Our firm is delighted to announce the appointment of Mrs  Mittu Gopalan as a partner to the practice commencing from  1 January 2008.  Mittu has worked with us since 2000. She undertook a Bachelor of Academic Law Degree at the Mahatma Gandhi University in Kochi, India. When she migrated to Australia she commenced a Law Degree at the Australian National University at Canberra before completing it at Sydney University.

Since joining the practice Mittu has been the  principal manager of  our Kent Street office and has achieved singular success in not only the conduct of her work but office management and  client  relations. We  welcome Mittu as a valuable addition to the firm and to assist us in our continuing growth.

· Are Contracts made on the internet enforceable?
· The vibe of Mabo v The State of Queensland
· Shared care and children’s best interests
· Is this the case of the Law not being up to speed with technology?
· Here comes the Bride
· Gaming Machines - Selling and Dealing How to get started
·  Solvency and key Indicators
· Changes to the lives of MBBF

In the event of a marital breakup the property of the parties need to be divided according to the principles which are set out in the Family  Law Act. A question which arises from time to time is whether or not an engagement ring is part of the property pool or whether or not it is excluded.

The matter is being  considered by the Family  Court of Australia in the marriage of Beneke. In that matter the husband and wife were aged 77 and
42 respectively.    They  met  in 1992 while the husband was a patient of the hospital where the wife worked as a nurse. They were engaged two months later and married a few months after that. Separation occurred in less than a year.  There were no children of the marriage and the husband had assets of approximately one million dollars.

In that matter the Court considered that the evidence suggested that certain gifts including the engagement ring were gifts made without any  preconditions  and in those  circumstances the Court did not consider it would be just and equitable for the wife to return the gifts including the engagement ring.

Other findings were made by the majority of  the Court including gifts which could also be treated as property within the meaning of the Family  Law Act and in circumstances where  gifts made prior to marriage were often not  included in a judgment due to their comparatively small value.

In the case of Jackson v Jackson the issue of returning the engagement ring  was also  considered.  In  that case the  circumstances were slightly different due  to  the fact that the parties had parted  during their honeymoon. The Court held that in those circumstances it was just and equitable for the wife to return not only the home but the engagement ring given the fact that the marriage ended after such a short duration.

The Supreme Court heard that at the time in 2007 there were 3 million Australian registrants on ebay and 200 million worldwide. Ebay trading covered more than 50 thousand categories. His Honor Acting Justice Nigel Rein regarded the listing of an item on ebay as an offer and the final bid was considered an acceptance. In short his Honor upheld the proposition that normal contractual arrangements apply even when those steps took place on the internet. In this case there was an offer and subsequently acceptance.

The seller on ebay who  was the Defendant in the proceedings argued that whilst there was an offer and acceptance the precise details and terms of the Contract had not been finalised. In this particular case Mr Thomas was intending to sell his airplane. He had expectations that the plane was worth up to $250,000.00 and nominated a minimum bid of $150,000.00.  It appears from the Judgment there were very few  bidders and the Plaintiff, Mr Smythe waited until the last 20 seconds of  the “auction” before placing the minimum bid of
$150,000.00. The terms and conditions which are agreed to by ebay registrants make it clear that they enter into the bidding process and are contractually required to comply with their obligations. Even though ebay is commonly referred to as an online auction website the terms and conditions set out on the internet specifically state that ebay is not an auctioneer.  Ebay says that it is a site which acts as a venue to allow its members to offer to sell and purchase a large variety of items including a “fixed price format” and an “auction style format” commonly referred to an “online auction”.

If you wish to do this on ebay be aware that your obligations can be enforced by the Court.

•  Noting that a claim insovereignty alone did not itself extinguish native title;

•  It rejected the principle of “terra nullius” applying in this instance and Justices Deane and Gaudron went further in saying the lands of Australia were not terra nullius or practically unoccupied in 1788;

•  The rights and interests which constitute Native Title, need to be ascertained by reference to the traditional laws and customs of the Meriam people. Where a clan or group has continued to acknowledge these laws and customs and hence it’s traditional connection to the land has been maintained, then these will be recognised and protected by the common law and;

•  The Crown’s right to extinguish native Title through an inconsistent grant continues. Justices Deane and Gaudron noted that action would not affect any liability of Crown to pay compensatory damages for wrongful extinguishment. In the case of the land to which Native Title had been extinguished, the court said this clear intention had been expressed by the granting or renewal of a lease of 2 acres on Mer  to the London Missionary Society.

There were other findings and rulings made by the High  Court, but in essence this decision recognised Native Title, a concept based not on recognised laws of ownership but the traditional laws and customs of the indigenous peoples of the Murray Islands. By any measure, a monumental decision in the development of law in Australia.

The consequences of  separation, family break downs and divorce can be especially painful for children not yet emotionally mature enough to understand or make sense of their altered living arrangements and the distress being experienced between their parents.

Since the amendments to the Family Law Act (operative since 1 July 2006) there has been a substantial move to the shared role of both parents in the care of their children. That does not necessarily mean equal care but it does mean more than a token role by (typically) the father. Our male clients, the fathers have been obtaining results that were unheard of before 2006, that is to say, the children are spending a lot more time with the fathers. In some cases the children live with the father one week and the mother the other week.

These “shared care  arrangements” are more   successful,  when they   include the following  relational and  structural profile:

geographical proximity;

the ability of   parents   to get  along sufficiently well to develop a business- like working relationship;

child-focused      arrangements    (with children kept ‘out of  the  middle’, and with   children’s activities   forming an integral part  of  the way in which the parenting schedule is developed);

a commitment by everyone  to make shared care work;

family-friendly work practices for both mothers and fathers;

financial   comfort    (particularly   for women); and

shared confidence that  the father is a competent parent.

