Christmas, New Year and the summer school holiday periods can be a very daunting time for separated families. At times, parents may require assistance from the Family Law Courts in respect to Parenting Orders during this difficult time.
Parents should know that there is a cut offdate for filing any fresh Application for Parenting Orders in the Family Court which is 4.00pm on Friday, 9 November 2018. If any parent is filing an Application for Parenting Orders in the Federal Circuit Court of Australia (FCCA) there is no set cut off date; however, this period is an extremely busy period for the Court and there is no guarantee that your Application will be heard by the Court before late January 2019.
Therefore, it is important that you make an urgent Application immediately before the end of November 2018 and have assistance from experienced lawyers in family law such as Mahony’s Lawyers to assist you in putting forward the factors that the Court considers when assessing an Application.
The Family Law Courts will be closed on Public Holidays in the 2018/2019 Christmas/New Year period and will reopen on Wednesday, 2 January 2019. The National Enquiry Centre will be open and contactable by phone on 1300 352 000 except on public holidays.
Should you have concerns regarding parenting arrangements either now or for the Christmas period don't wait contact one of our specialist family lawyers now.
To combine or not combine multiple whole person impairment assessments?
Have you suffered two injuries from the same event in your workplace? Have you suffered a work injury and then later suffered a second injury while receiving medical treatment or rehabilitation for the first injury? Are you unable to work and looking to claim for your injuries/second injury to receive a lump sum payment? Then read up as this recent clarification in the law may affect you!
On 15 June 2018 the Supreme Court of South Australia delivered its judgment in the matter of Return to Work Corporation of South Australia v Preedy  SASCFC 55.
The judgment is significant as it clearly explains how sections 58 and 22 of the Return to Work Act 2014 (SA) (the RTW Act) interact with respect to combining whole person impairments (otherwise referred to as WPI) where a worker has suffered an injury after the original work injury.
The facts of this case:
In August 2012, Mr Preedy suffered a workplace injury to his left shoulder. He made a claim for compensation for non-economic loss. His WPI with respect to this injury was assessed as 11% and he received compensation. In April 2013, he suffered a C5 fracture (“neck injury”) whilst receiving physiotherapy to rehabilitate his left shoulder. This was given a WPI in respect of the neck injury of 27% in 2016. There were some delays in determining his claim but it is beyond the scope of this article to go into those details!
There was some argument between Mr Preedy and the Return to Work Corporation (the Corporation) as to whether, in claiming for a lump sum payment for non-economic loss under section 58 of the RTW Act, Mr Preedy’s WPI’s should be combined with the WPI of his previous in accordance with section 22 or not.
The Decision and what it means:
If you suffer a work injury resulting in permanent impairment (and a WPI of over 5%) as assessed under section 22, you will be entitled to compensation for non-economic loss by way of a lump sum under section 58 of the RTW Act.
Under section 58(6), if you suffer 2 or more injuries arising from the same trauma, the injuries together may be treated as 1 injury to the extent set out in the Impairment Assessment Guidelines. Trauma means an event or series of events out of which a work injury arises.
The Corporation in Mr Preedy’s case were arguing that Mr Preedy’s second impairment did not arise from the same trauma given that one of the medical health practitioners in his case stated that undiagnosed multiple myeloma was thought to be responsible for the C5 fracture.
Section 22 identifies the way in which permanent assessments are to be assessed. Section 22(8) states provides that impairments from the “same injury” or “cause” are to be assessed together or combined to determine the degree of impairment of the worker. Impairments from unrelated injuries are to be disregarded.
An injury is only compensable under the RTW Act if it arises out of or in the course of employment and the employment was a significant contributing cause of the injury. Employment includes attendance at a place to receive a medical service for a work injury.
It’s important here to understand the difference between “injury” and “impairment” as they are related yet distinct concepts. An injury is defined in the RTW Act as:
“any physical or mental injury including loss deterioration or impairment of a limb, organ or part of the body or of a physical, mental or sensory faculty; or a disease; or disfigurement or –where the context admits- the death of a worker. It includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.”
