Issue 47 - December 2007

• Reducing the risk of money laundering and terrorism financing in your business
• Keeping you informed of changes to another parties' company structure or control
• Advanced care directives
• Misbehaviour cannot be managed by understanding alone!
• Congratulations to Melissa on her appointment
• The Verdict

Anti Money Laundering and Counter Terrorism Act  Reducing the risk of money laundering and terrorism in your business

The Anti-Money Laundering and Counter Terrorism Act 2006 commences with full effect from 12 December 2007.  The Act seeks to combat money laundering and the financing of terrorism.  It does so by regulating the provision of ‘designated services’ by employers in the financial and gambling sectors and bullion dealers.  The Act defines ‘designated services ‘ to include opening an account, obtaining a loan, buying shares or gambling at casinos.  The Act will potentially effect the business operations of all financial, gambling and bullion businesses. 

The Act, which is overseen by the Australian Transaction Reports and Analysis Centre (AUSTRAC), requires all employers who provide ‘designated services’ to adhere to customer due diligence procedures (such as identification, verification of identity and monitoring of transactions), reporting procedures and record-keeping procedures.

In addition, employers must implement and maintain an anti-money laundering (AML)/counter terrorism-financing (CTF) program, the purpose of which is to identify, mitigate and manage any risks relating to money laundering or the financing of terrorism in business operations.  Employers must also implement an Employee Due Diligence Program to identify, monitor and manage employees and contractors in employment positions that have higher risks of facilitating money laundering or terrorism financing. 

If you have any queries or require any information on how the legislation will effect your business please contact Craig Pryor or email craig@wmdlaw.com.au.

ASIC Company alerts  Keeping you informed of changes to another parties' company structure of control

One way we can keep you advised about a company you are dealing with is by setting up a Company Alert through the Australian Securities & Investment Commission (ASIC) database.

ASIC cannot provide a guarantee on the accuracy of the information, but it is an effective way of monitoring a particular company and being notified, usually the next day, when a document is lodged with ASIC in relation to that particular company.

It may be useful if you are in commercial negotiations with the company or in litigation against them to be kept advised of any changes to the company's structure or control.  The changes may include a change in directors or change in shareholders, registration of a charge, appointment of a liquidator or on application for winding up.

The procedure is very useful for those who are involved in Family Law or De Facto proceedings where they have been “locked out” of company operation. The Company Alert can therefore assist us, your accountant, company secretary, credit manager and other company advisers in your dealings with the company.

This is just another way our firm can keep you informed and assist you in your commercial dealings or conducting litigation. If you would like us to set a Company Alert for you or you need any advice in relation to a commercial or corporate matter please contact David Nicoll or Dean Groundwater or email david@wmdlaw.com.au or dean@wmdlaw.com.au.

Setting out your health and lifestyle wishes  Advanced care directives

Imagine this…the love of your life has suffered a catastrophic brain injury in a Christmas car accident. You are there at the hospital reeling from the trauma when the doctor tells you that there is little chance they will wake up, that they are all but brain dead. The doctor outlines your options which amount to an all out effort to preserve life or withdrawing care and letting them go, perhaps donating the organs so others may live. The choice is time critical. What choice will you make? Do you know what choice your loved one would make? What if it was you? Do your family know what you would want?

Research shows that when family and friends are forced to make decisions to withhold or provide care without knowing what the loved one wanted, they feel terrible guilt about their choice. Problems can arise when the person in need of treatment has not made their wishes known.  Conflicting views and values about emergency and end of life care can cause terrible fights between families at a time that already has too much emotional tension . When the loved one’s attitude to care is clearly documented  people  are better equipped to make a reasoned decision rather than an emotional one.  

Advanced  Care  Directives,  also known as "living wills" are  a  way of doing this. Not just for the aged or the chronically ill, they are valuable contingency plans for every age group.

Often  embodied in an Appointment of Enduring Guardian  document,  Advanced Care Directives contemplate a time when we cannot  make  these decisions  for ourselves  and only come into effect at that time. This way we have appointed someone we know and trust as our alternate decision maker and also expressed the nature and extent of emergency or end of life care that we wish to receive.

For more advice on making your lifestyle and healthcare choices legally binding and clear for all the people in your life please contact Jayne Humphreys or Melanie Tilbrook or email jayne@wmdlaw.com.au or melanie@wmdlaw.com.au.

Childrens' behaviour Misbehaviour cannot be managed by understanding alone!

