The Victorian Parliamentary Inquiry into Abuse in Disability Services found a long history of widespread abuse and neglect of people with disability, and determined that more effective safeguards were needed to ensure that disability workers deliver high quality care. Following the Inquiry, the Victorian Government established the Disability Worker Regulation Scheme (the Scheme) under the Disability Service Safeguards Act 2018 (Vic) (the Act), to regulate all disability workers in Victoria, irrespective of the source of funding.
The Scheme will apply to all disability workers in Victoria from 1 July 2020. The commencement of other elements of the Scheme, such as the registration of disability workers and the online Register, have been delayed due to COVID-19 and are now due to commence from 1 July 2021.
The purpose of the Scheme is to ensure the quality, safety, responsiveness and sustainability of the disability workforce. The Scheme does this by:
As the Scheme applies to all disability workers from 1 July 2020, the mandatory notification obligations have now commenced, the Code of Conduct applies, and complaints can be made to the Board and the Commission about the conduct of disability workers.
The Scheme aims to assist in preventing and protecting people with disability from harm by making the Commission aware of potential risks to disability service users.
Under the Act, disability workers and employers in Victoria must notify the Commission or the Board as soon as practicable after forming a reasonable belief that a disability worker has engaged in behaviour that constitutes notifiable conduct – even if they have already reported their concerns to another body. This applies to both registered and unregistered disability workers.
Notifiable conduct includes:
The Board may take action against disability workers who do not make the mandatory notification to the Commission or the Board. Whilst there are no direct consequences for an employer to fail to notify the Commission or the Board, the Commission can share information about registered NDIS providers with the NDIS Quality and Safeguards Commission.
Any person can make a complaint to the Commission or the Board about the conduct of a Victorian disability worker (including employees, contractors, agents and volunteers who provide services on behalf of an organisation or agency).
The grounds on which a complaint can be made are extremely broad. Complaints can be made about any disability worker (whether registered or unregistered workers) in Victoria about their:
The Commission and the Board are responsible for managing complaints and notifications about disability workers. A range of actions may be taken in response, including but not limited to:
Critically, in the case of registered disability workers, VCAT can cancel their registration, disqualify the disability worker from reapplying for registration and issue a prohibition order preventing them from delivering disability services.
The Code of Conduct is set out in the Disability Service Safeguards Regulations 2020, and adopts theNDIS Code of Conduct. In effect, this means that the NDIS Code of Conduct applies to all disability workers in Victoria. In summary, this means that all disability workers are now required to:
The Act creates a voluntary registration scheme for disability workers. Registration demonstrates that workers meet minimum standards set by the Board in qualifications, probity and safety and quality of the delivery of disability services. Service providers who engage registered disability workers will be better positioned to promote the quality and safety of their services to people with disability, their families, carers and funding agencies.
As noted above, the commencement of registration has been delayed until 1 July 2021.
The Scheme creates civil offences which carry penalties under the Act and are applicable to individuals and body corporates. For example, it is unlawful to knowingly or recklessly claiming that a worker is a registered worker if that is not the case, or claiming that the registered worker has a particular registration or endorsement if they don’t.
Positively, from 1 July 2021, the Scheme will allow employers to use the online Register for recruitment and performance purposes. Under the Register, employers will be able to:
It will be important for disability service providers operating in Victoria to consider their obligations under the Scheme and the impact it will have on their disability workers and clients.
If you have any questions or would like to discuss how Moores can provide assistance to your organisation in light of the Scheme please do not hesitate to contact us.
Victoria’s new industrial manslaughter laws came into effect on 1 July 2020. The new laws aim to prevent workplace death and provide a stronger deterrent for duty holders to comply with Occupational Health and Safety (OHS) obligations.
These laws apply to not-for-profit clients such as schools and charitable organisations, just as OHS laws do. They are broad, as they cover conduct by both the organisation and its officers, and have severe consequences. Breaching OHS duties which lead to a person’s death can result in heavy financial penalties being ordered and even jail terms for officers of an organisation.
Given the heightened apprehension around workplace safety and COVID-19, it is crucially import that workplace health and safety policies and procedures are up to date and training is provided where necessary, to ensure all appropriate persons in your organisation are made aware the new industrial manslaughter laws.
The Workplace Safety Legislation Amendment Act (Workplace Manslaughter and Other Matters) Act 2019 (the Act) amends the Occupational Health and Safety Act 2004 (OHS Act) in Victoria to create industrial manslaughter laws that apply to employers, self-employed persons or officers who, by their negligent conduct, cause the death of anyone who is owed an existing duty under the OHS Act, including employees and members of the public.
