" with their WorkCover insurer (Employers Mutual Limited or an exempt employer). The insurer then needs to determine that the worker's entitlement to weekly payments does not cease and this is met if: "the Corporation is satisfied that the worker is in employment and that because of the compensable disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings" - Section 35C (2) of the Workers Rehabilitation and Compensation Act 1986 (SA). Employers Mutual Limited and exempt employers do not readily tell injured workers to lodge this Application for Payments to Continue form.  By lodging this form this is the only way an injured worker's income maintenance payments can continue to be topped up beyond the 2.5 year mark. The worker has to be in some employment to be able to lodge this form. It is then up to the insurer to determine whether what they are doing in their work is working to their maximum capacity or not. There is not much case law as yet in the Workers Compensation Tribunal as to how the Section 35C Applications will be treated at law however, at Andersons we anticipate that many arguments will be able to be made to hopefully achieve top up income maintenance for injured workers beyond the 2.5 year point.  We anticipate that these arguments could incorporate a whole range of issues namely hours worked, earnings and these provisions overlap with employment and industrial relations issues such as conditions of employment. Under the legislation once the Section 35C Application form is lodged the insurer must, within 90 days of receiving it, make or refuse to make a determination and advise the worker in writing of its decision. The insurer cannot refuse to make a determination unless they have referred the matter to the Medical Panel for decision.  In other words, they can either accept that the worker is working to his or her maximum capacity within the 90 days and issue a determination or if at the 90 days they cannot make the decision they must refer the question to the Medical Panel. If  the insurer makes a determination that the worker does satisfy the test outlined above under Section 35C (2) then the worker is entitled to weekly payments top up of 80% of the difference between what they are earning in employment and their notional weekly earnings. Andersons has a very strong and experienced team of solicitors in WorkCover .  We urge any injured worker who is in employment and coming up to 2.5 years from the date of their injury to contact Andersons for assistance with this type of application.  Or just for a quick chat initially, why not contact the writer of today's blog, Andersons Solicitors Associate, Alana Moore . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/been-on-workcover-long-term-how-to-apply-for-weekly-payments-beyond-25-years.aspx http://andersons.com.au/lawtalk/posts/been-on-workcover-long-term-how-to-apply-for-weekly-payments-beyond-25-years.aspx Thu, 09 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/pps-register-new-law-could-put-farmers'-assets-at-risk.aspx Farmers who sell crops on consignment, agist cattle and lease out machinery could risk losing their assets if they don't register on the new Personal Property Securities Register ("PPS" Register) which came into effect in late January. The old saying "possession is nine-tenths of the law" has never been more true than as of 30 January 2012 with the introduction of the Personal Property Securities Act, warns one of our Commercial Team Partners, Felix Hoelscher. This law significantly changes the long established principles about who legally owns the assets. While the new regime will not directly affect real estate, the changes could impact businesses that supply goods valued over $5000 including motor vehicles, machinery, crops and livestock. Andersons recommends that people who supply goods on retention of title terms, have goods or assets located at other people's premises or who rent, lease or hire goods to others (including to related parties), need to familiarise themselves with the new law. In very simple terms: If Farmer Bill owned some cattle and had it being agisted at Farmer Joe's property, and Farmer Joe went broke, then Joe's bank could possibly deal with the cattle as part of Farmer Joe's personal property and sell it up.  In this kind of scenario, Farmer Bill could ensure this doesn't happen by firstly ensuring he has a written agreement with Farmer Joe and secondly by registering his interest in the cattle on the PPS Register. There was a case in New Zealand, which has a similar law, where a stallion was leased to a company and that company was later placed into receivership. The Court found that despite the stallion's owner having legal title, a third party had the right to sell him because it had "perfected" its security interest by registration while the owner had not registered its interest at all. Any suppliers who sell goods that are subject to retention of title are no longer able to rely on their title to protect their interests in those goods.  Instead they are required to register their interest on the new national Personal Property Securities Register in order to preserve their priority over the goods that have been sold.  Failure to do so will mean that the supplier may lose the right to re-take possession of the goods, if not paid. Obviously there are complexities with the legislation that mean every situation will be different, so people need to consult the government website www.ppsr.gov.au and consider taking legal advice to determine whether they need to update their practices and documents to ensure that they have a right or ability to register a security interest over their personal property. Previously the interests of banks and other third parties in motor vehicles and other assets were registered in different ways in different States.  This new register aims to bring it all into one national register - so there will be benefits for receivers and liquidators when it comes to working out who owns what assets. While there is a transitional period for transactions which pre-date the commencement of the new legislation, there were still situations where it would be best to "perfect" those past interests with the PPS Register. Even licences or leases that are in place with related entities as asset protection measures should be reviewed and "perfected" during the transition phase. Want to know more?  You're more than welcome to get in direct contact with the writer of today's blog, Andersons Partner, Felix Hoelscher . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/pps-register-new-law-could-put-farmers'-assets-at-risk.aspx http://andersons.com.au/lawtalk/posts/pps-register-new-law-could-put-farmers'-assets-at-risk.aspx Wed, 08 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/personal-property-securities-register-critical-information-for-businesses.aspx New changes to the law in relation to the Personal Property and Securities Register (" PPS Register" ) will affect most businesses in important ways. There can be far reaching consequences for businesses which are affected and do not take steps to understand these changes, particularly if you do business with someone who becomes insolvent. The Basic Guide On Monday 30 January 2012, the PPS Register replaced most other security registers in Australia, including but not limited to the ASIC Company Charge Register and the South Australian Register of Encumbered Vehicles. It also enables registration of security interests, generally speaking, where you take security over someone else's asset excluding real estate that secured parties have not previously been able to register. Security interests capable of registration and numerous and could include, amongst other things: Fixed and floating charges over companies - this includes intercompany charges for asset protection purposes;  Mortgages over shares;  Leasing/licensing goods - this includes intangible goods like intellectual property; and  Selling goods under retention of title or on consignment. A Practical Summary All businesses should make sure they understand the following: If you hire goods, sell goods or otherwise secure or encumber other party's goods (or your own goods are in someone else's possession) and you fail to register your interest on the PPS Register or register your interest too late, you can lose those goods to another secured party who has registered their interest before you, even if you own legal title to the goods .  For all security interests that are dated before 30 January 2012, but not currently registered, you will have two years to register them before you lose priority . Andersons Solicitors can advise whether you need to register your interest on the PPS Register in order to obtain or retain security in priority of others and we will assist you in the process of registration if your require.  For more information or to get some help with this, why not have a chat with today's blog writer, Andersons Partner Felix Hoelscher . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/personal-property-securities-register-critical-information-for-businesses.aspx http://andersons.com.au/lawtalk/posts/personal-property-securities-register-critical-information-for-businesses.aspx Fri, 03 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/i've-had-a-car-accident-i-need-some-financial-assistance-now-please!.aspx Many of our clients encounter significant financial difficulties after being injured in a motor vehicle or bike accident. A family, for example, can lurch from financial security to financial stress very quickly if the sole breadwinner is unable to work for any period of time following injuries sustained in an accident. Is there anything that can be done for those injured in road accidents to ease what is often a short term but significant financial difficulty? The compulsory third party insurer, Allianz, is open to an approach for what is called an interim payment.  That is, a payment usually of a smallish amount to ease a person's financial hardship while the totality of a claim is still being assessed or while they are unable to work. We have had several clients who have received a rolling series of interim payments which have covered them until they are able to resume work. Allianz, in our view, does take an unnecessarily harsh view of applications for interim payments.  They do however, require evidence of the financial hardship as a pre-requisite.  It's similar to the application being means tested and that you need to establish that you do not have significant funds that you can fall back on and in addition, you are being pressed to make significant regular outgoings such as mortgage payments. We know many of our clients have found this method of access to financial assistance most welcoming.  We recommend it to many clients, particularly as it can remove a potentially difficult and stressful issue. For more information in relation to the obtaining of an interim payment after your motor vehicle or bike accident get in touch with our writer today, Andersons Partner, Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. Photo by sghosh30 and sourced from Flickr http://andersons.com.au/lawtalk/posts/i've-had-a-car-accident-i-need-some-financial-assistance-now-please!.aspx http://andersons.com.au/lawtalk/posts/i've-had-a-car-accident-i-need-some-financial-assistance-now-please!.aspx Wed, 01 February 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/my-partner-cheated-on-me-i-want-to-make-them-pay.aspx Will unfaithfulness be taken into account in a family law property settlement? Scenario: Fred and Wilma recently separated after Wilma discovered Fred had been unfaithful on several occasions. Fred admitted his unfaithfulness to Wilma and further admitted that he had been unfaithful for two years out of their ten year marriage. Wilma is furious and feels that Fred has made a fool of her. Wilma tells Fred she will "take him for all he is worth" due to his infidelity. Can Wilma get more from the division of assets because of Fred's unfaithfulness? Answer: With rare exceptions, conduct by a party which leads to the breakdown of a marriage is irrelevant to the division of property under Section 79 of the Family Law Act 1975 . Section 79 operates under a "no fault" system.  This means that the Courts do not consider which party caused the breakdown of the marriage. The Family Law Act 1975 and the Australian Family Law Court system does not set out to punish a party on the basis that they were unfaithful during the relationship. While socially this is considered unacceptable, it is not relevant to the division of assets in a property settlement and therefore does not mean the unfaithful party will receive less due to their unsavoury conduct. It's one thing to be angry at your partner if they've been unfaithful but unfortunately being unfaithful is not against the law. It's another thing to ensure you get what you're entitled to in a division of assets or property. At Andersons, our dedicated team of Family Law solicitors is on hand to assist you with your Family Law property settlement.  Contact any one of our offices by visiting our website at " Contact Us " to arrange an initial free consultation. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal Family Law legislation. http://andersons.com.au/lawtalk/posts/my-partner-cheated-on-me-i-want-to-make-them-pay.aspx http://andersons.com.au/lawtalk/posts/my-partner-cheated-on-me-i-want-to-make-them-pay.aspx Fri, 27 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/how-do-i-challenge-a-will.aspx The Inheritance (Family Provision) Act only allows certain persons to bring a claim against the estate of someone who has died. It includes a spouse, ex-spouse, domestic partner and child.   Only under certain circumstances is a step child, grandchild, parent, brother or sister able to make a claim. Once you lodge a claim, you become an "applicant" and basically you're suggesting that you are left without adequate provisions for your proper maintenance, education or advancement in life.  The Court may then exercise its discretion to vary the Will to make such provision for the maintenance, education etc. The Court may refuse to make an order where the applicant's character or conduct does not entitle them to the benefit of this Act or for any other reason the Court thinks sufficient.  This disentitling conduct however, is rarely established. An applicant has six months from the date of a grant in South Australia of Probate or Letters of Administration to commence their claim in Court.  The Court may extend this time but an application for an extension of time must be made before the final distribution of the estate's assets.  It's important to note that any distribution of the estate made before the application for extension of time will not be changed. An executor or administrator has certain protection in relation to distributions unless they had notice of a potential claim.  A notice of a claim must be in writing, signed by the applicant or a solicitor and will prevent an executor or administrator from making any distributions.  This notice lapses after three months and if a Court claim has not yet commenced the executor or administrator may then distribute the assets of the estate without punishment. You should speak to a solicitor if you wish to investigate making a claim or issuing such a notice as there are many potential pitfalls. Contrary to common misconception, a claim cannot be defeated simply because some amount was provided for in the Will.  Often people state a belief that by providing an estranged son or daughter with say $1,000 in the Will, then that will prevent that child from bringing a claim.  This is not correct. There are no hard fast rules as to what a Court may or may not do in relation to these sorts of claims.  The Court places itself in the position of the deceased person and considers what he or she ought to have done in all the circumstances of the case, treating him or her as a wise and just, rather than a fond and foolish, spouse or parent.  A Court will often consider the relationships involved and special circumstances of any applicants, the means of the applicant, size of the estate and the relative importance of any competing claims.  For example, elderly spouse versus working aged children. Costs of the estate and the applicant are normally covered by the assets of the estate.  This in itself will often apply pressure to work out settlement as the cost of prosecuting and defending these sorts of matters in Court can be significant and use a lot of funds out of the estate. As we've said, there can be many pitfalls so if you're considering contesting a Will, you should definitely seek professional legal advice.  A great starting point would be with the writer of today's blog, our Senior Associate in Estate Planning, Greg Welden .  He's more than happy to have a chat. