Injured workers often find themselves in a difficult financial situation. Not only are they struggling with the physical and psychological aspects of their injury but their ability to earn an income has been affected. Often they have a family to support and a reduction in income adds to the stress and anxiety already being felt.
Although the statistics for divorce suggest it is becoming more common nowadays, it is nevertheless a difficult time for those going through it. What follows is a (very) brief overview of what happens after a married couple separates and wants to divorce.
Have you been separated long enough?
Before a divorce application can be made, the parties are required to have been separated and living apart for a period of not less than 12 months. It is possible for an application to be made if the parties have separated but continued living together however there must be proof that there has been a breakdown of the marital relationship.
We meet the preconditions. What now?
Divorce applications can be completed by a solicitor or by yourself if you choose to self-represent. A filing fee is payable when lodging the divorce application with the court however applicants with a grant of legal aid or holder of a Centrelink card can apply for a reduction of this fee. If both parties are agreeable to the divorce, a joint application can be made.
Once the application has been lodged, it is required to be served on the other party either by post, process server or electronically and must be accompanied by a form called “Acknowledgment of Service”. It is also a requirement to show proof of service usually via an Affidavit.
Is there a fight? How is it resolved?
A divorce application can only be opposed on the basis that there has not been a period of 12 months of separation of the court does not have jurisdiction.
A hearing will be set down whereby it is required to be proved that a marriage existed (this is usually already done at the filing stage by way of marriage certificate), there has been an irretrievable breakdown of marriage, service of the application has been effected and that proper arrangements have been made for any children under the age of 18. Your lawyer will usually attend the hearing on your behalf unless there are children under 18 in which case you will also be required to attend.
The divorce order will be made at the hearing if the court is satisfied of the above and will take effect 1 month and 1 day after the hearing at which time both parties are free to re-marry.
What about the house? What about the children?
These need to be dealt with separately by a Court or by Consent, and a Divorce application will not resolve these issues. A Divorce application being finalised will also not automatically revoke your Will – if you don’t want your worldly possessions to be passed to your former partner should you pass away, ensuring you have a new Will prepared is essential. If you instruct a lawyer, they should advise you on all of these issues and how to resolve them.
If someone owes you money or has some of your property in their possession, there are a number of steps you can take to recover this – and going to Court sometimes isn’t the best first-up solution.
Firstly, in order to save costs, it may be appropriate to discuss the matter with the other person. Sometimes just talking it out reasonably can help you to reach some satisfactory repayment terms (like making a number of payments in a period, or repaying the debt by a certain date). This however may not always be possible if the relationship has soured or the other person becomes increasingly aggressive about the situation – often, chasing debts can cause a lot of friction in a relationship and friendships can break down if debts are not repaid.
If talking to the person is not possible, you can send a letter of demand, and this should be the first step in any recovery for money or property. A letter of demand should include clear details of how much the person owes or the property needing to be returned, a date/timeframe that the money must be paid or property returned and what action will be taken if that does not occur by the selected date/timeframe.
Following a letter of demand, if the money has not been paid or property not returned, it may be appropriate to take legal action. This will require the completion of a Statement of Claim to be filed with the appropriate Court. Because debts can range in size, you might need to file in a certain Court or Division:
If the Debt or Property is valued at less than $20,000, in the Small Claims Division of the Local Court;
If the Debt or Property is valued between $20,001 and $100,000, in the Local Court;
If the Debt or Property is valued between $100,001 and $750,000, in the District Court;
If the Debt or Property is valued at $750,001 or higher, in the Supreme Court.
This guidance is based on a recovery in a New South Wales Court.
There are risks associated with going to Court such as the payment of fees which may not be recovered if you lose or if the person is not in a position to pay the money. There is little benefit in pursuing a debt against a person who you know will not be in a position to pay – whilst you might be successful, it will be a Pyrrhic victory!
A six-year time limit applies for recovering money or property. There are exceptions to this rule however you should consult a lawyer if you are outside this timeframe.
If the Dispute relates to tenants and landlords, or traders and consumers, then it may be able to be dealt with by specialist tribunals.
Do you have more questions about recovering some debt or property? In our free first consultation we can advise you on:
- Whether it is worthwhile to pursue the debt;
- Matters to consider when pursuing the debt;
- The Costs which can be involved in pursuing a debt;
- Options to recover the debt without commencing Court proceedings.
It may come as a surprise to some people, but except for a few necessary exceptions the police are subject to the same rules and obligations as every other citizen. When they exceed their powers or act outside their authority and other citizens are harmed the courts will provide an avenue for redress and in appropriate cases award compensation or damages.
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It could be a battle of wills concerning parenting issues, a dispute with an insurer about payment for treatment in some workers compensation cases, or a negotiation process to resolve a common law claim. Maybe it’s a conflict within the workplace, or two business who are having a fight. Parties can become bogged down with their grievances or disputes and it may benefit to bring in an impartial third party to help them find their way to an agreement.
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Since the 1st of July 2019, the Workers Compensation Commission (WCC) has been able to once again allow injured workers to challenge calculations of their Pre-Injury Average Weekly Earnings (PIAWE) – this was the amount of money that the Insurer had calculated an injured worker was entitled to.
In many instances, this amount was incorrect and the injured worker only had the option of challenging the decision in the Supreme Court if they didn’t believe it was correct. In most cases, the costs of that would greatly exceed the amount of money claimed.