The Act will not operate retrospectively, this means only a death that occurs after 1 July 2020 will be considered. However, there is no time limit for safety prosecutions initiated by WorkSafe Victoria. The Act carries significant implications, with the suggestion that negligence could extend to a situation where an employee suicided as a result of an employer’s negligent conduct.
The act lists “applicable entities” in section 39G (3) of the Act, which includes:
The Act applies to directors and officers of organisations (other than volunteers or employees), unless the employee is also an officer. “Officers” who are not directors would include:
We note that an employee is still able to be prosecuted for breaching existing duties under the OHS Act such as the duty to take reasonable care for their own health and safety and the health and safety of others in the workplace.
Negligent conduct is a ‘greater falling short’ of the standard of care that would have been taken by a reasonable person in the circumstances, and involves a high risk of death, serious injury or serious illness. The test for whether conduct amounts to negligence looks at what a reasonable person in the situation of the accused would have done in the circumstances. This conduct includes failure to act, such as when a person:
Additional duties are not created as a result of the law. Rather, tougher penalties apply to already existing duties under the OHS Act. Thus, an organisation will be found to have breached its standard of care if there has been a breach of the applicable duties under the OHS Act, which include (but are not limited to):
An organisation is deemed to have breached an applicable duty which amounts to industrial manslaughter in circumstances where:
The penalties are severe – corporations can be fined up to $16.5 million (100,000 penalty units) and individuals can face up to 20 years’ in prison.
Just as the OHS law currently provides, employers and duty-holders should stop to think about the risks involved in the conduct of their business, and what steps can be taken to mitigate those risks. An organisation therefore should ensure it has the right systems, controls and equipment in place and a workplace culture directed towards improving safety in the workplace. Accordingly, we recommend organisations take the following steps:
If you believe your organisation may be exposed due to policies and procedures which have not been updated regularly or recently, or your staff have not received appropriate training, Moores can assist with providing workplace training.
We offer a range of training services which can be delivered in person (adhering to social distancing requirements) or in an online workshop or webinar format.
For more information or if you are interested in arranging some workplace training, please do not hesitate to contact us.
The process of returning to campus is well underway, albeit with rules around physical distancing and restrictions around normal school activities. As schools return, many will hope that things will ‘return to normal’. However, your school community is likely to have experienced significant challenges due to COVID-19 and will continue to experience these challenges in the future, meaning that a ‘return to normal’ is not realistic in the near-future.
In this article, we provide some pointers for how schools can provide assistance to their communities to support them through this difficult time.
COVID-19 has had a disastrous financial impact on many families, with large scale job losses. As a result, many families will be struggling to pay school fees. We know our clients are offering an array of options for parents, including:
Whilst considered measures such as these are important to the ongoing sustainability of many schools, schools also need to consider what happens next.
For all of these fee arrangements, we recommend you state the following information in any documentation:
Many schools have explored using their tax deductible scholarship fund to provide bursaries and scholarships to families in need.
The Australian Tax Office recently released the following update in relation to scholarship funds:
Correct use of scholarship funds
In our view, the underlined phrase is poorly worded and insufficiently nuanced. This update must be read in the context of the more comprehensive ATO guidance here, which provides (amongst other things) that “reasons of equity” covers students who are experiencing socio-economic disadvantage or hardship. There is no rationale for treating hardship arising from COVID-19 related economic stress any differently from other hardship that may be experienced by families. There is nothing in the comprehensive ATO guidance to prevent the award of scholarships to current students, provided those students meet the reasons of equity or merit requirement.
Subject to careful consideration of the terms of your particular scholarship fund’s governing document, a scholarship fund may be able to be used to provide scholarships or bursaries to current or prospective families who are unable or would be unable to pay school fees, provided that:
Nevertheless, in light of the ATO guidance, schools should take great care in the preparation of all communications in relation to fundraising, advertising the availability of scholarships, setting equity criteria and recording the basis for the awarding of scholarships. Moores can assist with this if required.
It remains possible for schools to use other tax deductible vehicles (such as a necessitous circumstances fund) to fundraise specifically to meet the needs of current students. Some schools have also established public benevolent institutions that can carry out projects (such as supporting communities overseas or operating a soup van) consistent with the school’s values as well as assist individuals (including school families) in need. Please let us know if you would like to discuss these options further.
