Latest Legal Blogs
Superannuation Updates - 2023
Below is a round-up of some superannuation changes and key developments that may be relevant to you, as trustee of your SMSF. It is important that you know what changes are coming, so you can effectively understand how they may affect you and the members of your SMSF.We intend to regularly provide you with these updates as a way of helping you plan for your retirement and identify any opportunities that can assist you to grow your superannuation savings. IMPORTANT REMINDERS Transfer Balance Account Reporting From 1 July 2023, SMSF trustees will be required to report Transfer Balance Cap events to the ATO no later than 28 days following the end of the quarter in which the event occurred – even if the member’s total super balance is less than $1 million.Further, all unreported events that occur before 30 September 2023 must be reported by 28 October 2023. Minimum pension requirement – account-based pensions SMSFs paying account-based pensions, including market linked pensions, are required to pay at least a minimum amount each year. When calculating the minimum payment requirements for account-based pensions, using a member’s pension balance at 1 July 2023, the 50% reduction that has applied in recent years will no longer apply. The 50% reduction in the minimum pension drawdown rate will not apply to pension payments for the 2023-24 financial year. Limited Recourse Borrowing Arrangement – Safe Harbour Interest rates Generally speaking, SMSF trustees must ensure all investments are conducted on an arm’s-length basis. Where an SMSF borrows money from a related party under a Limited Recourse Borrowing Arrangement (LRBA), the ATO has previously provided guidance on what is required to ensure such a loan is on arm’s length terms for tax purposes.As part of that guidance, the ATO provided some safe harbour loan terms. For SMSF trustees relying on these safe harbour terms, the interest rate to be charged in 2023-24 has increased to:• Real property: 8.85%• Listed shares or units: 10.85% Rollovers – SuperStream From 1 July 2023, all rollovers to and from an SMSF, now require a fund trustee to have a rollover enabled Electronic Service Address (ESA) to execute the rollover using SuperStream. SMSF auditors will be required to report a rollover as a breach of the SuperStream standards if it has been actioned without an active rollover enabled ESA from 1 July 2023. Previously, limited temporary relief had been provided to SMSFs by the ATO, to allow certain rollovers to be processed outside of SuperStream without trustees incurring any penalties. However this relief ended on 30 June 2023. Increase in value of penalty units Under the SMSF penalty regime, various breaches will give rise to penalties that are expressed in terms of penalty units. Where an infringement occurs on or after 1 July 2023, the value of each penalty unit has increased to $313 (up from $275). Valuation of fund assets - 4 JULY 2023 The ATO has issued a reminder to SMSF trustees that, as part of preparing their fund’s accounts, statements, and SMSF Annual Return they are required to value the fund assets at market value.To support this, the ATO’s SMSF valuation guidelines provide a useful resource to fund trustees. Re-structuring market linked pensions - 21 JUNE 2023 SMSF members are usually able to restructure existing market-linked pensions by stopping an existing, and starting a new, pension.In some cases, this may result in some individuals receiving an excess transfer balance determination from the ATO – for exceeding their Transfer Balance Cap. The good news is that members can now commute the excess amount from their otherwise non-commutable market linked pension without breaching the pension standards.However, the ATO has made it abundantly clear that where an SMSF trustee is seeking to remove an excess transfer balance amount from a market-linked pension, they cannot commute any of the capital supporting a restructured market linked pension (MLP) until a commutation authority has been issued by the Commissioner. This means a member must wait for at least 60 days from when they are issued with an excess transfer balance determination. This legislated 60-day election period cannot be shortened. In our experience, a member should then expect to wait at least another 28 days before the ATO will issue a commutation authority. Non-arm’s length expenses (NALE) – Draft legislation - 19 JUNE 2023 Following the earlier release of a consultation paper, and a period of industry consultation, the Government released Treasury Laws Amendment (Measures for Consultation) Bill 2023: Non-arm’s length expense rules for superannuation funds.This draft legislation contains several changes that seek to amend the Non-arm’s length income (NALI) provisions to address the potential for disproportionately severe outcomes for breaches relating to general expenses.Perhaps of most significance for SMSFs, the proposed amendments would result in the maximum amount of income taxable at the highest marginal rate being two times the level of the general expenditure breach – calculated as the difference between the amount that would have been charged as an arm’s length expense and the amount that was actually charged to the fund. The Government had previously proposed that this be set to five times. These measures are not yet law. Property development – ATO Taxpayer Alert - 15 JUNE 2023 The ATO issued Taxpayer Alert (TA) 2023/2 which deals with “Diverting profits of a property development project to a self-managed superannuation fund, through use of a special purpose vehicle, involving non-arm’s length arrangements.”Outlined in this Taxpayer Alert are arrangements of concern to the ATO which broadly involve SMSF trustees investing, directly or indirectly, in a special purpose vehicle which undertakes property development.The Alert outlines the ATO’s view that non-arm’s length dealings by any party, in respect of any step, in relation to a scheme, can give rise to Non-arm’s length income (NALI). This extends to any capital gains derived on the subsequent disposal of an SMSF’s interest in the special purpose vehicle.The ATO’s concerns generally revolve around the lack of commerciality and the inappropriate diversion of profits from property development projects to an SMSF. First Home Super Saver Scheme (FHSSS) – Improved Flexibility - 14 JUNE 2023 The FHSSS allows an individual to withdraw up to $50,000 of voluntary contributions (plus associated earnings/less tax) from their super fund to assist with the purchase of a new home. The maximum amount of contributions an individual can make each year, that will be counted towards the FHSSS, is currently $15,000 p.a.The Government has introduced Treasury Laws Amendment (2023 Measures No. 3) Bill 2023, to improve the flexibility of the FHSSS.Accordingly, under this new bill, once legislated:• individuals will be able to amend or revoke their application to the ATO to release super under the FHSSS. Under the current law, this is not permitted.