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/how-do-i-challenge-a-will.aspx http://andersons.com.au/lawtalk/posts/how-do-i-challenge-a-will.aspx Fri, 20 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/i-hurt-someone-in-a-car-accident-will-i-go-to-jail.aspx So you have just been involved in a car accident. You're aware that people in your car and the other vehicle are hurt. How seriously, you don't know. You were the driver of one of the vehicles and naturally you're concerned about the safety of your passengers and all those involved. You should first contact police an ambulance. Then you are approached by police about allegations of the way you were driving. The police are alleging that you were speeding prior to the accident.  You should be aware that anything that you do say to police can be used against you.  So it's important that you are aware of your rights when speaking to police. For more info on this, see our blog on " speaking with police ". The police are looking at charges ranging from driving without due care, driving in a manner dangerous to the public to causing death or injury by dangerous driving. If you are charged and arrested your mind immediately races and panic sets in.  The first question that comes to mind is "will I go to jail?" The most important point to remember is that if you have been charged with one of the above offences, in criminal law, you are innocent until proven guilty. The burden of proof to find you guilty must be beyond reasonable doubt.  That is the Police and Prosecution must prove beyond all reasonable doubt that all the objective elements of the offence have been satisfied. This is an extremely high burden. Driving offences are treated seriously by the Courts. How Serious? The maximum penalties available for the more serious driving matters such as cause death by dangerous driving is 15 years imprisonment and a mandatory loss of licence of minimum 10 years. But if the charges allege that your driving was sufficiently severe there may be an "aggravating" feature added to the charge, which increases the maximum penalty to life imprisonment. What constitutes an aggravating feature? Drag Racing   Excessively high speeds   Driving to escape police pursuit   Street racing   Driving whilst disqualified   Driving with a concentration of .08 grams or above of alcohol   Prolonged and persistent deliberate court record of very bad driving So will I go to jail? Unfortunately, there is no clear cut definition as to when a person goes to jail. Each case is determined on its merits and no two cases are the same. However, the more serious the charges are the greater likelihood of receiving a term of imprisonment. It should be noted that we are seeing more and more people who have been charged with cause death by dangerous driving and cause injury by dangerous driving, the Courts are imposing immediate terms of imprisonment. If you are unfortunate enough to be charged with serious driving offences causing harm or death of another person, the repercussions can be grave. At Andersons we have a dedicated team of professionals with experience in serious criminal motor vehicle matters, ranging from driving without due care right up to causing death by dangerous driving. We understand that the criminal justice system can be daunting and intimidating to those on the outside, which is why our team will assist you through all aspects of your matter, from dealing and liaising with Prosecution, working through the Court process and everything in between. Most importantly, if you've been charged with serious driving offences, get experienced legal advice.  Visit our Criminal Department for more information on the Andersons Criminal & Police matters team or get in touch with the writers of this blog, Jason Coluccio and Maddalena Romano for a chat or to seek advice and assistance. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/i-hurt-someone-in-a-car-accident-will-i-go-to-jail.aspx http://andersons.com.au/lawtalk/posts/i-hurt-someone-in-a-car-accident-will-i-go-to-jail.aspx Tue, 17 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/my-partner-gambled-throughout-our-marriage-will-this-be-taken-into-consideration-in-a-property-settlement.aspx Scenario: Jack and Jill have been married for eight years. Throughout the entirety of the marriage Jack has gone to the local pub at least three times per week and played the pokies for hours at a time. Jill is also aware that Jack has a TAB account and regularly placed bets on the horses and other sporting events. Jack and Jill have been separated for six months. They have each retained a lawyer and are about to begin the process of property settlement. Jill is convinced that Jack's gambling has caused loss to the assets of their marriage. Will Jack's gambling be taken into account in the property settlement? Answer: It is important that you instruct your lawyer in relation to any concerns you may have regarding gambling during the marriage. Any loss caused by gambling may be considered economic misconduct and therefore categorised as a "negative contribution" by the Court. A negative contribution is where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets.  If a negative contribution can be proved the party who has caused the loss to the assets may have to bear such loss out of their share of the property. Generally, there will need to be evidence of the conduct which has caused loss to the assets of the marriage. For example if gambling has caused the loss, receipts or bank statements of gambling purchases would be useful to persuade the Court of such transactions. If your marriage or relationship has ended and you need to sort out the property settlement , it's important to seek experience Family Law advice. At Andersons we have a dedicated team of solicitors working in our Family Law practice. You can contact them through any one of our offices and arrange an initial free consultation. Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal Family Law legislation. http://andersons.com.au/lawtalk/posts/my-partner-gambled-throughout-our-marriage-will-this-be-taken-into-consideration-in-a-property-settlement.aspx http://andersons.com.au/lawtalk/posts/my-partner-gambled-throughout-our-marriage-will-this-be-taken-into-consideration-in-a-property-settlement.aspx Fri, 13 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/i-want-my-child-to-have-their-own-lawyer-how-do-i-do-this.aspx If a case involving children goes to the Family Court, an Independent Children's Lawyer can be appointed to represent the child's interests (known as an "ICL"). The Independent Children's Lawyer is not the child's legal representative which means that they do not act on the child's instructions or do what the child tells them to do.  What the Independent Children's Lawyer must do is to find out the views of the child and make sure those views are put before the Court.  They also have to form their own view, an independent view, based on not only the views of the child but all the other information available as to what they believe is in the best interests of the child. The ICL must, in Court, maintain the child's best interests. This means the ICL may pursue an outcome which is different to what the child said they want. Independent Children's Lawyers are impartial.  This means that they are not on the side of either of the parents; they are acting in the interests of the child.  In some cases this may mean that the Independent Children's Lawyer will prefer the child lives with one parent over the other but it doesn't mean that they are "on that parent's side". The Independent Children's Lawyer may recommend certain Orders be put in place to protect the child.  For example they may require one or both parents to undergo a random drug test.  They may also subpoena material from the Police, Families SA or any other relevant body to bring that evidence before the Court. The Independent Children's Lawyer will also send an account for half of their fees to each of the parents.  This is calculated on the Legal Aid scale and in the first instance is usually about $1,200.00 per party.  It can increase depending on the complexity of the matter and how long it proceeds.  The parties can apply for Legal Aid in respect of the Independent Children's Lawyer's fees, but if it is not granted they will have to meet the costs. For more information on all your rights, entitlements and obligations in relation to Family Law , contact today's blog post writer, Andersons Senior Associate Ryan Thomas . Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/i-want-my-child-to-have-their-own-lawyer-how-do-i-do-this.aspx http://andersons.com.au/lawtalk/posts/i-want-my-child-to-have-their-own-lawyer-how-do-i-do-this.aspx Fri, 06 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/the-police-wish-to-speak-with-me-do-i-need-to-answer-their-questions.aspx You find yourself as a person of interest with the Police and they wish to speak with you. At this time the Police should caution you. This is where the Police indicate to you that "you do not have to answer any questions. Any answer you may provide may be used against you." This is a very important caution and it is a question that you must carefully consider. Quite often people find themselves facing criminal charges with the sole evidence being relied upon by the Police being the answers provided by you. This is why the caution provided by Police is so important in the carriage of criminal justice. So much so, that the Police record the answers to the above questions. But should you answer Police questions? As a rule it is always pertinent to be polite and cordial with Police.  After all they are doing a very difficult job. However, it is important to not be intimidated by the situation and think about what it is that the Police are saying to you. You should always remember that if you are being questioned immediately following an event that results in injuries or damage, you may not feel 100%. You may wish to have someone else like a lawyer or family member present, all of which you are entitledto. The Police are not allowed to intimidate you into answering any questions you do not wish to. In the normal course of events, if you do not wish to speak to Police, all that is required from you is that you decline to answer any questions until you have had a chance to speak to a lawyer. The only questions that you are required to answer at law are your name, address, date of birth and it is an offence not to nominate a driver of a vehicle when asked by police. No detriment can be held toward you for enforcing your right not to answer further questions. At Andersons we have a dedicated team of professionals with experience in all criminal and Police matters. We understand that the criminal justice system can be daunting and intimidating which is why our team will assist you through all aspects of your matter from interviews with Police to dealing and liaising with Prosecution, and working through the Court process. Visit our Criminal Department for more information on the Andersons Criminal & Police matters team or get in touch with the writers of this blog, Jason Coluccio and Maddalena Romano for a chat or to seek advice and assistance. Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/the-police-wish-to-speak-with-me-do-i-need-to-answer-their-questions.aspx http://andersons.com.au/lawtalk/posts/the-police-wish-to-speak-with-me-do-i-need-to-answer-their-questions.aspx Thu, 05 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/tradies-take-note!-what’s-a-worker’s-lien-and-how-can-it-help-you.aspx Are you a 'tradie' who has been short changed by clients not paying their bill, or do you know someone that has? Unfortunately, the answer to the above question is a often a resounding YES! Due to the fact that most tradies are on the go all the time, there is barely enough time to do all the existing paperwork, let alone pursue bad debtors. Consequently, most tradies simply wipe off the debt and vow never to work for that particular person or company again. But were you aware that there is legislation in place designed specifically for contract workers and sub-contractors alike? The Worker's Liens Act 1893 (South Australia) provides for contractors and subcontractors who have difficultyobtaining payments from persons/companies of whom they have provided work for. The Worker's Liens Act 1893affords providers of contracted services a degree of protection in relation to any moneys that may be outstanding to them after the completion of any works on land and if they act in promptly.. The ability to "charge the land" offers the affected tradie a substantial amount of security for their outstanding debt Here's an example:  If you are a plumber and have not been paid by the owner of a property for the new stormwater drains you have installed, then you are able to secure your debt via a charge against the title of that property. The effect of a charge in this situation is that the owner can not sell the property without discharging their debt owed to you first. Contractors or subcontractors who are entitled to payment for work carried out on land are entitled to register a lien at the Land Titles Office SA on the title of the land on which they conducted the work. Once the lien is registered and until it is removed, it prevents the registration on the land title of any subsequent dealing with the land, including sale, mortgage or lease. This action is likely to apply pressure to resolve any dispute. With particular reference to tradespeople, for example builders, electricians, plumbers and the like, we feel this Act is not widely known or exercised. It is also a very cost effective tool to recoup monies that would otherwise be written off as bad debts. If you have any queries about the ability to lodge a lien for monies owed to you as a contractor and you're not totally sure on how to go about it, that's where we can help.  Hop onto the Andersons website for some more details about us or contact the writer of this blog, Andersons solicitor Jason Coluccio . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/tradies-take-note!-what’s-a-worker’s-lien-and-how-can-it-help-you.aspx http://andersons.com.au/lawtalk/posts/tradies-take-note!-what’s-a-worker’s-lien-and-how-can-it-help-you.aspx Wed, 04 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/what-is-family-dispute-resolution-and-do-i-need-to-go-to-this-first-or-can-i-go-straight-to-court.aspx The Family Law Act 1975 requires that all applications seeking Orders about children need to be filed with a Section 60I Certificate from a Family Dispute Resolution Practitioner (unless an exception applies - see below). This means that unless an exception applies the parties are required to attempt Family Dispute Resolution (also known as "FDR").  A Certificate will be provided if the other party does not turn up or if the FDR does not reach an agreement. In some cases you don't need a certificate as you have an exception. The exceptions to filing a Certificate include: Cases where there is family violence or abuse or a risk of family violence or abuse   Cases where an existing parenting order has been breached   Cases where the application was urgent What this means is that unless one of the exceptions applies, the parties must attempt to participate in Family Dispute Resolution prior to filing an application in Court. The Court will consider what type of Certificate has been provided.  The Court can order the parties attend at Family Dispute Resolution if one of the parties failed to attend or refused to attend causing a Certificate to be issued. Family Dispute Resolution can vary depending on the circumstances of the parties and the FDR practitioner, of which there are many. Essentially the goal is to sort out the care of the children and other matters relating to the children. If an agreement is reached a parenting plan will be given to the parties. It is important that the parties get legal advice prior to going to the FDR so they know what their rights are as well as how the law relates to their circumstances. After attending at FDR, whether an agreement was reached or not, they should also get legal advice. One matter to consider is whether or not the agreement should be kept as a parenting plan or formalised as a Court Order, as there is a big difference between the two. A common method of FDR is One parent contacts an FDR provider to initiate the process   They attend at the FDR for an appointment to give a background of the matter   The  other parent is contacted by letter and invited to participate   If that parent responds then an appointment is scheduled   A joint FDR meeting is then scheduled   The parties may need to attend more then one joint FDR meeting   The FDR provider will provide a document setting out what was agreed at FDR If there are any safety concerns with the other parent the FDR provider needs to be advised as soon as possible, so that if the matter is still deemed appropriate to proceed, suitable arrangements are made for your safety. As you can see, Family Dispute Resolution can be a little complex and we advise professional legal advice or assistance if going down this path.  