The period of isolation at home may have caused significant disruption to the academic, family and social lives of students and teachers. A global study conducted by SAP, Qualtrics, and Mind Share Partners, found that the pandemic is impacting mental health around the world. Over 40% of people said their mental health has declined since the COVID-19 outbreak. In that same time period, the number of people who describe the state of their mental health as a 3 or less on a 10-point scale has doubled.
There are many ways schools can take action to support the wellbeing of members of the school community:
You may want to provide food to families who have suffered financial hardship. If you are giving food, be careful of the VRQA prohibition on use of school funds for a non-school purpose. Under the VRQA Minimum Standards, a school must not use school funds for a gift which is unconnected to the conduct of the school. The best way to approach food donations would be to accept donations of food which can be distributed to families in need. As noted above, public benevolent institution can receive tax deductible donations to support projects of this kind.
If the school canteen is selling food to others, including families, ensure your food registration enables you to – many restrict provision to school families.
Moores is able to assist you with implementing some of the measures described in this article to support your school community through this unprecedented time. For more information or guidance, please do not hesitate to contact us.
These will take effect from 1 January 2021 (new schools) or 1 July 2021 (existing schools). The updated guidelines include changes which further confirm the focus of the VRQA on tightening school governance and operations in key areas, with continued emphasis on child safety and the not for profit regulations.
Some key amendments are set out here.
Currently, schools must provide evidence of the school’s policies and procedures for ensuring all staff understand mandatory reporting, the failure to disclose offence and the failure to protect offence.
From 2021, a further will be required: The grooming offence under the Crimes Act 1958 which is included in the definition of child abuse in Ministerial Order No. 870.
Every school intending to operate an ELC must from 2021 have a provision in the school constitution relating to the delivery of ELC services.
Continuing on tightening school governance, new requirements will also be in place including in relation to:
On the topic of ELCs, further requirements now apply, in addition to the new constitutional requirement.
The “carve-out” announced early this year will continue, which provides that a school will not be considered to be operating for “gain” only because it operates a not for profit ELC using non-government funds which is a “feeder”, however it must from 2021 also have evidence of:
Clarifying statements also note:
Enrolment policies will have to have from 2021 “For a non-government school operating or intending to operate an ELC, the policy must state that a proportion of funds raised or fees collected may be applied to the conduct of the school’s ELC.”
There will be more work to do on ELCs, not only in the constitution and enrolment documents and evidence, but in structuring. This will continue to be challenging for those who may not be able to show evidence of being a true feeder, for those which are running “loss leaders” or for those who offer a mixed service of both long day care and “kinder” years within one entity or set of accounts. We can assist if your school is in this category.
You will also need to ensure that your child safety and staff policies, training and documentation (e.g, staff contracts) cover the offence of “grooming”. The new Guidelines make it absolutely clear that the board and principal are responsible for complying with Ministerial Order 870. Again, we can assist.
You will need to check your procurement policy and practices with the even tighter controls on contracts not being permitted to breach the “not for profit” regulations. Let us know if you would like more information on this.
Similarly, please check your constitution not only for the ELC provision but more broadly against the not-for-profit and governance standards. Many older constitutions do not pass muster.
If you have any queries about any of these matters, our education team can assist and has deep expertise and experience in education, and including child safety, regulation, not for profit compliance, governance, enrolments and constitutions.
For further guidance, please do not hesitate to contact us.
With the return to campus, many schools are considering how they can ensure optimum use of school facilities, while complying with social distancing requirements and hygiene obligations.
Now that restrictions are being eased, face to face teaching has resumed, and life is returning to a new “normal”, other aspects of operation of school facilities need to be considered.
This includes the hiring out of school facilities such as halls, gyms and other spaces within the school to external community groups and other users.
In short, schools can still hire out the school hall (and other facilities) to third parties, however all restrictions on activity, social distancing rules and other restrictions apply. Importantly, these are the responsibility of the hirer, but the school also has the obligation to maintain a safe environment.
Because you owe a duty of care to students, you must conduct a risk assessment for any resumed activities on campus and have the means to terminate non-compliant arrangements. This will likely require additional provisions in your hire terms.
To ensure compliance with the VRQA Minimum Standards relating to the operation of a school being not for profit, schools are required to have a compliant policy in place regarding the hire of its facilities to third party groups or organisations in any event. This may also need additional provisions.