• individuals will have more time to request a release authority after they have entered into a contract to buy or construct a home, from 14 days to 90 days. Illegal Early Access to Super - 7 JUNE 2023 The ATO published a reminder that cases of illegal early access to super will not go unpunished. To highlight this warning, the ATO cited a recent AAT Case, WZWK and Commissioner of Taxation (Taxation) [2023] AATA 872. The taxpayer in this case was found to have breached the superannuation payment standards by illegally making payments from the SMSF to himself as a member – which did not meet a condition of release. The Administrative Appeals Tribunal (AAT) affirmed the ATO Commissioners earlier decision to amend the individual taxpayer’s personal income tax assessments, impose tax shortfall penalties and disqualify the trustee due to not being a fit and proper person following an ATO audit which uncovered illegal early release of superannuation benefits. This resulted in the taxpayer owing around $413,000 in additional tax and over $179,000 in tax shortfall penalties because they had made false and misleading statements in their income tax returns. ATO Statistics – SMSF quarterly statistical report (March 2023) - 24 MAY 2023 The ATO issued its quarterly statistical report which provides a number of interesting insights, including:• Total SMSFs: 606,217• Total SMSF members: 1,136,234• Total estimated SMSF assets: $889.5 billion• The top asset types held by SMSFs (by value): - listed shares (29%) - cash and term deposits (15%).• 53% of SMSF members are male and 47% are female• 87% of SMSF members are 45 years or older. Validity of Binding Death Benefit Nomination (BDBN) - 5 MAY 2023 Among other things, in the case of Williams v Williams & Anor [2023] QSC 90 the court was asked to consider whether a Binding Death Benefit Nomination (BDBN) was valid. Broadly, in this case, a deceased member’s BDBN had been executed by the deceased member (i.e. executed by himself, albeit in his capacity as a fund trustee). The relevant provisions in the fund’s trust deed required that the trustees be given written notice of a BDBN. However, the second trustee (i.e. the deceased member’s son) was not given written notice. And as such, it was held that the BDBN was not valid. The findings from this case provides yet another reminder of the importance of precisely following the terms of a fund’sgoverning rules, to ensure than any BDBNs made by fund members are valid.
INJURED QLD NURSE – AWARDED $1.6M IN DAMAGES
INJURED QLD NURSE – AWARDED $1.6M IN DAMAGES A Queensland Nurse badly injured during a patient restraint gone wrong has been awarded $1.6M in Damages for Robina Hospital’s failure to provide adequate Hospital Security Justice Ryan of the Supreme Court of Brisbane handed down their Decision on 23 June 2023 in the matter of Trinet Ruth Wilson v Gold Coast Hospital and Health Service [2023] QSC 135 finding Gold Coast Hospital and Health Service liable to pay $1,634,418.55 to a Registered Nurse badly injured during a shift on 12 March 2016 at the Robina Hospital. Key points from Justice Ryan in reaching their Decision, as follows:- Wilson was a Registered Nurse aged 39 at the time of her injury [1, 12]. She was involved in the restraint of a patient with dementia, who had been difficult, disruptive, acting out physically and refusing medication [1]. Security Guards were called to assist in administering the patient’s anti-psychotic medication [42]. Two Security Guards (instead of three) arrived to assist with restraining the patient [45]. The Security Guards marched/dragged the patient back to her room. She was elevated and resisting [46]. The Security Guards restrained one arm each. The patient’s legs were flying, kicking and thrashing about [47]. Nurse Wilson was over the base of the patient’s bed, placed her hands around the patient’s ankles, pushed them to keep them straight so that she would not move while another Nurse injected her thigh [48]. After the injection was given, Nurse Wilson made sure her colleague administering the injection was out of the way, Nurse Wilson and the Security Guards all let go at the same time. As Nurse Wilson let go of the patient’s legs “both feet, like, nearly connect with my face and I’ve managed to, like, come from this position and I arched back really quick and I felt her feet. And then I noticed she had thrown like, her arm movement, like she was throwing something, so I’ve twisted – so I’ve gone and then twisted… I felt uncomfortable. I was uncomfortable. There was discomfort” [50]. To her credit, Wilson attempted to return to work the day after the incident, as it was a Sunday and penalty rates applied. She commenced her shift at 8:00am, made it through the “safety scrum”, had made it to the second or third medication rounds, and then, as she went to unlock a drawer with a key at head height, she became stuck in position. Her evidence at Trial was “it happened again”; “out of nowhere”. She returned to the Nurse’s station to sit down. She could not recall whether she completed the remainder of that shift. Wilson called in sick Monday, had a further three (3) days scheduled off before returning to work the Friday with a lighter patient load. She persevered through a couple of shifts but found she was continuing to experience spasm, whether she stood or sat