Click here for our flyer: Di Rosa Lawyers Business Law Seminar 8 May 2012

If you are a proprietor of an SME, or a professional adviser of one, you simply cannot afford to miss what we have to say about the legal tips and traps behind running your own business.

Do your Terms of Trade properly cover you when you wish to pursue a debt against your customers, or in the case of any other issues?

Do you have the right business structure in place?  There are asset protection as well as tax considerations in this regard.

If you have the right business structure in place, are you clear about your relationship with your business partners and is this relationship properly documented?  What if there is a dispute, or a parting of the ways?  What happens to the assets and liabilities?

Do you have a will and power of attorney in place and do they deal with the operation of your business in the event of death or disability?

Half of marriages end in divorce and the figure is higher in second marriages and de facto relationships.   This has a massive impact if you are in business.  How can you protect your business if this happens?

These questions and many others will be answered in this intensive but hopefully entertaining seminar.

Please call us on 8354 2233 or email admin@dirosalawyers.com.au to book your spot.  Only 10 places are available and places are booking fast.

Our New Monthly Newsletter on Legal Issues Affecting SA Business

We’re pleased to announce the released of the first edition of our monthly newsletter to the business and advisory community, Business Law Briefing.

You can click and read the Autumn Issue here: Business Law Briefing Autumn 2012

Every quarter readers of Business Law Briefing will receive information on important legal issues affecting South Australian businesses.

If you are a business owner, or an accountant, financial planner or other professional in the business of advising business owners, you simply cannot afford to miss the information contained in Business Law Briefing.

We hope you find this first edition as enlightening as it was a pleasure for us to put together.

If you have any questions or wish to make any comments about Business Law Briefing, please drop us a line at admin@dirosalawyers.com.au or phone 8354 2233.

As a boutique firm providing legal advice across all areas of personal law, including family law, wills and estates, business law, property law and conveyancing, Di Rosa Lawyers is well placed to assist small to medium enterprises with strategic advice and legal support to the individuals who are the mind, heart and soul of most businesses in South Australia.

One of the first steps we take when advising businesses and their owners, is to give them a Business Legal Health Check.  We ask business owners whether they have appropriate documentation in place, such as a partnership agreement if they’re in a partnership, or legally binding and effective Terms of Trade, or other critical documents like an up to date will or power of attorney.

To assist with the “check up” process, we have developed a Business Legal Health Questionnaire, which we hand out to our clients and prospective clients.

Click here now: Business Health Check Questionnaire

We’re in the course of rebuilding our website where our Business Legal Health Questionnaire will appear as a separate link on our Business Law Services Page.

We urge you to print and complete the Questionnaire as part of your business planning.  If there is anything that we can assist you with, please do not hesitate to contact our offices.

Social media platforms such as Facebook, Twitter, LinkedIn, Google +, which have only been in existence in the last few years, have made a phenomenal change in the way people communicate with each other wherever they may be in the world.  The impact on social mores, human interactions, society, politics and more recently commerce has been immense, indeed world changing.  To date the law, that slow beast, has not been able catch up with the changes in the rules of the game of life, although there are signs of transformation.  

Below is a transcript of a discussion between Dino Di Rosa and Allan Baird on his Thursday Drive program on 88.7 Coast FM, which went to air on Thursday 12 January 2012.

ALLAN BAIRD:           You’re listening to Allan Baird and as usual at this time of the program I am joined by Dino Di Rosa of Di Rosa Lawyers who has come along to talk about everyday legal topics which affect you and me. 

Today it’s a particularly interesting topic because Dino has been asked to answer some questions from our listeners in relation to social media, and the use of Facebook, Twitter, LinkedIn and now sites like Google+. 

                                    Hi Dino.

DINO DI ROSA:         Hi Alan.  Thanks for having me on the program again and Happy New Year to you and your listeners.

ALLAN BAIRD:          Thank you.  I don’t think we need to explain what social media is, do we, considering that there are 800 million users of Facebook and 300 million users of Twitter alone.  A lot of our listeners communicate with Coast on Facebook which has it’s own Facebook page and I note Di Rosa Lawyers has one as well.  But is it possible to say that there is such a thing as social media law?

DINO DI ROSA:         No, I don’t think there is one social media law as such but what the explosion of social media has done has to bring into focus, not only in law, but in politics and our social life and increasingly in the commercial world, a number of complex issues about rights and wrongs which have had and will have a tremendous impact on how people act and interact, sometimes for the better and as we have seen a lot of times for the worse.

ALAN BAIRD:             So I understand that this is a complex area and there is no one piece of law that governs how social media works, and there probably can never be one code if you like, but what are the areas of law that have been affected by social media?

DINO DI ROSA:          Well, the first most obvious area of law that has been affected is privacy.  Because of the internet and social media, there’s almost no privacy anymore.  People go on Facebook and talk about themselves and others and because of the speed with which people are able to do this and exchange the information, people’s dirty laundry is not just aired down the local street as may have happened in the old days but potentially the whole world via the World Wide Web. 