When reviewing hire terms and conditions, schools should consider matters such as:
You also need to consider time between multiple events (one hour for dispersal and cleaning), so scheduling is important.
In addition to the above relating to indoor facilities, on and from 11.59pm on 21 June 2020, guidance from the Department of Health and Human Services (DHHS) states that schools may approve the use of outdoor facilities on school property for the purpose of sport and recreation by community sporting clubs and groups if the following conditions are met.
When hiring out its facilities, a school needs to be able to clearly articulate its requirements, ensure those requirements are incorporated as terms and conditions of hire, and make it clear that failure to comply will result in termination of arrangements with non-compliant hirers.
Ultimately, schools need to be able to manage the risk of having outside parties use its facilities and must be able to ensure that those facilities continue to be safe for use by its students.
If you need assistance with preparing new or updated terms and conditions for facilities hire, please do not hesitate to contact us.
The recent increase in Covid-19 cases within Victoria has caused there to be further discussion between state governments regarding cross border travel restrictions which continues to present unprecedented complexity in the context of separated families and parenting orders.
Parenting orders in family law matters often provide for children to spend time in two households with interstate travel sometimes being a common feature. Currently, Victoria, NSW and ACT borders remain open. Western Australia, South Australia, Queensland, the Northern Territory and Tasmania remain closed.
The Family Court recently considered the impact of Covid-19 and interstate travel in the case of Kardos & Harmon [2020] FamCA 328 (7 May 2020) (“Kardos & Harmon”). The relevant factors were as follows:
Yes.
The Father’s contravention application ultimately failed as there was no evidence to suggest that he had provided the Mother with written notice within a 90 day period that changeover should occur in Brisbane.
The Court considered that if the Father had provided the Mother with written notice, the Mother would have had a reasonable excuse for failing to take the child to Brisbane Airport to spend time with the Father due to the following factors:
The Final Orders were varied to allow the Father to spend time with the child in Adelaide with the cost of travel to be shared between the parties. Both the Mother and Father acknowledged the importance of the child spending time with both parents.
Whilst it was not the deciding factor in this case, the Court made comment that had it been necessary, it would have found that the Mother had a reasonable excuse for contravening parenting orders due to cross-border travel restrictions.
Importantly the Court emphasised, “in other words, orders made by the Family Court of Australia or the Federal Circuit Court of Australia pursuant to pt VII of the Family Law Act are intended to operate in the context of the restrictions and sanctions imposed by State and Territory governments including those imposed for the protection of the broader community.”
The Chief Justice of the Family Court has released guidelines for parents and cares of children which make clear that they must act in the best interests of the child and comply with parenting Orders, where it is safe to do so.
As evidenced by Kardos & Harmon, there may be circumstances in which parenting Orders are untenable and unable to be complied with such as:
If you find yourself in a situation where it is difficult to comply with your parenting Orders, it is vital that you initially communicate with the other parent in an attempt to reach a practical and reasonable resolution.
In the event you are unable to reach a resolution, it may be possible to vary your parenting Orders through negotiations, mediation, or if necessary litigation. The Family Court has recently established a specialised COVID-19 List which enables urgent matters to be listed before the Court that are a direct result of the pandemic.
When considering varying your parenting Orders, it is important to obtain legal advice to ensure that any changes made are applicable to the current climate rather than on a final basis. For further information and guidance please do not hesitate to contact us.
Estate planning strategies frequently involve the use of testamentary trusts (ie – trusts created in a Will).
For many years it has been accepted that income that is derived by the trustee of a testamentary trust and is distributed to children is taxed at ordinary “adult” rates. Where such children have no other income, then up to the first $22,000 of income distributed from a testamentary trust to each child per annum can be tax-free. This is considered “concessional” tax treatment because income earned by minors is typically is taxed at higher rates. Further it is any minor beneficiary that enjoys this concession, not just children of the deceased.
On 17 June 2020 Parliament passed legislation to implement the Government’s 2018-19 Budget measure of “improving the taxation of testamentary trusts”, and the new law tax takes effect from 1 July 2019.
The law is aimed at tightening the requirements for the property that can generate the concessionally taxed income (referred to as “excepted income”). The language however is not altogether clear so some questions remain about how it will be interpreted.
Willmakers, estate planning lawyers, accountants and financial advisors will all need to be alive to the changes introduced, and potentially modify how the trusts are planned for and administered.