For more info on your Family Law rights, entitlements and obligations, for a first free interview at any of our metro Adelaide or regional South Australian offices, contact Andersons Solicitors . Please note, this Blog is posted in Adelaide, South Australia.  It relates to Australian Federal Family Law legislation. http://andersons.com.au/lawtalk/posts/what-is-family-dispute-resolution-and-do-i-need-to-go-to-this-first-or-can-i-go-straight-to-court.aspx http://andersons.com.au/lawtalk/posts/what-is-family-dispute-resolution-and-do-i-need-to-go-to-this-first-or-can-i-go-straight-to-court.aspx Tue, 03 January 2012 andersonslawblog http://andersons.com.au/lawtalk/posts/2011/we've-separated-my-child-doesn’t-want-to-live-with-the-other-parent-do-they-have-to.aspx A child's views must be taken into account under the law.  The amount of importance placed on those views varies depending on the child's maturity and level of understanding. With an older child, their views are given considerably more importance than, say a toddler.   It varies from case to case depending on the circumstances of the case and the particular child but usually from the age of 12 and above those views are given a lot more importance. Particularly strong views, if expressed by a younger child, are also given significant importance. This means that while the child will not get to decide who they live with, their views can determine the outcome of the case. The child doesn't actually attend at the Court to tell the judicial officer what they want.  The Court finds out the child's views in several ways, for example: Obtaining special reports about the family, prepared by a family consultant.   Appointing an Independent Children's Lawyer (see our Blog Post **)   Any other means the Court deems appropriate To obtain a report from a family consultant, they will meet with each of the parents and with the child and prepare a report which includes the views of the child with the family consultant's views about what the child has said. The Court can order that the child be independently represented by an Independent Children's Lawyer.  The Independent Children's Lawyer is required to ensure that the child's views are put before the Court. Often parents want the views of the child to be put before the Court immediately.  The Court can inform itself of the views of the child by any other means it thinks appropriate.  Nevertheless, the child will not be brought into the Court room to give evidence.  Also things such as letters or statutory declarations from the child about their views are neither helpful nor appropriate. Unfortunately, it can take some time for this process to take place and is not as straight forward as your child simply stating who they want to live with.  There are a number of factors that are taken into account under the law and these must be balanced along with the views of the child. To ensure your rights and entitlements are protected in your Family Law matter, it is essential that you have experienced Family Law advice and assistance.  At Andersons, we have a team of Family Law solicitors ready to assist.  Visit our website for further information. Please note, this Blog is posted in Adelaide, South Australia.  It relates to Australian Federal Family Law legislation. http://andersons.com.au/lawtalk/posts/2011/we've-separated-my-child-doesn’t-want-to-live-with-the-other-parent-do-they-have-to.aspx http://andersons.com.au/lawtalk/posts/2011/we've-separated-my-child-doesn’t-want-to-live-with-the-other-parent-do-they-have-to.aspx Thu, 29 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/how-does-a-court-work-out-what-is-in-the-best-interests-of-a-child.aspx The Family Law Act 1975 sets out the criteria that are taken into account by the Court in determining what is in the best interests of the child.  The first principle is known as the paramountcy principle which simply means that the best interests of the child are the most important consideration for a Court making an Order about children.  It is because of the paramountcy principle that you will often hear the term "the best interests of the child" used by people, lawyers and the Court. In working out what is in the best interests of the child the law sets out primary considerations and additional considerations.  The primary considerations are: that a child will benefit from having a meaningful relationship with both parents   the need to protect a child from physical or psychological harm, from exposure to abuse, neglect or family violence The way in which the Court works out what is in the best interests of the child takes into account a number of factors which include: What the child says about who they want to live with and what time they spend with each parent. This is not as simple as the child telling the Court who they want to live with. We will explain this concept more in our next blog.   The sort of relationship that the child has with its parents and other people such as grandparents and family. If one party has developed a stronger relationship with the child then the other, this will be important.   The willingness and ability of each of the child's parents to facilitate the child's relationship with the other parent. The types of orders a Court will make can vary depending on how well the parents can cooperate together or co-parent.   The difficulty and expense of a child spending time with a parent. An obvious example for this is when one parent lives in another area of the state or another state altogether. Certain orders such as shared care are highly unlikely to be appropriate in these cases.   The capacity of each of the child's parents to provide for the needs of the child. Some parents may not be able to provide for the child's needs due to work commitments etc which is also relevant. Being able to cater for the child's emotional needs is also important.   Any family violence is also of very high importance, regardless of whether it is directed to the child or to other members of the child's family. You will see from the above that there is a large number of things that the Court must take into account when working out what is in the best interests of the child. In the absence of family violence which may make it clear that one parent is a more suitable primary carer than the other, weighing up the competing considerations can be a difficult task. We strongly recommend that if you are having Family Law issues and there are children involved, you seek experienced legal advice. At Andersons, we have a team of experienced Family Law solicitors across our network of offices . http://andersons.com.au/lawtalk/posts/how-does-a-court-work-out-what-is-in-the-best-interests-of-a-child.aspx http://andersons.com.au/lawtalk/posts/how-does-a-court-work-out-what-is-in-the-best-interests-of-a-child.aspx Thu, 22 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/shared-parenting-who-gets-custody-of-the-children-if-we-separate.aspx In Australia, the law that sets out what happens with children after separation is the Family Law Act 1975 . Amendments were made to the Family Law Act in 2006 known as the "shared parenting" amendments.  Those amendments state that it is presumed that each parent has shared parental responsibility for the child. Parental responsibility is the term used in Australia when we're talking about the parents' involvement in making decisions about major long term issues affecting the child. The law no longer uses the term "custody" when dealing with this issue but we have used it in the title of this blog because it is still commonly used in discussion.  However, whether or not the parents are together or have separated, it is presumed at law that they have equal shared parental responsibility for any children of their relationship. It cannot always simply be assumed that if the matter goes to Court separated parents will get equal shared parental responsibility.  There are times when this may not occur: In cases where there are reasonable grounds alleging child abuse or family violence; In interim hearings at Courts when it is not appropriate to apply this presumption; and When applying the presumption is not in the child's best interest, for example if one parent is not able to fulfill their parental responsibilities. In practice though, in most cases the presumption is applied and each parent has equal parental responsibility for the child. It's important to understand your rights in relation to "shared parenting" of your children if you separate from your partner.  For more info or assistance with your Family Law matter contact one of our experienced family law team members at Andersons Solicitors . http://andersons.com.au/lawtalk/posts/shared-parenting-who-gets-custody-of-the-children-if-we-separate.aspx http://andersons.com.au/lawtalk/posts/shared-parenting-who-gets-custody-of-the-children-if-we-separate.aspx Tue, 20 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/andersons-opening-full-time-in-morphett-vale.aspx We've had a presence in the southern suburbs of Adelaide for a number of years now and we'd just like to say "thanks" to the community in the south for supporting us over those years. In fact, they've supported us so much that we can no longer service the region on a "visiting basis".  So it is with much aplomb that we announce the impending opening of a full time office in Morphett Vale. With Christmas right on the horizon just in time to create a little havoc in our required building works, we're on track to open in February 2012.  We've got the builders on site as we write, turning a somewhat archaic little tenancy, currently furnishing a bright green billiard table looking carpet into a fresh, clean and inviting place for our staff, clients and visitors alike. If you swan by now you'll be able to find us as we've just installed our first set of signage smack bang on the front window and you'll hopefully see the builders hard at work.  No disturbing them now 'cause we want to open on time. Once we get a little closer to February, we'll keep you updated with our actual first date of operation and introduce the team who will be servicing the southern suburbs of Adelaide for all their legal needs from motor vehicle accident claims, WorkCover and ComCare, medical negligence, public liability (slips and falls), employment and industrial law, family law, Wills and estate planning, criminal and police matters and commercial and business law. We're now proudly sporting a number of offices across metropolitan Adelaide and regional South Australia.  For more detail on your closest office, visit our " locations guide " on our website. http://andersons.com.au/lawtalk/posts/andersons-opening-full-time-in-morphett-vale.aspx http://andersons.com.au/lawtalk/posts/andersons-opening-full-time-in-morphett-vale.aspx Tue, 20 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/bicycle-accident-what-are-my-obligations.aspx If, as the rider of a bicycle you are involved in an accident where there is a reasonable amount of property damage incurred or alternatively an injury is caused to anyone involved in the accident then at the very least you need to report the accident to the Police. Often, particularly in serious motor vehicle accidents, Police attend the scene of the accident.  When they do, their attendance is sufficient for you to assume that motor vehicle accident has been reported.  When they do not attend at the accident then it is your obligation to report the accident to a local Police Station. You should always exchange particulars with participants to an accident.  For example names, addresses, phone numbers, vehicle registration numbers and drivers licence details. If you have suffered injuries in an accident then you should also contact Allianz, the Compulsory Third Party Insurer.  If you phone their toll free number then they will arrange for a claim to be opened, a claim number to be supplied to you and an Accident Report Form to be sent to you.  Notifying the Police and the Compulsory Third Party Insurer are the two immediate tasks that need to be done. Thirdly you should seek professional legal advice about your motor vehicle accident rights and entitlements and how best to pursue a claim for compensation if available.  Andersons Solicitors have a number of highly experienced solicitors who would be well able to provide you with an initial free appraisal of your claim. We have offices across metropolitan Adelaide and regional South Australia. Does WorkCover apply to bicycle injuries? We are often asked whether if you are injured whilst riding to or from work, you are covered by WorkCover .  Unfortunately you are not.  Traditionally such claims were covered and were classed as "Journey Injuries".  At that time it was felt that the journey to and from work was part of work. Some years ago changes were made to the WorkCover legislation to deny coverage for such claims.  If you are riding your bike in the course of your employment then that is a different issue and that is covered by the WorkCover legislation.  This of course would obviously apply to riders working as couriers. So, if you suffer injury because of some incident either riding to or from work then the only way in which you can bring a claim is if the accident was wholly or partially caused by the actions of another road user.  Then you can lodge a claim under the Motor Accident Commission third party insurance scheme.  We've referred to that earlier in this blog.  As always, to get advice on your position in such a case you should call one of our experienced solicitors at Andersons Solicitors , for a free appraisal. http://andersons.com.au/lawtalk/posts/bicycle-accident-what-are-my-obligations.aspx http://andersons.com.au/lawtalk/posts/bicycle-accident-what-are-my-obligations.aspx Thu, 15 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/my-husband-left-me-for-another-woman!.aspx Question: My husband has walked out on our marriage.  I feel that he has broken up our family. Is this taken into account when determining what is fair with respect to our property settlement? Answer: Relationships end for many reasons and quite often one party of the relationship ends up feeling let down, angry and hurt. Your spouse's conduct may have been less than ideal during your relationship however, chances are that it won't be relevant when determining your property settlement unless that conduct has somehow directly affected the assets/liabilities of your relationship. For example, if your spouse has gambled away hundred of thousands of dollars of matrimonial funds without your knowledge, this would be very relevant when determining what a fair division of property is. However, if your spouse has had an affair with your best friend or developed a secret fetish for something distasteful, no matter how much you may disagree with their actions, unfortunately it won't be relevant when it comes to your property settlement. The purpose of a property settlement is to end your financial relationship with your spouse. Usually, this involves using a very cold and factual approach where the contributions you have both made during the relationship are assessed along with your future needs. Ultimately, a property settlement is not likely to make you feel like you have achieved 'justice' if you believe that you have been wronged in a relationship. What it will do is end your financial relationship with that person and hopefully put you one step closer to moving on with your life. When negotiating your property settlement after a relationship breakdown, it is wise to seek professional financial and legal advice.  For assistance or more information on property settlement in Family Law matters, visit Andersons Solicitors Family Law site. http://andersons.com.au/lawtalk/posts/my-husband-left-me-for-another-woman!.aspx http://andersons.com.au/lawtalk/posts/my-husband-left-me-for-another-woman!.aspx Tue, 13 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/confiscation-of-a-motor-vehicle-–-a-not-so-merry-christmas-if-your-car-is-impounded!.aspx Legislation was introduced in 2007 in South Australia amidst great publicity, dubbed by the press as "hoon driving" legislation, in which police were given powers to wheel clamp or seize motor vehicles for minimum periods of 28 days.  The legislation also allows for Police to apply to the court for vehicles to be impounded for longer periods than 28 days and even have them forfeited to the Crown in certain circumstances, with the crushing of vehicles being the ultimate sanction. "Hoon driving" evokes images of young car enthusiasts, "hotted up" cars with loud exhausts and fat tyres, street drag racing, burnouts and associated irresponsible driving.  