We are proud to announce that our Principal Solicitor Mittu Gopalan has recently participated in the auditions for Masterchef 2019! As part of the challenging audition process, Mittu partook in the Mystery Box Challenge and a Signature Dish Cook-Off.

For the Mystery Box Adventure Session, Mittu created a fish with sauce dish alongside skewered melons:

Then, for the Cook Off between Signature Dishes, Mittu chose a traditional Indian dish, ‘Stringhopper with Crab Curry’:

There were about 5000 applicants from which it was reduced to approximately 1500 applicants for audition. We congratulate Mittu on making it to the auditions! The Sydney audition was held at the Baulkham Hills Tafe and Mittu had much fun in spite of it being a challenging experience.

Though Mittu wasn’t successful, she had a wonderful experience and wishes all the successful Masterchef Australia 2019 applicants all the very best.

The High Court has recently decided that the debt of one spouse may be transferred to the other during a divorce property settlement. In the case of Commissioner of Taxation v Tomaras, it was decided that the Family Court can give orders to the Australian Tax Office (ATO) as part of the determination of a divorce-related property dispute.

In this case, Mr and Mrs Tomaras were married from 1992–2009, during which time Mrs Tomaras accrued debts of $250,000 owing to the ATO. After the breakdown of their marriage, Mr Tomaras became bankrupt. In December 2014, Ms Tomaras commenced proceedings in family law, and when the Taxation Commissioner intervened, seeking the $250,000. Ms Tomaras sought orders to substitute her ex-husband for herself as the debtor.

This recent High Court case then decided that the Family Court could indeed make the order Ms Tomaras sought. This was due to s90AE(1) of the Family Law Act 1975 which allows the Court to make an order binding a third party – in this case, the ATO. The order bound the ATO to substitute the husband for the wife in relation to the debt. Here, it did not make a difference that the husband was bankrupt, and that the Taxation Commissioner is now potentially $250,000 out of pocket.

Cases like this are unlikely to be common, as they will only occur when one spouse has been unwilling to share the burden of taxation during the relationship, and in cases where it would be ‘just and equitable’ to make this order. This will only occur when the person who originally owed the debt is unable to pay it. Nevertheless, spouses should be aware that they may be responsible for their partner’s taxation penalties and/or liabilities, even after separation.

If you have any queries relating to divorce property settlements, or any of the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

With an increasing population in Sydney, high-rises are becoming the norm for future residential development. Despite offering obvious benefits, the high-density-living solution has several drawbacks for its residents. Specifically, there is the fear that inferior and sometimes dangerous products are often used in the construction of these buildings. According to studies undertaken by the University of NSW City Futures Research Centre, 85% of high-rises built in NSW since 2000 had some form of defects.

The recent Opal Tower crisis in Sydney Olympic Park stands in testament of these statistics. After only opening in August 2018, residents of the high-rise were evacuated on Christmas Eve because of a major structural defect.

The high-profile Opal failure exposes shortcomings in the Australian construction industry. Specifically, the lack of protections for consumers who occupy these buildings. As residents of the Opal building face an uncertain future, the question remains: what can you do if the apartment building you live in is deemed unsafe or defective?

Are you an owner? 

Under NSW Law, owners have a right to pursue the developer and the builder for rectification of a building’s defects. However, owners are only protected under this warranty scheme where the building is less than six years old. Owners wishing to hold builders and developers liable for projects older than six years are encouraged to seek legal advice.

Are you on a lease?

Where a rental property is defective, tenants in NSW have a statutory right to terminate their lease without incurring extra costs. Tenants might also be able to receive alternate compensation or have their rent waived or reduced. Although, compensation is a difficult avenue of redress for tenants, as it is not explicitly regulated by the Residential Tenancy Act.

Are you a guest?

Those staying in short-term rental accommodation could also be protected under Australian Consumer Law. It is a requirement under the Australian Consumer Law that the goods or services provided to consumers be reasonably fit for a particular purpose. In the event that a short-term rental accommodation becomes unliveable, that property can no longer serve as a place of enjoyment for the tenant. In this case, the host as failed to provide goods and services as promised and the consumer could make claims on the trade.

If the building you are in is defective, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

 

The law stands on centuries of traditions and precedents. In contrast, technology is growing as a rate faster than ever before. On one hand, how will the law keep up technology? On the other hand, how will technology change the legal profession?

The President of the Law Council of Australia spoke at the Australian Young Lawyers’ Conference in 2017, and said technology is completely transforming the legal profession, and creates ‘unique opportunities to develop solutions for clients’. There are even emerging artificial intelligence technologies that can highlight the important clauses in a contract. Technology is changing the workplace, and clients can now expect increased effectiveness and efficiency.

There are new hybrid roles emerging for people who combine legal and IT elements into their jobs – the ‘lawyer technologist’. Law graduates with experience in STEM (Science, Technology, Engineering and Maths) will have clear advantages. Workplaces will have to help employees develop technology skills in order to keep up with rapid changes and advancements.

