The life blood of a business is cash flow:

• Revenue protection
• Managed costs
• Shareholder / Partner certainty

Protection of Revenue

• Do you own/manage/protect your intellectual property and confidential information in a secure manner with enforceable agreements?
• If your customer is a company:
  • Does it have sufficient net assets to pay your invoice.
  • Have the Directors given an appropriate guarantee?
• Have you “retained title” to goods you sell until they have been paid for? If not, your client claims back the goods even if there’s non-payment.
• Have you done the following checks against your customers:
  • credit check
  • business name search
  • company search
• These checks will enable you to:
  • know precisely which legal entity you’re dealing with.
  • take effective action to recover unpaid invoices.
• When your invoices are months past due without reasonable cause or arrangement we recommend that clients complete and send to us a debt recovery instruction sheet and that:
  • We send a Letter of Demand giving 14 days to pay.
  • After 14 days we send a Letter of Demand attaching a Statement of Claim which will be filed and sent in 10 days if no payment.
  • After 10 days filing and serving a statement of claim.

We find that in 60% of cases the commencement of the above steps result in payment.

Contact Peter Colquhoun or his assistant, Tracey Cunliffe, for further information regarding any of these business audit issues.

PERSONAL AUDIT

We recommend that:

• Wills be reviewed at least once every 5 years or if circumstances change.
• Powers of Attorney be considered:
  • when absence interstate or overseas is likely;
  • when mental capacity might become an issue.

Wills Review Check List

• Title particulars and tenancy of real estate
• Whether other assets are held solely or jointly.
• Whether superannuation benefits form part of your Estate.
• Whether assets are controlled by family companies or family trusts.
• Who controls those family companies or trusts.
• Who is the appointer of the Trustees.
• Whether it is now appropriate to consider a T Family Trust to help preserve assets and create a more tax effective income stream.

Contact Peter Colquhoun or his assistant, Tracey Cunliffe, to arrange a review of your Will and personal circumstances.

1. inexistence;
2. enforceable; and
3. current to deal with needs of the business as it now operates.

Colquhoun & Colquhoun can assist you with a business audit either as an overall view of the business documentation or simply to address specific areas at need that you as the business operator identify from time to time, thereby helping you to anticipate and avoid potentially damaging issues. The audit process can also be used to do some succession planning either in preparing your business for sale and maximizing the sale price, or alternatively, identifying the strengths and weaknesses of an existing business you may be thinking of buying.

NSW driver’s licences are regulated by the Roads and Traffic Authority (RTA), who are required by legislation to maintain a register of traffic demerit points, called the ‘Demit Points Scheme’. The scheme allocates penalty points for a range of driving offences.

Different offences have difference number of demerit points. It is a common mistaken belief that drivers ‘lose’ points for certain traffic offences. However demerit points are accumulated not lost – a driver who has not committed any offences has zero points. If you accumulate enough points in a given timeframe, your license will be suspended.

The number of demerit points resulting in a licence suspension varies for different licence types. Full license holders (unrestricted) may accumulate 12 demerit points, whilst Provisional P2 license holders may accumulate 7 demerit points and Provisional P1 licence holder may accumulate 4 demerit points.

Your license may also be suspended instantly for serious offences such as excessive speeding offences for driving more than 30 km/h over the speed limit.

If your license has been suspended you must not drive a motor vehicle during that period. The maximum penalty for first time offenders is $3,300 or imprisonment for 18 months or both, and in the casse of second or subsequent offences the maximum penalty is $5,500 penalty units or imprisonment for 2 years or both.

For unrestricted license holders and provisional license holders, the suspension is three months. Unrestricted license holders (excluding P1 & P2) who receive a Notice of Suspension due to the accumulation of demerit points may apply for a ‘12 month good behaviour period’ instead of serving the suspension. A downfall to this option which unrestricted license holders are generally unaware of is that if they accumulate 2 or more demerit points while serving a good behaviour period, they will then be suspended for double the original suspension time.

Provisional licence holders don’t have the option of a good behaviour licence. Once a provision licence holder accumulates the requisite number of demerit points, their licence is suspended. Though not all hope is lost. An application (also referred to as a licence appeal) can be made by a provisional licence holder, to the local court to overturn the RTA decision to suspend a licence for incurring demerit points. The common ground for a licence appeal is that a licence suspension will cause undue hardship on the applicant.