The reality is in stark contrast to the headline grabbing press reports.  The family Commodore is more likely to be clamped or impounded by Police for 28 days or longer under this legislation, at great cost to the transgressor and with little right of reply. The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 is powerful legislation.  If a prescribed offence is alleged by Police to have been committed your vehicle can be impounded. Prescribed offences are defined in the Act but include offences such as excessive speed by 45 kph or more, misuse of motor vehicle, reckless and dangerous driving, driving under the influence of alcohol or drugs, exceed prescribed concentration of alcohol (commonly referred to as drink driving), drive unregistered motor vehicle, drive uninsured motor vehicle, drive unlicensed having never held a licence and drive under suspension or whilst disqualified. An example of how this legislation works might involve the following.  A person could be driving home after a few Christmas drinks and record a blood alcohol level of 0.09% at a random breath testing station.  They lose their licence instantly for a period of 6 months.  The vehicle is impounded for a period of 28 days.  An appeal against the impounding of the vehicle can be made to the Commissioner of Police under limited circumstances. The person subsequently receives a summons to go to court and has to pay impounding costs and fees (yes, you have to pay the cost of your vehicle being kept in the "impound yard") if ordered by the court that currently amount to $994-00 for 28 days.  This is in addition to fines and court costs and licence disqualification for the offence of exceeding prescribed concentration of alcohol. But wait there is more.  Under provisions of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 if during the last 10 years that person has been found guilty of one other prescribed offence mentioned above or expiated one other prescribed offence, an application could be made to have the vehicle impounded for up to three months.  If, during the last 10 years that person has been found guilty of two other prescribed offences or expiated two other prescribed offences, the vehicle can be impounded for up to six months.  If it is three other offences in the past 10 years an application can be made to have the vehicle confiscated. A conviction for a drink driving offence and a conviction for or having expiated a notice for driving an unregistered motor vehicle and driving an uninsured vehicle could result in the vehicle being impounded for six months.  The current fee for impounding of a vehicle for six months is $4000.00.  Sometimes the model of vehicle involved isn't even worth that much. Section 13 of the Act makes provision for an appeal against the application for impounding or forfeiture of the vehicle to the court under certain circumstances.  Among those are that the court will have to be convinced that impounding or confiscation of the vehicle will cause severe financial or physical hardship to a person. So there it is, have a Merry Christmas, but don't get your car impounded. And if you do or if you run into any other sort of trouble with the police, you can count on Andersons Solicitors to be there fighting for you.  Speak with one of our criminal and police matters lawyers for advice and assistance. http://andersons.com.au/lawtalk/posts/confiscation-of-a-motor-vehicle-–-a-not-so-merry-christmas-if-your-car-is-impounded!.aspx http://andersons.com.au/lawtalk/posts/confiscation-of-a-motor-vehicle-–-a-not-so-merry-christmas-if-your-car-is-impounded!.aspx Tue, 13 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/what-is-a-deceased-estate-is-there-land-tax-on-a-deceased-estate.aspx Simply put, a deceased estate is the property of a person who has died. It includes any homes or buildings, investments, motor vehicles, cash, personal property etc. It's everything they owned in their own name, but not normally superannuation or joint property. Although there is, strictly speaking, no longer any death tax or death duty in Australia, other taxes can still affect your assets after you die. Capital Gains Tax (CGT) usually has the biggest impact on deceased estates. Capital Gains Tax is a form of income tax payable when an asset that has gained value is dealt with. Limiting or adjusting for the impacts of CGT and other taxes is important to consider when making a Will . Legal and accounting advice is recommended, because if the tax issues are forgotten or ignored then you or your beneficiaries could find yourselves faced with a nasty surprise. For simple estates CGT may not be payable to begin with, but later on your children or other beneficiaries may need to pay tax if they sell gifts left to them in the Will. Additional CGT may become payable in the future by the executor or administrator of a deceased estate if the estate is not simple or it takes a while to administer. There are some exemptions and concessions, such as for principal residences (the place where the deceased person actually lived), but there are conditions and limitations on their availability. Income tax laws will also continue to apply. For example, tax on rental or interest income from the assets of the deceased estate may still be taxed. What we increasingly see are deceased estates having to pay additional tax on monies paid out by superannuation funds because the Will or the executor has not dealt with those monies properly. As you can see there are a lot of things to consider regarding tax on a deceased estate.  It's important to get professional legal advice and assistance when preparing your Will and other documents related to your estate planning.  Visit the Andersons Estate Planning site for more information or to arrange a consultation. http://andersons.com.au/lawtalk/posts/what-is-a-deceased-estate-is-there-land-tax-on-a-deceased-estate.aspx http://andersons.com.au/lawtalk/posts/what-is-a-deceased-estate-is-there-land-tax-on-a-deceased-estate.aspx Fri, 09 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/redundancy-it's-not-the-end-of-the-world.aspx Redundancy. Retrenchment. These words cause a myriad of emotions, and hearing them starts the beginning of a turbulent time filled with unknowns. Sometimes you know it's coming, and sometimes it's as if it comes out of nowhere.  However, it is not always as simple as one day being employed and the next you're not. A position being made redundant means that the employer doesn't need that particular job to be done by anyone anymore. In some cases that means that the job no longer exists, like when a business is downsized, and in others it means those duties are given to other people, such as in a restructure. This is called "genuine redundancy". For a redundancy to be considered genuine the employer must also have considered other options, for example, whether the employees could have been given other jobs. The employer must also have consulted with the employees, and their representatives (for example the appropriate Union) if that obligation exists in an applicable award or workplace agreement. In the case where a redundancy is not genuine, there is the possibility of lodging an unfair dismissal claim with Fair Work Australia.  Employers must not utilise redundancy as a means to get rid of workers in a cheap manner.  If the employee was unfairly selected, or targeted for another reason, there are also other avenues of dispute, such as an equal opportunity complaint. If, however, the redundancy is genuine, and the employer was unable to find other suitable work for the employees, they must pay the employees severance pay as well as giving fair notice. The National Employment Standards provide for up to 16 weeks' severance pay depending on how long the employee has worked and whether they are entitled to long service leave, and awards and agreements may vary this but the National Employment Standards set the minimum requirement. Therefore, if you are under and award of workplace agreement, you may be entitled to more. In some cases, this can also be negotiated, as well as time off to look for other work, or the provision of re-training. Redundancy entitlements can add up fairly quickly, so it is a good idea to seek financial advice and take into account potential Centrelink implications.  Likewise, if you believe you are entitled to more in your redundancy package, you should seek legal advice and assistance from an Andersons Employment and Industrial Law solicitor. http://andersons.com.au/lawtalk/posts/redundancy-it's-not-the-end-of-the-world.aspx http://andersons.com.au/lawtalk/posts/redundancy-it's-not-the-end-of-the-world.aspx Wed, 07 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/working-in-hot-conditions.aspx How hot does your place of work get? Ever felt tired, weak, headachy, irritable and sweaty whilst at work? You could be suffering from dehydration or heat exhaustion.  This could impact on your ability to make effective decisions, which leads to mental errors, which can lead to poor judgment when operating plant and equipment - and we all know where that ends... If you work outside, in a factory or drive a vehicle, particularly a heavy vehicle for work it is likely that you are regularly exposed to extremes in temperature which can result in dehydration and heat stroke. Even working in an air-conditioned environment you still run the risk of dehydration and exposure to sudden temperature changes.  There's nothing like coming out of a refrigerated air-conditioned workplace on a 45 degree day, when the heat hits you like a slap in the face. Your employer has an obligation to provide you with a safe working environment and to carry out appropriate hazard identification audits and risk assessments.  They also have an obligation to provide information and training to ensure that you are safe from injury and risks to your health.  This means that your employer should be monitoring your work environment - including the temperature. If you work in a hot environment your employer should provide you with training for how to identify and deal with dehydration and heat stress and how to avoid it and provide you with equipment to help prevent it.  If this isn't happening in your workplace, speak with your employer.. You, as an employee, have an obligation to take reasonable care of yourself at work and in cases where you are working in a hot environment you should ensure that you always have a good supply of water to prevent dehydration.  Get involved with assessing hazards and risks to your health and safety and report them to your employer or your Union representative so that systems can be put in place to avoid injury. The OHS &W Regulation (No. 34) states that employers are obliged to ensure that there is an adequate supply of cool and potable drinking water available for each employee.   Is there a sufficient water supply available to you whilst you are working?  Ideally, you should have a cooler bag or esky to keep an adequate amount of drinking water in whenever you are away from a fixed water supply. Drinking coffee or sugary soft drinks is not recommended; often these drinks can cause greater thirst. Choose a nice cool drink of water, or maybe a sports drink to replace essential electrolytes. Don't drink freezing cold drinks. They can cause stomach cramps and discomfort. Wear comfortable, loose fitting, light coloured clothing and avoid eating hot foods and heavy meals as they tend to cause an increase in body temperature. If you are a driver, make sure your vehicle is well-maintained so as to avoid breaking down in a remote location. Keep an umbrella in your vehicle.  If you have to get out of your vehicle in a remote location it will provide some protection from the sun. Symptoms of heat stroke/dehydration include fatigue, weakness, nausea and vomiting, headache, dizziness, muscle cramps, irritability, sweating (although in extreme cases of heat stroke you won't be able to sweat), paleness and breathing difficulties. Always remember, if you feel thirsty, chances are you are already dehydrated.  Stop what you are doing and have a drink of water. If you do find yourself dehydrated or demonstrating symptoms of heat stroke, stop, rest and rehydrate, drink plenty of cool water, massage any muscle cramps and use a fan or cool cloth to help cool your body down. If you feel dizzy or nauseous you should seek immediate medical treatment. If you are concerned about the temperature at your workplace, get a digital thermometer and record the temperature and report it to your employer, co-workers and your Union. If you do suffer an injury as a result of heat exposure, you may be entitled to lodge a claim for workers compensation .  You should always report injuries to your employer if you have any concerns and if you are not satisfied with the response you can seek assistance from an Andersons Employment & Industrial Law solicitor. http://andersons.com.au/lawtalk/posts/working-in-hot-conditions.aspx http://andersons.com.au/lawtalk/posts/working-in-hot-conditions.aspx Tue, 06 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/my-spouse-and-i-have-separated-do-we-need-to-get-divorced-before-we-can-divide-our-property.aspx You don't have to be divorced to do a property settlement. You should do it sooner rather than later. In fact, once you're divorced you only have 12 short months from this date to either finalise your property settlement by way of a formal agreement or otherwise commence court action. Once this 12 month time limit runs out, if you and your spouse have not reached an agreement, you will no longer have the automatic right to take the matter to court. This can cause big problems as you may then find yourself in a position where you cannot resolve the matter with your spouse and cannot ask the courts to intervene either. If you find yourself in this position, your only option is to apply to the court for an extension of time to commence a court action, however, there is no guarantee that an extension of time would be granted. Applying for an extension of time is certainly not ideal and adds unnecessary complexity, and stress, not to mention further expenses to the matter. Therefore, it is usually better to resolve your property settlement first and apply for a divorce once this is complete to ensure you do not end up in this situation. In some circumstances, where the time limit has run out and an extension of time has been refused by the courts, people may forever lose their claim to property. Remember, the courts will not automatically grant an extension of time. We have an experienced team in our Family Law practice that can help you with your property matters as well as any other Family Law inquiry or issue you may need assistance with.  You can freecall them on 1800 653 655 or visit our Family Law website. http://andersons.com.au/lawtalk/posts/my-spouse-and-i-have-separated-do-we-need-to-get-divorced-before-we-can-divide-our-property.aspx http://andersons.com.au/lawtalk/posts/my-spouse-and-i-have-separated-do-we-need-to-get-divorced-before-we-can-divide-our-property.aspx Fri, 02 December 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/my-de-facto-partner-and-i-have-separated-do-i-need-to-register-the-separation.aspx It is not necessary for you to take any positive action to register your separation. However, you will need to make a note of the date of separation as this will be important when determining the amount of time that you have to bring a claim for property settlement pursuant to the Family Law Act . Separation occurs when one or both parties to a de facto relationship clearly communicate to the other party that the relationship is over. Once you have separated, you have two years from the date of separation to resolve all property matters before you lose your right to commence proceedings in the Family Courts if you haven't been able to work it out with your former partner in a reasonable or amicable way. If you and your former partner can reach an agreement about the division of property, you can finalise that agreement in two different ways; either Consent Orders or a Binding Financial Agreement ("BFA"). A BFA is essentially a contract, and there is a requirement in the Family Law Act that for this agreement to take effect a "separation declaration" must be signed by at least one of the parties and it needs to state: the parties lived in a de facto relationship; and the parties have separated and are living separately and apart at the declaration time; and  in the opinion of the parties making the declaration, there is no reasonable likelihood of cohabitation being resumed.   