Australia recognises same-sex divorce; as well as same-sex marriage

“Same-sex marriage in Australia, also now recognises same-sex divorce.  If you previously married in another jurisdiction you can now have recognition of, or file for divorce in Australia.  With an extensive global network, Koffels Solicitors & Barristers, Sydney,  can assist with both your family law concerns, and any cross-border property settlement if required.  We are highly experienced and we can help.”

This weekend saw the new Australian same-sex marriage legislation come into effect.

In particular, Governor-General Sir Peter Cosgrove signed the Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

Under the new legislation, the definition of marriage in the Marriage Act 1961 has been changed to “a union between two people”.

This means that same-sex couples who have married overseas can now have their marriage legally recognised in Australia and same-sex couples wishing to marry in Australia can now do so.

Further, as same-sex marriages will now be legally recognised in Australia, the Family Court will now have jurisdiction to grant a Divorce to married same-sex couples.

In order to get a Divorce in Australia, one party (or both, jointly), must file an Application for Divorce at the Court. This Application must then be served on the other party.

Parties must have been separated for at least 12 months prior to filing an Application for Divorce.

In some cases, parties will be ‘separated under one roof’ as they will still be living together, though not as a married couple, for some of that 12 month period. In this case, the Applicant will also need to file an Affidavit setting out the details and circumstances of the parties being separated under one roof.

Upon the filing of the Application for Divorce, the Divorce Hearing date will usually be set down for at least 6 – 8 weeks in advance, to allow time for service of the Application and depending on how busy the Court is.

If there are children of the marriage under the age of 18 years, the Applicant must attend the Divorce Hearing. If there are no children, the Applicant’s solicitor can attend on the Applicant’s behalf.

In addition to other jurisdictional requirements, the Court will find that there is a valid marriage between the parties, that they have been separated for at least 12 months and that appropriate arrangements are in place for the children.

Once the Divorce Order is made, it will become effective one month later.

If you are wanting to obtain a Divorce, contact our office. We can draft the Application for Divorce and attend Court on your behalf.

What to do if you need Parenting Orders in place as a matter of urgency

When parents are unable to reach agreement on parenting responsibilities, they can be left in a situation where there is no certainty about the children’s future living arrangements. This situation is then often made worse when special occasions are not far away, such as Christmas, school holidays or the children’s birthdays.

Unless there is some urgency to your matter, or mediation is not appropriate for some reason (such as a history of family violence), it is mandatory for parties to attempt to resolve their parenting dispute via mediation before initiating Court proceedings.

If you want to have formal time spending arrangement in place for the children before Christmas, you now need to consult a solicitor URGENTLY.

You may have heard that there was a deadline of 10 November 2017 for filing Applications in the Family Court of Australia for matters to be listed before Christmas.

This means that unless the Application for Parenting Orders was filed at Court prior to that date, there is no guarantee the Application will be heard before Christmas.

There is no deadline however,  for the filing of Applications in the Federal Circuit Court of Australia.

Again, the Federal Circuit Court is usually extremely busy at this time of year and therefore, there is no guarantee the matter will be heard before Christmas.

If you have missed the filing deadline, what can you do?

Parents are still able to attempt to resolve their parenting dispute through solicitor negotiation or by mediation.

Keep in mind however, that at this time of year, mediation services are usually extremely busy and the waiting periods may mean that you are not able to get an appointment for mediation until the New Year.

Further, even if you can get into mediation, if an agreement is reached, this will be reflected in a written agreement known as a ‘Parenting Plan’.   Parenting Plans are not legally binding or enforceable.

Therefore, if you want the certainty of a legally binding and enforceable parenting arrangement in place before Christmas, we would suggest that you instruct a solicitor to act on your behalf to negotiate the terms of the parenting arrangement.

This arrangement can then be formalised by way of Consent Orders.

Obtaining Consent Orders entails filing an Application to the Court and a Consent Minute of Order setting out the Orders sought.

Again, as the Court is extremely busy at this time of year and the deadline for filing has now passed, it is important to act on this as a matter of urgency.  If you delay, you may not get Consent Orders in place until next year.