still. Squatting down at the Nurse’s station eased her pain. She again attempted to work the following Sunday (Easter Sunday). She experienced another spasm when picking up a folder from a desk. She lay in an empty Hospital bed. Some months passed and Wilson attempted to work again in July 2016, within her suitable duties program (being short shifts, three (3) times a week). Wilson did not perform any tasks on those shifts other than making patients cups of tea and continued to suffer spasms. The state of the Ward at the time of the incident On 12 March 2016, Wilson was rostered to work from 1:00pm to 9:30pm at the Robina Hospital’s Specialised Medical Unit (SMU), a 24-bed medical ward with a “mixed bag” of patients. The SMU was a busy ward, requiring heavy work. Most of the patients on the SMU were over 65/70 years of age, which included those transferred from nursing homes with medical problems. Often, those patients suffered from dementia or delirium. During the pre-start or “safety scrum” of Nurses at the beginning of the shift, Wilson was told that the patient who later injured her had “a couple of Code Blacks previously and had been quite aggressive to other nurses”. The patient had previously grabbed her own at-home care Nurse by the throat and kicked and scratched her. The staff skill mix for the shift on 12 March 2016 was, in the evidence of Wilson, “really bad” and included two new Graduate Nurses (in their second month), a pregnant Enrolled Nurse, a Clinical Nurse and one other Registered Nurse. Wilson was not allocated to the patient who later caused her injuries. A new graduate Nurse was assigned to the patient, who became overwhelmed. There were also three (3) to four (4) other patients who also suffered dementia in the Ward who had been wandering “non-stop” throughout the Ward. The patient who later caused Wilson’s injury had been being difficult, disruptive, attempting to break into other patient’s rooms, was acting out physically and refusing medication. Security Guards were called to assist in administering the patient’s anti-psychotic medication. In making Judgment as to the factual findings of the workplace incident, Justice Ryan declared: [283] I find that in 2016, the patient mix on the SMU included an increasing proportion of older patients with “behaviours” as a consequence of their dementia or other cognitive vulnerabilities, which manifested in confusion, disruption, wandering, verbal abuse, physical aggression and assault. [284] I find that the staff on the SMU were not trained to deal with those patients, as the defendant acknowledged in the 2016 OVRAT, beyond being told to prioritise their own safety via the “ICE” approach – isolate, contain and evacuate. [289] I find that “M” (the patient) did not settle upon the arrival of the two security officers on the ward. They had to drag her or march her back to her room. She was not subdued by their mere presence as she demonstrated by her resistance in the face of it; her conduct whilst on the bed; and the urgency around the need to administer medication to her so that she might calm down. [294] I find (indeed, the parties essentially agreed) that the plaintiff did not receive training in how to (safely or at all) restrain a patient – either from the point of view of her participating in restraint or being able to evaluate whether a restraint executed by security officers (or other relevant trained staff) was being safely executed. Nor was the plaintiff instructed not to participate in the restraint of a patient, but to leave that to security officers (other than, obviously in circumstances in which the plaintiff was entitled to defend herself). Justice Ryan found that the patient “M” who injured Wilson posed a foreseeable risk of injury to Wilson generally and in the course of being restrained. Gold Coast Hospital and Health Service tried to argue the risk posed by this patient to Wilson was insignificant. Justice Ryan found the risk was not insignificant. Justice Ryan found Robina Hospital negligent on the following grounds:- The Defendant was negligent in failing to instruct Nurse Wilson not to be involved in the physical restraint of a patient [5]; and Additionally, …the Defendant was negligent because of the failure of two security officers who attended the ward to call for a third to take part in the restraint, rather than the plaintiff. Had the security officers called for a third to take part in the restraint, then, for the same reasons as above, Nurse Wilson would not have been injured. The injuries and impact on employment The Plaintiff underwent significant treatment, including:- Treatment by Dr Cleaver (Spinal Orthopedic Surgeon); Cortisone injections (which gave her about nine (9) days of relief); Physiotherapy; Hydrotherapy; Sacroiliac belt; Pilates; Acupuncture; Yoga; TENS machine; Hot and cold gel packs; Treatment with a Pain Clinic; Right sided sacroiliac joint fusion (which she funded herself). Following fusion surgery, Wilson (after a five (5) day Hospital stay and an inability to weight bear for a few weeks) was free of spasms and pain for three (3) to four (4) weeks before sadly experiencing “out of nowhere” that the dragging sensation in her groin had returned, followed by spasm. “Things were back to how they had been”. Wilson describes experiencing deep aching in her right sacroiliac joint, a dragging sensation in her groin, numbness, spasms occurring five to twenty times per day with those symptoms relieved by crouching, curling and squatting. The pain is mostly in her pelvis and hip. The aching (in the right sacroiliac joint) and dragging sensation (in the groin) are constant. There is also numbness in the joint. The Court found she is now in a worse state than she was in 2016, because she has de-conditioned. Wilson now walks with a limp, has gained thirty kilograms and pain medications make her drowsy. Her mental health has deteriorated. At the time of the Trial, she was receiving a Disability Support Pension and Family Tax Benefit ($750.00 a week). Her rent, per week, was $550.00 a week. Future intentions Wilson’s intention was to work as a Clinical Nurse, in the SMU for as long as possible “til I drop, pretty much”. Pre-existing