This declaration is only necessary if you and your former partner decide to finalise your property settlement with a BFA. If you choose to finalise your property settlement with Consent Orders (an agreement which gets filed with the Family Court) there is no need for this declaration. So simply speaking you do not need to "register" your separation but you may need to sign a "separation declaration" if you do a BFA. It should also be noted that some Government agencies such as Centrelink may have their own requirements in relation to formally "registering" a separation, which you may need to comply with. Like more information about your separation or want to speak with a Family Law solicitor? Visit our Family Law site. http://andersons.com.au/lawtalk/posts/my-de-facto-partner-and-i-have-separated-do-i-need-to-register-the-separation.aspx http://andersons.com.au/lawtalk/posts/my-de-facto-partner-and-i-have-separated-do-i-need-to-register-the-separation.aspx Wed, 23 November 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/the-work-christmas-party-fun-or-frightening.aspx "Wine-ing" Up to Wind Down.... We can confidently say that at one stage or another most of us have either witnessed, or been a party to, the drunken and silly behaviours of a friend, family member or work mate at parties and social gatherings. Unfortunately the impression and stories will last much longer than the fun and hysterics of the evening do and the event will often be retold later and a chuckle or two shared in reminiscing. Sadly though, when it comes to the work mates and the workplace, it's not always a chuckle that is the lasting impression we wanted. Long after the recovery from the hangover, the repercussions will not always be laughable. The "silly season" is gearing up with many corporate Christmas parties and functions. More than ever, it is important to remember that work functions are just that, work functions and as work functions the employer is responsible for what happens to employees (and other attendees) at work . Employers can be held vicariously liable for the injuries sustained whilst at work functions, which is heightened when alcohol is served, regardless of how remote the connection may seem. Recently, a Telstra employee was held to be unfairly dismissed after being terminated for sexual harassment during a Christmas party that ended in various sexual antics in a hotel room. Although the issue surrounded whether the behaviour was serious enough to warrant termination, it highlights the risk of such events occurring and the severe repercussions. Tragedy occurred in 2005 when a man was left in hospital with severe burns after several employees were playing around with chemicals at a Christmas function. Under the Occupational Health & Safety Act 2004, both the employer and employees have a duty to act responsibly in the workplace, which does not necessarily cease at the end of a shift. Employers should be aware of the risks associated with work functions and MUST take the following necessary precautions: Implement, and educate their work force on a Responsible Consumption of Alcohol Policy; Run a refresher course on Sexual Harassment;   Lead by example: ensure management set a good impression;   Provide and encourage consumption of non-alcoholic beverages and in particular, water;   Serve adequate food to soak up the booze;   Give attendees appropriate transport options: having cab vouchers readily available will not only ensure there is no chance of drink driving, but will encourage the night to end then and there. The warnings are clear and prominent, just as individuals are told to take responsibility for their own actions, employers must take reasonable steps to prevent employees engaging in inappropriate and unsafe behaviour or to be prepared for the consequences.  Christmas functions must be memorable for the happy occasion, not for the adverse incident!!! Sorna Nachiappan Sorna is a Senior Associate in our Employment & Industrial team, Adelaide office. For further information on your rights and responsibilies in the workplace visit the Andersons Employment & Industrial Law website. This information is not intended as legal advice and should not be substituted for legal advice.  The information contained in this article is current at the time of publication - November 2011 http://andersons.com.au/lawtalk/posts/the-work-christmas-party-fun-or-frightening.aspx http://andersons.com.au/lawtalk/posts/the-work-christmas-party-fun-or-frightening.aspx Fri, 18 November 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/andersons-green-aiming-for-a-sustainable-future.aspx It's now four months into our Sustainability Policy at Andersons Solicitors .  For those not in the know, after much deliberation and a load of research, we launched a Sustainability Policy from 1 July 2011.  See our Facebook launch back then. And yes, we're proud of our efforts to date.  As we said then, we're not professing to be the "number 1" sustainable business or even law firm in Australia, but we've started. With the wise words of Planet Ark co-founder Jon Dee on the tip of our tongues, we simply started with the notion, 'DO SOMETHING'. As a group of people we believe we have a responsibility to do whatever we can to help our environment. We've felt this way for a while and we had been greening our operations in a lot of quiet ways without beating our chest about it. All our staff are actively involved and we're recycling anything and everything from batteries, to mobiles to Christmas cards. Amongst other initiatives, we've also addressed our internal and external printing needs and our paper sources. For anything we use, we review whether we need to use it and if we do, we review how we use it. Being green... it's the law at Andersons. We'd love to share with you, what's expected at Andersons, with this little extract from our policy 1.Shutdown PC's All PC's and monitors should be shut down at the end of the working day, not just left in "standby" or "sleep" mode.  Please ensure you encourage and remind staff in your area to do this. 2. Comingle Bin A comingle bin is a bin provided by our paper recycling company for cardboard, milk cartons and a mixture of card, hard plastic and metal recyclable object. In addition to the large 240 litre bin, each kitchen area on other floors and in other offices has been provided with two smaller bins; one for rubbish and one for comingle recycling. 3. Secure Paper Bins We already have secure paper recycling bins in all offices.  These will be retained but should be used for ALL paper recycling, not just secure paper recycling. The rubbish bin at your desk should not contain any paper. A small second bin has been provided to at every desk discarded paper and it can be transferred to the large secure bins when full 4. Duplex Printing We encourage, wherever appropriate, duplex printing to stand alone printers and to our multi-function-centre photocopiers. 5. Recycle Photocopier Cartridges Copier rooms have a recycle box for these cartridges. 6. Mobile Phones We have provided a Planet Ark bin for recycling old mobile phones and PDA's from home, friends and family. 7. Batteries We have provided a Planet Ark bin for recycling old batteries from home, friends and family. 8. Christmas Cards At Christmas time we will provide a Planet Ark box for old Christmas card recycling. 9. Lights off We encourage all lights to be turned off either when the room is not in regular use or at the end of the working day.  We've printed a "remember to switch your lights off sign" for every light in every offices and at every Andersons location. 10. Stationery Review We've done a lot of research on "green" paper.  We've taken into account the total supply chain, the "food miles" and the quality of the paper.  We've selected a new brand of paper from 10% wheat pulp and it has been tested on our printers and copiers.  We will undertake a review of our other stationery purchasing shortly to ensure, where practicable, we're using "green" supplies. 11. Signage To remind all our staff of our new sustainability targets, we've had fun yet informational signs made to prompt our staff to "think green".  These have been installed across all our offices. For more information on Andersons Solicitors, please come and see us on the web or visit us at any of our office locations . http://andersons.com.au/lawtalk/posts/andersons-green-aiming-for-a-sustainable-future.aspx http://andersons.com.au/lawtalk/posts/andersons-green-aiming-for-a-sustainable-future.aspx Wed, 09 November 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/how-long-do-i-have-to-live-in-a-de-facto-relationship-before-i-can-claim-against-my-partner's-property.aspx Scenario: By early 2008 Carrie and Big had been in a relationship for six years. They are not married and do not have any children. In mid 2008 Carrie and Big decide to buy a penthouse together. Big puts a deposit on the penthouse using his savings. Carrie has no savings, but helps pay the mortgage every month.   The penthouse is in Big's name (on the certificate of title) as well as the mortgage with the bank. Carrie and Big move into the penthouse together in July 2008. They have not lived together previously, despite being in a relationship. In September 2011, Carrie and Big break up. Big tells Carrie that she has no entitlements and she will leave the relationship with nothing as they are not married and she did not contribute to the deposit on the penthouse. Has Carrie been with Big long enough to make a claim under the current legislation and if so does she have any claim to the penthouse? Answer: Generally the law requires you to demonstrate that either:-   You have lived in a de facto relationship for two years; or  You have a child or children together; or  You have made significant contributions to the relationship Carrie and Big have lived together for approximately three years and Carrie has made financial contributions to the penthouse, which means Carrie can make a claim. Carrie's entitlements to the penthouse are not solely based on contributions to the deposit on the penthouse. The law looks at many different factors in determining the financial entitlements of each party. If your de facto relationship has broken down, it is important that you protect your entitlements.  You should seek experienced family law advice.  For down to earth advice and assistance, talk to the Family Law team at Andersons Solicitors.  You can call us freecall 1800 653 655 or visit us for more in depth de facto relationship information on our Family Law page. Today's blog post is written by Family Law solicitor, Camille McDonald .   Camille McDonald - Solicitor Family Law       Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors . It relates to Australian Federal legislation. http://andersons.com.au/lawtalk/posts/how-long-do-i-have-to-live-in-a-de-facto-relationship-before-i-can-claim-against-my-partner's-property.aspx http://andersons.com.au/lawtalk/posts/how-long-do-i-have-to-live-in-a-de-facto-relationship-before-i-can-claim-against-my-partner's-property.aspx Wed, 02 November 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/do-i-need-to-formally-register-my-marriage-separation-with-a-separation-certificate-or-something-similar.aspx There is no requirement to register your marriage separation, although you should make sure that you make a note of the date as this will be significant if/when you decide to apply for a divorce. Separation occurs when one or both parties to a marriage clearly communicate to the other party that the relationship is over. To be eligible to apply for a divorce, you must be separated from your spouse for 12 months. When completing your divorce application you will be required to record the date of your separation along with other relevant details pertaining to your marriage and then formally swear that that information is correct before an appropriate witness such as a JP or a solicitor. Unless your spouse contests the application and can supply evidence to show that the information you have provided is not true, the Court should accept the separation date that you give them. So, there is no need for a "separation certificate" as such, although some Government agencies such as Centrelink may have their own requirements in relation to formally "registering" a separation. When you're considering separation, there are also many other things to think about. For example, are there children involved?  Do you need to sort out your property settlement?  At Andersons, we have a team of solicitors and support staff across our network of South Australian offices who can help you with any aspect of your Family Law issues.  Call us freecall on 1800 653 655 or visit us at our Family Law page. http://andersons.com.au/lawtalk/posts/do-i-need-to-formally-register-my-marriage-separation-with-a-separation-certificate-or-something-similar.aspx http://andersons.com.au/lawtalk/posts/do-i-need-to-formally-register-my-marriage-separation-with-a-separation-certificate-or-something-similar.aspx Wed, 02 November 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/turn-your-old-mobiles-into-chickens!.aspx For every two mobiles recycled by 31 January 2012 MobileMuster, with your help, will give a chicken to a family in need through Oxfam Unwrapped. Andersons has joined MobileMuster , the official recycling program of the mobile phone industry and " Oxfam Unwrapped's Old phones, More Chickens " campaign, to recycle old mobiles and accessories and help people living in poverty in Laos. So now is the perfect time to put all those unused mobiles back into good use by recycling them with Andersons and MobileMuster. This one simple gesture will help people living in poverty and the environment and is a great way to give a family in need a brighter start to 2012. What/Where do I recycle? Simply bring in your old mobile phones, batteries and accessories and place them in the collection box in any of our Andersons offices .  It's that easy! What happens to them? All mobiles collected by MobileMuster are dismantled, sorted and separated into circuit boards, batteries, handsets and accessories.  These are then processed either locally or overseas for material recovery. None are re-used and re-sold. So please join us in helping to conserve our natural resources, protect our environment and help a family in need this Christmas by recycling your old mobile phones and accessories (including batteries, chargers, cases, car kits, headsets etc.) The target is 2000 chickens! http://andersons.com.au/lawtalk/posts/turn-your-old-mobiles-into-chickens!.aspx http://andersons.com.au/lawtalk/posts/turn-your-old-mobiles-into-chickens!.aspx Tue, 25 October 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/when-can-motorcycle-riders-claim-compensation.aspx Laws relating to motorcycle riders are the same as for car drivers.  The law of negligence applies.  A motorcycle rider can claim damages (compensation through the Motor Accident Commission) providing that they were involved in an accident which can be either entirely or partially blamed on another party. Usually it is the motorcycle rider who will come off second best in an accident.  The compulsory wearing of helmets has assisted in preventing many head injuries but we see wrist fractures and leg injuries being very commonly incurred. In addition we often see psychological reactions to accidents.  Some motorcycle riders, once they have had an accident, refuse to resume riding motorcycles.  This is unfortunate but may lead to additional compensation. Riders should realise that they do not in fact need to be involved in an actual collision to be able to claim damages.  Many riders suffer injuries in trying to avoid collisions.  Such people may still be entitled to claim compensation as long as it was another party whose driving led to the mishap. In all of this, what should not be lost is that the motorcycle riders may have sustained quite significant damage to their motorcycle.  If that is the case, then steps need to be taken to try and recover that loss as well. What we think is most important is that if you have had an accident and have suffered any injury or loss that you seek legal advice immediately.  Notice should be given to the compulsory insurer at an early time and it is important that you receive early advice on what you can and cannot claim, how claims are assessed and what you should or shouldn't do along the process of a claim. In large part your legal costs are covered by the insurer so you should not feel that the issue of legal costs is one that should stand in your way or prevent you getting early and appropriate advice. For highly experienced advice and assistance in relation to a motorcycle accident, contact Andersons Solicitors on 1800 653 655 to arrange an initial free consultation. For further information, contact Andersons on 1800 653 655 or visit us at http://andersons.com.au/areas-of-practice/personal-injury/motor-vehicle-accidents.aspx  . This information is specifically relevant to South Australian legislation. This information is not intended as legal advice and should not be substituted for legal advice. The information contained in this article is current at the time of publication - October 2011. http://andersons.com.au/lawtalk/posts/when-can-motorcycle-riders-claim-compensation.aspx http://andersons.com.au/lawtalk/posts/when-can-motorcycle-riders-claim-compensation.aspx Thu, 20 October 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/who-hit-me-bicycle-accident-hit-and-run.aspx Is a cyclist able to make a claim for damages for injuries received in a hit/run accident? This question is often asked of us.  