Issue 42 - July 2007

• Recent success in assisting our client to recover his son
• Stamp duty changes for mortgages
• New workplace amendments
• Interrelate Family Centres
• The Verdict

Removal of newborn child Recent success in assisting our client to recover his son

This article has been included with the prior approval of our client.

We recently achieved success for one of our clients in recovering his newborn son who had been taken directly out of hospital by the Department of Community Services (DOCS) after DOCS assumed parental responsibility for the care of the child under Section 44 of the Children and Young Persons (Care and Protection Act) 1998.  This Act gives the Director General (acting through DOCS) the ability to assume parental responsibility for children. 

DOCS removed the newborn boy from hospital without any advance warning to our client and placed the child in full time foster care despite the fact our client was available to care for his son and despite the fact that our client had no adverse record whatsoever concerning DOCS or any other blemish against his character. 

DOCS then severely restricted our client’s ability to see his son through a supervised contact agency and made an approach to the Court that the child be placed in foster care for a period of 18 years.

The basis for DOCS intervention was that they had intervened concerning previous children of the mother of the child (these children were of a previous relationship unconnected with our client).

The relationship between our client and the mother of the child broke down and it was only our client and his mother (the child’s grandmother) who would be caring for the newborn.

DOCS' decision and their proposals for long term foster care were immediately challenged. 

We are very happy to report the Court has ruled completely in favour of our client and that, as this edition of the newsletter appears, arrangements are being made for a transfer of parenting rights from the temporary foster parents to our client. 

This was a very good result for our client and full credit must be given to one of our senior family lawyers, Jodhi Coady, who put considerable effort into this difficult and highly emotional case. If you need assistance with any family law or child related matters, please contact Greg Dickson or Jodhi Coady or email greg@wmdlaw.com.au or jodhi@wmdlaw.com.au.

3 stage abolition of mortgage duty Stamp duty changes for mortgages

Currently the Duties Act 1997 (NSW) provides for the abolition of mortgage duty from 1 January 2011.

Arising from the new New South Wales budget, new changes have been announced which bring the abolition date forward to 1 July 2009 and introduce a 3 stage process with 2 new exemptions. Both of these new exemptions only apply if the borrower, or if more than one, each of the borrowers are natural persons.

The first exemption is an exemption for mortgages which are made in connection with owner occupied housing and applies from 1 September 2007. Mortgage duty is not chargeable on the mortgage if it secures an advance made on or after 1 September 2007 for the purpose of owner occupied housing.

The second exemption applies from 1 July 2008 and is an exemption for mortgages which are made in connection with investment housing. In these cases, mortgage duty is not chargeable on an advance made for the purposes of investment housing, which is made on or after 1 July 2008.

These new exemptions will apply to an advance which is used wholly or predominantly for:

financing the acquisition of the property;
financing the construction of the property;
financing alterations or additions to the property:
financing the acquisition of residential land (applicable only to exemption 1); or
repaying another advance, if the advance to be repaid was for the purpose of owner occupied or investment housing, as appropriate.
Mortgage duty will be abolished in all other cases from 1 July 2009.

If you would like any further information on these new provisions or have any mortgage or other property related questions, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

Changes for employers in the Federal workplace relations system New workplace amendments

From 1 July 2007, new changes have been introduced into the Federal workplace relation system.

The new Federal minimum wage has been increased to $522.12 per week. A two-tiered increase has been awarded, with employees who earn up to $700 per week gaining an extra $10.26 a week. Higher income earners will receive an extra $5.32 a week. All increases are effective from the first pay period or after 1 October 2007.

For the 2007/2008 financial year, the unfair dismissal remuneration cap has been indexed to $101,300. This is the limit on the amount of remuneration a non-award employee can earn before they can lodge an unfair dismissal application with the Australian Industrial Relations Commission (AIRC). The cap does not apply to award employees.