conditions It was of great debate throughout the Trial as to what impact, if any, Wilson’s earlier fusion surgery prior to the incident in 2015 for correction of a degenerative process had on her current state. It was not contested that Wilson had widespread degenerative pathology in her sacroiliac joint. However, Justice Ryan opined “That did not mean that she inevitably would have become symptomatic (even if she had not been injured at work in March 2016), but I find that there was a degree of probability that her degeneration would progress to the point at which she was symptomatic”. Despite her prior surgery and condition, Damages were assessed as follows: - General Damages - $25,150.00 Past Economic Loss - $473,548.16 with interest of $50,926.00 Past Superannuation Loss - $60,377.39 Future Economic Loss - $800,000.00 Future Superannuation - $95,040.00 Past Expenses - $78,556 Future medicals - $15,000 Future travel expenses - $2,000 Future pharmaceuticals - $12,000 Fox -v- Wood damages - $21,821 In determining Future Economic Loss, the Defendant argued the Nurse only had a further twenty (20) years residual earning capacity due to her pre-existing degenerative condition, and, that this was to be further discounted by 50% for contingencies, including the hypothetical event that the plaintiff in any event would have suffered a similar disabling back condition. Wilson, however, invited that the more usual reduction of 10% for contingencies only be made, and no further discounting was appropriate. Justice Ryan reached the award for Future Economic Loss by “starting at the scenario proposed by the plaintiff but discounting it (by 50%) for contingencies including, but not only, the contingency that she might not work a 40-hour week plus Sunday and weekend shifts from 2019 until she was 67; and the contingency that she might, in the future, suffer from pain symptoms because of pre-existing degeneration and/or the consequences of her prior surgery which might shorten her working life.” The Plaintiff was awarded Damages of $1,634,418.55. The full Judgment from the Queensland Supreme Court can be found here.
Driving while intoxicated: Keep an eye on .05
How being intoxicated while driving or even being a passenger with an intoxicated driver can damage your Personal Injuries Claim. Motor vehicle accidents can cause horrific, debilitating injuries that change your life and livelihood forever. The only potential relief - compensation through a personal injury damages claim. However, add alcohol into the mix and that compensation can very quickly be eroded. Intoxicated drivers or even passengers of intoxicated drivers are at serious risk of damaging their personal injuries claim. Legal Definition of Intoxication. Legally, you are defined as intoxicated if, due to alcohol consumption, you can no longer exercise proper care and skill. Although (unlike traffic law) under compensation law your BAC is not a conclusive factor in determining if you are “intoxicated”, there is no shortage of studies and expert opinion as to the relationship between alcohol consumption and reduced physical ability and mental cognition. In recent cases, expert witness testimony has confirmed that a driver with a high BAC would have: behavioural changes leading to inappropriate driving for the prevailing conditions. a degree of muscle incoordination. marked impairment of perception, judgment, and the ability to concentrate. A real-world example of how your compensation can be affected by intoxication. Dylan is at a bar with his friend Sam having drinks. Sam seems alright; a little stumble here and there but he’s speaking properly. Dylan is about to call a cab when Sam offers to drive saying he feels fine and cab fees are so expensive these days. Dylan agrees and hops in Sam’s car. The car is approaching a turn (which Sam usually makes with ease), but not this time and the car crashes into a traffic pole. Dylan suffers extreme whiplash, and the pain persists for months rendering Dylan unable to return to his heavy labouring role in the mines where he earns big money. His Employer lets him go and he’s now unlikely to pass the Mining Assessments – so his career in the mines and his ability to earn high income are over. Dylan makes a personal injury claim but only receives 25% of his damages as a result of a reduction for contributory negligence. What is Contributory Negligence? Contributory negligence sounds more complicated than it is. To de-bunk what contributory negligence means let’s split the two words up. Contributory Negligence Defined as an aid or playing a part in something Refers to the breach of a duty of care that has resulted in harm. Therefore, contributory negligence simply means that you played a part in the harm caused to you by a breach of duty owed to you by someone else. All drivers have a legal responsibility to exercise proper care and skill to avoid causing harm to both passengers and other road users. But passengers must take reasonable care for their own safety as well. Relating it back to our Example Sam owed Dylan a duty of care to drive safely. However, Dylan knew or should have known that Sam was intoxicated, placing himself in a situation that presented an obvious risk. Consequently, Dylan contributed to his own harm by entering a vehicle driven by an intoxicated person (and was therefore contributorily negligent). Implications for the Passenger. The legal consequences for a passenger injured in a motor vehicle accident where the driver was intoxicated are laid out in the Civil Liability Act 2003. A passenger is presumed to be contributorily negligent if: The passenger is at least 16 years old; and The passenger relied on the skill of an intoxicated driver; and The passenger was aware or reasonably should have been aware that the driver was intoxicated. The minimum reduction of damages for a passenger who is found to be contributorily negligent by the reasons above is 25% unless: The driver’s BAC was 0.15 or more. The driver was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle. In those cases, the minimum reduction is then increased to 50% however the court can apply a greater reduction if the facts warrant it – that is if the passenger’s conduct is more “contributory”. 