The other issue is that law may not be keeping up with advances in technology. It requires changes, such as the inclusion of cyberbullying in the Crimes Act to catch up, while technology keeps moving forward. One example is that it is illegal for an employer to ask about religion, sexual preferences or marital status in an interview, but they can go on social media and filter out applicants based on personal details found there. There is also the argument that privacy laws are lagging behind data-collection technologies used by Google, Apple, Facebook and various other applications and websites.

As long as technology continues to advance, which we know it will, the law (and lawyers) will have to work to keep up.

 

Emojis are an ever increasing trend on social media and can be used to denote the emotion behind a message, replace words entirely and can even convey an entire sentence worth of meaning.

Text Messages, Emojis and Wills

The case of Nichol v Nichol in 2017 saw the Brisbane Supreme Court assessing whether a deceased man’s drafted text message constituted a valid last Will and Testament. The message described that the man’s brother and nephew would receive his house and pension rather than his wife and son. The text message included instructions as to the man’s ashes and concluded with a smiley face emoji and the words “my will”. The deceased man did not have a valid Will in place when he died. Justice Susan Brown found that informality of the format and the inclusion of an emoji was not enough to exclude the man’s intentions for his Will.

Emojis and criminal convictions

Intentions conveyed through emojis have been found to be so clear and deliberate that criminal convictions have resulted across the world.

Notable cases concerned with emojis:

According to a study from Cadbury Dairy Milk Oreo, around 9.9 million Australians use emojis. With the majority of frequent emoji users under 30, it raises the question whether judges, who do not often belong to this age bracket, are able to follow the evolving trends behind emoji use. Emoji trends and meanings vary depending on the time of year, their relationship to current internet fads and celebrity use. Elizabeth Kirley and Marilyn McMahon from Deakin University suggest that accredited specialists in digital speech may become necessary to assist judges in interpreting the meaning behind emojis.

Let’s take it seriously

It is likely that with new emojis being released each year, the number of emoji-related charges is going to increase. The cases are a warning to us all that emojis convey meaning in a similar way to words, and threats can come from both forms of communication. The importance placed on informal forms of communication is increasing in the legal sphere, so we should be wary that everything we send, post and write may be scrutinised later.

With Christmas over, it is now time to look forward to the New Year. The start of every new year brings with it the promise of new beginnings. Although a time of celebration, it is also a time where many of us may feel burdened to set new life goals or make resolutions. If you are experiencing pressure to resolve issues related to finance, travel, property, family or custody matters, then the team at Freedman & Gopalan are here to help! Below is a checklist to help you bring in the New Year stress free.

  1. Firstly, are you entering the New Year with any outstanding debts? The holidays are a time when cash flow is important, but many of us are shocked with the consequences after. The staff at Freedman & Gopalan are highly experienced in debt recovery and can help you recover the funds that you are owed.
  2. Secondly, are you travelling overseas before going back to work? If this is you, don’t let unexpected terms and conditions ruin your holiday! It is common for airlines to exclude check-in baggage and in-flight entertainment from bargain prices, so be sure to check the fine print of your flight ticket.
  3. Thirdly, are you insured for all overseas travel? It is important to know your cover and read the terms and conditions prior to travel, as some medical treatments may not be covered.
  4. Fourthly, have you been given a faulty or dangerous Christmas gift? Know your rights – when purchasing Australian-made goods, all consumers are protected under the Australian Consumer Law. Where a product is unsafe, unfit for its purpose, faulty or different from the description, consumers are entitled to ask for a replacement or refund. Alongside gifts, have you received a voucher that is due to expire soon? Under the Fair Trading Act 1987 gift cards and vouchers in NSW must be sold with a minimum expiry period of 3 years to any consumer in NSW.
  5. Fifthly, are you looking to buy or sell a property in the New Year? Don’t let yourself be ripped off – inform yourself about the process and the market.
  6. Sixthly, are you facing family disputes, settling a marriage or contemplating a divorce in the New Year? Or rather, are you facing disputes surrounding the custody of your children? Have your children not been returned to you as per the pre-agreed upon custody arrangements? If so, it is imperative to protect your legal rights and those of your children. The expert team at Freedman & Gopalan can provide you with the assistance and counselling needed to help you through this difficult time.
  7. Lastly, is your Will up to date? Enter the New Year knowing your loved ones will be taken care should anything go wrong.

If you have considered all these points, then you are ready to celebrate the New Year!

If you have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

The holiday season is a wonderful opportunity to spend time with friends and family. For each person, their time off work, and pay entitlements will differ.

For business with a 'Shut Down Period'

Many businesses will have a shutdown period over the break.

Employees can be directed to take their annual leave during a shut down if the award or registered agreement allows it. Usually the employee needs to be given a certain amount of notice. If there is no award or agreement, the direction to take annual leave must be reasonable.