The answer is that they can.  There is an entity created under legislation called "the Nominal Defendant".  The Nominal Defendant comes into play generally in any one of 3 circumstances: In a hit/run situation when the identity of the driver is unknown. Where the driver of the other vehicle dies in the accident. Where the driver of the other vehicle is driving an uninsured vehicle at the time of the accident. In each of these cases, in a technical sense, the injured person has no one to sue.  This is particularly evident in a hit/run situation.  A person can feel aggrieved that they have suffered injuries but could feel somewhat confused as to what they should do about it when they do not know the identity of the driver who caused the accident. In this circumstance the claim will be a normal claim subject to all of the usual requirements of a claim for damages but legal advice is needed at an early time.  If it is a hit/run situation, the law imposes a duty on the injured person to make "due enquiry and search".  What the law is asking is that the person make some attempt to locate the driver and identify him.  At the least, the matter should be reported to the police and a "Witness Wanted" ad placed in The Advertiser. It is important that these steps be taken straight away.  The Nominal Defendant, being an insurer, can claim that they are disadvantaged and prejudiced if the first notification of the claim is given to them, say 18 months after the accident.  It then becomes a "stale" issue and one which would be very hard for them to investigate. The situations alluded to above, where the driver of the other car dies or the motor vehicle was uninsured are technical examples where the Nominal Defendant steps in to fill the void notwithstanding that the identity of the driver is known. Again we would stress that it is important to get advice at a very early stage following an accident if you find yourself in this position.  Call Andersons Solicitors on 1800 653 655 or visit our motor vehicle accident claims site at /areas-of-practice/personal-injury/motor-vehicle-accidents.aspx  . The information contained in this post is relevant to South Australian legislation and is current at the time of posting. This information is not intended as legal advice and should not be substituted for legal advice. http://andersons.com.au/lawtalk/posts/who-hit-me-bicycle-accident-hit-and-run.aspx http://andersons.com.au/lawtalk/posts/who-hit-me-bicycle-accident-hit-and-run.aspx Thu, 13 October 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/family-law-rights-for-“stay-at-home”-mums-and-dads.aspx Scenario: Dave and Julie have been married for thirty years. Together they have three grown children; Ben, Rachel and Nathan. Recently Dave and Julie have decided to separate. During an argument Dave told Julie that she will leave the marriage with nothing as she has not worked since they were married. Throughout the entirety of the marriage Julie acted as the primary parent and homemaker, while Dave earned the family's income through working fulltime. Does Julie have any rights to the property accumulated during the marriage, despite the fact that she has never contributed to the financial income of the family? Answer: The role of a homemaker is not necessarily seen as valueless under the family law jurisdiction.  The Court is likely to look at the contributions of both parties, financial and otherwise, in deciding what each party is entitled to. The value of being a homemaker is not examined by looking at what such services would cost in the marketplace and reaching a figure on that basis. Conversely, the value of being a homemaker is placed on the wealth of the parties. For example, the value of being a homemaker for the wife of a wealthy male doctor would be much greater than the value of being a homemaker for the wife of a husband who is a low-income earner. It's important that you seek professional legal advice about your family law property settlement entitlements before you discuss or agree to any distribution of the assets.  If you would like more information or advice about your rights, as a stay at home mum or dad, or otherwise, in relation to a property settlement please visit Andersons Solicitors Family Law Page or Freecall us on 1800 653 655. http://andersons.com.au/lawtalk/posts/family-law-rights-for-“stay-at-home”-mums-and-dads.aspx http://andersons.com.au/lawtalk/posts/family-law-rights-for-“stay-at-home”-mums-and-dads.aspx Tue, 04 October 2011 Dion McCaffrie http://andersons.com.au/lawtalk/posts/bike-riders-and-accidents.aspx The reason we are seeing more bicycles being ridden on city and suburban streets is, we think a combination of: Bike riding being used for fitness purposes; and Bike riding becoming a more popular pass time due to the profile given to Australian professional bike riders and to national and international bike riding events. We believe the downside for bike riders is that a simple equation exists; with more bike riders on the road, we have more accidents involving bike riders. When can a Bike Rider Claim Compensation? Laws relating to bike riders are the same as for car drivers.  The law of negligence applies.  A bike rider can claim damages (compensation through the Motor Accident Commission) providing that he or she was involved in an accident which can be entirely or partially blamed on another party. Quite often it is the bike rider who will come off second best in an accident.  The compulsory wearing of helmets has assisted in preventing many head injuries but we see wrist fractures and leg injuries being very commonly incurred. In addition we often see psychological reactions to accidents.  Some bike riders, once they have had an accident, refuse to resume the activity of bike riding.  This is unfortunate and may lead to additional compensation. Riders should realise that they do not in fact need to be involved in a collision to be able to claim.  Many riders suffer injuries in trying to avoid collisions.  Such people may still be entitled to claim compensation. In all of this, what should not be lost is that the bike rider may have sustained quite significant damage to his or her bike.  If that is the case, then steps need to be taken to try and recover that property loss as well. What we think is most important is that if you have had an accident and have suffered any injury or loss that you seek legal advice immediately.  Notice should be given to the compulsory insurer at an early time and it is important that you receive early advice on what you can and cannot claim, how claims are assessed and what you should or shouldn't do along the process of a claim. In large part, your legal costs are covered by the insurer so you should not feel that the issue of legal costs is one that should stand in your way or prevent you getting early and appropriate advice. For highly experienced advice and assistance in relation to a pushbike accident, contact Andersons Solicitors or get in touch directly with the writer of this blog, Partner in Civil Litigation , Dion McCaffrie . Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation. http://andersons.com.au/lawtalk/posts/bike-riders-and-accidents.aspx http://andersons.com.au/lawtalk/posts/bike-riders-and-accidents.aspx Thu, 29 September 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/access-rights-to-my-grandchildren.aspx Scenario: Alf and Ailsa are 69 and 67 years old respectively. They have a daughter Roo who is 37 years old. Roo has a seven year old daughter, Martha. Six months ago Alf and Ailsa had a falling out with Roo, resulting in Roo ceasing all contact with her parents. Despite many desperate attempts from Alf and Ailsa, Roo is refusing to allow them to have any contact with their granddaughter Martha. This devastates Alf and Ailsa as previous to their falling out with Roo they spent time with Martha at least twice a week. Alf and Ailsa speak about retaining a lawyer. They are concerned they will never see Martha again and believe their role as grandparents is important in Martha's life. Do Alf and Ailsa have any legal right to spend time with Martha despite Roo's wishes otherwise?   Answer: Under the family law jurisdiction an interested third party, for example a grandparent, aunt or uncle can make an Application to the Court to spend time with the child. Whether the Application will be successful depends on the facts of the individual case and the relationship of the interested third party with the child in question. Have you or friends of yours found themselves in this position.  It's difficult and heart renching.  You should get some professional advice about your rights.  At Andersons, we advise grandparents on their legal rights to their grandchildren.  For an initial consultation, call us on (08) 8238 6666 or visit us at: /areas-of-practice/family-law.aspx http://andersons.com.au/lawtalk/posts/access-rights-to-my-grandchildren.aspx http://andersons.com.au/lawtalk/posts/access-rights-to-my-grandchildren.aspx Tue, 13 September 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/law-australasia-sharing-the-knowledge-bank.aspx Did you know Andersons Solicitors is a member of Law Australasia? It's a community of law firms from across Australia who are members of a unique association striving for continuous improvement.  At Andersons, if we all share that knowledge of best practice initiatives, it can only be for the greater good of our firm, our staff and of course, our clients. Why should law firms huddle up in their own little world, keeping their successes to themselves and containing their knowledge within? Sure there should be competition but we want our point of difference for our member firms, to be that ever-growing knowledge bank that we can learn and benefit from. Law Australasia currently has 19 member firms across Australia and New Zealand.  We share all management and financial knowledge (bearing in mind confidentiality and privacy laws of course). All members, including Andersons, strive for excellence in what we do.  The association runs two management conferences every year and one major Continuing Legal Education ("CLE") conference each year.  In fact, four Andersons solicitors are attending a conference in Sydney this week where they'll be learning the latest in Commercial & Business Law including Wills & Estates, Family Law and Industrial & Employment Law.  Our solicitor, Sorna Nachiappan is presenting a paper in Industrial Relations. With all this knowledge sharing and education, our aim is to deliver the best, most innovative and up to date services to our clients.  So ask yourself, do you want your legal representation from a non-progressive, introverted firm or do you want the latest initiatives and progressive thinking from your lawyer? For more info on Andersons, visit us at: http://andersons.com.au/ http://andersons.com.au/lawtalk/posts/law-australasia-sharing-the-knowledge-bank.aspx http://andersons.com.au/lawtalk/posts/law-australasia-sharing-the-knowledge-bank.aspx Wed, 10 August 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/i-want-to-move-interstate-and-get-a-fresh-start-but-the-other-parent-won't-agree-to-let-me-take-the-kids-what-can-i-do.aspx Basically the same principles apply to relocation matters as in ordinary children's matters under the Family Law Act.  The most important this is that the best interests of the children are paramount. If you're contemplating a significant move and the other parent won't give their consent, you can apply to the Federal Magistrates Court or Family Court of Australia for children's orders to change where the children live.  To be successful, you will need to demonstrate that the proposed new arrangement, even if that new arrangement involves a move interstate or overseas, is in the best interests of the children. This may involve you demonstrating that the non-relocating parent can continue to have a meaningful relationship with the children even if the relocation takes place.  This could be by way of regular visits, telephone calls etc.  Essentially, the children's best interests must be weighed and balanced with the "right" of the proposed relocating parent's freedom of movement. Are you planning a move interstate or overseas with your children? Make sure you get expert legal advice and assistance.  At Andersons we'll look after your interests. For more info, visit us at: /areas-of-practice/family-law.aspx http://andersons.com.au/lawtalk/posts/i-want-to-move-interstate-and-get-a-fresh-start-but-the-other-parent-won't-agree-to-let-me-take-the-kids-what-can-i-do.aspx http://andersons.com.au/lawtalk/posts/i-want-to-move-interstate-and-get-a-fresh-start-but-the-other-parent-won't-agree-to-let-me-take-the-kids-what-can-i-do.aspx Thu, 04 August 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/will-workcover-sa-appeal-the-“medical-panels”-recent-decision.aspx If you had a Workcover claim, how would you feel having to go to a panel of 3 to 5 doctors who you had never seen before who would make decisions relating to any medical questions about your claim?  How would you feel about having to go to such a Medical Panel appointment without being able to bring a lawyer or someone to represent you or speak on your behalf?  How does it make you feel that WorkCover's intention was to make these Medical Panel decisions final and binding meaning that a worker would have no avenue or way to challenge these decisions to an independent Judge or Court like the Workers Compensation Tribunal? This was the situation for injured workers in South Australia but due to an important case that was recently decided by the Supreme Court of South Australia, this sad state of affairs has now been reversed. On 27 June 2011 the case of Yaghoubi & Campbell was handed down by the Supreme Court of South Australia.  This case essentially challenged whether or not the Medical Panel opinion in WorkCover matters was final and binding on all parties including the Tribunal.  Although it was found that the Medical Panel should still continue to exist, most importantly for injured workers in South Australia the Court found that the Medical Panel opinion is not final and binding on the Workers Compensation Tribunal.  Obviously this is an excellent result for injured workers in South Australia and it ensures that the Tribunal is still the ultimate decider of medical issues that arise in workers compensation matters. But... this decision could be appealed.  What are your thoughts in relation to this? For more information on Medical Panels or workers compensation matters, visit our Andersons home page . http://andersons.com.au/lawtalk/posts/will-workcover-sa-appeal-the-“medical-panels”-recent-decision.aspx http://andersons.com.au/lawtalk/posts/will-workcover-sa-appeal-the-“medical-panels”-recent-decision.aspx Tue, 26 July 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/if-i-separate-from-my-spouse-am-i-entitled-to-50-of-the-assets.aspx How does the court decide? If you have separated from your spouse and you are unable to agree on a division of property you can apply to the Federal Magistrates Court or Family Court to make orders for property settlement.  Put simply, the court will decide for you how the property is to be divided. The Court uses a 4 step process when deciding such divisions of property: Identify and value all property and financial resources. Look at the contributions of the parties during the relationship (both financial and non financial). Consider what the future needs of both parties are, by taking into account various factors such as age, health, care of children, income earning capacity etc. Determine if the settlement is just and equitable, in other words, whether it is fair in all the circumstances. In summary, there is no automatic entitlement to 50% of matrimonial assets for people who have separated. Each case is determined separately using the 4 step process as outlined above. Are you separating and you don't think you're getting your fair share? Make sure you get expert legal advice and assistance.  