3 ways a Passenger can rebut the Presumption. The passenger can rebut the presumption of contributory negligence only if it is established that: The passenger was unaware of the Driver’s intoxication and reasonably so (for example, if Dylan hadn’t seen Sam drinking or stumbling). Or The driver’s intoxication did not contribute to the accident (for example, because of a fault in the steering mechanism of the car, the accident would have happened regardless of the driver’s intoxication). Or The passenger could not reasonably have avoided taking a lift from the intoxicated driver (for example, because he was stranded in an unsafe place, the middle of nowhere with no other means of getting home). What if I didn’t know my Driver was Intoxicated? Ignorance is not always bliss when it comes to negligence law. The court does not just rely upon whether a passenger was aware of the driver’s intoxication but also upon whether the passenger ought reasonably to have been aware of it. The Court applies the “reasonable person test”. The test allows the court to properly assess whether a normal, regular person could reasonably have known that their driver was intoxicated. Further, voluntary intoxication on the passenger’s part cannot be used to defend the passenger’s inadequate assessment of the driver’s behaviour as the observational powers of a reasonable person are taken from the perspective of a sober state of mind. What if the accident was caused by a defect in the vehicle? Proof that the true cause of the accident was a defective part or servicing could be used to prove that the driver’s intoxication did not actually contribute to the accident and to displace the presumption of contributory negligence on the part of the passenger. On the other hand, if the Driver was aware of the defect and drove the vehicle recklessly due to intoxication, Contributory Negligence could still be argued by the Driver’s Insurer. Could I have avoided taking a lift with an Intoxicated Driver? To determine whether a person reasonably could have avoided being the passenger of an intoxicated driver the court assesses the objective factors of the case. Objective factors are not dependent on personality and include the characteristics of a “reasonable person”. The Courts expect a reasonable consideration of the risks of alternative courses of action, based on known or reasonably known facts and by a person with a normal capacity to observe, understand and consider the available alternatives, un-influenced by Subjective factors such as one’s abnormal personality behaviour, irrational fears or mental disorders What if I was an intoxicated driver? Intoxicated drivers are not automatically found wholly negligent if they are involved in car accidents (although this is often the case). Consider Beth’s position in the example below. Beth has been at a party drinking for a couple of hours and decides to drive home. A car has run a red light and T-bones Beth mid-way through an intersection. Beth had no chance to avoid the accident even if totally sober. Her intoxication played no part in the accident. Beth suffers serious spinal injuries and as a result, can no longer walk. Beth seeks compensation and receives her full damages as she is not found contributorily negligent by the court as her intoxication did not contribute to the breach of duty by the other driver. An intoxicated driver who suffers harm may only rebut the presumption of contributory negligence if it can be established on the balance of probabilities that: The intoxication did not contribute to the breach of duty; or The intoxication was not self-induced (for example if you were spiked). How Much Will the Driver's Damages Be Reduced? A minimum reduction of 25% or a greater percentage which the court thinks reasonable will be applied. However, If the person who suffered harm was the driver (Beth and Sam), and the evidence proves that: 1. The driver’s BAC was 0.15 or greater. Or 2. that the driver was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle The minimum reduction is then increased to 50%. How Connolly Suthers Can Support You: Although being a passenger in a driver’s car (even an intoxicated one) seems quite “blameless”, depending on the circumstances, it can lead to a huge loss of your damages entitlements. Imagine losing 75% of the compensation you deserve because of a spur-of-the-moment lapse of judgment. And for the driver, things can be worse. Connolly Suthers specializes in compensation law and can provide you with expert legal advice about your next steps after an injury. Contact our Compensation department at (07) 4771 5664 to schedule a consultation. *Paul Sterling is a Consultant with Connolly Suthers specialising in Accident Compensation Law. Tarlia Condon is a Legal Studies student at the Ryan Catholic College
Changes to the First Home Guarantee System
In 2020, then Prime Minister, Scott Morrison, announced the introduction of the First Home Loan Deposit Scheme. The Scheme was designed to assist first home buyers break into the property market with as little as a 5% deposit of the value of a home. The Scheme also removed the requirement for buyers to take out Lenders Mortgage Insurance (LMI) Changes to the Scheme In 2023, the Australian government introduced new changes to the Scheme effective from 1 July. Some of the key changes to the scheme include:- First Home Guarantee Regional First Home Buyer Guarantee Family Home Guarantee How many places are available in the Scheme for the 2023-24 Financial Year? 35,000 10,000 5,000 Minimum deposit required 5% 5% Under this scheme, the federal government acts as a guarantor on up to 18% of the loan which means applicants can buy a home with as little as a 2% deposit of the value of the home. Prior Property Ownership First-home buyers or previous homeowners who haven’t owned a property in Australia in the past 10 years. Applicants for either of these schemes can be first home buyers (i.e. never owned property in Australia) or previous homeowners who haven’t owned a property in Australia in the previous ten years prior to the date they executed their home loan. According to the National Housing