We have been successful in many licence appeals in arguing that a loss of licence would cause an applicant substantial hardship such as adversely affecting an ability to work, loss of employment, diminishing the ability to meet mortgage repayments and business commitments. The local court can and does reverse and reduce suspensions in appropriate circumstances.

The statistics show that if you have a blood alcohol concentration of 0.10 you are 7 times more likely to be involved in a fatal motor vehicle accident than a sober driver, and if you blood alcohol concentration is 0.15, the likelihood increases to 25 times.

The general rule of thumb to remain below the 0.05 blood alcohol concentration limit is:

For men: 2 standard drinks in the first hour, and 1 standard drink each hour thereafter.

For women: 1 standard drink each hour.

It is easy to fall into the trap of thinking that after you sleep following a evening drinking alcohol, the next morning you are ‘okay to drive’. However, your liver can process about one standard drink each hour. Therefore, after a big night out on the town it is quite possible for you to still be over your legal limit the next morning.

The amount of food that you have eaten, the number of soft drinks that you have consumed or medication hat you have taken, might change how the alcohol affects you but it does not change your blood alcohol concentration reading. Therefore it is important to keep in mind the rule of thumb, but at the same time remember that it is not a guarantee that you will remain under the legal limit.

The safest policy is not to drive if you plan to drink, and not to drink if are driving. This is good advice but it is too late for you if you have been charged with drive with a prescribed concentration of alcohol.

Blood Alcohol Concentration Limits

A Blood Alcohol Concentration is a measure of the amount of alcohol you have in your blood. The measurement is the number of grams of alcohol in 100 millilitres of blood.
NSW has three blood alcohol concentration limits: zero, 0.02 and 0.05, depending on the category of your licence and the type of vehicle you are driving.
Zero applies to:

• ALL learner drivers
• ALL Provisional 1 drivers
• ALL Provisional 2 drivers
• ALL visiting drivers holding an overseas or interstate learner, provisional or equivalent licence

0.02 applies to:

• Drivers of vehicles of “gross vehicle mass” greater than 13.9 tonnes.
• Drivers of vehicles carrying dangerous goods.
• Drivers of public vehicles such as taxi or bus drivers.

0.05 applies to:

• ALL other licences (including overseas and interstate licence holders) not subject to a 0.02 or zero limit.

The penalties (for a first offence)

Once the police have pulled you over for a random breath test, the police can require that you submit to a breath test. Where the roadside breath test returns a positive reading, you will be arrested and conveyed to the local police station for the breath analysis. The breath analysis at the Police Station will provide the Certificate upon which the police prosecutor proves the change against you. Your blood alcohol concentration at the time of the offence is deemed to be determined by the breath analysis Certificate if the analysis was made within 2 hours of the event. The breath analysis must have been taken within 2 hours of the act of driving. Where the Certificate is obtained outside of the 2 hour window, the Courts have held that although the Certificate could be admitted, the Prosecution could not rely upon the deeming provisions, and unless there is other expert evidence as to the likely reading at the relevant time, the Certificate should be rejected by the Court.

If you have been charged with drink driving, and the breath analysis certificate is valid, there may be the possibility that at the time you were driving you were not over the legal limit. Where this is an issue, we can arrange to obtain a pharmacologist’s report from a Professor as expert evidence that you were not over the limit at the time of the offence, and it can be possible to negotiate a withdrawal of the charge.

Where there are no defences available to you, and you enter a plea of guilty, it is important that your case be put to the Court best as possible. Your solicitor can make submissions on your behalf on all objective and subjective factors which would show that it is appropriate to reduce the automatic penalties to ensure a just and fair result.

Even where the Court finds that you are guilty of the offence, the Court has discretion to dismiss the charge or discharge you from the offence upon you entering into a good behaviour bond. If the Court grants you a section 10, there will be no conviction recorded and you will not be disqualified from driving. In considering whether or not to apply a ‘section 10’ the Court will consider factors such as your character, age and history, extenuating circumstances and the hardship that you will suffer if you were to be disqualified from driving.

If this has happened to you, there are legal steps which can be taken to recover your children from a rogue parent. Where no parenting orders are in force, the police are powerless to stop your spouse from ‘kidnapping’ the children. Without a Court Order, you will most likely be met with a response from your local police officer that it is a family law matter and not a police matter, and that there is nothing that they can do to help you. Not very comforting words at such a distressing time.