IS THE GOVERNMENT REDRESS SCHEME JUST AN INSULT

There has been increased publicity regarding the proposed Government Redress Scheme to compensate victims of institutional child sexual abuse under a capped formula.  Some welcome the news as a public acknowledgement of this insidious issue; others more cynically might look at it as a furtive measure to contain the spiralling cost from the growing avalanche of claims.

While some may consider that this is a suitable avenue for them to follow, it is the experience of our firm that settlements we have achieved for our clients have been a multiple of the proposed capped scheme.   Koffels act in dozens of matters regarding  Institutional Child Sexual Abuse and have achieved some of the largest payouts in the country for our clients.

If you are considering whether or not you would pursue an independent action, or take up the offer of a redress scheme in the future, the first thing to do is to find out what the possible outcome of a legal claim might be.  That way your decision is an informed one.  Do not be led into believing that one size fits all and that there is a fixed cap on your lifetime experience.

Your call will be taken in the strictest confidence, understanding and respect for privacy.  Make your decision an informed one.

Institutional Child Sexual Abuse: What are the REAL settlement numbers?

While there are documented compensation payouts regularly advised in the press, in many cases the real story of compensation lies safely under the cloak of confidentiality.

It has been our firms experience that a number of institutions responsible for the organisations where sexual abuse has occurred, have made  what we would consider most inappropriate proposals of “quick compensation” at a price far below the damages that could be rightfully claimed. These approaches are also often accompanied by agreements seeking both confidentiality as to the terms, and an indemnity to no longer pursue the given institution.  Often those victims are vulnerable, both financially and emotionally, and sign up.

Compensation to victims is formulaic. It consists of past medical expenses, future medical expenses for medical treatment, an amount for non-economic loss (pain and suffering) and economic loss past and future . Often times, victims come from circumstances where their expectations of both education and a career are dashed by the impact of childhood abuse, and they never fulfil what would be considered to be the likely trajectory of their work life and living standard.  Under these circumstances, the compensation one would expect can run into hundreds of thousands of dollars, or into millions given the abuse and the impact on the individual.

Koffels too are always mindful of the confidentiality of agreements reached.  They are both lawful and often bound by the Court as agreed by all the parties.  One thing they hide however, is the standard of compensation genuinely being reached. Between 1980 and Feb 2015 the Catholic Church advised the Royal Commission that it paid out an average of $91,000 per claim. This included compensation, treatment, legal and other costs.

Compensation today, has moved to a new level.

As leading advocates for victims of Institutional Child Sexual Abuse, Koffels Solictors & Barristers have successfully negotiated settlements that adequately compensate the victims for the abuse and the effect upon their lives. We are currently taking action for victims against over 20 Institutions.

While the amounts agreed to be paid by the some of the Institutions remain confidential, victims who have been subject to sexual abuse and have suffered as a result of these assaults, can often expect settlements ranging from $500,000 to $2 million +.  Settlements will be reached on clear foundations of the proven and justified impact on our clients.  These are the amounts that are genuinely fair.

Settlements are not made up of a figure taken out of the air; they need to be representative of the calculated financial impact of injury.  Real compensation can make a genuine difference in assisting victims with an improved quality of life, a life they might have otherwise aspired to before their abuse.  It doesn’t take away what happened, but it can provide vindication and the chance to move forward with their lives.

 

Ross Koffel

Western Australia – Limitation period to go for child abuse victims

Laws to remove limitation periods for victims of child sexual abuse to take civil action against perpetrators and institutions will be enacted by a re-elected Liberal National Government, Premier Colin Barnett said today.

Mr Barnett said the Government would also remove limitation periods for serious physical abuse, recognising that this was also traumatic and could have a lasting impact on a person’s wellbeing.

The removal of limitation periods would not be limited to child abuse which occurred in an institutional context.

“Survivors, regardless of where the abuse occurred will be able to commence civil action without the barrier of limitation periods,” Mr Barnett said.

The Government also recognised that some survivors may have accepted out of court settlements for abuse they suffered in circumstances where the limitation period for their claim had expired, leaving them with no ability to take action in the courts.

They may have felt obliged, by reason of their poor bargaining position, to take what was offered to them by way of settlement.