Finance and Investment Corporation website, Prior property ownership includes a freehold interest in real property in Australia (this includes owning land only), an interest in a lease of land in Australia with a term of 50 years or more, or a company title interest in land in Australia. The criteria for applicants of this scheme have been expanded beyond single natural or adoptive parents with dependents. The scheme will be open to eligible borrowers who are single legal guardians of children, such as aunts, uncles and grandparents. Eligibility *other eligibility criteria may apply Applicants must: be an Australian citizen or permanent resident; be an individual or joint applicant (a joint applicant may include partners, friends, siblings and other family members) Applicants must: be an Australian citizen or permanent resident; be an individual or joint applicant (a joint applicant may include partners, friends, siblings and other family members); have lived in the regional area or adjacent regional area they are purchasing in for the preceding 12 months to the date they execute a home loan agreement. Employees who have been required to relocate for work may be exempt from this requirement. Applicants must:- be an Australian citizen or permanent resident; be a single parent or a single legal guardian of at lease one dependent. Purchase Location All of Australia Regional Areas only. For the purposes of this scheme, a Regional Area is defined by the Australian Bureau of Statistics as an Australian Statistical Geography Standard 2016 Statistical Area Level 4 (ASGS SA4 2016). These areas are based on population density and labour markets and vary in size reflecting these criteria. The greater capital city areas of each state and the Northern Territory; and the entire Australian Capital Territory are excluded from this scheme. All of Australia Property Price Caps The various schemes also set out to put a ‘cap’ on the value of the property. You will need to check the property price cap in your area: First Home Guarantee and Family Home Guarantee State/Territory Capital City and Regional Centres* Rest of State NSW $900,000.00 $750,000.00 VIC $800,000.00 $650,000.00 QLD $700,000.00 $550,000.00 WA $600,000.00 $450,000.00 SA $600,000.00 $450,000.00 TAS $600,000.00 $450,000.00 ACT $750,000.00 NT Regional $600,000.00 Territory All areas Jervis Bay Territory & Norfolk Island $550,000.00 Christmas Island and Cocos (Kneeling) Islands $400,000.00 Regional First Home Buyer Guarantee State/Territory Regional Centres* All other Regional Areas NSW $900,000.00 $750,000.00 VIC $800,000.00 $650,000.00 QLD $700,000.00 $550,000.00 WA $450,000.00 SA $450,000.00 TAS $450,000.00 Territory** Regional Area ACT Not Applicable NT Regional $600,000.00 Jervis Bay Territory & Norfolk Island $550,000.00 Christmas Island and Cocos (Kneeling) Islands $400,000.00 * Regional Centres include Newcastle and Lake Macquarie, Illawarra, Geelong, Gold Coast and Sunshine Coast. ** The greater capital city areas of the States and the Northern Territory; and the entire Australian Capital Territory are excluded from the Regional First Home Buyer Guarantee. Eligibility Criteria If you are unsure whether you are eligible for any of these schemes, you can access the questionnaire from the federal government’s National Housing Finance and Investment Corporation (NHFIC) website which will help you to determine whether you are eligible for one of these schemes. The link to the website is below:- Click here
How to Change a Parenting Order
If I’m not happy with the Final Orders made by the Court in relation to parenting arrangements, can I change them? The short answer is generally no. However, if your current circumstances have significantly changed, having an effect on the parenting arrangements and what is in the best interests for your children, you may be able to apply to the court for a change of the Final Orders pursuant to the principles set out in Rice v Asplund. This is a very sticky area of law and the test that is applied is a hard one to satisfy the court. The Rice v Asplund principle: This case dealt with the living arrangements of the parties 3-year-old daughter. The court had previously made orders that the child live with the father. Nine months later, the mother brought an application to the court to vary the order. The mother sought that the daughter live with her and spend time with the father. The application was ultimately successful. There had been a significant change in circumstances following the making of the final orders. The circumstances had changed, being that the child was to commence school, which made the previous orders “unworkable” and “unrealistic,” and not in the child’s best interests. The wife had also remarried changing the circumstances of the order and the living arrangements for the child. However, Chief Justice Evatt stated in his judgement that the court “…should not lightly entertain an application.” The rule established from this case involves a question of whether there has been a ‘significant change in circumstances’, or ‘some material factor was not disclosed at the earlier hearing which would justify “such a serious step.”’ The purpose of the Rice v Asplund principle is to protect children from exposure and involvement in further unnecessary litigation. What constitutes a ‘significant change of circumstances?’ Chief Justice Evatt stated In Rice v Asplund that change alone will not be enough for the Court to accept such an application. The change must be of a serious nature to allow for a change to the Final Orders. What you need to consider Is there a significant change of circumstances which renders the previously made Final Orders extremely difficult to follow? Is it no longer in the best interests of the child/children to continue to follow those Final Orders? Is it in the best interests of your child/children to change their living arrangements all over again through another process of litigation? If you wish to obtain legal advice about your parenting matter, please do not hesitate to contact the Family Law team at Connolly Suthers Lawyers by phoning (07) 4771 5664 or submitting an online enquiry on the Family Law page.
