Firstly, a Will is a legal document, which outlines the directives, given by yourself, in regards to who you wish to inherit your estate, be appointed as executor, who will hold the Estate on trust, who will be in receipt of any specific assets or belongings and who is to be the legal guardian for any children under the age of 18. A Will can also outline any wishes or arrangements, you would like to take place at your funeral. Wills only take effect following the death of the person that made the Will. A standard Will does not allow for situations that may arise during the course of your life.

Our recommendation is that if you own a home, or other substantial property, if you have children, if you have family that will struggle with deciding who will get what after you pass, you should get a Will.

A Power of Attorney is a complete separate document to a Will, but one that many clients chose to complete alongside their Will.  This document essentially gives a person of your choosing, the legal authority to make decisions and manage your assets and finances, if for some reason you are unable to do so yourself whilst you are alive but incapacitated. Some circumstances where a power of attorney may come into effect include if you are incapacitated due to injury, illness, mental health issue, or other impairment that effectively prevents you from managing your own finances. A Power of Attorney is a useful document to have, as the appointed person may, sign legal documents, manage your money including bank accounts and paying bills, buy or sell real estate, or liaise with companies to whom you owe money (telephone providers for example) all on your behalf. Without a Power of  Attorney in place, it is left to your loved ones in times of stress, to try to gain financial management for you via the Guardianship Tribunal, which is not a particularly fast or an easy way to do things.

An Enduring Guardian can make decisions for you regarding your health and lifestyle, in the instance that you are unable due to injury, illness or disability. However, they do not act in any financial capacity and are limited to making decisions, if you are unable to. You are able to specify in your Enduring Guardian if you want, or do not want, particular types of treatment. For example, many people may direct that if they want their Guardian to know to “pull the plug” in specific fact circumstances.

If you want to ensure that your medical needs are met, and your assets and liabilities are taken care of in a timely manner in future should anything happen to prevent you from doing so yourself, you should get an Enduring Guardian and Power of Attorney in place.

The thought of estate planning or what would happen to your loved ones when you pass away can cause stress and anxiety for many people. Here at Umbrella Legal we understand your concerns and are here to assist with all of your estate planning needs, to ensure that your wishes are upheld, and that your family, and yourself, are taken care of.

Having a Will, a Power of Attorney and an Enduring Guardian, can ease your stress, and your family’s stress, in knowing that there is a plan in place for when you pass, or in the event that you become unfit to make decisions for yourself. These documents also give your loved ones some sense of clarity in knowing that they are abiding by your wishes, and can take away some of the anxieties of losing their loved one, or whether they are doing the “right thing” by you when medical emergency arises.

Umbrella Legal offers competitively priced package deals for those wanting to complete all three documents simultaneously. If you would like a copy of our pricing schedule for Wills, Power of Attorney & Enduring Guardian, or if you have any further questions, please contact our office today to speak to one of our staff members.

The post What is the difference between a Will, Power of Attorney and an Enduring Guardian, and do I need them? appeared first on Umbrella Legal.

An inheritance usually comes in the form of money, property, and personal belongings such as jewellery and appliances following the death of a family member or loved one. We have a number of enquiries regarding whether you can “hide” the fact of an inheritance from a former husband/wife/spouse/defacto in the context of family law property settlements.

The court the case of Bonnici & Bonnici[1] outlined that an inheritance is not protected from family law matters however, they also noted that the division of an inheritance still depend upon the circumstances and variables of each case.

Generally speaking, the variables that the court may consider are as follows:

• When was the inheritance received? Was it prior to the relationship, during or after the relationship ended?
• How long was the relationship for?
• Was the inheritance used for the benefit of the relationship, such as buying property?
• What relationship and contributions did each party have with the person who bequeathed the inheritance? (Including both financial and non-financial contributions)
• Could the inheritance be considered a contribution to the matrimonial asset pool or family rather than one individual person?
• Has the inheritance been received yet, or is it expected to be received?

The court will distribute an inheritance as part of a property settlement dependent on the circumstances outlined by responses to these questions.

Once the court has determined the financial and non-financial contributions of each party in relation to the inheritance, they will then assess at the future needs of each party. Based on section 75(2) of the Family Law Act[2] the court can take into account the age and health of each of the parties, care of children, the earning capacity of each party and any financial resources they each may have.

These considerations may affect the outcome of how the inheritance is divided, if one party is primarily caring for their young children and therefore does not have the same earning capacity as the other party the court will divide the asset pool in their favour to ensure their future needs are met.