Case law notes that an injury is a change in physiological condition. It does not necessarily have to come on suddenly. Meanwhile, an impairment is a condition which arises from an injury.
The interesting thing here is that “injury” arises from “trauma”. Impairments that arise from the same “injury” or “cause” do not necessarily arise from the same “trauma”.
An example to demonstrate this occurs where you have tripped down the stairs at work and suffered a right knee injury. If you then subsequently favour your left knee which then causes you to suffer an injury, the left knee injury may be seen as arising from the same injury or cause under the guidelines (depending upon the timing of symptoms to the left knee). This means that both injuries will be assessed together resulting in a higher WPI percentage and non-economic loss lump sum payment.
His Honour also implied that impairment resulting from medical or surgical treatment of a work injury is to be treated as being from the same cause as the work injury. This could mean that if you are receiving physiotherapy from one injury which causes a second injury, the second injury will be said to have arisen from the same cause or trauma.
This decision is significant as it means that if you meet the test provided in section 22, your injuries could be combined and you could gain a higher WPI assessment. If the combination of your WPI’s is 30% or over (as was the case with Mr Preedy), then you would be defined as a “seriously injured worker” under the RTW Act and entitled to greater financial benefits.
In Mr Preedy’s case, the matter has been remitted back to a single judge to determine the outcome in light of the principles being clarified.
This is a general overview provided for information purposes and does not constitute legal advice. This area is a complex area of law. If you require legal advice regarding your particular circumstances, please make an appointment with Mahony’s Lawyers who specialise in the worker’s compensation area.
How to get medical expenses for your work place injury covered in the near future and beyond
1. Are you a worker who has suffered an injury at your work place?
2. Have you made a claim which has been approved or awaiting determination by the Compensating Authority under
the Return to Work Act SA (2014)(the RTW Act)?
3. Do you need medical treatment for your work injury now or sometime in the future?
4. Have you returned to work and therefore no longer receiving weekly payments from the Return to Work Corporation (the Corporation) or self-insured employer?
If you answered ‘yes’ to all of these questions then you’ll need to pay attention to this to know your rights.
An injured worker is entitled to be compensated for costs of services that are reasonably incurred as a consequence of having suffered a work injury. Services include things such as medical services, hospitalisation and all associated medical, surgical and nursing services, and medicines prescribed by a health practitioner in connection with your work injury. This right to have medical expenses covered is given pursuant to section 33(1) of the RTW Act. You may also seek pre-approval of such costs with a section 33(17) Application made to the Claims Agent.
There is a limit to when you can be covered for medical expenses by the Corporation or self-insured Employer. You can only make applications up until 12 months have passed after the date of your last entitlement to weekly payments from the Claims Agent or where there is no entitlement to weekly payments and that a period of 12 months has passed. Your entitlement to weekly payments from the Claims Agent will usually end when you are able to return to work or when 2 years has passed since the date of your incapacity.
What happens if you know you may need future treatment but this is after the time limit will have expired?
There is a second application that you may make under section 33 - a section 33(21)(b)(ii) Application. The difference between a section 33(21) Application and a section 33(17) Application and how they interact has been clarified in the recent judgment of Return to Work Corporation of South Australia v Karpathakis; Return to Work Corporation of South Australia v Rudduck  SASCFC (herein referred to “RTW v Karpathakis and Rudduck”).
What is a section 33(21) Application?
A section 33(21) Application is an Application to extend the time limitation period otherwise applicable to an worker for the purposes of surgery and any associated medical, nursing or medical rehabilitation services where it is reasonable and appropriate for such surgery to be undertaken at a later time.
What you need to know about a section 33(21) Application:
Your Application does not have to be in any prescribed form set out by legislation.
Section 33(21) Applications do not need to refer to Regulation 22 nor state the “need for an early determination”. This is language consistent with the requirements for a section 33(17) application and causes confusion, as occurred in the cases of RTW v Karpathakis and Rudduck.
