2020 was a year in which Australians felt afraid; afraid of losing their jobs, afraid of losing their loves ones, and afraid of losing their lives. The threat of the COVID-19 pandemic prompted many to "panic plan" for the future by writing and executing their wills. However, in hurriedly creating these vital legal documents, a number of Australians are having their wills found invalid.

A will can be found invalid for a number of reasons. For example, a court will not accept the will as a valid document if it was not witnessed, or it is unclear whether the will-maker (i.e., testator) had ‘testament capacity.’

There are significant ramifications of dying with a will that does not meet relevant statutory requirements. If the will is found invalid, the testator will be classified as dying ‘intestate.’ This means that their assets will be distributed according to the intestacy laws within the relevant state or territory. This could ultimately leave out key recipients of the will and require the payment of significant fees and taxes.

Such a situation can be easily avoided by conducting a regular review of your will and estate with the help of a lawyer.  Not only will a review highlight potential tax saving opportunities and ensure legal validity, but it will ensure your family will be protected just as you planned.

If you are struggling with writing your will or are worried that your current will is not legally binding, please feel free to contact us on 02 8917 8700.

As excitement brews in the lead up to the Easter long-weekend, many NSW residents are looking forward to enjoying time off work, COVID-restriction free. However, the weekend’s double demerit rules could see drivers dealing with more than a chocolate-induced belly-ache.

Double demerit rules will be enforced from 1 April 2021 (12am) - 5 April 2021 (12am). They will apply to speeding and failure to wear a motorcycle helmet or seat belt. Other heavy penalties will be dispensed for motorists using their mobile phones while driving. Offenders could face a loss of up to 10 demerit points, on top of a $349 fine.

To stay out of trouble, we encourage you drive with care and check your current balance of demerit points via the Service NSW website.

Although double demerits could cause anxiety for some, residents of NSW can look forward to their first weekend of eased restrictions since they came into force on Monday.

Here’s how the changes will affect you:

If you plan to visit an event not mentioned above, or you would like to learn more about being COVID safe, visit the NSW Health website.

The team at Freedman & Gopalan wishes you a safe and happy holiday. If you have any queries or in need of legal assistance, call us on 02 8999 9837.

There are many terms family lawyers throw around when discussing the options available to parties who are separating. While they may sound similar, terms like mediation, arbitration and litigation in fact serve difference purposes and involve distinct processes.

Here's an easy to understand description of each.

Mediation

Mediation is an alternative dispute resolution (“ADR”) process whereby an independent, neutral third party, a mediator, assists in encouraging discussions between parties. This is done in the hopes of reaching an amicable resolution.

Mediation is a non-binding process and any discussions/negotiations between parties is confidential. Neither party is required (i.e., forced) to agree to either a distribution of property or a parenting arrangement. Any agreement reached must be agreed to by consent, which can be made formally binding by the Court by way of an Application for Consent Orders.

Parties are allowed to openly discuss any issues between them at a mediation, with the assistance of a mediator. The focus is on developing a tailored agreement suitable to the parties' individual circumstances. That is, the parties decide the outcome of their matter, rather than a third party, such as a judge, deciding outcome for them.

Mediation is usually a method of ADR undertaken prior to parties considering initiating proceedings in Court, which is usually the last resort. However, mediation is always an option even whilst proceedings are ongoing in Court.

The benefit of mediation is that it gives parties the opportunity to come to an agreement between themselves which is tailormade to their circumstances. It will also save them the often exorbitant cost of litigating.

The downside of mediation is that it is a voluntary process and any party can walk out at any time and an agreement may not be reached. The role of the mediator is not to make a decision regarding the distribution of property or a parenting arrangement, but only to encourage the negotiation process and focus the parties on coming to an agreement.

Arbitration

Arbitration is a voluntary process which can be undertaken either by agreement between the parties or referred by the Court (if consented to). However, the end result of an Arbitration is binding on parties as a third party accredited arbitrator makes a determination about the division of property, or an issue in dispute between parties.

Arbitration can only be used for property disputes, and not parenting. That is, an arbitrator cannot make a determination regarding a parenting arrangement.

A benefit of Arbitration is that it is both time and cost effective, particularly given the significant delay and backlog in the Family Courts, whereby parties generally wait between 2 to 3 years before a final hearing is held. Arbitration can be held within a few months of parties agreeing for an Arbitration to be held.

Unlike a final hearing, Arbitration allows parties to limit their negotiations to specific issues. In a final hearing, a myriad of issues must be determined. This costs parties more money and can take extra time; up to 5 days.