There is no cookie cutter solution to dividing assets particularly when the division involves an inheritance. There are so many variables that the court must consider before determining the outcome of a property settlement. Many of our clients come to us stating “It’s 50/50 according to the law”. Respectfully, this is not correct in accordance with Australian Federal Law under the Family Law Act 1975 (Cth).

Usually, an inheritance that was received prior to or during a relationship will most likely be treated as an asset that can be distributed between the parties. An inheritance received post-separation however, may be excluded from the main pool of assets but can still be divided depending on other factors. We understand that there is a large and confusing grey area when it comes to property division however we are always prepared to assist.

[1] Bonnici & Bonnici (1992) FLC 92-272

[2] S 75(2) Family Law Act 1975 (Cth)

The post Navigating Post-Separation Property Settlement When You’ve Received an Inheritance appeared first on Umbrella Legal.

The responsibility of employers to ensure all employees are treated fairly is outlined in federal and state anti-discrimination legislation. The Fair Work Act 2009 (Cth) is the primary legislation that governs relationships between employers and employees in the Australian workplace.

Discrimination

Unlawful discrimination refers to the act of a person or group being treated less favourably as a direct result of their background or personal characteristics. The Fair Work Act 2009 (Cth) protects people from discrimination on the following grounds:

• Race (Colour, National or Ethnic Origin or Immigrant status)
• Sex, Pregnancy or Martial Status and breastfeeding
• Age
• Disability
• Sexual Orientation, Gender Identity, and Intersex Status

Similarly, The Australian Human Rights Commission Act 1986 (Cth) protects individuals being discriminated at their employment on the basis of their religion, political opinion, national extraction, nationality, social origin, medical record, criminal record, or trade union activity.

There are many examples of how and when workplace discrimination can occur between employers and employees. The Australian Human Rights Commission states that workplace discrimination can occur during the recruitment process, when specific benefits and conditions are offered in conjunction with employment, who is considered and selected for training, who is considered or selected for a promotion and who is considered for dismissal.

Bullying

Bullying does not just come in the context of the school yard but also occurs in the workplace. The Fair Work Amendment Act 2013 (Cth) states that workplace bullying is the repeated behaviour by an employer or another employee which creates a risk to health and safety. There is a variety of verbal and physical examples of bullying established by the Australian Human Rights Commission which are seen in the form of yelling, screaming or offensive language, excluding or isolating employees, psychological harassment, assigning meaningless tasks unrelated to the job, intimidation, giving employees impossible jobs, deliberately changed work rosters to inconvenience particular employees and undermining work performance by deliberately withholding information vital for effective work performance.

Bullying may be confused for actual comments, advice and negative feedback from employers or managers, so it is important to recognise the difference by speaking to an expert.

Harassment

Harassment can occur in various forms including telling insulting jokes about racial groups, sending explicit or sexually suggestive emails or text messages, displaying racially offensive or pornographic posters or screensavers, making derogatory comments or taunts about an individual’s disability, or asking instructive questions about someone’s personal life including questions regarding their sex life.

There are further protections regarding sexual harassment and discrimination, race harassment and disability harassment covered in other legislation.

If you believe that your rights are being breached, you are not alone. Taking the first step does not have to be daunting. Contact the experienced team at Umbrella Legal and we will endeavour to help you.

The post Workplace Discrimination, Bullying and Harassment – Workers Compensation appeared first on Umbrella Legal.

Family Court and Federal Circuit Court: Orders regarding parenting: Facilitating spend time orders of these courts is still considered  “essential”. You should keep a copy of your court order with you when attending changeover. If you are uncertain, contact Covid Hotline

These courts are operating remotely via Microsoft Teams and via telephone. If you have an upcoming court attendance with these courts you will receive the link within 24 hours of your appearance.

Local Court Proceedings During Lockdown: In accordance with the current update from the Chief Magistrate:

Mentions/Directions/procedural: We are able to deal with mentions etc via email to the court. Your attendance physically at court is not required, even if you are on bail. We will inform you of your new court date once we have it.

Defended Hearings: Will be adjourned. We will provide you with your new court hearing date once we have the listing information.

District Court- Mentions etc via email and remote appearance, attendance in person not required. Case conference proceeding via MS Teams between prosecution and defense. You will need to be available by telephone for us to seek further instructions. District Court Trials- we will update you as to whether your matter will go ahead or be relisted as the situation progresses.

Sentencing matters-Some may be in person, some remote attendance. We will contact you 48 hours prior if your matter is in for sentencing.

If you are required to attend in person you must wear a mask and adhere to social distancing and Covid rules.

