Month: July 2017

Sutherland Shire Leading the Way on Domestic Violence Initiatives with the Domestic Violence Disclosure Scheme

In April 2016, an Australian first trial of the Domestic Violence Disclosure Scheme was launched in the St George and Sutherland Shire.

Under the pilot program, people in the St George and Sutherland Shire area, who feel they or someone they know are at risk of domestic violence by a romantic partner, have been able to go into their local police station to find out whether that person has a history of violence.

Applications can be made by partners or by a concerned third party. However, if police believe there is a serious risk involved, the individual believed to be in danger will be notified of the information within 48 hours.

The program values the safety of at risk partners above that of the right to privacy for the past perpetrators.

In the modern age of internet dating and matching making apps such as “tinder”, people are meeting up and becoming romantically involved with people they know virtually nothing about. This creates opportunities for perpetrators of domestic and family violence to slowly escalate their behaviour with romantic partners who may not be aware of what is happening until it is too late.

Unfortunately, the program hasn’t received the publicity it deserves, but by all reports it is starting to gather momentum in the local community.

According to Fairfax Media, across all areas in 12 months, 65 primary and third-party applications have been made under the scheme and of these applications, 20 have been approved.

In the St George and Sutherland Shire areas 20 applications have been made which have resulted with six (6) of those resulting in disclosure being made under the scheme.

It is common for perpetrators of domestic and family violence to repeat abusive and controlling behaviour in successive relationships. Identifying the signs early and being able to make enquires about a partner’s past behaviour when it comes to domestic and family violence can be crucial in not becoming a victim yourself.

Of course, just because a partner does not have a police or criminal record for domestic violence, does not mean they have not been a perpetrator in the past, with many instances of domestic and family violence going unreported.

Family violence is a serious issue for all communities and one that cannot be ignored. Cases of family violence are treated extremely seriously by the Family Court when dealing with Parenting Cases.

In 2011, the definition of family violence in the Family Law Act was expanded to incorporate notions of coercion and control (which are not always accompanied by physical violence or threats). At the same time, the definition of child abuse was amended to include serious psychological harm arising from the child being subjected to or exposed to family violence. The Family Law Act contains a range of provisions designed to protect parties and children from family violence.

The definition of family violence is contained in section 4AB of the Family Law Act and states:

  • For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
 
  • Examples of behaviour that may constitute family violence include (but are not limited to):
    • an assault; or
    • a sexual assault or other sexually abusive behaviour; or
    • stalking; or
    • repeated derogatory taunts; or
    • intentionally damaging or destroying property; or
    • intentionally causing death or injury to an animal; or
    • unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
    • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
    • preventing the family member from making or keeping connections with his or her family, friends or culture; or
    • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
 
  • For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
 
  • Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
 
  • overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
  • seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
  • comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
  • cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
  • being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

As you can see, family violence covers much more than physically abusive behaviour and unfortunately, many victims of family violence do not even realise they are victims.

If you or someone you know is suffering from domestic or family violence, do not be afraid to contact the local police or Sutherland Shire Family Services at http://ssfs.org.au/.

Daniel Stephenson
Lawyer

Employee entitlements in the spotlight

If a company breaches the Fair Work Act by underpaying employees (or denying other entitlements) Directors and other executives of a business can be held personally liable for both compensation for unpaid entitlements and penalties under the Fair Work Act, if they are knowingly involved in the contravention.

There has been a focus recently in the media and by the Fair Work Ombudsman on the underpayment and exploitation of employees, particularly at franchise businesses such as service stations, supermarkets and convenience stores.

Fair Work Inspectors have the power to enter premises without permission (although they cannot use force) to conduct compliance audits, and can interview staff. These powers have been used in recent years to conduct unannounced visits on 7-11 franchisesacross Australia, leading to a series of cases in the last 12 months where Court ordered penalties have been imposed against the franchise owners and their directors.

In the most recent, Fair Work Ombudsman v JS Top Pty Ltd & Anor [2017] FCCA 1689, the Federal Circuit Court found that the franchise owner’s director “deliberately manipulated the data which he entered into the 7-Eleven payroll system” to obscure the underpayments made to its staff. The employees were paid a flat rate between $13 and $19 per hour, well below the award rate. However, the franchise owner would reduce the recorded hours worked by each employee in 7-Eleven’s payroll system to give the appearance of them receiving hourly rates of $25-$30. The Court noted that this practice had also been used by other 7-11 franchise owners.

Even though the franchise owner paid the outstanding employee wages in full, the business was ordered to pay a penalty of $140,000, and the director was personally ordered to pay a penalty of $28,000.Ironically, the total underpayment of staff in this case was only $19,397.15, so the director and the business have been ordered to pay amounts far in excess of the apparent financial benefit derived from underpaying.

These cases emphasise the importance to business owners of understanding what awards their employees are covered by, what their minimum entitlements are and ensuring there is compliance with the Fair Work Act, so as to avoid possible personal liability for any contraventions.

John Ferguson
Lawyer

First Home Buyers given assistance by both NSW & Federal Government

With housing affordability being a hot topic, the NSW & Federal Government has implemented measures to assist first home buyers in achieving the “Great Australian Dream”.

A summary of the measures implemented to assist first home buyers are:

Federal Government

The First Home Super Saver Scheme was introduced on 1 July, 2017, to assist first home buyers to save for a deposit. The scheme assists by:

  • Individuals can make voluntary contributions to their super account up to $15,000 per year, up to a maximum of $30,000 in total over time (and subject to existing annual super caps);
  • The voluntary contributions can be withdrawn together with any earnings on those contributions any time after 1 July, 2018 to pay a deposit on the purchaser of the individuals first home;
  • The voluntary contributions and withdrawals are taxed at a much lower rate than traditional savings, so that the individual can save more money through using this scheme.

NSW Government

The NSW Government as at 1 July, 2017 changed some of the assistance to first home owners from just being on new dwellings to being on both new and existing dwellings. The measures in place are now:

  • There will be no stamp duty for first home buyers, if the property is to be their principal place of residence and it is purchased at a price of $650,000 or less;
  • Stamp duty will be payable on a concessional basis between $650,000 and $800,000;
  • Continuation of the first home owners grant of $10,000 for purchase of new homes only up to a purchase price of $600,000;
  • First home owners grant of $10,000 for first home buyers building a new principal place of residence under a building contract or as an owner builder up to a value of $750,000.

The Property and Conveyancing Team at Gibson Howlin Lawyers is able to assist First Home Buyers as well as buyers and sellers when dealing with property in NSW.

Johnathan Neofytu
Lawyer