The outcome of an arbitration, called an Award, is absolute, and may only be appealed on an error of law.

Litigation

Litigation is when theis matter is initiated in the Family Court. This an expensive and lengthy process which may take up to 3 years or even longer. The backlog in the Family Courts is excessive and can make the experience extremely emotionally draining.

The benefit of the Court system is that Orders are made to progress the matter to a stage whereby it is ready to be determined on a final basis. However, the Courts always encourage parties to resolve their matters by way of alternative dispute resolution, which is significantly faster and can be undertaken prior to or during the course of litigation.

Litigation is always the last course of action.

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8999 9837.

Losing a pregnancy can be a devastating event, from which many never truly recover. To make matters worse, many Australian women suffering the emotional and physical trauma of miscarriage are not entitled to even a day of paid leave.

Approximately 98% of pregnancy loss occurs in the first twelve weeks. Yet, Under the Fair Work Act, a stillborn child is one that weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks. This means that some employees fall through the gaps of the legislation and receive little recognition from their employers in respect to their loss and its impact on their ability to continue work.

One support group, Pink Elephants, is calling for federal recognition of first-trimester miscarriage in the Fair Work Act. Pink Elephants recommends that a period of two paid days of leave for ‘bereavement’ be legislated in instances of early pregnancy loss. This kind of statutory reform would allow at least some period of recovery for both the physical condition of the mother and the psychological state of the couple.

Encouragingly, Australia is one of four countries worldwide that provides an equivalent duration of parental leave for same-sex couples of both genders. Perhaps in the future, there will also be statutory recognition of the impact that early pregnancy loss has on one’s ability to work.

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8917 8700.

It’s a situation most land buyers know well; You purchase the perfect plot of land and throw yourself into planning your dream home, only to wait months for permits and building approval.

While managing delays is a common hassle for many land buyers, these delays could do more than just frustrate you – they could cost you thousands.

In building contracts, it is common for builders to add a clause explaining that they will charge owners an additional fee if construction is delayed. It might look something like this:

“If the time allowed in Tender for building works to commence expires…the builder shall be entitled to increase the contract price by way of contract price adjustment of 4.5%.”

While the contractual clause may seem ordinary, it has forced countless Australians to cash out because of circumstances beyond their control.

Although it takes an average of 68 days to process a Development Application in NSW, many landowners have reported that such processes have taken far longer. As the time ticks closer to the building commencement date, owners waiting for Approvals are powerless to hasten the process.

This week, Freedman & Gopalan saw the consequences of this clause first-hand. The client in question was ecstatic about the purchase of her plot of land, in a buy and build deal with one of the country’s leading developers. After months of unexpected delays in obtaining relevant permits, her builder hit her with a fee of over $15,000 to be paid up front.

It is vital to have your contract professionally reviewed before you put your signature on the dotted line.

To discuss having your building contract reviewed by our experts at Freedman & Gopalan Solicitors, call us on 02 8999 9837.

In these unprecedented times, travelling interstate has never been more complex. On top of complicated COVID policies and quarantine requirements that vary between states, domestic travellers must now be aware of a new rule; mask wearing is compulsory on all domestic flights.

On 8 January 2021, the National Cabinet agreed that face masks within airport terminals and on domestic flights would be mandated. Masks are not required for children aged 12 and under, as well as for those with an exemption.

Freedman & Gopalan recommends reviewing the guidelines of the state/territory to which you will be travelling, as requirements may vary. You can access these guidelines by clicking the links below.

 

Non-compliance with state/territory jurisdiction will eventuate in hefty fines. Recently, two travellers were collectively fined over $2,300 for failing to wear masks in Hobart Airport. Considering this, Inspector Brian Edmonds emphasised that the “direction to wear face masks [exists] to protect travellers and the community from the risk of transmission of COVID-19.”

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8999 9837.

Things can quickly become complicated when a contract contains provisions that involve third parties. If you are drafting or reviewing a contract, it is worth noting how liability impacts you. To do so, it is important to distinguish between“joint”, “several” and “joint and several” liability.

If your contract contains the words:

Joint: For example, X and Y must pay $200 to Z.

Ultimately, this term means both parties are liable for the entire $200. However, if X pays, the sum of what Y owes is reduced. Thus, both parties are sued together.

Several: For example, X must pay $100 to Z and Y must pay $100 to Z.

In this scenario, each party is liable for their part of the agreement only. If X pays, Y still must pay their part. Therefore, you are only sued for your stake in the agreement.