If you are taking a break, you may want to consider creating an Out of Office message that will reply automatically to emails you receive in the holidays. The best practice is to thank the sender and let them know that you are away, and when you will return. If people might be contacting you with urgent enquiries, your Out of Office message should point them to another person or a number they could contact during the break. If you are planning on checking emails intermittently, you can also include this in your message, so people know what to expect.

If you are working throughout the break

For many people, including nurses, doctors, carers, retail and hospitality workers, and Santa's elves, the Christmas break is business as usual.

For the public holidays in the break – 25 and 26 December 2018 and 1 January 2019 – some employees may be entitled to penalty rates, based on their industry award or enterprise agreement. Full-time and part-time employees are entitled to a paid day off.

There is no general right not to work during this time, but you can refuse to work on a public holiday if there are ‘reasonable grounds’. For example, if you gave early notice to your employer that you would not be available due to personal circumstances, and then your employer requested that you work on a public holiday, you could refuse. For employers, there are also no automatic rights to terminate employees if they refuse to work on a public holiday. In the case of Steven Pietraszek v Transpacific Industries Pty Ltd T/A Transpacific Cleanaway [2011] FWA 3698, the employer terminated the employee for not working on Christmas and Boxing Day. Here, the Commissioner held that the employee’s refusal was reasonable in the circumstances, as he had believed he would not be asked to work.

If you have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

From the 12 December 2018, all employees are entitled to take unpaid leave as a result of domestic violence.

WHAT IS FAMILY AND DOMESTIC VIOLENCE?

Family and domestic violence refers to violence, abuse and intimidation between family members as well as people who are or have been in an intimate relationship.

Historically, family and domestic violence has been considered a taboo subject. An issue not to be discussed and its existence was to be hidden behind closed doors. Fast forward to the present, public perceptions surrounding family and domestic violence has slowly, but surely, developed. With increased social awareness of its effects, family and domestic violence is now considered a major health and welfare issue.

WHAT IS THE NEW ENTITLEMENT?

Under the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, all employees are entitled to take 5 days of unpaid family and domestic violence leave per year.

WHO IS ENTITLED TO UNPAID LEAVE?

As of 12 December 2018, the entitlement has been extended to all employees. This includes part-time and casual employees.

WHEN CAN YOU TAKE THE LEAVE?

Employees are entitled to take 5 days leave from work, allowing them time to deal with the effects of family and domestic violence. This will enable victims of family and domestic violence to access medical, counselling and police services, as well as time to relocate and attend court hearings during work hours.

NEXT STEPS FOR AUSTRALIA?

The new entitlement is reflective of Australia placing an increased focus on domestic violence and the effects it has on its victims. However, the grim reality is that family and domestic violence is still a major issue throughout Australia today. According to the Australian Institute of Criminology, one woman a week is murdered by her current or former partner. Advocacy group, White Ribbon Australia, encourages the creation of a national homicide review panel so that we, as a country, may work toward preventing future instances of domestic homicide.

If you are a victim of family or domestic violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us at any time on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

There are insufficient nurse to patient ratios in NSW. Our public hospitals face increased patient admissions, without the increased staff to meet the demand, putting patients’ lives at risk. In Queensland and Victoria, there is a nurse for every 3 patients in emergency and for every 4 patients in medical and surgical wards. In NSW, there is no mandatory requirement of a particular nurse to patient ratio, and this is what the NSW Nurses and Midwives Association is planning to campaign for in the run-up to the next State election.

However, this year the NSW Government has slashed the cap on electoral funding for third-party campaigners from $1.2 million $500,000 in the 6 months before an election. New laws also prevent unions from pooling their resources and imposes a 10-year jail term for anyone caught breaching the rule.  The reforms were introduced apparently to reduce corruption and undue influence in electoral funding. However, they simultaneously silence unions and third parties such as the NSW Nurses and Midwives Association trying to campaign for safer hospitals.

A united group of 6 unions have challenged the legislation in the High Court, and will argue that the laws infringe their constitutional freedom of political communication. According to constitutional law expert Professor Anne Twomey, if the High Court finds that a $500,000 cap is too low to run an effective campaign and bring important matters to the attention of voters, then the Court will rule the laws unconstitutional. According to the General Secretary of the NSW Nurses and Midwives Association, if you consider NSW’s population, $500,000 would barely cover distributing flyers to 10% of the population. Furthermore, the television campaign run by the nurses’ union in 2015 opposing privatisation cost more than $600,000.

The Court will also find the laws unconstitutional if the difference between the funding cap for third parties and political parties is disproportionate. Under the proposed laws, political parties will be able to spend up to 22 times more than third parties.

The six unions involved in the High Court challenge are the NSW Nurses and Midwives Association, the Electrical Trades Union, NSW Teachers Federation, United Services Union, Health Services Union and Unions NSW. Their message is that the legislation will impact democracy and the silence the voices of workers throughout NSW, and that third parties such as the Nurses Union will not be able to bring important issues such as nurse to patient ratios to the voting public.

If you have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

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