Can I File for Divorce in Australia if I was Married Overseas?
There are a few considerations that need to be taken into account when determining if you can file for Divorce in the Federal Circuit and Family Court of Australia (FCFCOA) when you were married overseas. Firstly, you need to prove one of the following elements: Are you or your spouse an Australian Citizen? This can be by either birth, descent or Grant of Citizenship. Have you or your spouse lived in Australia for the last 12 months prior to filing for Divorce? Do you regard Australia as your home and intend to live here indefinitely? If you satisfy one of the above 3 criteria, you are eligible to file for Divorce in Australia. You will need to be able to provide evidence that you satisfy one of these criteria. To apply for Divorce, you need to provide the Court with a copy of your Marriage Certificate. In the event your Marriage Certificate is not in English, you will be required to have it translated. A qualified translator needs to undertake this task and provide an affidavit to the Court that the translation is accurate and that they are qualified to undertake the translation. What if my spouse is overseas? When filing an Application for Divorce, there are two types of Applications you can file. These are either: a sole Application for Divorce or a joint Application for Divorce. If your former partner is agreeable to filing for divorce, you can file a joint Application. This requires both of you to agree on the contents of the document and you will both be required to sign the document. If your former partner is overseas they will need to find the appropriate witness (such as a Solicitor, Notary or Justice of the Peace) to witness their signature on the document. If your former partner is not agreeable to filing for divorce, you will need to file a sole Application. Once filed, you will be required to serve a copy of this Application upon your former spouse, no less than 42 days before the Divorce Hearing. In the event you are unable to serve your former partner, you will need to apply to the Court and seek an order for either: Substituted Service or Dispensation of Service. Substituted Service is where you serve your former partner either by way of email or you serve a third party who will pass those documents onto your former partner. You will need to satisfy the Court that this third party is reliable and will pass on the documents. Dispensation of Service is where you are not required to serve your former partner, however, you have to satisfy the Court that you have made all reasonable attempts to do so. Note that you have to be separated for a period of 12 months before you can file an Application for Divorce. If you require assistance with your Divorce matter or your family law matter generally, please do not hesitate to contact our Family Law Team by calling (07) 4771 5664 or submitting an online enquiry on the Family Law page.
2023-2024 Federal Budget Update - $3 million Super Threshold Confirmed
As expected, the 2023-2024 Federal Budget has placed a strong emphasis on the cost of living and establishing a stronger, secure economy. From an SMSF perspective, we were pleased to see there were no unexpected changes likely to significantly impact the sector or superannuation more broadly. As expected, we saw continued provisions for the Government’s proposed $3 million tax threshold for superannuation balances. The following is a brief summary of the key changes relevant to the SMSF sector. Better Targeted Superannuation Concessions The Government will be going ahead with its previously announced measure to reduce the tax concessions available to individuals with a total superannuation balance exceeding $3 million, from 1 July 2025. This follows the release of the Government’s Fact Sheet and Consultation Paper on this proposed measure. This reform is intended to ensure that superannuation concessions are better targeted and sustainable. It will bring the headline tax rate to 30 per cent, up from 15 per cent, for earnings corresponding to the proportion of an individual’s total superannuation balance that is greater than $3 million. The Government has indicated that earnings relating to fund assets below the $3 million threshold will continue to be taxed at 15 per cent or zero per cent if held in a retirement phase pension account. The Budget papers also note that this measure will include earning amounts calculated on defined benefit fund interests. While the precise details on how ‘earnings’ will be calculated under this measure are yet to be finalised, and the Budget papers were silent on the methodology to be applied, the initially proposed model broadly relies on a person’s total superannuation balance to calculate earnings. Unless this proposed approach is modified, unrealised gains, accounting adjustments, and/or book entries and tax refunds will potentially be subject to this new tax. Note: While the Budget papers state that this measure will include earning amounts on defined benefit fund interests, the papers made no mention of the previously announced measure to allow SMSFs a two-year amnesty period to convert legacy defined benefit pensions. Non-arm’s length income (NALI) The Government is proposing to amend the non-arm’s length income (NALI) provisions that apply to certain expenses incurred by superannuation funds. Specifically relevant to SMSF trustees, the Government is proposing to limit the level of a fund’s income that is potentially taxable as NALI to twice the level of an impacted ‘general’ expense. Additionally, fund income is taxable as NALI will exclude contributions. Treasury had previously proposed that the maximum amount of income, subject to the highest marginal rate, would be five times the level of the general expenditure breach. So, at face value, this proposal would appear to result in an improved outcome for SMSF trustees. However, further details are required to determine whether this calculation relies on the value of the general expense itself or the level of the general expenditure breach – calculated as the difference between the amount that would have been charged for the general expense under an arm’s length arrangement and the amount that was actually charged to the fund. Superannuation Guarantee – Changes to payment frequency From 1 July 2026, employers will be required to pay their employees’ compulsory SG entitlements on the same day that they pay their salary and wages. Currently, employers are only required to pay their employees’ SG on a quarterly basis. This measure will increase the payment frequency of superannuation to align with the payment of salary and wages, ensuring employees have greater visibility over whether their entitlements have been paid and better enabling the ATO to recover unpaid superannuation amounts. The increased frequency of payment will also support better long-term retirement outcomes. This measure was announced prior to the Federal Budget and will provide individuals and their professional advisers greater certainty on the timing of superannuation contributions. From a contribution planning perspective, this is critically important and is expected to help reduce instances of inadvertent contribution cap breaches.