Joint and Several: For example, X and Y must pay $200 to Z and X promises to pay $200 to Z and Y promises to pay $200 to Z.

Like the first scenario, both parties are liable for the payment. Therefore, if one party pays a contribution to the total amount, the other does not have to pay as much. Typically, parties are sued separately.

Generally, it is easier to sue a single party who is jointly and severally liable. On the other hand, where parties are jointly liable, the Court prefers everyone liable under the contract to be joined as a defendant.

The most useful ‘first-step’ in interpreting your contractual obligation is to check the “interpretation” section. Often, there will be a boilerplate clause addressing liability. If there is still ambiguity or uncertainty with regards to the allocation of liability, you may need to seek legal assistance.

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8917 8700.

For the average person, breaking the law may seem hard, but did you know that there are many things that you might do in your everyday life that are considered illegal?

Read on below for a list of 5 things that you are likely guilty of committing.

  1. Jaywalking

Jaywalking is the act of crossing a street at a place other than a suitable crossing point. Jaywalking is considered illegal in many countries such as Australia, England, and the United States. The penalty for jaywalking in New South Wales is $72.00.

  1. Playing Loud Music while driving

In Australia, there are many laws involved with driving your vehicle. Some of these laws are obvious, like driving without a license or driving over the speed limit, but there are also niche laws that can lead to a fine or loss of license such as playing loud music while driving. If a police officer catches you playing music too loud, they can fine you up to $200.00 for disturbing the peace. Is this law justified? Yes, loud music can prevent you from being aware of your surroundings which can lead to accidents occurring when driving.

  1. Riding a bicycle on the sidewalk

Bicycle riders must obey all road rules, as a bicycle is considered a vehicle in NSW. Not only do bicycle riders have to follow all the road rules, but they must also wear a helmet while riding. Until recently, only children under the age of 11 could ride their bike on the sidewalk. This was changed on 23 July 2018 where NSW laws changed to allow any children under the age of 16 could ride their bike on the footpath plus any adult accompanying them. For the rest of the population, riding on the sidewalk is illegal and can result in fines from $50 to $200.

  1. Using copyrighted images

If you have ever used images that are copyrighted or that are not apart of the public domain then you are likely breaking the law. However, there are ways that you can use copyrighted images legally such as:

  1. Littering

The protection of the Environment Operations Act 1997 is the main law in NSW that prevents littering. It states that ‘a person shall not leave, throw, deposit or abandon litter. Litter is defined as ‘rubbish that is left lying in an open or public place.’ Aggravated littering, such as throwing rubbish out of a moving car or leaving your lit cigarette on the ground can result in a $600 fine. Litter laws are set in place to conserve the environment. Littering is very harmful to Earths environment, most litter ends up in the ocean, rivers or soil, which can pollute it and make the environments toxic.

If you would like to discuss anything further with our experts at Freedman & Gopalan Solicitors, call us on 02 8917 8700.

On 19 November, the Stronger Communities Legislation Amendment passed NSW Parliament, making significant reforms to the Criminal Procedure Act 1986. This is part of a broader reform of domestic violence legislation in NSW in order to better protect victim-survivors of domestic and family violence

Victims may now give evidence in closed court, meaning that only certain people are allowed to come into the courtroom, in contrast to open court where anyone is able to come in and watch the case from the public sitting area. The victim-survivor may also now opt to give evidence via audio-visual link. Under the current laws, evidence can only be given remotely if the court grants permission. Now, victims have a prima facie right to give evidence this way.

Victims are also now excused from personal cross-examination from self-represented accused. Previously, if the accused was representing themselves (rather than having a lawyer), they were able to cross-examine the victim directly, which created a highly traumatic experience for the victim of the domestic violence, and was seen by some victims as an extension of the same violence and abuse they had experienced previously. The reforms are intended to ease the burden and ensure victims are better supported, according to Attorney-General Mark Speakman.

Another important reform is that the protection of family pets will be a standard condition in Apprehended Personal Violence Orders (APVOs). The Attorney-General said that animals are used in manipulative, coercive control situations to punish the victim who has tried to leave the relationship. Now harm, or threatened harm, to harms will be classed explicitly as a form of intimidation, and protection of the animal/s will be a standard condition.

If you or someone you know is concerned about your legal rights in a relationship, whether it be issues relating to domestic violence, property settlement or child custody, please do not hesitate to contact Freedman & Gopalan Solicitor on 02 8917 8700 for advice.

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