“Consequently, the amendments will allow victims who have received out of court settlements for child abuse to have these settlements set aside by the court,” the Deputy Premier said.

“There will be no cap placed on the maximum damages that can be awarded to survivors – the court will determine the damages payable to a person who suffered child abuse.

Attorney General Michael Mischin said the changes would not preclude victims who had previously received redress for sexual or serious physical abuse experienced as a child from commencing civil action.

Please contact us if you have been the subject of abuse so that we can explain the details of what action we can take on your behalf to obtain compensation for you.

Ross Koffel

ROYAL COMMISSION INTO INSTITUTIONAL CHILD SEXUAL ABUSE HANDS DOWN DAMNING INTERIM REPORT

The Royal Commission has handed down an interim report into their investigation into Institutional Responses to Child Sexual Abuse. Catholic orders such as the Christian Brothers, the Marist Brothers and St John of God have been noted with a high proportion of alleged abusers after the Commission heard over 4500 claims of child sexual abuse from over the past 35 years. They also noted that it is often the case that victims wait an average of 33 years before they can find the strength and courage to come forward and be heard as to the crimes committed against them.

The summary is in the 75 Catholic authorities examined over 60 years from 1950 to 2010, 7% of all priests were alleged perpetrators.

Having ourselves dealt with dozens and dozens of these claims, we know that many more voices have yet to be heard, and many more institutions will be made to be answerable for the deeds of the past. So many remain deserving of their opportunity to find vindication, belief and compensation for the pain and anguish they have been through.

It does give us hope however, that the Commission continues to probe the depths of these unspeakable abuses against children, and many more voices will be heard and supported in the months to come.

Selling a Horse in Australia

Contract & Misrepresentation (applicable to all sales of horses)

The law of contract and misrepresentation apply to sales of horses regardless of whether the seller is conducting a private sale, say a one off sale, or is in the business of selling horses. A purchaser can sue on the contract or in relation to any representation.

Care should be taken to ensure that any representations (often statements in advertisements) can be factually evidenced, that is based on facts that justify any opinion or statement as to a horse’s temperament or usefulness. From the seller’s point of view care should be taken in describing a horse in any advertisement or other form of communication. There is often a trail of emails of text messages that can be relied upon by a purchaser. In addition when a purchaser comes to inspect and try the horse there are often conversations and representations made by the seller which can be relied on.

Commonly, disputes as to the sale of a horse will relate to representations as to fitness for a particular purpose or usage in for example: eventing, show jumping, dressage or camp drafting. A stated suitability for a particular rider, such as a beginner or novice rider, can be characterised as a representation. This can place a high onus on the seller to exercise skill and judgement in the sale.

Contract between Seller and Buyer (applicable to private sales of horses)

In a private sale a written contract between seller and buyer can include provisions or acknowledgements that assist in limiting the effect of any representations to those set out in the contract. This can be somewhat difficult in sales in trade and commerce given the effect of consumer law (see below).

Contract between Seller and Buyer (applicable to all sales of horses)

The contract can also set out such basic terms such as whether the sale is subject to a veterinary inspection and whether any deposit is refundable if the veterinary report is not satisfactory. It can set out when title to the horse passes from seller to purchaser and who bears the transport costs and what happens if the horse is injured during transport.

Consumer Laws (applicable to sales in business or trade)

Consumer laws place onerous duties on sellers, particularly those in business or trade, and provide wide ranging rights to purchasers, particularly in relation to horses purchased for personal, domestic or household use. Many of the consumer guarantees (for example those contained in the Australian Consumer Law (“ACL”)) cannot be contracted out of. The ACL has been adopted in each state and territory, for example Part 2 of the Fair Trading Act 1987 in New South Wales.

In respect of the sale and purchase of goods, including a horse, the main Consumer Guarantees which are generally relevant to the sale of horses are set out in part 3-2 of the ACL. Two guarantees particularly relevant to the sale of a horse include:

acceptable quality (including fit for all purposes for which the goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable)
fitness for any disclosed purpose (that is made known by the consumer to the supplier), correspond with any description and/or comply with any express warranty

False or misleading representations and misleading conduct can also carry criminal liability with fines of up to $1,100,000 for companies. The representations or conduct can be made relation to the sale of horses. There are a number of specific areas of sales whereby misrepresenting or misleading a consumer are effectively deemed to be strict liability offences. While the numerous issues are not detailed here they include, for example, quality and/or value and advertising.