There are no requirements under legislation for the Application to be in any particular form or state any particular words in its content or enclose material.
Applications under subsection 33(21) of the RTW Act must comply with Regulation 23 of the Return To Work Regulations 2014 (SA).
Under this regulation you must show that “the services” you seek both “relate to an existing injury” and “constitute surgery or associated medical, nursing or medical rehabilitation services associated with the provision, maintenance or replacement of a therapeutic appliance” and have been approved by the Corporation or self-insured Employer.
The best form of medical evidence to demonstrate your need for the medical service in future for your workplace injury would be a report or letter from your treating medical health provider. For example, if you have an accepted injury for your lower back and require surgery in future, you would require a letter from your Orthopaedic Surgeon advising that for your lower back injury, you will need surgery in 6 months rather than sooner because you need to wait until your injuries stabilise.
Mr Rudduck faced issues when he sought a section 33(21) Application because the injuries he listed did not relate to his accepted workplace injury and his supporting medical evidence was vague. His accepted work place injury was only accepted for “complex meniscal tear of the left knee”. However, his Application for medical treatment was for his right knee, lower back and mid back in future. Further, Mr Rudduck’s supporting medical evidence stated that it was “probable” that he would need a “total knee replacement”.
Once an Application is made, there are no time constraints on the Corporation or self-insured Employer to come to a determination.
This means that you will have time to gather more medical evidence if required. The Corporation or self-insured Employer is also required to consult you or a medical professional in determining your application.
This application must be made within the time limit mentioned above, regardless of whether your claim for a workplace injury has been accepted yet or not.
“My injury has not been approved. I have returned to work 10 months ago and my weekly payment entitlements have ended. I have been advised that I need surgery down the track. How do I make sure that my medical expenses are compensated and I don’t run out of time?”
When Mr Karpathakis claimed for medical expenses, his injuries had not yet been accepted by the Corporation. They were still under review as the Corporation had rejected his claim and he had appealed their decision. His Honour found that this did not mean that he could not make a section 33(21) claim to enable him to bring a claim in future for surgery and related medical services.
If your existing injury has not yet been accepted, you can still make a section 33(21) application. In the event that the Corporation or self-insured Employer determines that it is reasonable for the medical service in your Application to be deferred, you would be in no worse position merely because at the time of your Application, your injury was not yet accepted, like Mr Karpathakis.
If and when you later claim compensation for medical expenses your entitlement would stand or fall according to whether or not you establish a workplace injury that qualifies as an “existing injury”. In the meantime, the Corporation is put on notice.
However, you need to bring this section 33(21) Application before 12 months passes from the date that your weekly entitlements ended.
This is a general overview provided for information purposes and does not constitute legal advice. This area is a complex area of law. If you require legal advice regarding your particular circumstances, please make an appointment with Mahony’s Lawyers.
Mahony's Lawyers Expertise
Superannuation Law requires expertise and a great understanding of the changes in the superannuation industry to provide the best outcomes for clients. Many of our clients over the years who have been involved in industrial accidents, motor vehicle accidents or are just sick and unable to return to work, have overlooked the fact that there may well be a potential for making a claim against their superannuation fund for Total & Permanent Disablement and Income Protection.
Over the years, superannuation funds have in fact invested some of the member’s monies in securing low cost insurance cover in cases where a person becomes disabled and cannot return to work either on a short term or long term basis.
There are multiple parties involved in a superannuation claim
These claims are effectively subcontracted out to an insurer who deals with the claim. The insurance company who has the insurance risks of the superfund then advises the superfund as to whether or not the claim should be accepted. Ultimately though, it is the superannuation fund Trustee who has to make the decision as to whether or not such a claim is accepted or rejected.
Often the insurance cover is very substantial particularly for any person who is in the earlier part of their working careers. It is not unusual to have Total & Permanent Disablement claims in the order of $300,000.00 - $400,000.00.