Prior to the passing of the amendments, the relevant tax law provided that income of a trust estate is excepted income to the extent that it resulted from a Will, codicil, (or a Court order varying a Will or codicil) or an intestacy, in relation to the estate of a deceased person.
The new law imposes additional tests in relation to the “property” that can generate concessionally taxed or excepted income. The tests include that the property that generates the income is “transferred from the estate of the deceased person concerned, as a result of the Will”. In addition, the excepted income can be generated from “property that represents accumulations of income of capital” from the property transferred from the estate.
The existing definition of “property” in section 102AA(1) of the ITAA still applies and includes real estate, personal property and money.
It is now clear that property unrelated to the deceased estate cannot be “injected” into the testamentary trust and generate excepted income. The wording in the legislation does not, however expressly address whether concessionally taxed income can be generated from:
To consider the question of replacement assets, the explanatory memoranda goes someway in that it refers to the intention that the concessional tax treatment continues to apply to “assets of the deceased estate or assets representing assets of the deceased estate”. This would at least suggest that replacement assets are eligible to continue to generate concessionally taxed income.
In relation to superannuation death benefits, they do not form part of the estate as at the date of death. However, under superannuation law the death benefits can only be paid to a limited range of persons including the legal personal representative of an estate (ie – executor or administrator). Superannuation death benefits cannot, in compliance with the superannuation law be paid direct to the trustee of a testamentary trust and also must be paid on the death of a member.
This means that superannuation death benefits can only form part of a testamentary trust if they have first been paid to the deceased estate (during administration of the estate). On that basis, the superannuation death benefits would be property transferred to the trustee of the testamentary trust from the estate of the deceased person concerned. It would also appear to be transferred as a result of the Will.
Separately there is a question of whether the mechanism by which superannuation death benefits are paid to the executor makes any difference. The explanatory memorandum to the amendments indicates that the intention is to disallow concessional tax treatment on income generated from property “injected” into the trust. The example relates to a discretionary family trust making a capital distribution into a testamentary trust. Superannuation death benefits can be received by the legal personal representative either by way of a binding document such as a binding nomination, or via the exercise of the discretion of the superannuation trustee. On one view, where the receipt is as a result of the exercise of discretion, this may cause an issue. However, we consider the better view to be that regardless of whether the mechanism is via binding nomination or via discretion, the payment is connected with the death of the Willmaker and the first recipient is the legal personal representative, such that after that point the property is transferred to the trustee of testamentary trust, and ought to satisfy the new requirements.
It is clear that more scrutiny around the use of testamentary trusts is likely as a result of the change in this law. Assets which now are excluded from being able to generate concessionally taxed income include assets acquired with borrowings by a testamentary trust trustee, and assets injected from family trusts directly to the testamentary trust trustee.
There are a number of planning and administrative issues that arise from the changes including:
This area of the law is becoming more complex, and under more scrutiny. Off the shelf testamentary trust Wills may not address these issues. Specialist advice should be obtained at each of the stages referred to (planning, estate administration and testamentary trust administration).
In addition, limiting consideration of the issues to just the matters raised herein is dangerous. All estate planning and administration of trust issues need to also factor in asset protection issues and other elements.
The team at Moores is one of the largest specialist estate planning teams in Australia, with several accredited specialists. For further information or guidance, please do not hesitate to contact us.
With the easing of COVID-19 restrictions, Victoria is managing the ongoing risks associated with the disease by requiring that particular organisations collect personal information about customers and visitors to their premises to assist with COVID-19 contact tracing.
The Victorian Government has issued specific Directions and Orders stating that contact information of customers and visitors must be sought as a condition of particular organisations re-opening.
If a Direction or Order applies to you, the collection of this personal information will be necessary for your organisation’s functions or activities.
If you are subject of a Direction or Order, then this means the collection of contact information is permitted under the Privacy Act 1988.
The Restricted Activity Directions (No 9) – Public Health and Wellbeing Act 2008 (Vic) – (the Act) provides Directions or Orders for facilities, including:
The Acts states that these facilities are subject to a “records requirement” which requires them to request that each person who attends the facility for more than 15 minutes provide their first name and contact phone number.
The facility must keep a record of these details for 28 days together with the information about the date and time at which the person attended the facility and if there are multiple indoor spaces, the indoor space(s) which the person visited.
We note that requirements in relation to signage, cleaning and the number of people permitted per indoor space are specific to each facility and detailed in the Act.