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Unlike road side breath testing which gives you a clear read out of the level of intoxication, road side drug tests can only show the presence of an illicit drug. They cannot provide and indication as to the level of impairment of the driver. This means that the test can potentially give a positive reading to both someone smoked cannabis on Friday night and then drove to work on Monday morning, who is unlikely to still be impaired, and give the same reading for someone who smoked cannabis an hour ago then drove. Both people in these scenarios would lose their license and be required to attend court for driving under the influence of a prohibited substance regardless of when they consumed the substance, in what quantity, how long ago, or whether they were still inhibited by their consumption.

The question then becomes: is it effective to administer tests that are somewhat unreliable in order to prevent drug driving? There isn’t enough information about how long an illicit drug can remain in someone’s system, and similar to alcohol, each person absorbs substances at different rates. This can vary according to a range of factors.

The NSW Government’s Centre for Road Safety outlines that cannabis can be detected up to 12 hours after use, however some people have failed a test 9 to 12 days after use. One Sydney Magistrate David Heilpern, indicated that the issues and inconsistencies in laws surrounding road side drug testing were a contributing factor to his decision to retire at age 58. He noted the difficulty and guilt he experienced when having to take away someone’s license even though, most of the people brought before the court under these charges had not been taking the drug long term and had never engaged with the law before.

At present, Australia is the only country to carry out road side drug tests of this nature. Other countries such as New Zealand, England and Canada have found that this kind of testing is ineffective, expensive and a waste of court resources. Although it is necessary to make every effort to reduce any potentially fatal road accidents, it seems that until the technology surrounding road side drug testing is improved, it may be necessary for the testing to be dialled back.

The post Roadside Drug Tests, deterrent or detriment? appeared first on Umbrella Legal.

In NSW there is no current legislation that specifically states you cannot eat and drive or consume liquid (excluding alcohol) and drive but there are laws that allow you to be fined for both of those things. Section 297(1) of the Road Rules Act 2007 (NSW) states that ‘a driver must not drive unless they have proper control of the vehicle’ and it is under this section that NSW drivers find themselves in trouble with the police.

By eating or drinking behind the wheel usually means one must take at least one hand off the wheel and likely look away from the road for a few moments or more, resulting in not having ‘proper control of the vehicle’ and hence opening up the possibility of being fined under s297(1). Police officers are often quite discretionary around eating and driving due to the lack of specific legislative measure’s surrounding eating and driving despite this if you are caught eating and driving or drinking and driving it is very likely you could fined, and lose demit points for doing so.

So what should you do? It is imperative for the safety of yourself and other road users, as well as the safety of your bank account, that you remain in full control of the vehicle that you are driving and make driving your number one task when doing so and if this means not consuming any liquid or food while driving then so be it.

The post Eating, Drinking & Driving and the actual illegality behind it. appeared first on Umbrella Legal.

All states and territories are afforded certain additional powers during a public health emergency, which includes a global pandemic. These powers include the ability to issue Public Health Orders that affect both individuals and the State. Most states have their own version of laws, for example New South Wales has implemented the Public Health Act (2010), which outlines how to appropriately deal with the various health crisis that may occur.

The law is written in a way that allows broad interpretation so that it can assist with the current circumstances. If further clarity is needed, Parliament can enact amendments, for example changes that only apply to the COVID-19 pandemic.

The mask mandate and stay at home Orders came into force very quickly which had many people questioning whether these rules were actually lawful and enforceable. It sounds dramatic to compare a global pandemic to war, however, in war times, such as WW1, the government is equipped with specific powers that they can swiftly use to ensure that Australian citizens are protected. This is because changes to the law involve Parliamentary debates which can sometimes take years to finalise. Therefore, when Australia is in times of immediate emergency, the government must be able to take action immediately to limit the risk the crisis.

It’s hard to wrap your head around government powers, including when they can and can’t use them, we understand! However, don’t fret too much about the new laws that have been brought in. They are continuously under review by legal practitioners and government officials. We promise that mandatory mask wearing isn’t infringing on your right to live, breathe and think freely, but rather a snap decision backed by research in order to help curb the rampant spread of COVID-19 so we can all get back to doing the things we love.

The post COVID-19: Can the government make me wear a mask? appeared first on Umbrella Legal.

Let’s be honest. We are all guilty of it. You’re going through some relatively trivial online form or gym sign-up or fun-run enrollment. You’ve only got a few minutes to spare before you have to pick up the kids, get back to work etc. So when you see that little box “I accept terms and conditions” you tick it, right? But how many of you out there are actually reading the terms you are agreeing to be bound by?