Now that power has been restored to the WCC, injured workers can now get funding from WIRO-ILARS to challenge these disputes in the Commission and firms such as Don Cameron & Associates can assist these workers at no cost to the worker.
It is a simple 3 step process to challenge a potential underpayment:
1. If you think you are being underpaid by the Insurer, call us on 1800 627 373.
2. Provide us with information about how much you are being paid by the Insurer, and how much you were being paid before you were injured.
3. We will provide you with free advice on whether the calculation is correct and if it isn’t, we will apply for funding and lodge a dispute challenging the decision of the Insurer.
Like many firms, we have a number of Workers Compensation experts. Unlike many firms, our experts are local people with local knowledge who understand local issues – call us today.
One of the most common questions from people who contact us for assistance is unsurprisingly, ‘what will this cost me?’.
For those clients who work in NSW and have had an injury at work, it often comes as a surprise to learn that there are no costs for an injured worker when making a claim against their employer. So, who pays the associated costs?
ILARS – Independent Legal Advice and Review Services or otherwise commonly known as Workers Compensations Independent Review Office (WIRO), have highly experienced principal lawyers who assess and manage applications for grants which have been submitted by Approved Legal Service Providers (ALSPs- that’s us!) who provide advice and assistance to injured workers, at no cost to the worker.
WIRO is an independent statutory office which was established in 2012 by the NSW government as part of it’s reforms of the New South Wales workers’ compensation scheme. In addition to providing grants of funding for injured workers’ legal fees, WIRO often also assists workers directly in resolving disputes with the Insurer.
In 2012 the NSW Government amended the existing Workers Compensation Act 1987 (The Act) to introduce, among other things, restrictions and structure to the weekly compensation received by injured workers.
Weekly compensation was divided into 4 categories: weeks 1 – 13; weeks 14 – 130; weeks 131 – 260; and post 260 weeks.
This article deals with Section 39, covering the post 260 weeks, and the inequities created by recent decisions. The cases of Hochbaum v RSM Building Services Pty Ltd and the appeal decision is of particular relevance.
The one qualifying factor for continuation of weekly payments of workers’ compensation after 260 weeks is that the injured worker has a whole person impairment (WPI) of 21% or more.
The determination of whole person impairment is to be in accordance with Chapter 4, Division 7 of the Work Injury Management Act 1998 (WIM). This requires that an Approved medical Specialist (AMS), who is appointed by the Workers compensation Commission NSW (WCC), has determined that the injured worker’s impairment is 21% WPI or more.
In most cases, the calculation of the 260 weeks began from 1 January 2013. For many injured workers this meant that the 260 weeks expired on 25 December 2017.
The problem is that some injured workers reached the 260 week mark but hadn’t reached maximum medical improvement (MMI); such that the WPI of the injured worker was not capable of assessment. Weekly compensation payments were ceased by the insurer, at that stage. When the injured worker was ultimately assessed as having a WPI of 21% or more, the arrears of weekly compensation payments – back to 26 December 2017 – were claimed.
Insurers were reluctant to pay these arrears arguing that there was nothing in the legislation to require them to pay arrears of weekly compensation.
The case of Hochbaum v RSM Building Services Pty Ltd came before Arbitrator Bamber.
Allianz had ceased weekly compensation for Mr Hochbaum on 25 December 2017.
The AMS, Dr M Burns, issued a Medical Assessment certificate (MAC) on 16 July 2018 assessing Mr Hochbaum as 21% WPI.
Allianz denied liability for weekly compensation from 25 December 2017 to 15 July 2018.
At first instance Arbitrator Bamber decided that arrears of weekly compensation were available to Mr Hochbaum.
The other side appealed this decision and the matter came before President Judge Phillips.
Judge Phillips decided that weekly compensation arrears were not available to Mr Hochbaum until an AMS determined he was 21% WPI or more. This is the interpretation of the President of the Workers’ Compensation Commission New South Wales and, as such, is the nature of the law at present.
The writer does not agree with this decision as it places the injured worker at an even greater disadvantage than that caused by their life changing injuries.
Don Cameron & Associates has a history of making inroads into unfair decisions in the past, and has achieved many favourable outcomes for injured workers. We will continue to fight these unfair decisions and seek the best outcome for injured workers.
Often we are able to prompt our clients to make a Will at some stage of their matter which often remains in place long after their case is over. Sometimes, it is the only Will ever made despite their circumstances changing.
Not only should everybody make a will, we should also ensure that if our wishes change, we update it. Too many people think that once they have a will, they don’t need to think about it again, but it is quite the opposite. If you get married or divorced, this will change the validity of a will but what if you have only separated from your spouse? Or what if you made a will whilst in a de facto relationship leaving everything to your partner but that relationship has long ceased.
It is important to note that a Will does not lapse with time nor is it automatically repealed when there is a change of circumstance. You must ensure that you update your Will if you decide that your existing Will no longer fulfills your wishes. Failing to do so may result in somebody that you did not want to benefit from your estate receiving some or all of the assets and belongings that you have left behind.
By Kate Williams – Medical Law Consultant
In the last ten years a number of medical negligence cases have been brought that allege the medical treatment recommended by a doctor was unnecessary. Unnecessary as the patient’s medical condition did not :
- Warrant the recommended treatment ;
- Require surgery as a misdiagnosis was made of the presenting symptoms and
- Require a medical procedure and upsellling of an elective procedure was represented to the patient as necessary.
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