Most Income Protection policies in superfunds now cover up to 75% of the usual or average income. There is invariably a waiting time before the Income Protection can be secured.
Professional advice and representation is important
Given the fact that this is a low cost insurance delivered to the superfund due to their membership base, it often takes a long time to secure the benefit from the claim. Further, the insurance companies who manage the risk for the superfund invariably make life difficult for people making claims and often this leads to a rejection of the claim. We have over the years been very successful in assisting many of our clients in relation to superannuation claims.
One of the first law firms in Adelaide to specialise in superannuation claims
Mahony’s Lawyers was one of the first legal firms in South Australia to specialise in this relatively new area of the Law. Mahony’s Lawyers has developed great expertise in this area over the last decade s since these claims became available to injured or sick clients.
The real advantage in pursuing these claims (where available) is due to the fact that the Total & Permanent Disablement benefits can be paid out over and above other forms of insurance such as Motor Vehicle Accidents, Damages claims and Work Injury (WorkCover/Return to Work) claims. Unfortunately, the position is not as clear with Income Protection policies as often recovery would be required in respect of those claims.
Act sooner than later to maximise your chances of success
Given the complexities of these claims, it is often better to have some legal input into the claims earlier in time rather than waiting for the insurance company to accept a claim which often can be delayed and often denied when a person is unrepresented.
It is important to note though that every superannuation fund often has a different Insurance Policy and criteria for assessment of these benefits. This being the case, it is important to gain legal advice about the benefits of each policy.
Call Mahony’s Lawyers today on 1300 624 669 about your Superannuation claim or a Total and Permanent Disability claim. We have a long and established history of success for our clients in this field of law.
Will your BFA stand up in court?
Landmark High Court decision brings pre-nups and post-nups into question.
A commonplace question in today’s society is whether a “pre-nup” is necessary. In light of the recent High Court of Australia (HCA) decision in Thorne v Kennedy, the question on everybody’s mind now is whether a pre-nup or post-nup, also known as a Binding Financial Agreement (BFA), will be effective.
This matter began online in 2006 when a 67 year old Australian Property Developer worth more than $18 million met a young Eastern European woman from overseas who had no substantial assets and spoke limited English. Their cyber relationship flourished and seven months later Miss Thorne moved to Australia where the couple intended to marry. The wedding dress was purchased, the reception booked and and overseas guests were flown into Australia by Mr Kennedy to attend the ceremony.
Just four days prior to their big day, Mr Kennedy drove Ms Thorne to see a solicitor for independent legal advice regarding a BFA prepared by his own solicitors. Mr Kennedy told Ms Thorne that he would not proceed with their marriage unless she signed the agreement and waited in the car outside during Ms Thorne’s consultation. The agreement gave her a meagre $50,000.00 in the event of separation after at least three years of matrimony.
Despite independent legal advice given to Miss Thorne warning that the agreement was “the worst agreement ever seen” by her adviser; Miss Thorne relied upon Mr Kennedy for everything, wanted to marry him, he had told her he would not wed her unless she signed, and ultimately she felt she had no choice but to sign the binding document. Within the initial agreement was a provision that within 30 days of signing, the parties would enter into a further agreement in similar terms prepared by Mr Kennedy’s solicitors. Contrary to further legal advice of the same ilk, Miss Thorne signed the post-nuptial agreement shortly after their wedding.
Following nearly four years of marriage the relationship broke down irrevocably and Miss Thorne sought legal advice on her avenues to obtain a property settlement and invalidate the BFA. In 2012 she filed an Application in the Federal Circuit Court of Australia (FCCA) seeking to have the BFA set aside for reasons of undue influence and unconscionable conduct. During these proceedings Mr Kennedy died. Miss Thorne was successful at first instance with both agreements being set aside on the basis of duress. The Full Court of the Family Court of Australia (FCA) then heard an Appeal of the matter brought by solicitors for Mr Kennedy’s Estate. The FCA validated the BFA on the basis that Miss Thorne’s consent had not been affected by undue influence.