Sale of Goods Act (various provisions apply to business sales)

The Sale of Goods Act 1923 (NSW) also imposes strict conditions on sellers. A horse must be fit for any disclosed purpose provided the purchaser relies on the seller’s skill or judgement. In this case the seller must be in the business of supplying horses.

A seller who deals in goods of a certain description also provides an implied condition that the horse is of merchantable quality (section 19). In the case of a horse the horse must be fit for the purpose or purposes for which horses are commonly bought as is reasonable to expect having regard to their price and description. This provision cannot be specifically excluded from a contract. An examination by a purchaser may exclude the condition as to any defect if the examination should have revealed that defect. A seller should encourage a purchaser to carry out an examination of the horse both as to riding the horse and an expert veterinarian examination.

Contract between Seller and Buyer (applicable to sales in business and trade)

A contract between seller and purchaser is helpful as to basic terms as set out above. While a seller cannot contract out of their obligations under legislation the contract can set out the purpose for which the horse is suitable and can agree that the purchaser has enjoyed the opportunity to have the horse inspected by a veterinarian. This can assist in limiting the effect of the legislation.

Managers and directors of businesses and companies should be aware of the pitfalls of conduct that can carry civil and criminal sanctions. If you are in any doubt or a complaint is made you should seek legal advice and before attempting to defend a claim.

Koffels Solicitors & Barristers are the number one Equestrian Law firm in Australia

Purchasing a Horse in Australia

Contract (applicable to all sales)

A contract is entered into between a seller and buyer when an offer is made by one party and accepted by the other. An advertisement (an invitation to treat) is not necessarily an offer and any sale should be confirmed in writing.

While a contract can be written and/or oral it is best to have all the terms of a contract evidenced in writing. If there is a written and oral component to a contract the oral component may not be enforceable (the parole evidence rule) or at least difficult to prove.

When the sale of a horse is made subject to a condition precedent, for example obtaining a veterinarian report, the buyer can usually withdraw from or rescind the contact if that condition is not fulfilled. This will entitle the buyer to seek a refund of any payment or deposit. Care should be taken to specify that the report is to be to the satisfaction of the purchaser and specify the veterinarian (or equine centre) that is to carry out the examination to avoid a possible dispute arising. This veterinarian should be independent of the seller. That is never worked for the seller or treated the horse being purchased.

Any ‘fine print’ in a contract should be read carefully and a lawyer consulted if you have any doubts about the contractual terms and conditions.

Representations (applicable to all sales)

Sellers often make certain representations prior to a sale, such as the age and suitability of a horse for certain uses or types of rider, for example suitable for advanced dressage competitions or is suitable for a beginner rider. The representations do not usually form part of the contact and are often specified in an advertisement. This may give the purchaser a right to rescind the contract and seek a refund of the purchase price (and return the horse) or sue for damages. Damages often include veterinarian expenses and transport costs.

There are two basic types of misrepresentation applicable to the sale of horses:

An innocent misrepresentation is a representation made by the seller which the seller believes is correct but later turns out to be incorrect. An example is when the seller states the horse is sound as the horse has never been treated for unsoundness and has no apparent unsoundness but it is late discovered that the horse has navicular disease and the x-rays determine that it must have been present for a significant time before the horse was sold. For the contract to be rescinded the representation must have induced the purchaser to purchase the horse and a remedy is commonly limited to a rescission of the contract, allowing a refund of the purchase price and the return of the horse. There is some law to the effect that rescission is only allowed in respect of an executory contract, that is before the terms of the contract had been finalised. For example, after a contract for sale has been agreed to but before payment and delivery of the horse has been effected. Legislation in NSW and SA has clarified the position and allows for rescission after finalisation of the contract. The remedy is less clear in other states and territories and legal advice should be sought.
A fraudulent misrepresentation is a representation made by the seller which is incorrect and the seller knows to be incorrect. It can also include a misrepresentation where the seller is reckless or indifferent as to a statement’s truth. An example may be where the seller says that the horse has the potential to be a World Cup show jumper when the seller knows nothing of the horses breeding and has never jumped him over a show jump. The seller does not need to have induced the purchaser to purchase and damages are generally available as a remedy.