You will recall that a few months back we talked about the law of privacy mainly to do with governmental institutions.  I explained then that Australian citizens do not have a general right to privacy as between themselves but with the advent of social media and its abuse at times this may change.  Certainly, people can be prosecuted for cyber-stalking and restraining orders and things like that can be imposed on individuals but there’s still no right to privacy as such.

ALLAN BAIRD:           But the breach of privacy type cases can cross over into defamation cases, can’t they, and I suppose Facebook and MySpace and other sites have been used to produce defamatory material.

DINO DI ROSA:         Yes, the internet is just like any other form of media, it can be used, either deliberately or inadvertently, to publish material about other individuals which a Court may later deem defamatory.  There was the case a couple of years ago, in Kadina, which was believed to be the first Facebook defamation case in Australia, when a young man made some really offensive comments about one of the local coppers.  The officer found out about the lad’s rant and the lad was prosecuted for criminal defamation.

                                    But there’s still a lot of ignorance out in the community about what people can say and there’s a myth that if you re-publish or pass on what someone else has said about someone, that you can’t also be held liable but as with other forms of publication if you spread the defamatory material you can also be held liable for it.

                                    The other myth about Facebook is people think that if they go under a pseudonym or a false name they can hide behind that veil of cyber anonymity and say what they like.  That’s not true.  Facebook has privacy protocols and is able to release, presumably by Court Order, details of the identity of the Facebook account holder and that person can therefore be held liable in Court.

ALAN BAIRD:            Now, what about the impact of social media on the workplace, it’s had a huge effect hasn’t it?

DINO DI ROSA:         Yes, it certainly has, I think it impacts on productivity and businesses need to ensure they have a strict social media policy that is written down and adhered to by every member of staff as a term of their employment. 

As with all media, social media is more than one way.  Once feared by employer, social media has become a useful tool in the workplace, such as recruiting new staff, marketing or even client development.  But when used by employees, not necessarily during working day but out of hours, it can have detrimental effects. There was a case in Fair Work Australia a little while ago, where an employee posted a disparaging comment about his employer on his Facebook page from his computer outside of work hours, using a lot of four letter words in his tirade which would have been read by only about 70 of this fellows Facebook “friends” in inverted commas, and not by the boss who was not an habitual user of Facebook and certainly not a “friend” in inverted commas.   Well of course the boss found out about it and dismissed the trash talking employee who of course sued the employer for unfair dismissal. 

In rejecting the worker’s claim, and finding for the employer, the judge took the view that it did not matter that the statements were made outside of the workplace and not necessarily to other workers.

So to employers out there, make sure you have a comprehensive social media policy as part of your terms of employment because social media is here to stay.

ALAN BAIRD:            You practice a lot of family law, don’t you?  How has social media played itself out in the Family Court?

DINO DI ROSA:         Yes, entries in Facebook, and to a much lesser extent, even Twitter, have been used in the Family Courts as evidence against parties particularly in relation to their interactions with one another and their rights and obligations regarding their children. 

It is important to remember that the Family Court Judges have a lot of discretion in terms of what evidence they should consider or consider important.  Every judge is different and every case is different.  

One of our very fine Federal Magistrates in Adelaide, FM Brown, doesn’t put a lot a store in what is said and allegedly done on Facebook because people sometimes say and do things on the spur of the moment that they don’t necessarily mean. 

But by the same token there have been numerous cases in the Courts where the parties have been cross-examined about their actions outside of the Court room, where they play the dutiful, righteous spouse or parent in Court and are then shown something horrible or unappealing that they have said or done on Facebook. 

There was the case of a woman who operated a twitter account called “sexytiger77” with a suggestive photograph of her alongside her nom and the evidence was that she used the account to solicit for the purpose of prostitution.  She had a young child who had access to her computer and this evidence had a very adverse impact on her claim to have exclusive care of her child.

There was another interesting case a year or so ago where a Chinese woman was able to use Facebook to prove that her husband had already been married to another woman at the time she married him.  She was able to get the Court to annul the marriage on the ground of bigamy, which wasn’t big of him, was it? 

ALAN BAIRD:             No, certainly not, and on that note we’ll have to stop you there and thank you once again for your time, Dino, and for explaining this fascinating area of law or laws as you say.

DINO DI ROSA:          Thanks Alan, see you again next week. 

You can hear Dino Di Rosa on 88.7 Coast FM each Thursday night at around 5.30pm on Allan Baird's Thursday Drive program.  Dino discusses everyday legal topics and in this segment he talks about personal injury claims, starting with motor vehicle accident claims, then public liability and occupier's liability claims and finally on medical negligence claims.  Have a listen and let us know what you think!

We hope to be able to use our blog to stimulate disussion about legal issues which affect our clients and other ordinary South Australians from all walks of life who may happen to read our posts.

Let's face it, most of us are not particularly interested in the Carbon Tax or other political footballs kicked around by the professional politicians or chattering classes.

What real people with real problems need to know from a legal perspective are the things that matter to them or their family personally encompassing the following areas of law which we call "personal law".

