Issue 26 - March 2006

• Separated parents in dispute
• Recovery of superannuation contributions
• Cooling off provisions in contracts for the sale of land
• NSW Government to quarantine employees from Federal Government WorkChoices Legislation
• WMD lawyer graduates from the Royal Military College, Duntroon

Be careful of dragging in service providers Separated parents in dispute

Separated parents in conflict often seek to bolster their claims to support residence and contact orders by getting letters of support from their professional service providers. They ask doctors, dentists and teachers for letters indicating how the children behave and for confirmation that it was them who most often took the child to the service provider or the school.

The danger is that the service provider will then become a target to be discredited by the other parent. If the dispute intensifies and the competence or bias of the service provider becomes the battleground, the services provided to your children may be compromised. The service provider may not be willing to continue to provide care to your children. What was once a neutral ground for the child will become a place of anxiety and there will be the possibility of resentment on the part of the service provider.

The message is that if you really value the services you are receiving from your professional advisers and teachers, don’t be tempted to compromise that relationship for the sake of adding to the residence or contact claim. Consider the effect this will have on your children.

If you want to know more about family law, please telephone Greg Dickson or email greg@wmdlaw.com.au.

Bankruptcy trustees may recover excessive superannuation contributions Recovery of superannuation contributions

The federal government has recently announced reforms to allow trustees in bankruptcy to recover excessive contributions made to superannuation funds or retirement savings accounts (RSAs).

The proposed changes to the legislation, designed to stop those who may become bankrupt from protecting their assets from creditors by making large voluntary contributions to superannuation funds prior to their bankruptcy, are to operate retrospectively to contributions made on or after 17 December 2003.

All contributions and transfers made with the intention to defeat creditors are caught however, for a contribution to be considered “excessive”, the contributions must exceed the annual threshold in each of the 5 years preceding the bankruptcy. For the 2005-2006 financial year, the maximum contribution base of $134,880 and accordingly, any contributions over 9% of that amount may be deemed excessive.

Not all contributions above the “excessive” level are recoverable. Roll-overs from other funds and government co-contributions are not recoverable and neither are contributions made more than 2 years before the date of bankruptcy where the bankrupt can show solvency at the time of making the relevant contributions.

If we can assist you in relation to any bankruptcy or insolvency issues generally, please telephone Craig Pryor or email craig@wmdlaw.com.au

"Cooling off" rights for purchasers Cooling off provisions in contracts for the sale of land

What does the cooling off period mean?

Cooling off provisions are for the benefit of purchasers and gives the purchaser the chance to “cool off” following the excitement of purchasing a property. During this period, the purchaser usually obtains a pest/building and/or strata reports and obtains formal finance approval.

When do cooling off rights apply?

Cooling off rights only apply to contract for the sale of residential properties. However there are exceptions to this and these are when:
a Section 66W certificate, signed by the purchaser’s lawyer/conveyancer is provided to the vendor (this certificate has the effect of waiving the purchaser’s right to a cooling off period);

the property is sold at public auction

the date of the contract is the same day as the date which the property is offered for sale by public auction; or

the contact is made following the purchaser’s exercise of an option to purchase the property.
When does a cooling off period expire?

The cooling off period expires at 5pm on the fifth business day after the date of the contract. If a purchaser wishes to back out of a contract, for whatever reason, a notice of rescission must be in writing and served on the vendor prior to the expiry of the cooling off period. However, if a purchaser rescinds the contract during the cooling off period the purchaser will forfeit to the vendor 0.25% of the purchase price. Any additional deposit paid or balance above the 0.25% amount will be refunded to the purchaser.

Risks

Other than the risk of losing 0.25% of the purchase price, a purchaser who signs a contract with a cooling off period and elects not to rescind the contract will be bound by the terms of the contract and may not be able to negotiate any amendments to the contract.

If you want more information about cooling off periods or conveyancing matters in general, please telephone Gina Haramis or email gina@wmdlaw.com.au.

Workers quarantined from WorkChoices NSW Government to quarantine employees from Federal Government WorkChoices Legislation

The NSW Government has announced that it will seek to pass legislation to quarantine a large number of NSW workers from the ambit of the Federal Government's industrial relations reforms.

NSW Premier Morris Iemma is to introduce a bill that will characterise over 180,000 public servants as "employees of the crown", including nurses, ambulance officers and bus drivers.

The Federal Government Workchoices Legislation is designed to affect employees of "Constitutional Corporations". By reclassifying employees as "Crown Employees", the New South Wales Government effectively removes these employees from the jurisdiction of the Australian Industrial Relations Commission and much of the WorkChoices regime.

This new bill will also seek to extend the role of the NSW Industrial Relations Commission to include an ability to hear matters relating to common law agreements. If successful, this legialstion would create a potential for many employees to avoid the WorkChoices legislation and remain within the jurisdiction of the NSW Industrial Relations system.

Our Employment Division has presented educational seminars to businesses on WorkChoices and continues to do so. We remain focused upon the developing WorkChoices scheme including the passing of legislation such as this and the High Court challenge to the Federal Governments Industrial Relations amendments.

If you have any questions regarding WorkChoices or employment matters, please telephone Dean Groundwater (email dean@wmdlaw.com.au), Kevin Dwyer (email kevin@wmdlaw.com.au) or Joel Hiscox ( email joel@wmdlaw.com.au).

Congratulations to Lieutenant Stone

WMD Lawyer graduates from the Royal Military College, Duntroon

Our congratulations to Louise Stone, a lawyer of the firm, who graduated from the Royal Military College, Duntroon, our country's elite Army officer training college, as a Second Lieutenant in February this year.

Her graduation, and posting to the Royal Australian Corps of Military Police (RACMP) as an Army Reserve officer is a result of her completion of the Part-time General Service Officer First Appointment Course over 20 weeks of continuous and non-continuous periods of training in the last 3 years.

Prior to graduation, Louise was required to complete the final module held at Duntroon, in Canberra, for 2 months full-time. This course was the culmination of all other training previously undertaken and primarily focused upon the application of her leadership skills in an extended and physically demanding field exercise.

Apart from basic infantry skills of weapon handling, field craft and patrolling, Louise has been taught to apply her theoretical tactical and strategic studies to take command of a team of 30 soldiers through a series of challenging military activities in the field. She has now been posted as a Platoon Commander at 2 MP Company at Holsworthy Barracks in Sydney.

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