You can apply for a ‘recovery order’ under Section 67Q of the Family Law Act for the return of a child to you, a parent, a person who has a parenting order or a person who has parental responsibility for the child. The Court will generally grant the application where the circumstances where the child was taken in violent circumstances or if the child’s safety and welfare is at risk.

Your application must be accompanied by an affidavit (which is a sworn statement) setting out relevant matters such as the circumstances that the child was taken, details about the child and where the child usually lives, where the child might be, steps that you have taken to find the child, why it is in the child’s best interests to be returned to you.

An example of a recovery order that you might seek in your application is:

The Marshall of the Court, all officers of the Australia Federal Police and all state and territory police officers are requested to find and recover [child and date of birth] and deliver the child to the [father/mother] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child maybe found.”

Once you have a recovery order, the AFP will co-ordinate the recovery process from Canberra. However this process can be helped along by contacting your local police who will be able to assist you in recovering your child.

If you have a fear that the other parent will take the child outside of Australia, you can apply for the child’s name to be put on the ‘Airport Watch List’. The Airport Watch List is a system which is designed to prevent children whose parents are involved in Family Law proceedings from being removed from Australia without consent of the Court.

An example of an Airport Watch List Order preferred by the AFP is as follows:

“That until further Order each party, (name and date of birth) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or committing the removal of the said child/children (name and date of birth) from the Commonwealth of Australia and it is requested that the Australia Federal Police give effect to this Order by placing the name of the child on the Airport watch lists in force at all ports of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal”.

Once a child’s name is on the Airport Watch List, neither parent will be able to take the child out of the country. It would also be prudent to consider applying for an Order that prevents a passport being issued for the child, or requires a person to deliver the child’s passport to the Court.

If the child has already been removed from the country, the Attorney General’s Department can assist to recover the child. If a child has been taken to a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, you can apply to the convention country for the return of the child.

The purpose of the Hague Convention is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained are returned promptly to the country of habitual residence so that parenting disagreement can be resolved by the Courts of that country. A list of the Hague Convention signatories can be found on the Attorney General’s Department website.

If you fear that the other parent will take a child out of the country, it is important that you make an urgent application to the Court to restrain the other parent and to have the child’s name put on the Airport Watch List.

The highly publicized case of the Canadian mother, Melissa Hawach is an example of the difficulties that a parent can face when the other parent takes the children to a country which is a non-signatory to the Hague Convention. In that case, it is reported that the children lived in Canada pursuant to a Canadian ‘Custody Order’ which provided for shared parenting between the mother and father. The father took the children on a 3 week holiday to Australia. From Australia, the father took the children to a non-signatory country and thereafter failed to return the children to their mother. Despite seeking legal recourse in Canada and Australia, the mother could not obtain suitable relief.

The mother went to extraordinary lengths to recover the children. After receiving tip-offs on where the children were located, the mother travelled to the non-signatory country with her father and an investigator from the “Missing Children Society of Canada” and a number of private security consultants. The mother then went to the hotel where the children were staying and recovered the children herself.

Fortunately such cases are rare. Nonetheless, it is important that you know and consider all the options available for the safeguard and protection of your children.

A Binding Financial Agreement is a relatively small cost to pay in comparison to the expense of costly litigation. As is often the case in life, it is better to pay a little bit now than a lot later. A Financial Agreement can promote harmony during a marriage and reduce conflict in the event that the marriage does not last.

Statistics show that almost 1/3 of marriages end in divorce. In addition, there is a trend towards people marrying at older ages – in 1971 the average age was about 24 whereas now the figure would be somewhere in the early 30’s.

People are marrying older and therefore are entering into marriages with more accumulated assets and a higher net worth. It is not surprising that with high divorce rates, people (and their families) are keen to protect their assets.
‘Pre nuptial’ Agreements have been around for a while, however it was not until 27 December 2000 that these agreements were ‘binding’ under the Family Law Act.

A Financial Agreement can deal with two main areas: property and maintenance. Such an agreement can detail how assets or financial resources, which the parties bring to the marriage and acquire during the marriage, are to be divided in the event that there the marriage fails. These agreements can also deal with maintenance of the parties during the marriage and after the marriage.
Financial Agreements can be entered into by parties to a marriage before they marry (section 90B), during marriage but before separation (section 90C), during marriage and after separation (section 90C) and after the divorce (section 90D).

The benefits of Binding Financial Agreements are two fold. Firstly, it gives parties greater control over their property and greater choice about their own financial affairs. Secondly, such an agreement reduces conflict and the likelihood of litigation in the event that there is a breakdown in the marriage.