In basic contract law, you are legally bound by ticking this box to those terms and conditions. In the event that something goes belly-up, it does not matter at all that you did not read through those terms. They will be enforced because, by clicking that “accept” button or ticking the box you have accepted to be bound.

So what are the sorts of things that can be hidden in these terms and conditions? A good example is the old disclaimer of liability, used with particular frequency in certain obstacle course type events. “In the event that you are injured in any way whilst undertaking this event, Company X will not be liable in any way, shape or form. The participant accepts that Company X will not be liable and that the participant has no right to claim compensation from Company X in the event of injury to the participant, even where such injury is caused by the act or omission of Company X”. Or how about this “Company X will not be liable in the event of your death if it occurs during the obstacle course”

With the rise of more and more dangerous obstacles involving electrocution, heights, and other hazards, it may come as no shock that such clauses are included. Yes there are ways of challenging some of these disclaimer clauses however the process can often be time-consuming and stressful, increasing pressure on you and your family. The underlying assumption though is that you have read these terms and that by signing/clicking “accept”/ticking a box you have agreed to be bound by them.

Take the extra time, read the terms. You might be surprised what’s lurking there…

The post What’s Lurking Within the Legal Fine Print appeared first on Umbrella Legal.

It is reported that over 50% of people view their pets as children. Some of these people have had children that have subsequently “left the nest”, others are simply choosing to have cats and dogs instead of “real babies”. There is absolutely nothing wrong with this.

There is however a rise of enquiries out there about “custody of the dog” and “can we get an order about spending time with the dog?” is one of the questions that I seem to get asked with rather interesting frequency. So, what does happen with the dog when you and your partner separate?

I’m sure you’ve heard all kinds of stories coming out of the USA where couples are obtaining orders for “equal custody” of the dog, with Fido being moved from “mum” to “dad” every second week and back again. In Australia however, it’s an entirely different story.

Under Australian Law, dogs are technically “property”. I know, I know, that’s your “furbaby” I’m talking about but this is the reality. In the event of a relationship breakdown there can be “shared custody” of the dog, but normally only in circumstances where the other party agrees to it. In matters which are before the court, you can seek orders about “ownership” of the dog as an item of property to be divided along with your other assets, but if this is the sole point of contention, bringing it in front of a court is not going to win you any friends with the judge. In this scenario it may be best to accept that your “furbaby” is no longer accessible and maybe look into finding a (don’t hurt me for saying it!) “replacement”.

The post But What About the Dog? appeared first on Umbrella Legal.

Depending on the scenario, there may be a number of options:

1. In family law matters where there are current proceedings on foot you may be able to seek an order restraining the other party from posting to social media. This however can only be used for the specific person on the other side of your matter and not necessarily for their new partner who is not a party to proceedings. The best you might hope for in relation to them is an order for the other party “to make their best efforts to ensure that person X does not make derogatory or defamatory posts on social media about party A”.

This issue with this option is clear- Firstly, how do you show that party B did not make their best efforts? Secondly, even if they let person X proceed to posting, there are very few options for enforcement, particularly given that there is only really so much control a person can have over what a third party does.

It is important to remember that in most cases this sort of activity will be quite common whilst proceedings are underway and while the “us vs them” mentality is present. Generally speaking, most comments that occur concurrently to family law proceedings will eventually cease when the matter is finalised.

2. Report the post to the social media site (either directly or via someone that is able to see the post on their own account. On some occasions such posts can be taken down by the social media page.

If the post is threatening you directly, you can report this to police.

3. Request to the person directly to remove from social media and make a public apology in relation to the defamatory remarks made. If you are requesting this yourself personally this might be met with ridicule and further posting about you on the other person’s social media. In this instance it may be worth (depending on your situation and the nature of the defamatory comments eg whether they are detrimental to your business or career pursuit etc) seeking the advice of a lawyer. Often a threat to take further action is enough to obtain the retraction and formal apology.

4. Sue for defamation: This is an expensive option. If there is no retraction, no apology and ongoing defamation this would be your last avenue. Defamation is an area of law that is often more complicated than people believe. The matters take time and a substantial amount of money to run. You need to also consider the other person’s capacity to pay any monetary sum awarded by the court in the event of your success. This may be irrelevant to you if you are pursuing the matter “on principle” however for a lot of people this is an extremely relevant consideration.

In all scenarios you should definitely take screenshots of the defamatory material in the event that you do have no other option but to take the matter further.

Lastly, remember to breathe. Don’t engage with the thread. This will only lead to further problems.

The post Derogatory And Defamatory Material On Social Media And How To Deal With It appeared first on Umbrella Legal.