Negligent misrepresentation as a duty of care has a somewhat limited application to the sale of horses although it could possibly apply in limited situations. A lawyer should be consulted as the law of misrepresentation and the availability of a remedy which may depend on a number of factors.

Title (applicable to all sales)

The seller has a duty to provide good title to the horse unless agreed otherwise. This can be an implied condition of sale or a statutory right. The need to prove heredity and/or registration with Equestrian Australia, Racing Authorities in each state or a breed association and the transfer of that registration should be specified in the contract and/or the transfer documents should be provided on payment. A PPSR search should be conducted to ensure the horse is free from any security or encumbrance.

Consumer Rights (only applicable to sales in trade or commerce)

Various consumer rights and guarantees (Australian Consumer Law applies in each state) such as:

acceptable quality (section 54),

fitness for any disclosed purpose (section 55) and

conforming to any description (section 56)

apply to the purchase of a horse from a dealer or business in trade or commerce. The horse should generally be free from any defects (for example pre-existing injuries) although an examination of the horse may exclude this guarantee if the defect or injury could or should have been ascertained. Auction sales are generally excluded from many consumer guarantee provisions.

A consumer guarantee may allow the purchaser to seek a full refund of the purchase price if breached. Alternatively, a purchaser can sue for damages. In relation to consumer guarantees regard is usually had to:

The nature and price of the goods.
Any representations made.
Damage by abnormal usage.

The Sales of Goods Act 1923 (NSW) includes similar consumer protections and specifies that the goods (or horse) should be of merchantable quality (section 19). There is similar legislation in other states. That is free from defects and fit for normal purposes. Legal advice should be sought if there is any doubt as to your rights and remedies which may depend on a number of factors and the terms of the contract.

Delivery and Risk (applicable to all sales)

Issues such as the risk of and payment for delivery of the horse, usually the purchaser’s responsibility, should also be considered. Comprehensive insurance should be considered as recourse to the carrier’s liability or insurance may be limited in case of accident or injury.

This guide is a summary only and is not intended to be a complete or detailed overview. Purchasers should seek legal advice if a complaint to a supplier of a horse is not dealt with satisfactorily in the first instance.

Koffels Solicitors & Barristers are the number one Equestrian Law firm in Australia.

GST changes for cross border transaction commencing 1 October 2016

Relief for Australian entities making outbound supplies

Where a supply is contractually made to an overseas entity but is actually provided to a recipient in Australia, it will be GST-free provided the Australian recipient of the supply is:

a GST registered entity
supply is not of a private or domestic nature

It also applies if the supply is provided to an employee or officer of the Australian based business recipient. The GST-free status does not apply if it is a non-deductible expense.

Greater obligation on the Australian supplier to ensure that the Australian recipient of the supply is GST registered.

Repairs to satisfy non-resident entity warranty obligations

Non-resident suppliers of goods to Australian customers may engage local Australian repairers to undertake their warranty obligations in respect of goods situated in Australia. The supply will now be GST-free provided the repairs are supplied to meet warranty obligations relating to the goods.

Provides relief to the non-resident entity from having to register for GST in order to obtain a refund.

Simplification measure to calculate the taxable value for GST purposes

An importer who is an Australian business taxpayer can apply a 10% mark-up on the customs value and duty to arrive at the taxable value for importation purposes. An importer doesn’t need to determine the exact amount of international freight and insurance charges that may apply to a particular shipment.

Reverse charge considerations for Australian recipients

Compulsory reverse charge GST liability if the acquisition is not made for a fully creditable purpose.

Relief for non-resident entities making inbound supplies

A non-resident entity making specified types of supplies in Australia will no longer have Australian GST obligations where the recipient of a supply is a GST registered business recipient.

The non-resident entity will still have a GST liability if the supply is made through “an enterprise the supplier carries on in the indirect tax zone”, essentially a ‘permanent establishment’ (PE) in Australia.