You should consider a pre-nuptial agreement if you are contemplating marriage and either you or your prospective spouse holds significant assets (or significant debts), or if there is a significant disparity in wealth. It might be the case that, by entering into a Financial Agreement, you will be allaying the concerns of the in-laws, or your family, in respect of protecting pre-existing assets and wealth.

There are however pitfalls in relation to Financial Agreements. The Family Law Act does not provide for any form of Court approval or acceptance or ratification. A number of Financial Agreements have been voided or set aside on ‘technicalities’.

It is not enough that a Financial Agreement outlines the agreement between two parties to a marriage or proposed marriage, and is signed by the parties after having received independent legal advice. Financial Agreements must strictly comply with current legislative requirements, otherwise the agreement will be non-binding and unenforceable, and the expense and the effort involved in the preparation of the agreement will all be for nothing.

Therefore it is imperative that whoever drafts your financial agreement or advises you of your rights under a proposed financial agreement is competent and experienced in Family Law and Financial Agreements.

The leading case in this area is Black & Black [2008] FamCAFC 7 (24 Jan 2008). In this case, the parties were married for a short period of 18 months. The parties obtained independent legal advice and signed a financial agreement whereby the parties had planned to purchase a house together. The husband would sell his existing house and apply the net proceeds of about $200,000 to the purchase, and the wife would contribute her settlement moneys of $200,000 that she was likely to receive from a personal injury claim. Under the agreement, if their marriage broke down the new house would be sold and the proceeds divided in equal shares.

The parties, however, purchased the house before the wife received her personal injury settlement. When the settlement came through she received approximately $40,000 which was substantially less than the $200,000 that the husband had speculated.

Under the agreement, the parties intended an equal contribution to the purchase price of the property, and to divide the net proceeds in 50/50 shares in the event that their marriage failed. However the problem was that the wife’s settlement was substantially less than the husband’s contribution.

The marriage failed and the husband applied to the Court to set aside the agreement and to claim an 80/20 division in his favour. The wife sought to protect her 50/50 result under the agreement.

On appeal, this matter focused on whether the Financial Agreement complied with Section 90G of the Family Law Act. Section 90G details the specific criteria for when financial agreements are binding.

The Full Court held that the Financial Agreement was not binding as it did not strictly comply with the statutory requirements.

Binding financial agreements have the effect of ousting the jurisdiction of the Court to determine the division of property or maintenance as provided in an agreement. The law allows for parties to oust the Court’s jurisdiction but only if certain stringent requirements are met.

It is therefore important that the Solicitor that drafts your Financial Agreement, and the Solicitors that provides you with independent legal advice on the financial agreement are experienced and competent in Family Law and Binding Financial Agreements, and are up to date with the Family Law legislation.

Whilst financial agreements can be binding, there are circumstances in which a Court may set aside a financial agreement. These circumstances include fraud, unconscionability, or if there has been a material change in circumstances and as a result of the change a party to the agreement will suffer hardship if a Court does not set aside the agreement.

Whilst opponents to ‘pre nups’ argue that such agreements are contrary to the concepts of love and trust between parties entering into a marriage, the practical advantages of financial agreements of promoting harmony and reducing the likelihood of dispute and litigation can outweigh such disadvantages.

If you suspect this has happened to you, and you question whether you should be paying child support payments for someone else’s child, something can be done. Parentage can be proven (or disproven) through simple and easy DNA testing.

DNA testing centres can conclusively prove whether or not you are the father of a child. If you and the child’s mother agree to undergoing the non-intrusive testing, the parties and the child can attend their own GP to provide a saliva sample which can be shipped off to the DNA testing lab for testing.

The Family Law Regulations requires both parties to consent to the testing procedure. However, sometimes the child’s mother does not consent to the DNA testing. This might indicate that the child’s mother has something to hide and that you may not be the father of the child. This mere suspicion however, is not enough to release you from your child support obligations.

A Court will only make an Order discharging you from your child support liability if there is sufficient proof in terms of a DNA test which will conclusively prove that you are not the father of the child.

We have on numerous occasions obtained Court Orders discharging our clients from their child support liabilities in cases where the client was not the father of a child, or the mother was obtaining child support where she should not have.

For a relatively small cost, you can find out for certain whether or not you are the father of a child. Considering that your child support liability is assessed as a percentage of your gross income and is payable until the child turns 18, it may very well be a worthwhile investment.