A new “fairness test” will be imposed on workplace agreements entered into or varied on or after 7 May 2007. The fairness test requires that if an agreement varies or removes award conditions, including for example, penalty and overtime rates then “fair compensation” must be provided to the employee. The test applies to Australian Workplace Agreements where an employee earns less that $75,000 and to collective agreements where protected award conditions exist.

As part of this new regime, agreements must be lodged with the Workplace Authority for review. An agreement can be pre-lodged at the Workplace Authority to check if it will pass the fairness test.

From 20 July 2007, employers regulated by the Federal System are required to provide all employees with a Workplace Relations Fact Sheet within 7 days of the commencement of their employment.  In addition, all employers must take reasonable steps to provide the Fact Sheet to all current employees by 20 October 2007.  Failure by the employer to provide the Fact Sheet can result in a fine of $110 for each employee who does not receive the Fact Sheet.

The Fact Sheet is issued by the Workplace Authority and summarises employees’ rights, unfair dismissal provisions and information on the fairness test.
If you would like any further information on the new amendments or advice on any other employment related matter, please contact Kevin Dwyer or email kevin@wmdlaw.com.au.

Important assistance for families in dispute Interrelate Family Centres

We recently had a meeting with Megan Alfa of Interrelate Family Centres which operates at a number of venues throughout New South Wales including one at 160 Bath Road (Cnr Clements Parade) Kirrawee NSW 2232.

For those undergoing family law disputes, Interrelate can offer dispute resolution as a family relationship centre.  Our clients have had considerable success in resolving parenting disputes through family relationship centres without the need to go to the Family Court.  Even where the issue is not fully resolved by a family relationship centre, it has had the effect of reducing the extent of the dispute between the parties.

In addition to offering family relationship centres services, Interrelate offer counselling, relationship coaching, a children’s contact service where there is conflict or there are concerns about safety including supervised handover, family violence services and specialised disability assistance to those caring for a child with a disability.

The children’s contact service offered by Interrelate contemplates both a supervised contact venue as well as a simple changeover and change back service for parents who have shared parenting time.

Interrelate's fees are partially met by the Australian Government and the fees are reasonable and based upon income.

Please contact Greg Dickson or Kevin Dwyer or email greg@wmdlaw.com.au or kevin@wmdlaw.com.au if you require any further information about the Interrelate services or any family law, de facto and parenting problems.

Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously in this forum, we are unable to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au

Can I claim compensation if a neighbours tree damages my property?

In New South Wales, neighbour disputes regarding trees are regulated by the Trees (Disputes Between Neighbours) Act 2006. Under this Act the Land and Environment Court has wide powers to make orders that a neighbour take specified action to remedy damage or prevent future damage to property or injury to any person that is likely to be caused by a tree on their property. Such actions may include pruning or trimming of the tree, removal of the tree or monetary compensation for damage caused by the tree.

Who is liable if a tree causing damage is situated on more than one person’s property?
A tree is said to be on the property on which it is wholly or principally situated. Generally, the Court will determine whether the tree is wholly or principally situated on a property by observing the base of the tree. The word ‘principally’ is not defined by the Act however, Courts have interpreted it to mean the majority. The Court has the discretion to determine on what property the majority of the tree is situated.

When will the Court make an order for specified action?
The Court will only make an order that a neighbour take specified action to remedy or prevent damage caused by a tree situated on their property if it is satisfied that:

You have made an effort to reach agreement with the owner of the land on which the tree is situated; and
The tree has caused or is likely to cause damage to your property in the near future, or is likely to cause injury to any person.
Generally damage does not include damage caused by falling leaves, fruit or small amounts of deadwood.

Can liability be apportioned between you and the owner of the land where the tree is situated?
In some circumstances, the Court has apportioned liability between the owner of the land where the tree was situated and the applicant claiming damage. An example of this was in the case of Haines v McNally [2007] where the Court found the applicant equally liable as they had been given clear notice of the damage being caused by the tree in question at the time of purchasing the property.
 

Your Subscription:

www.wmdlaw.com.au