At Andersons we'll look after your interests and get you what you deserve. For more info, visit us at: /areas-of-practice/family-law.aspx http://andersons.com.au/lawtalk/posts/if-i-separate-from-my-spouse-am-i-entitled-to-50-of-the-assets.aspx http://andersons.com.au/lawtalk/posts/if-i-separate-from-my-spouse-am-i-entitled-to-50-of-the-assets.aspx Fri, 22 July 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/straight-talking-now-what's-an-enduring-power-of-attorney.aspx What happens if you have an accident or suffer a stroke or some other serious injury? Who will make important financial decisions for you? Did you know that your partner or children do not have any immediate legal right to act as your legal representative if you become incapacitated? An Enduring Power of Attorney is a legal document where you appoint a person to make decisions about your finances and assets on your behalf. The power may be "enduring" when the appointment continues to be effective and enforceable after you lose mental capacity.  You may nominate more than one person (called an "attorney") to make decisions for you and you may appoint them jointly, jointly and severally (meaning you have two of them but one can make an enforceable decision independent of the other) or as alternatives. Many people assume that in the absence of an Enduring Power of Attorney their husband/wife/partner or children will be able to make financial decisions and wishes on their behalf.  After all, they trust them totally and implicitly right? Well, truth of the matter is that not all family members share such love, trust and respect for each other. What would you say in response to a child, who had not spoken to nor seen his ailing father for many years, having the right to access his estranged father's bank account simply because he could prove that he was his son?  What if the father did not want his son to have any access to his funds or any risk that this might occur? That is the benefit of the Enduring Power of Attorney.  It provides the right for you to choose who does, and who does not have the right to look after your financial interests if you are unable to. So we ask again, do you have an Enduring Power of Attorney? Want more info on Enduring Powers of Attorney or other legal documents that protect you and your assets? Visit " Power of Attorney " on our website .  http://andersons.com.au/lawtalk/posts/straight-talking-now-what's-an-enduring-power-of-attorney.aspx http://andersons.com.au/lawtalk/posts/straight-talking-now-what's-an-enduring-power-of-attorney.aspx Thu, 14 July 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/long-term-hospital-stays-get-boring.aspx Have you ever had a long term stay in hospital? Or maybe you've been a regular visiting to long term hosptial patients. Either way, take yourself back to that environment. How was it? Dull, clinical, energy zapping? Unfortunately, it's a reality for a lot of people. And if it's ICU or some similar ward, there will be no flowers, no personal notes, cards, no teddy bears or "get well" balloons. So how do they pass the time of day? Hoping for visitors or some little change to the routine. This is where we can all help. The Motorccyle Riders Association of SA (MRASA) has a sub-committee called the 4Bs. This is a group of dedicated people who give up their own time to visit patients in Adelaide's hospitals as often as they can manage. So we've got a bit of visiting under our belts but what about when they can't be there. That's when they decided to come up with another option to help pass the time. The started a fund raising initiative to purchase DVD players together with an initial DVD Library to donate to the hospitals. Now this was a couple of years ago so you could imagine the condution of the DVDs by now. So they're looking to boost the Library coffers with a big drive to get some more DVDs donated and Andersons was more than happy to assist with a kick start and the provision of all its office locations at "drop off" points. Want to get involved? Great! See the attached flyer. We're looking for up to six DVDs per donation and they can be dropped into any Andersons office. Here are our locations . So help Andersons help the MRASA 4Bs.  Donate today! 4Bs DVD Donations Flyer Final June 2011 http://andersons.com.au/lawtalk/posts/long-term-hospital-stays-get-boring.aspx http://andersons.com.au/lawtalk/posts/long-term-hospital-stays-get-boring.aspx Tue, 28 June 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/workcover-sa-medical-panels-are-they-getting-it-right.aspx How would you feel if you were told that you had to submit to a medical examination by up to 5 medical specialists forming a Medical Panel, who have never met you or treated you; that you were not allowed to take a representative to speak on your behalf with you; and that the opinion the Medical Panel reaches  may not be challenged, even if it contains errors of fact and law and regardless of the impact it may have on  your life, such as stopping your WorkCover  income maintenance payments? How would you feel if you were told that if you refused to submit to an examination by the Medical Panel for any reason you could lose your entitlement to WorkCover income maintenance? If you had a legal dispute in relation to your workers compensation claim lodged in the Workers  Compensation Tribunal of South Australia would you be concerned that the power to resolve that Dispute  could be taken away from a Conciliation Officer , President or a Judge by the Insurer simply deciding to refer the "medical question" in issue to the Medical Panel? These are some of the questions and concerns that injured workers are currently facing  as a result of changes to the South Australian workers compensation legislation that have occurred over the last couple of years.   Have you been forced to attend a Medical Panel examination?  Were you happy with the opinion expressed by the Medical Panel? Share your thoughts. If you need assistance with your WorkCover claim in South Australia, Andersons Solicitors are experts.  Speak directly with our solicitor Marion Williams , or request a free appraisal on our website or visit our home page . http://andersons.com.au/lawtalk/posts/workcover-sa-medical-panels-are-they-getting-it-right.aspx http://andersons.com.au/lawtalk/posts/workcover-sa-medical-panels-are-they-getting-it-right.aspx Fri, 10 June 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/faulty-depuy-hip-replacement-get-the-compensation-you-deserve.aspx We've had a huge number of calls in response to our Faulty DePuy Hip advertisements and a lot of people have been experiencing similar symptoms ranging from ringing in the ears and headaches to eye problems, seizures and other neurological symptoms.    There are also many people who have been trying to cope with severe pain caused by their DePuy hip replacement and some have had to undergo further surgery to have the faulty hip removed and replaced. It's been even surprising to us how many people have been effected.  Until now many of them have thought that they were alone and that nothing could be done. This is not the case. Many of them are in a position to claim for compensation.  And our callers have come in from regional South Australia and the Northern  Territory.  We'll most likely be visiting those areas over the next few weeks to consult with those that have joined Andersons' Representative Action on their behalf, in the Supreme Court of South Australia. Have you had a DePuy Hip replacement or know of someone who has? Have you experienced symptoms as mentioned above?  Get the compensation you deserve. For more information, speak with Marion Williams by calling 1800 653 655. http://andersons.com.au/lawtalk/posts/faulty-depuy-hip-replacement-get-the-compensation-you-deserve.aspx http://andersons.com.au/lawtalk/posts/faulty-depuy-hip-replacement-get-the-compensation-you-deserve.aspx Fri, 03 June 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/planking!-harmless-fun-or-sackable-offence.aspx Planking is a well known term now.  But just on the off chance you're not familiar with it, it's the art of lying facedown with your arms by the side of the body in a public place and photographing it to be circulated via a variety of social network sites.  We believe the practice began in England and was called the 'lying down' game. The more unusual or difficult the position the better; think of Simon Carville who planked naked in the arms of statue Eliza on the Swan River in Perth, WA. Following the death of a Brisbane man, police and politicians have called for a crackdown, particularly in the workplace. Eight Woolworth's workers in three states were sacked after planking on trolleys, display units, shelves, and a meat mincing machine. McDonalds' workers have also lost their jobs.  Some of these photos made it to the National news.  Employers asserted that workers put their own safety and that of customers at risk and were in clear breach of workplace health and safety laws. And what about the 22 girls from Walford Anglican School for Girls (Adelaide, SA) who were sent home after a picture of them planking on a flight of stairs was released. Some employers, including SA car manufacturers have a strict workplace policy of no cameras (including mobile phones with cameras) in the work place. It is essentially to protect car model photos and trade secrets. If planking photos were circulated on the net, then the possible consequence to the worker is multifold-breach of safety provisions and breach of employer policy. Another issue not fully explored; should there be different disciplinary measures for different types of planking? Consider this example; a worker planking during a break (unpaid time at work) in a nil safety risk position (perhaps low height) compared to the more risky positions and during work paid time. Interestingly, we believe the workers in England who engaged in the 'lying down' game were only disciplined or suspended short term.  Information at hand indicates that none of the English workers were sacked. Are Australian employers going overboard?  Is this an over-reaction?  Should our workers be sacked for  planking? Have you planked at work or do you know someone that has?  Were you or someone you know reprimanded for planking at work? Share your thoughts and if you need advice, Andersons has a top-notch Employment & Industrial team to assist you.  For more information, contact Sorna Nachiappan direct on 08 8238 6610. http://andersons.com.au/lawtalk/posts/planking!-harmless-fun-or-sackable-offence.aspx http://andersons.com.au/lawtalk/posts/planking!-harmless-fun-or-sackable-offence.aspx Wed, 01 June 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/depuy-asr-hip-replacement-are-you-entitled-to-compensation.aspx You may have noticed recently in the news, potential  claims for  compensation for people who have undergone hip replacement  surgery.  At Andersons, we've been investigating these claims and have now commenced proceedings in relation to a Representative Action for our affected clients. The hip replacement in question is the DePuy   Orthopaedics Inc ASR Hip. Some of these people underwent surgery several years ago and developed painful symptoms some time after the standard recovery period.  Some developed painful bursas and large painful lumps, which when drained contained metal fragments from the hip replacement joint.  Others had problems with the hip joint "locking up" and causing pain and stiffness.  Several of our clients have had to undergo revision surgery to have the faulty hip taken out and replaced. Most of our clients did not know that these symptoms could have been happening because their hip  replacement was faulty until they received a letter from their doctor about it. In addition to recalling the hips, DePuy has partnered with a Claims Management company to reimburse claimants who have received one of these hips and who have had to have further medical treatment as a result of a faulty hip replacement.  This further treatment has ranged from blood tests to check for raised chromium and cobalt levels to the costs associated with revision surgery and rehabilitation. It's important to note though, that they're only paying for medical expenses associated with replacing the faulty hip.  They're not taking into account loss of wages, pain and suffering and any ongoing or future losses.  In many cases, we think you're entitled to more than just a replacement hip. Have you had a DePuy ASR hip replacement and it's not working out for you?  Do you know someone in this situation? We're offering a "No Win No Fee" representation so call us today on 1800 653 655 or visit us at Andersons Solicitors . For obligation free advice today   Freecall 1800 653 655 http://andersons.com.au/lawtalk/posts/depuy-asr-hip-replacement-are-you-entitled-to-compensation.aspx http://andersons.com.au/lawtalk/posts/depuy-asr-hip-replacement-are-you-entitled-to-compensation.aspx Fri, 20 May 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/asbestos-exposure-continues-to-affect-many.aspx To obtain fair and reasonable compensation for sufferers, experience in dealing with similar cases is invaluable. That is why Andersons Solicitors has teamed with Maurice Blackburn to assist South Australians who need help. This is a powerful and unique association of two leading law firms with major experience and expertise in this difficult field. For further information on your rights to claim for asbestos exposure call Andersons on 1800 653 655 or review our brochure on Asbestos Exposure . http://andersons.com.au/lawtalk/posts/asbestos-exposure-continues-to-affect-many.aspx http://andersons.com.au/lawtalk/posts/asbestos-exposure-continues-to-affect-many.aspx Tue, 10 May 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/can-i-get-divorced-in-australia-if-i-am-living-overseas.aspx There are a few requirements you have to fulfill if you want to get your divorce done in Australia.  Either the Husband or the Wife needs to fulfill only one of these requirements in order to give the Australian Courts the power to do the divorce. The requirements are that either of the Husband and Wife are: - Australian Citizens; or Domiciled in Australia; or Ordinarily resident in Australia and have been for one year immediately before filing the Application for Divorce.  While it is pretty straightforward to work out whether one of the parties is an Australian Citizen, whether the person is "domiciled in Australia" or an "ordinary resident of Australia" are a bit more complicated.   For a person to say that they are domiciled here they would usually have to have abandoned their previous place of residence and intend to make Australia their permanent place of residence for an unlimited time. Ordinary resident is also complicated but usually means the place or Country you have decided to adopt voluntarily as part of the regular order of your life. As stated above, this part of the law can be complex and you should obtain legal advice regarding this issue by contacting Andersons Solicitors on +61 8 8238 6666. http://andersons.com.au/lawtalk/posts/can-i-get-divorced-in-australia-if-i-am-living-overseas.aspx http://andersons.com.au/lawtalk/posts/can-i-get-divorced-in-australia-if-i-am-living-overseas.aspx Wed, 27 April 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/what-happens-when-a-short-marriage-breaks-down.aspx No matter how short a marriage lasts, there are certain requirements that must be met before you can get your divorce.  The first is that it must be at least 12 months from the date you separated from your spouse before you can apply to the Court for a divorce.  If you want to apply for a divorce and it has been less than 2 years since you were married, there is another requirement; you need to attend counseling with your spouse and consider reconciliation.  You need to get a certificate from the counselor to file with your Application for Divorce. There are some circumstances when a Court will grant a divorce if you have not attended a counseling session but the law of this is not straightforward.  There is no actual list of what reasons mean you do not have to attend counseling.  The most common reason however is when your spouse refuses to attend at the counseling. Given the complexity of this area of the law you would need to obtain legal advice on this issue and you can get that from Andersons Solicitors on (08) 8238 6666 or at our website . http://andersons.com.au/lawtalk/posts/what-happens-when-a-short-marriage-breaks-down.aspx http://andersons.com.au/lawtalk/posts/what-happens-when-a-short-marriage-breaks-down.aspx Tue, 12 April 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/can-i-divorce-my-spouse-if-we-are-separated-but-living-together.aspx Put simply, yes. There is one ground for Divorce in Australia, which is that the marriage has "broken down irretrievably".  To show this you must show the Court that you have "separated" and "lived separately and apart" for a continuous period of not less than 12 months immediately prior to the date of filing your Application for a Divorce. This may sound a little confusing but you can actually be considered to be living separately and apart even if you have continued to live in the same home together or you provided household services to each other.  