In the course of normal childhood behaviour, children misbehave!

When they do, some parents clarify the expectation of appropriate behaviour and hold the child accountable. If the child misbehaves in the same fashion again, the child may receive a consequence such as “time out”, loss of a privilege, early bedtime or other chastisement. The kid gets the point and the behaviour settles down.

On the other hand, there are parents who ask “why did you do what you did?” These parents seek to understand the motive for the behaviour believing that they will be able to discuss that motivation with the child and reason with them so that they do not engage in the misdeed again. They look for a commonsense understanding to enable a meeting of the minds with their child. Unfortunately, most children, even to adolescence, do not have an understanding of their motivation and, even if they do have some awareness, it tends to be superficial. The child may respond with “I wanted to” or “because”, but more often, “I don’t know!”.

Parents who seek to only understand their kids have 2 problems when it comes to managing their behaviour. The first is that they expect insight beyond their child’s ability. Children simply do not possess the cognitive ability to fully reflect on their motivation and articulate it sensibly to their parents. Further, they believe understanding and discussion will nurture the development of self-control and help internalise rules.

What parents themselves must understand is that while the child may be able to reiterate the content of the discussion and make some promises of amends, from the child’s point of view, if there is no consequence for the misdeed, he or she still got away with it! Hence, the child will understand the expectation, but still engage in the misdeed because there is no meaningful consequence, apart from some special time with the parents which, of itself, may be motivational of misbehaviour in the first place.
A child’s motivation can be as simple as doing what they do, only because they can. Nothing deeper! In that way, kids are like most adults; we drive fast where we think we can; we try to avoid a fine when returning an overdue DVD etc.

The motivation? We think we can get away with it, and so we try!

Kids operate on the same basic level. They do what they do if they think they can get away with it just like an adult.

While there is nothing wrong with helping a child to understand simple motivations and rules through discussion, don’t be mistaken that this will deter misdeeds. To really manage your child’s behaviour, hold your child accountable to reasonable expectations and provide a consequence. The consequence may be as simple as your clearly voiced disapproval, a brief loss of privilege or time away from a preferred activity.

Think of being caught for speeding! The police officer may discuss with you the wrong of your offence, but you will surely still get the ticket. It’s a short discussion. Lesson learned, now on your way, but next time, more slowly.

This article was taken from an article written by Gary Direnfeld, who is a Canadian Social Worker.

For further information or any advice concerning family or defacto law issues please contact Greg Dickson or email greg@wmdlaw.com.au.

WMD announcement  Congratulations to Melissa on her appointment

In November, Melissa was elected Young Lawyers Delegate for the St George and Sutherland Regional Law Society. Melissa will be involved with the Regional Law Society promoting the views of the Lawyers and particularly Young Lawyers of this region at Committee events and functions with the NSW Young Lawyers.

WMD would like to take this opportunity to congratulate Melissa on her appointment. 

 
Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able 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 be held liable for my dog's actions?

If your dog barks constantly, your neighbours are able to contact the Local Council who have powers to direct you as the the owner of the dog to take steps to fix the problem. If the problem persists, your neighbour may even approach the Court for a Noise Abatement Order under the Protection of the Environment Operations Act 1997 (NSW).

If your dog has a tendency to visit your neighbours property without permission, this is trespassing and if your dog causes any damage to the neighbours property, your neighbour may seek compensation against you for the damage caused. In addition, your dog may create what is know as a 'nuisance' at law or worse, give rise to an action in negligence.

If your dog is outside your premises and is uncontrolled, whether as a result of having escaped or if you are taking the dog for a walk, it is an offence under the Companion Animals Act. In these circumstances, the Local Council if called has the power to place the dog in the pound.

If your dog attacks, you as the owner are guilty of an offence under the Companion Animals Act. If the attack occurs on your property, you can still be liable to pay compensation to the victim of the attack. If the attack occurs in a public place, you may be liable for compensation for any damage caused, including both to a person or property. If your dog is classed as a 'dangerous dog' under the Companion Animals Act 1998 (NSW) special obligations are imposed upon you to control your dog and if a dangerous dog is involved in an attack, the Court can order that it be destroyed.

Whilst all some of these remedies are often not used and your neighbours may not choose to pursue you for compensation in some circumstances, it is important to know what actions you can be liable for and make sure you keep your dog under control, both to protect the community but also yourself from potential liability.

It is a good idea to review your household insurance policy to see whether you are covered for injuries to others caused by your pets on your property.

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