If you are required to collect contact information due to government Orders or Directions, you should abide by the following principles:
There are some exceptions to the “records requirement”, including for support groups held in community facilities or places of worship where confidentiality is typically required such as drug and alcohol or domestic violence support groups (such as Alcoholics Anonymous) and private worship at places of worship.
Your obligations to protect people may require you to nevertheless ask for personal information, for example, in an emergency or if a participant in an anonymous group falls ill during a meeting.
If there isn’t a Direction or Order that applies to your operation, you are not required to ask for customer and visitor names and contact details for contact tracing purposes. However, you can still collect contact information if you would normally do so for the functions and activities of your business.
What about COVID-19 related information?
You can collect information from employees or visitors in relation to COVID-19 which is ‘reasonably necessary for preventing or managing COVID-19’ such as:
If an employee or visitor has or may have contracted COVID-19, you should only disclose personal information which is reasonably necessary in order to prevent or manage COVID-19 in the workplace.
For more information on workplace obligations, please read our article on safeguarding against COVID-19.
Organisations still need to be mindful of privacy laws when collecting information for the purposes of contact tracing, or to prevent or manage the spread of COVID-19. It is essential for employers to have clear policies and processes which detail how personal and health information is collected, stored, used or disclosed so that these processes can be adhered to during the process.
If you need assistance with ensuring your privacy policy or processes are up to date, please do not hesitate to contact us.
A full list of operations subject of a direction or order is available here.
The new Guardianship and Administration Act 2019 (new Act) commenced on 1 March 2020. VCAT has now handed down two decisions since the new Act commenced, and provides some guidance around what can be expected under the new Act. Many of our organisational clients interact with persons with a disability (whether their participants or residents), or work closely with administrators or guardians appointed by VCAT. It will be essential to understand the provisions of the new Act, which are a significant departure from the Guardianship and Administration Act 1986 (old Act).
There are substantial differences in the role of administrators and guardians under the new Act. The old Act required decisions to be made in the best interests of the represented person. The new Act requires decisions to be made, giving priority to the represented person’s will and preferences (unless, by doing so, there is a risk of serious harm to the person). It represents a shift from a paternalistic approach to persons with a disability, to a rights and person-centred approach to decision making.
VCAT handed down its first decision under the new Act commenced on 29 April 2020. The decision of EHV (Guardianship) [2020] VCAT 501 considered whether EHV’s share in a property should be sold, where EHV’s “will and preference” was that the property not be sold. EHV participated in all hearings, and objected to the sale of the property.
EHV is 63 and suffers from an acquired brain injury as a result of long term alcohol and drug abuse, and was living at an aged care facility at the time of the hearing. Each of his prior attempts to live in the property resulted in a relapse to substance use, admissions to hospital or arrest for intoxication-related offences. EHV’s income fell short of his basic expenses by $100 per fortnight, and he owed debts of approximately $11,000.
EHV’s administrator sought advice from VCAT about whether it could sell the property. The application was made under the old Act, but by the time it was heard the new Act was in force. The Tribunal determined that the property should be sold, and overriding EHV’s will and preference was necessary to avoid a risk of serious (financial) harm. The Tribunal also determined the sale of the property did not offend EHV’s rights under the Victorian Charter of Human Rights and Responsibilities Act for two reasons – while a person has a right to choose where they live, freedom to choose is dependent on a person’s ability to afford accommodation. Further, the Tribunal found the sale of the property did not amount to an unlawful or arbitrary sale, but rather a cautious and steady approach by the administrator.
The key take-aways from the first decision are:
If you have questions about your residents or your obligations when dealing with guardians and administrators, please do not hesitate to contact Jessica Latimer, Special Counsel and elder financial abuse expert on (03) 9843 2100 or via our contact us form.
The Victorian Court of Appeal decision in Re Marsella; Wareham v Marsella [2020] VSCA 92 follows Justice McMillan’s decision to set aside a distribution of superannuation death benefits for their improper exercise of discretion.
Read our summary of the parties, background of this case and initial decision here.
In the initial decision, Justice McMillan found that the deceased’s daughter, Carol, did not give real and genuine consideration to the potential beneficiaries of the death benefit in deciding to pay her mother’s entire death benefit to herself.
We have summarised some of the key lessons to be taken from this appeal below.
Seeking specialist advice will go a long way in ensuring trustees are aware of what the role requires and will provide trustees with guidance as to how best to fulfill their responsibilities. For further information or guidance, please do not hesitate to contact us.