Many separating parents  who   require court  or    formal  dispute    resolution involvement  to determine their  contact and care arrangements unfortunately do not share these characteristics.

It is not about “parent  rights focused” but what  is in the “best  interests of the  children” and in many  cases there are strong   reasons to  support   the proposition that  neither equal time nor substantial and significant time is in the best interests of  the children. The flow on effect  eventually has an impact  on the property settlement and the amount of  child support  that is claimed and/or paid.

“It is illegal to drive or ride a vehicle while using a hand-held mobile phone…..the penalty is a significant fine and three demerit points.”

This means that talking, sending or receiving text messages, playing games or taking photos are illegal when using a hand-held phone. It is also illegal to perform these activities when your vehicle is stopped but not parked, for example when you are waiting at traffic lights.

A hands-free device can reduce the physical effort to make and receive calls but it does not  necessarily make it safe to use a phone while driving. It is illegal to use a hands-free phone while driving if it causes you to lose proper control of your vehicle. The penalty is a significant fine and demerit points.

Studies have shown that mobile phones use may cut coordination and judgement so much that you are more ‘drunk’ than someone with a blood alcohol level of 0.08. Penalties for drink driving are high, yet it seems using a mobile phone while driving can be just as dangerous although it does not attract severe penalties.

Case Study

In November 2003, a cyclist was killed whilst the driver of a motor vehicle was sending an SMS message and was given a 2 year suspended jail sentence. The sentence handed down by the judge was the first culpable driving conviction for hand held mobile phone use, though the suspended sentence shows that our road safety legislation and our preventable efforts have not caught up with the dangerous new behaviours.

In most recent cases such as Burns v SA Police SA 25 May 2007 [2007] SASC 191, Kyriakopoulos v SA Police 14 Mar 2006 [2006] SASC 71, Director of Public Prosecutions (NSW) v Chresta 14 Mar 2005 [2005] NSWSC 233, it seems that the interpretation of the law is based on a theoretical element of what constitutes the physical contact rather than on the actual offence being committed.

So is it time the law catches up with the ever growing technology which surrounds us? We are all guilty of using our mobile phones whilst driving but the next time you are behind the wheel and go to pick up your mobile think about it ….yes you might not get caught, you might get caught and lose some points and/or receive a fine, BUT you might not cop it sweet and involve an innocent life.

A pre-nup can not only record the intentions of  the husband and wife-to-be concerning  money  and assets in the event their union dissolves by divorce, but it can now  be used by the upcoming bride-to-be.

It’s their special day  and now  brides to be are contractually obliging their bridesmaids to sign a pre- nup and if they refuse they will get the sack.

Brides-to-be to be are  set to ask their bridesmaids not to put   on weight, get pregnant  or alter their  hairstyles before the  big  day.  More than one in five wedding planners would even put maids  of  honour on their honour  by making them sign a contract to be slim and bump free.

Choosing  bridesmaids   has   become an  increasingly serious  business. In  a survey commissioned by a UK Bridal magazine  “You   &   Your   Wedding”, 1,000 women were asked about clauses they would like to see in a contract, all the above were mentioned. More than one in five respondents said they were prepared to ask their maids of honour to sign such agreements and  almost half said they would give their bridesmaids the boot if they broke the conditions of the contract.

The  magazine  provides a    sample bridesmaid      contract where the bridesmaid is to “adhere to all of the following and all other unspoken duties as a bridesmaid on  and  leading  up  to  the  wedding day”.

In other jobs such transgression would not be grounds for dismissal but surveys and wedding planners state it just shows that brides to be  are becoming  much more business like about picking their wedding day campions.

With the average wedding costing more than $35,000 it is no wonder they want every little detail perfect.

Slot in your coins to get started

Find out your legal rights about selling and dealing a new gaming machine.

Congratulations you have hit the Jack pot …..Please wait for the computer to download the information…………….

What to do
1.     If you have a gaming machine that you have created and you wish to distribute and sell the machine to buyers you need a licence.

2.     An approved gaming machine is defined in section 4 of Gaming Machines Act (2001) NSW as “an approved poker machine or an approved amusement device……”

3.     There are several types of different licences which you can obtain as prescribed by Section 83 of Gaming Machines Act (2001) NSW.
They are as follows:

    i.      Dealer’s licence
    ii.         Seller’s licence
    iii.        Technician’s licence
    iv.         Adviser’s licence
    v.          Testing facility licence

4.     Failure to obtain a licence can result in a $10,000.00 fine being imposed or 12 months imprisonment section 87.

5.     An application for the appropriate licence should be made to the Licensing Court of New South Wales and requires a police check and a National Police Certificate

For more information contact Milne Berry Berger & Freedman Solicitors.

The indicators are:

• Continuing losses;
• Liquidity ratios below 1;
•  Overdue Commonwealth and State taxes;
• Poor  relationship  with   present Bank, including   inability to borrow   further funds;
• No access to alternative finance;
• Inability to raise further equity capital;
• Suppliers placing [company] on COD, or otherwise  demanding special  payments before resuming supply;

• Creditors unpaid outside trading terms;
• Issuing of post-dated cheques;
• Dishonoured cheques;
• Special  arrangements    with  selected creditors;
• Solicitors’    letters,        summons[es], judgments or warrants issued against the company;
• Payments to creditors of  rounded sums which are  not reconcilable to  specific invoices; and

• Inability to produce timely and accurate financial information to   display the company’s    trading  performance and financial position,  and   make  reliable forecasts.