• Family Law
• Personal Injury
• Wills and Powers of Attorney
• Decease Estates
• Property Law and Conveyancing
• Criminal Law and Traffic Law

By reading this Blog you will become the first to know about what we're doing and what is happening in the above areas of law which may impact on you or someone you know.

Thanks for reading our Blog!

  After 1 July 2008, the Family Law Act changed to allow parents to enter into a Binding Child Support Agreement. 

They are intended to provide a level of certainty and finality about child support arrangements for parents.  Therefore legal advice is required to ensure that parents understand the consequences of making a Binding Child Support Agreement and to provide protection against any misleading behaviour.  Furthermore, they must also receive legal advice before terminating the Agreement. 

It is not necessary to have an administrative assessment in force before entering the Agreement however if a Binding Agreement is registered with the Child Support Agency a “notational” formula assessment will be created.  A notational assessment is the formula based assessment that would apply if the Agreement was not in place.  However, where the Binding Agreement provides for crediting of a “lump sum payment” certain provisions must be made. 

The Binding Agreement must contain a statement that each party obtained independent legal advice before the Agreement was signed and each party’s solicitor certifies in an Annexure to the Agreement that they have provided independent legal advice. 

It is important to note that the Binding Agreement can provide for the payment of child support that is less than, equal to or more than the rate of child support that would be payable under the formula assessment.  The Agreement will not be sent to Centrelink for approval unless the Agreement includes the period that is prior to 1 July 2008. 

Furthermore, it can provide for periodic, non periodic and lump sum payments. 

The Binding Agreement can be terminated by executing a Termination Agreement or a further Binding Child Support Agreement.  However, both alternatives do require the provision of independent legal advice to each of the parents. 

The Agreement must contain a statement that the solicitors have provided independent legal advice as to:

1.          The effect of the Agreement – Parent;

2.          The advantages and disadvantages at the time that the advice was provided to the party making the agreement.

It is important to mention that the Agreement can also be set aside by the Court in very limited circumstances therefore it is very important for each party to receive comprehensive independent legal advice before entering into a Binding Child Support Agreement.

Here, at Di Rosa Lawyers, we have an understanding of the Child Support scheme and will do our best to ensure that we can assist you in respect of issues that may arise about child support arrangements for our clients. 

Of course, the perennial story seems to be that the WorkCover system has a massive unfunded liability which does not seem to have been effectively addressed by the changes that were introduced in 2008. 

Those changes had some potentially wide-ranging effects on injured workers in particular.  Perhaps the most serious of those changes was the introduction of a 130 week (2.5 year) limit on the receipt of income maintenance payments. 

However, there were also changes to other aspects of the WorkCover system.  An important one of those was to limit the amount of fees that a lawyer can charge an injured worker. 

What this means is, that in effect, much of the work of a lawyer on behalf of an injured worker, cannot be charged directly to the worker and can only be charged to WorkCover.  This means that an injured worker can now have a great deal more confidence about consulting with a lawyer in relation to their claim and not have to worry about expensive legal fees wiping out any financial benefit that they might otherwise obtain through using a lawyer. 

The vast majority of injured workers who lodge a claim with the WorkCover system do not need a lawyer.  However, there are almost always circumstances where legal assistance can be of benefit. 

Just as one example, an injured worker will usually have some “obligations” set out in a document called a “Rehabilitation & Return to Work Plan”.  Quite often, the plan will include limitations upon the nature of the work that the injured worker can do or the days and hours on which they can be required to work.  If you are in that situation, you certainly have a right to have some input into the preparation of the plan.  An injured worker might find that the limitations on their work hours or the nature of their duties as set out in the plan are in fact beyond their capacity.  In circumstances like this, an injured worker has an entitlement to dispute the terms of the plan.  Consulting with a lawyer about such a dispute would in fact result in no cost to the injured worker. 

There can also be situations where consulting a lawyer might obtain some less obvious benefits.  One example that the writer is aware of was the injured worker who was no longer able to walk their pet dog (as they had done before the injury).  WorkCover initially refused but after legal action was required to pay for a dog walker to walk that person’s dog. 

There are many more examples where the involvement of solicitors has resulted in genuine benefit at little or no cost but these are too numerous (and sometimes complex) to address in the scope of this article. 

Suffice it to say that Di Rosa Lawyers always recommend that you should consult with us if you are an injured worker.

It’s not just the workers

Many of our clients are small businesses with employees who sometimes make claims arising from work injuries.  Small employers may often feel as though they are “at the mercy” of WorkCover and it’s (currently) sole agent, Employer’s Mutual Limited. 

However, employers also have an entitlement to be heard in relation to a worker’s WorkCover claim.  It might be that the employer disputes the circumstances of the injury (or that an injury occurred at all).  As an employer, you have a right to be heard and a right to dispute many decisions made about a worker’s claim by WorkCover.  Although the same limitation in relation to legal fees does not apply, it is quite often the case that for no out of pocket cost to an employer, legal assistance can be obtained in the dispute process.  Certainly, if you are an employer who is concerned about the details of a workers compensation claim then we invite you to consult with us.