This year more than 18 individual pro bono legal conferences were conducted at the café and at our offices. Clients overall reported positive benefits, and we were able to help with many pressing matters and increase client happiness. It was a smashing success!
Many thanks are given to paralegals Gloria, Candice and Madeleine for their outstanding efforts and also the staff at Harvest Café Byron Bay for their great service.
The matters included the following legal principles:
Bankruptcy Law
The ‘Bankruptcy Act’ in Part IX allows for an insolvent person to make a “debt agreement proposal” to the Official Receiver for the creditors if the total unsecured creditors are less than the prescribed amount of $92,037. This will stop bankruptcy if the more than 50% in the value and number of the creditors will vote for the proposal, which will include a discount on the total amount owed to all creditors proportionally and time to pay the debt over a number of years. It is a less demanding process than a Part X “personal insolvency agreement” which requires a special resolution with more than 50% in number of creditors, plus at least 75% in value to approve the proposal.
Family Law
With a “parenting order” made under S65D of the ‘Family Law Act’ the Court must consider the best interests of the child as paramount in determining whether the child should spend ‘equal time’ with each of the parents, or ‘substantial and significant time”. The Court must have regard to what is reasonably practicable, including how far the parents live from each other, and the parents’ current and future capacity to implement an arrangement. If the child goes missing, then a parent can seek a “location order” for the Court, or a “recovery order” (S67Q) seeking the return of the child. A parent must not refuse or fail to deliver a child or interfere with the performance of any duties that person has under the order (S65M); and not hinder the child from communicating with the other parent under the order. (S65NA) The Court has the power to issue a warrant for arrest of an “alleged offender” to bring them before the Court. If a parent is being unreasonably hindered in telephone access or being refused time with the child under a parenting order, these matters can be enforced and are not trivial. It is important for the evidence to keep notes of dates and times of specific breaches.
Wills and Estates
A child who has been expressly disinherited in a Will because of an alleged failure as a less than dutiful child, may have recourse under the ‘Succession Act’ (NSW) as an “eligible person” [S59 (1) (c)] for adequate provision for “maintenance, education and advancement in life”. A claim for provision must be made within 12 months from death. Such a clause in a Will may have the opposite effect to that which the testator intended. Instead of striking out the child and discrediting him, it may instead pave the way for the claim. The Court puts itself in the position of the wise and just testator.
Constructive Trust
If a child loses the right to claim family provision under the ‘Succession Act’ 1981 (QLD) (S44: claim must be made within 9 months of death) due to the length of time since the death, there may be promises made by the deceased to the effect that she would leave certain property to the child. In such as case, the Court could impose a “constructive trust” over the deceased’s property where it would be unconscionable to deny the trust. Whilst statutory rights might be lost, equitable rights can survive.
Employment Law (Industrial Law)
An employer, who pays a “contractor” for services -even with an ABN- is required to pay the “superannuation contributions” for the contractor, if the services are predominantly personal. [Superannuation Guarantee (Administration) Act 1992, S 12 - Contractors providing predominately personal services are “deemed employees” for the purposes of superannuation] If a contractor is really a worker (as found by the Court), a claim can be made out under the Fair Work Act in the “general protections” provision for other Award based entitlements, including annual holiday leave and unpaid overtime.
Australian Immigration Law
A skilled worker from overseas who meets certain criteria can obtain a “Subclass 457 sponsored visa”, which is a temporary business visa, if the employer nominates as a “sponsor” and they also meet certain criteria. The worker can then later apply for a “permanent” visa within 12 months to 2 years after taking the post. The worker’s family can also enter or stay on that visa. The worker and the sponsor can apply onshore, and don’t have to leave Australia to apply for the visa, if the worker is lawfully present on another visa subclass. This fast track to residence pathway increases an Australian employer’s access to overseas skilled labour markets, which may provide the skill sets needed for the survival of the business in Australia but at the same time giving a fair go to Australian workers. It is attractive to overseas skilled workers because they can obtain a pathway to “permanent residence” if they meet the DIAC criteria.