Finally, when Miss Thorne appealed to the HCA by grant of special leave the BFA was again set aside for reasons of undue influence and unconscionable conduct. The HCA found that the pressure upon Miss Thorne to sign the BFA only a few days prior to the marriage if she wanted the marriage to go ahead and the meagre amount Miss Thorne was to receive relative to Mr Kennedy’s financial prosperity constituted grounds to set the BFA aside. Further, the High Court held that “the fact that Ms Thorne was willing to sign both agreements despite being advised that there were ‘terrible’ serves to underscore the extent of the special disadvantage under which Ms Thorne labored.” Ms Thorne had permanently left her home country and was living in Australia only on a limited visa. She was at all times emotionally and financially dependent upon Mr Kennedy.
While awaiting the outcome of this land-mark case, many within the legal community put forth their opinion that if Miss Thorne was successful it would signify the “death” of BFA’s. The Family Law Act is often considered “equity’s law” as the judge is required to weigh up what is fair in all the circumstances. The contrast between this foundational concept of family law and the legislation introduced in 2000 allowing couples to distribute their property by way of contract has led many family lawyers to question the validity of BFA’s.
The outcome of Thorne v Kennedy appears to give more weight to the “equity” side of the argument. The nature of personal relationships and the unequal bargaining power usually evident between parties requires very careful consideration in respect to ensuring the validity of BFA’s.
In providing their reasons for the decision in Thorne v Kennedy, the HCA suggested the following considerations are of importance when determining the validity of a BFA (at ):-
Whether an agreement is offered on a basis that it is not subject to negotiation;
The emotional circumstances in which an agreement is entered including any explicit or implicit threats to end a marriage or engagement;
Whether time is allowed for careful consideration and reflection upon the agreement;
The nature of the parties’ relationship;
The relative financial positions of the parties;
Any independent advice received by either party; and
Whether time is allowed for careful consideration and reflection upon the independent advice.
It is clear that particular care must be taken when drafting such agreements to ensure there are no vitiating factors (e.g. duress, unconscionable conduct, undue influence etc.) which may be raised in the future in an effort to have the agreement set aside. This decision and the reasoning of the HCA also provide guidance on the interaction of legislation surrounding BFA’s and vitiating factors such as undue influence, unconscionable conduct and duress.
Don’t be alarmed – this judgment does not mean all BFA’s are invalid. It does; however, mean that it is more important than ever that you have your existing BFA reviewed by a family lawyer and/or engage an expert in the area to provide you with advice and carefully draft any future BFA’s on your behalf.
Further, such a document should be prepared as early as possible before marriage or the commencement of cohabitation. If your wedding is imminent, it may be wise to wait until after your marriage is finalised before entering into a BFA to avoid any suggestion of undue influence.
This case impacts both existing and future BFA’s so whether you already have one in place or you are considering executing one, talk to Mahony’s Lawyers for specialist advice.
In summary, despite the apparent doubt surrounding the effectiveness of BFAs, the reality is that in Australia a BFA is the sole means by which parties to a relationship can attempt to protect their own assets and entitlements from future claims of their spouse in the event that the relationship breaks down.
Provided your BFA is prepared carefully and signed by parties in only appropriate circumstances, we can assist you with confidence that your BFA will remain binding.
Different types of BFA’s legislated for in Part VIIIA of the Family Law Act 1975 include the following:-
Cohabitation Agreements for de-facto couples living together or contemplating living together;
Pre-nuptial Agreements for couples intending to marry;
Post-nuptial Agreements for married couples
Separation Agreements for separated de-facto parties or separated married parties; and
Divorce Agreements for parties who have obtained a divorce.
If you are entering into a committed relationship or already in one and you would like to know how the law would distribute your assets should your relationship end, we recommend that you contact our family lawyers for a free initial 30 minute consultation. We will assist you to validly prepare an agreement to protect your assets and entitlements.
The above information is of a general nature only and we must assess your individual circumstances prior to providing legal advice on Binding Financial Agreements.