One of the main concerns is to prevent parties trying to obtain a speedy divorce by falsely stating that they have separated for 12 months while living under the same roof when in fact they have not actually been separated that long. So, you may need to provide some corroborative evidence to prove your separation. The Court may consider whether there is a real sharing of a common life, whether you have provided household tasks, whether you sleep in different bedrooms, whether any sexual relationship is continuing, whether you have advised friends and family, amongst other things. We're not saying you need to tell the rest of the world that you have separated but the fact that you may have is a significant indicator of the fact that separation has actually occurred. As we said, it can be confusing. If you'd like some more information or advice about separation and divorce contact Andersons Solicitors on our website . http://andersons.com.au/lawtalk/posts/can-i-divorce-my-spouse-if-we-are-separated-but-living-together.aspx http://andersons.com.au/lawtalk/posts/can-i-divorce-my-spouse-if-we-are-separated-but-living-together.aspx Wed, 30 March 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/get-on-your-bikes-and-ride.aspx At Andersons, we're proud to now be the legal representatives for Bike SA and their members.  What a fantastic organisation to have a relationship with.  Although staffed with paid employees across many areas of its operations Bike SA relies heavily on its volunteer base to keep it going day in day out.  It's a true honor to work with such a dedicated bunch of people. Bike SA recently launched a new initiative in conjunction with The Advertiser - "Love Your Ride".  The first edition was out on 25 February and you should keep a look out for future editions.  It's a terrific start to 2011 and provides Adelaide's, and it's large visitor population of bike users, a wealth of information and assistance for getting out and about with your bike. At Andersons we strongly support the social, health, safety and community spirit that Bike SA brings to South Australia.  For more information on Bike SA, what they do and how they do it, or to join for continued support, visit http://www.bikesa.asn.au/ . All that said, there is a serious side to riding and that's safety on our roads.  Unfortunately, it's not always a given that you'll return from your ride in the same healthy condition you started.  As a Bike SA member requiring any legal assistance including personal injury claims, you will receive a first free interview, 10% discount on already competitive fees and a 24 hour hotline with Andersons Solicitors.  And those services, together with your Free Basic Will, are available to any financial member.  For more information visit: http://andersons.com.au/ In the meantime, get on your bikes and ride!!! http://andersons.com.au/lawtalk/posts/get-on-your-bikes-and-ride.aspx http://andersons.com.au/lawtalk/posts/get-on-your-bikes-and-ride.aspx Mon, 07 March 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/what-we-love-about-south-australia.aspx The hot summer days!  Well actually maybe not quite as hot as they've been recently.  With Adelaide and regional South Australia soaring into the 40's again in recent days and not much relief out of the mid to high 30's for the remainder of the week, simply sleeping through the nights can be a trying exercise. As a result of that, typically in hot weather, we get more tired and frustrated people; tired and frustrated workers and tired and frustrated drivers.  With that added fatigue, come errors and too often, errors with regard to safety. Safety in our places of work and safety on our roads is paramount but accidents still happen. Remember, South Australia has a compensation system that provides for workers injured in the course of their employment and that provides for many road users injured in motor vehilce related accidents. The systems of compensation are complex and it's important to seek timely, expert and experienced advice if you think you have a claim.  At Andersons Solicitors , for decades we've been helping South Australians across the State gain the compensation they deserve.  For a no obligation, free appraisal, visit our website . http://andersons.com.au/lawtalk/posts/what-we-love-about-south-australia.aspx http://andersons.com.au/lawtalk/posts/what-we-love-about-south-australia.aspx Tue, 01 February 2011 andersonslawblog http://andersons.com.au/lawtalk/posts/sharing-the-children-at-christmas.aspx For a variety of reasons, it's a reality that marriages and de facto relationships aren't always forever.  It's particularly sad when children are involved. Separated or not, we all want our children to wake up with us on Christmas Day.  So how do we deal with it when separated couples can't agree? Ultimately, dividing Christmas Day with the children is a solution.  Maybe it's lunch with Mum and dinner with Dad.  Or maybe it's Christmas this year with Mum and next year with Dad. Ultimately, it's a personal choice but it's particularly important to prioritise the day for the children.  Remember, children are going through their own difficulties after the separation of their parents. Some parents will still have difficulty negotiating and agreeing on contact time.  If this is the case, mediation is an option but make sure you deal with this quickly as available dates and times get booked out quickly.  It's important to note that any agreement reached at mediation is not binding.  Further changes can be agreed later or either party can opt out of the agreement.  You can also formalise your agreement and make it binding with a "Consent Order". If you have attempted mediation and it has failed, as a last resort, you can take the matter to court but there are strict time requirements for starting this kind of court action and the cut-off for filing is usually in November each year.  This does not apply to urgent matters. If you're having difficulty resolving sharing arrangements, get expert advice from an experienced Family Law solicitor.  Andersons Solicitors can help.  Call us on 1800 653 655 or visit us at on our website . http://andersons.com.au/lawtalk/posts/sharing-the-children-at-christmas.aspx http://andersons.com.au/lawtalk/posts/sharing-the-children-at-christmas.aspx Thu, 09 December 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/the-office-party.aspx Yep, only a couple of weeks ago we were talking about that time approaching.  Well it's well and truly here now. There's just not enough time in December anymore for all those corporates to squeeze in all those parties and events.  So the sprawl, much like our cities, started seeping into late November a few years ago and now, well we had our first one in early November.  And there's been 1 or 2 a week.  So what are we looking out when we send our staff off to these events.  All the usual responsibilities apply to the the employer.  We have to provide a safe and healthy working environment.  So far so good.  Doesn't mean to say that if your staff member "goes off the rails" at an event, you're solely responsible.  But you do have to have some preventative measures in place. So make sure you've got some policies that everyone knows and particulary, that everyone can easily refer to in the future.  No point providing a policy to a staff member who started in January and then expect them to remember it all come November/December that year.  Put it on your intranet or make it readily accessible to all your staff and, remind them it's there. Provide adequate security at your events.  Monitor the alcohol consumption.  Watch out if you've got minors in your employ.  Ensure adequate transport is available after then event.  ... and the list goes on.  It's really common sense but things can go, let's say, "not how you planned". And for the workers who may find themselves in trouble after the Office Party, see immediate advice on your rights and entitlements.  Speak with your Union or visit our website .  http://andersons.com.au/lawtalk/posts/the-office-party.aspx http://andersons.com.au/lawtalk/posts/the-office-party.aspx Sun, 21 November 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/christmas-parties-have-fun-but-take-care.aspx On the theme of fantastic and fun events, it's coming up to that time of the year when many of us will be out and about at the various social and work events.  Is it suitable for a timely reminder to think about our behaviour at work events in particular? Many a livelihood has been destroyed in the past due to some unacceptable antics at the work Christmas party or the end of year bash.  So just who is responsible for our behaviour at these events? One would think, generally, there is a co-contribution of responsibility.  We, as individuals need to behave in a presentable, orderly and legal fashion; let's all remember, we're there with our work colleagues and our employers.  It's not just our reputation on the line; it's that of our colleagues and our company.  Our employer has a duty of care to keep our working environment safe and healthy. All that said, things can go "pear shaped".  And it's not always solely the fault of the individual caught in up in it all.  Once it all starts to go wrong, we can find ourselves in a situation we never thought of and particularly, never intended.  These can be from  injuries, both minor and catastrophic to criminal charges including drink driving, assault and sexual offences, through to employment and industrial law breaches that can result in loss of job, which may constitute an unfair dismissal. So, look out for yourselves in the coming weeks and if you do happen to find yourself on the wrong side of things, seek immediate assistance to ensure you get it all going back in the right direction early. If you're in a Union, you may seek assistance from them.  If not, and you're wanting to protect your rights and entitlements at work, seek expert advice from Andersons Solicitors .  We have a number of solicitors working in the field of employment and industrial law ; Sorna Nachiappan , David Fabbro , Peter Mullins and Arelene Venning.  Don't wait until it's too late.  For a free first interview, call Andersons on 1800 653 655. http://andersons.com.au/lawtalk/posts/christmas-parties-have-fun-but-take-care.aspx http://andersons.com.au/lawtalk/posts/christmas-parties-have-fun-but-take-care.aspx Wed, 10 November 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/paraquad-sa-benefits-from-melbourne-cup.aspx What a great Australian icon; the Melbourne Cup!  Like many Australians, we attended a Melbourne Cup function; The Channel 9 Telethon at the Stamford Grand in Adelaide (Glenelg).  It was a brilliant event with, what we assume to be much better weather than indured by our colleagues in Melbourne. Primary to our choice for this event, were the recipients of the funds raised.  PARAQUAD SA was  a major recipient of the fund raising. At Andersons, we've been proud supporters of PARAQUAD SA (PQASA) and the work they do in South Australia. It's a tragic admission that spinal injury continues  to be prominent in our community.  PQASA play a major role in assisting people with spinal injury resulting from a variety of incidents, some of them being compensable. Spinal injury can result from motor vehicle accidents, workplace accidents, medical and/or professional negligence. It's important that people who suffer spinal injury under such circumstances, receive advice and assistance on their entitlements. At Andersons, we deliver deserved results to claimants of compensation for catastrophic injuries, including spinal injury. We offer free appraisals, and in most cases, "No Win, No Fee" options.  If you or a colleague, family friend of loved one has suffered such injury and you believe compensation is warranted, call David Fabbro for an obligation and cost free initial interview; 1800 653 655. http://andersons.com.au/lawtalk/posts/paraquad-sa-benefits-from-melbourne-cup.aspx http://andersons.com.au/lawtalk/posts/paraquad-sa-benefits-from-melbourne-cup.aspx Wed, 03 November 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/car-accident-in-south-australia-remember,-it's-a-fault-based-compo-system.aspx The legal fraternity had a massive national conference in Sydney late last week (21 and 22 October 2010). The Australian Legal Practice Managers Association (ALPMA) National Summit 2010 and Andersons Solicitors went along for a look at what's on offer in 2010/2011 for law firms. Whilst in Sydney, believe it or not, a few car accidents were witnessed. Makes you sit up and take notice when a somewhat serious looking one takes place across the road from you. In South Australia, not everyone is automatically entitled to motor vehicle accident compensation. It's a "fault based" scheme; that is, someone has to have been at fault either partially or wholly. It's worth getting the facts about your third party insurance in South Australia. For a quick look, visit our website  or for a more detailed look at Motor Vehicle Accidents compensation, click here . http://andersons.com.au/lawtalk/posts/car-accident-in-south-australia-remember,-it's-a-fault-based-compo-system.aspx http://andersons.com.au/lawtalk/posts/car-accident-in-south-australia-remember,-it's-a-fault-based-compo-system.aspx Tue, 26 October 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/wet-weather-sends-us-sliding-on-the-roads.aspx So we've had a little bit of rain but it did come after a nice warm and sunny stretch for a couple of days.  So what does that bring?  All the oils and grease buildup on the roads turns to a slippery slide of potential disaster. We've got to keep our wits about us on the roads at all times but it's particularly "nasty" when hot dry weather turns to wet cold weather.  Unfortunately car accidents do happen and people do get injured. Andersons Solicitors has highly skilled, compassionate lawyers ready to fight for your rights if you are unfortunate to suffer an injury from a motor vehicle accident.  Get a free appraisal today. http://andersons.com.au/lawtalk/posts/wet-weather-sends-us-sliding-on-the-roads.aspx http://andersons.com.au/lawtalk/posts/wet-weather-sends-us-sliding-on-the-roads.aspx Tue, 19 October 2010 andersonslawblog http://andersons.com.au/lawtalk/posts/can-drink-driving-be-trifling.aspx Doesn't it seem strange that the term "trifling" can be used in conjunction with drink driving charges? It is actually a legal option for you to reduce a disqualification period after being charged with drink driving. Andersons Senior Associate, David Mullen explains the options for trifling applications.  If you've been charged with drink driving, this article is a must read: Drink Driving and "Trifling" Applications Drink driving offences still figure prominently in our court lists.  This is despite all of the publicity surrounding drink driving. One of the most often asked questions by clients charged with drink driving is, "can the court allow me to drive for work?"  The answer is no.  Courts have no power to allow driving in the course of employment.  Client's can become indignant and say they will lose their job and even put forward examples of knowing someone who was allowed to drive during their employment hours, even though they were convicted of a drink driving offence. That is the sad reality of drink driving convictions; loss of licence, heavy fines and possible loss of employment which can be followed by a loss of the family home and much more, at a later stage.  What people may be getting confused about is the situation where an offence is considered to be "trifling" by the court; the period of disqualification can be reduced. Section 47B(3)(b) of theRoad Traffic Actstates the following: the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month; The courts have not laid down any hard a fast rules as to what is meant by the term trifling.  In this section of theRoad Traffic Actit is used to mean of slight importance, insignificant or of little moment.  A typical or normal example of drink driving will not be considered "trifling".  A person who is driving on the borderline is generally a typical offence as the courts are full of people who miscalculate the number of drinks consumed.  For a charge of drink driving to qualify as "trifling", the person must be a first offender, give evidence on oath of the circumstances and it is for the court to decide if the matter is trifling.  If the matter is considered trifling, the licence disqualification can be reduced less than the prescribed minimum period but not less than 1 month.  David Mullen David is a Solicitor in our Victor Harbor office . For further information, contact Andersons on 1800 653 655. This information is not intended as legal advice and should not be substituted for legal advice. The information contained in this article is current at the time of publication - October 2010. http://andersons.com.au/lawtalk/posts/can-drink-driving-be-trifling.aspx http://andersons.com.au/lawtalk/posts/can-drink-driving-be-trifling.aspx Fri, 08 October 2010