If the supply is not made through a permanent establishment, the following supplies will not have a GST liability even though the supply may be “done” in Australia:

A supply made by a non-resident to an Australian based business recipient of the supply;
A supply made by a non-resident to another non-resident for the purpose of an enterprise carried on outside Australia;
The transfer of ownership of goods from a non-resident entity to another non-resident entity where the goods are leased to an Australian lessee who imported them and are situated in Australia at the time of the transfer; or
The renewal of a lease of goods by a non-resident lessor to an Australian recipient lessee (who imported them) on similar terms and conditions.

If the recipient of the supply is a private consumer, a GST liability will continue to apply to the non-resident supplier.
New Permanent Establishment (PE) rules for GST

Under the new rules, supplies made by an individual, an employee or officer of a company or an agent (but not a broker, commission or other independent agent) will be made through a PE if:

They are made through a fixed place;
They have been made through one or more places for more than 183 days in a 12 month period; or
It is intended that supplies will be made though one or more places for more than 183 days in a 12 month period.

Installation and assembly of goods in Australia by non-resident

Under the new rules, the GST liability for a non-resident that supply goods and provide assembly/installation services to its Australian customer may be different.

The supply of the services may fall outside the GST net if the tests above are satisfied but the supply of the goods may continue to be a taxable supply if imported by the non-resident supplier. However, if the goods are imported by the Australian recipient, GST will only be payable by the Australian recipient at the time of importation.

Where goods are supplied and installed by a non-resident supplier for a single all-inclusive price and the non-resident supplier is the importer into Australia, the price between the value of the installation services and the value of the goods may be apportioned.

Assistance

If we may be of assistance in the application of these new rules to your business please contact Ross Koffel +61 2 92835599 or rosskoffel@koffels.com.au

General Purpose Financial Statements for Significant Global Entities

This is a new requirement in the Australian compliance landscape. It is in addition to all existing requirements.

Tax Laws Amendment (Combating Multinational Tax Avoidance) Bill 2015 – changes effective from 1 July 2016 to require lodgement of the General Purpose Financial Statements (GPFS) with the Australian Taxation Office (ATO) with their annual tax assessments, which is then forwarded to Australian Securities & Investment Commission (ASIC).

A Significant Global Entity (SGE) is:

A global parent entity with an annual global income of A$1 billion or more; or
A member of a group of entities consolidated for accounting purposes where one of the other group members is a global parent entity with an annual global income of A$1 billion or more

A Significant Global Entity is subject to new rules where that entity is:

A corporate tax entity (either an Australian resident or foreign resident entity operating an Australian permanent establishment);
Is not required to lodge GPFS with ASIC; and
Is required to lodge an income tax return for the income year.

The following classes of entities will need to lodge GPFS with the income tax return:

Small companies that have class order relief and do not need to lodge financial reports with ASIC
Companies that are grandfathered under the Corporations Act so that they do not need to lodge financial reports with ASIC
Entities that are taxed as companies but are not companies under the Corporations Act such as limited partnerships and public trading trusts
Companies that lodge special purpose financial reports with ASIC

ATO Consultation Paper re: a number of unclear issues:

ATO will accept stand-alone GPFS, but also consolidated GPFS which includes the taxpayer.
SGEs to lodge their Australian resident entity’s consolidated GPFS or the consolidated GPFS of the group they belong to. Entities with foreign parents preparing GPFS in accordance with standards other than Australian Accounting Standards would not be able to lodge such consolidated GPFS.
Australian accounting standards generally apply to entities with an obligation to prepare reports under Part 2M.3 of the Corporations Act 2001. If the entity wants to rely on the parent’s consolidated report, the report would need to be prepared in accordance with the Australian accounting standards.
The entity can choose whether to provide GPFS that relate to the entity or the group of which the entity is a member. (i.e. the entity can submit the global group’s report prepared in accordance with the accounting standards of the parent’s country).
The legislation does not address a requirement to have the GPFS audited but the paper strongly recommends it.

Whether the Reduced Disclosure Requirements (RDR) will be sufficient in complying with the new law is unclear. Under the RDR, the entity is permitted to not disclose some information such as related party transactions under AASB 124 and certain tax information under AASB 112.