Paying for Treatment After an Injury
If you have been injured in an accident, one of the first things you should do is speak to a registered Medical Practitioner about treatment that you may need to make the best recovery from your injury. If you were taken to the hospital after the accident, the Doctors at the hospital might recommend a treatment program. You can also talk to your regular General Practitioner. There is a range of investigations and treatments that might be recommended by your doctor. These can include: X-rays and scans to fully diagnose your injuries; Physiotherapy; Cortisone injections; Working with an Exercise Physiologist for an exercise/strengthening programme; Counselling with a Clinical Psychologist; Assessment by a specialist surgeon; All of these consultations and treatments need to be paid for. Medicare will pay some of the costs of seeing medical treatment providers, but not necessarily all of them. You will have to pay the difference between what the doctor charges and the Medicare rebate. Physiotherapy treatment is not covered by Medicare. If you have private health insurance, your private health insurer might pay some of the physiotherapy treatment costs. However, there is usually a “gap” amount that you will have to pay as private health insurance does not usually cover the full cost of physiotherapy treatment. Your GP might give you a GP Health Management Plan which allows you to claim a Medicare rebate for treatment such as physiotherapy and counselling. However, there is often a “gap” between the amount charged by the treatment provider and the Medicare rebate, and you will need to pay that “gap” amount. What this means is that obtaining the treatment that you need following an injury can result in substantial out-of-pocket costs to you. Is there any way to have these costs covered? Yes, there may be a way. If you are injured at work or in a car accident, the Worker’s Compensation Insurer and the Compulsory Third Party (“CTP”) insurer of the vehicle that caused the accident has an obligation to pay for “reasonable and appropriate” treatment for your injury. The Worker’s Compensation Insurer and the CTP insurer will cover the full cost of approved reasonable and appropriate treatment. They may also provide funding for assistance that you might need to return to work, for example, study courses, retraining and vocational rehabilitation. Importantly, the Worker’s Compensation Insurer and CTP insurer can pay you to obtain treatment through the private health system. That means that you can see the treatment provider of your choice. If your injury requires surgery, the surgery can be performed in a private hospital so you do not have to go onto a waiting list for surgery at your local public hospital. It is also important to make sure that you obtain approval from the Worker’s Compensation Insurer or the CTP insurer before you have the treatment and pay any costs. Insurers must pay for “reasonable and appropriate” treatment, so if you have treatment that they do not consider to be “reasonable and appropriate”, they may refuse to reimburse you for those costs. It is very important to obtain approval to pay those costs from the insurer before you have the treatment. In some cases, there may be a disagreement between the insurer and the injured person about whether particular treatment costs are “reasonable and appropriate”. We have access to cases where the Court has been asked to resolve such disagreements and decide whether the treatment that has been recommended for the injured person is “reasonable and appropriate”. If you have had an injury at work or in a car accident in the Northern Queensland region, contact the Personal Injuries Team at Connolly Suthers Lawyers at (07) 4771 5664 or email law@cosu.com.au. We can assist you to obtain funding for the treatment that has been recommended for your injury, from the doctor of your choice.
Health Complaints in Queensland: Your Right to an Investigation
As a resident of Townsville, you have the right to complain about the conduct of a health service provider if you feel you have received unacceptable medical treatment. Here’s what you need to know about making a complaint and why you should consider proceeding with one. Who You Can Complain About Anyone can make a complaint about a health service or a health professional. This includes private and public hospitals, public health services, and registered providers such as doctors, chiropractors, dentists, and even unregistered practitioners. Raising Your Concerns When raising your concerns, it’s best to be direct, and contacting the hospital, facility, or service in question is often the easiest and quickest way to resolve a problem. Be sure to describe the incident, the order of events, and key dates to explain what occurred and what action you would like taken. It’s also important to act quickly, as delays can often make it harder to find a resolution. Making a Formal Complaint In certain cases, you may be uncomfortable speaking directly with the health provider, or you may be unhappy with the response. In these cases, a formal health service complaint can be made to the Office of the Health Ombudsman by phone, in writing, or via the website. This independent organisation reviews and investigates health complaints in Queensland and has a range of powers, including the ability to mediate a resolution, refer the complaint to another organisation, or take immediate action against the health service provider. Why Complaints Are Important Complaints can stop the same issues from occurring again and can help health providers improve their services. If you’ve had an issue with a particular practitioner or health service provider, it’s possible that others have as well. Is Compensation an Option? In some cases, compensation may be an option, but the Health Ombudsman does not have the power to award financial compensation. If you wish to consider your entitlement to compensation due to medical negligence for things such as lost earnings, treatment costs, or care requirements, you will need to seek advice from personal injury lawyers specialising in medical negligence claims. If you need advice on making a Queensland medical negligence claim, get in touch with our personal injury lawyers in Townsville today. We’re here to help. Contact us today at (07) 4771 5664 or send an email enquiry to law@cosu.com.au