Archive for January, 2017

Swimming Pools – new compliance laws

Across the country, thousands of homes have backyard swimming pools. With drowning being a leading cause of preventable death in young children, swimming pool safety is an important issue for the community.

New compliance laws came into effect in NSW in April 2016, requiring that any property with a swimming pool now needs a certificate of compliance before it can be sold or leased. Similar requirements are already in place in Queensland.

 

New laws for properties with swimming pools

The new laws are a result of an amendment to the Swimming Pools Act 1992 which took place in 2012. They provide that:

  • swimming pool owners must register their swimming pool or spa pool on the NSW Swimming Pool Register; and
  • from 29 April 2016, a copy of a certificate of compliance or relevant occupation certificate must be attached to the sale contract or new residential tenancy agreement to sell or rent any property with a swimming pool or spa pool.

For the purposes of the provisions, swimming pools or spa pools are defined as structures that are:

  • capable of being filled with water to a depth of greater than 300mm; and
  • solely, or principally used, designed, manufactured or adapted for the purposes of swimming, wading, paddling or other aquatic activity.

The new laws apply to a number of properties including private houses, units, hotels, motels and other tourist and visitor accommodation. For units, the owner’s corporation must obtain the compliance certificate. Individual lot owners can then inspect the certificate through the Swimming Pool Register website.

 

Swimming pool certificate of compliance

A swimming pool certificate of compliance is a document which confirms that the pool and pool barrier meet safety requirements.

An occupation certificate that is less than 3 years old and that authorises the use of the swimming pool can be used instead of a certificate of compliance. A certificate of compliance is valid for a period of 3 years from the date of issue.

Local councils and accredited certifiers can carry out a swimming pool barrier inspection and issue a certificate of compliance.

 

Contracts for sale of land

A valid swimming pool certificate of compliance, or a valid certificate of non- compliance, must be attached to the contract of sale of properties with a swimming pool or spa pool.

This requirement does not apply:

  • to a lot in strata or community schemes with more than two lots, or
  • for any off-the-plan contract.

Failure to attach a certificate or relevant occupation certificate will allow a purchaser to rescind the contract at any time within 14 days of exchange of contracts, unless settlement has already occurred. However, vendors are able to shift the responsibility of obtaining a certificate of compliance by attaching a certificate of non-compliance.

Should the purchaser complete the sale with a certificate of non-compliance attached to the contract, the purchaser will have 90 days from settlement to fix the non-compliance issues.

 

Conclusion

As an owner of a pool you may request your local council or private certifier to carry out an inspection in order to obtain a certificate of compliance. This must be done by the authority within 10 business days if the purpose is to sell or lease the land.

It is too early know the implications of the new requirements however it may affect your property’s value should the cost of fixing a non-complying pool be deemed excessive by a prospective purchaser. Or, it may even affect your ability to rent a house you own which has a pool as part of the rental agreement.

If you own a property that has a swimming pool consideration should be given to arranging a swimming pool inspection and obtaining a certificate of compliance even if a sale is not planned for some time.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

 

Social media and family law – Just don’t do it !!!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media?  Usually little good comes of it, and sometimes quite a lot of bad can result.

 

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

 

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

 

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

 

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Do you know when to update your Will?

Most people know that a valid Will determines how their assets are dealt with after they are gone. Wills generally provide for the appointment of a trusted executor/s and the leaving of gifts to chosen beneficiaries. They may also appoint guardians for minor children and give direction for specific funeral and burial arrangements.

When to review your Will

Many people make a Will, arrange for it to be safely stored and then forget about it. However, in many situations reviewing your Will is just as important as preparing it, particularly when events occur and your Will no longer reflects your wishes.

Your Will should be reviewed when your personal or financial circumstances change.

The following events might prompt you to review your Will.

Marriage

The Succession Act 2006 (NSW) revokes a Will when the testator marries but does not revoke a gift to a person to whom the testator marries nor the appointment of that person as executor. Marriage however may void other parts of the Will.

Wills made ‘in contemplation of marriage’ remain effective when the marriage (to the person nominated in the Will) occurs. This avoids statutory provisions that might otherwise void certain parts of the Will because of marriage.

If you have married since preparing your Will then it may be time to review it. Even if the Will was made in contemplation of marriage to your present spouse, if some time has passed since preparing it, certain other terms of the Will may no longer be desired.

Separation

The Succession Act 2016 (NSW) provides that gifts to a former spouse upon divorce are revoked as well as the appointment of a former spouse as executor. A Will should always be reviewed on separation from your spouse or de facto partner to take account of new circumstances. Bear in mind also that many partners are separated for some time before finalising their divorce.


 

Birth of a child

Obviously the birth of a child will warrant revision of your Will to ensure that child is adequately provided for. Your Will can be drafted to distribute assets equally amongst your children, even those born after your Will is made.

Death or ill health of an executor

You may have appointed an executor/trustee of your estate who is no longer alive, aging, mentally or physically unwell, or who has moved away. In these circumstances you might consider appointing a new executor. Your Will can provide for a substitute executor if your appointed executor is unable or unwilling to act. There is no limit to the number of executors you may appoint. Your executors should be capable of administering your estate in accordance with your wishes, which is often carried out under the guidance of a solicitor.

Death of a beneficiary

A gift to a beneficiary who dies before, or within 30 days of the testator, may fail unless a contrary intention is stated in the Will.

If the beneficiary was a child of the deceased then the Succession Act 2006 (NSW) provides that the deceased child’s children will instead take the gift. If the testator has no children and a substitute beneficiary is not nominated the gift falls to the residuary estate. This can have unintended effects.

A Will that nominates a beneficiary who has passed on should be reviewed to ensure that it still has the desired effect.

Disposal of a specific gift.

A specific gift is clearly identified and separate to other property of the estate; such as a prestige motor vehicle. If you sell or dispose of such an asset after you make your Will then that gift will fail.

The result is that the intended recipient of the gift may receive nothing at all or a much lesser share of the estate than what you intended. This may have a significant effect, particularly if the asset is of substantial value.

Acquisition of interests in a company or partnership

Property owned by a company cannot generally be disposed of by Will, however the shares in a company may be gifted. If you acquire an interest in a partnership you should consider what happens to that interest when you die. Most partnership agreements set out what happens when one partner dies and how that partner’s share of the partnership is distributed. New business interests should always prompt reviewing your Will.

Increased wealth, potential challenges to a Will, vulnerable beneficiaries

Your Will may incorporate a testamentary trust to provide for minors, protect beneficiaries under legal incapacity, safeguard beneficiaries’ assets from creditors or family provision claims and provide certain income tax advantages.

If you would like these protective measures incorporated in your estate planning and the value of your assets warrant the administrative and accounting costs of a testamentary trust then it is worthwhile discussing this option with your solicitor.

Summary

Life is unpredictable and change inevitable. For better or worse life changes are likely to impact upon your estate planning. For good measure, you could diarise to review your Will each time your tax return is prepared. Remember that your superannuation, binding death benefit nominations, appointments of power of attorney and enduring guardians also form part of effective life and estate planning. These should also be regularly reviewed.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.