Law Info

Property QLD FAQ

Who has to pay outgoings in a commercial lease?

For the most part, a lessee will not be responsible for the payment of any outgoings unless so provided within the leasing agreement, and which is also recoverable within legislation.

All States and Territories have some sort of provision in regards to outgoings, and we can look at s 39 of Victoria’s Retail Leases Act 2003 as our statutory example, with the section stating a tenant is not responsible for any outgoings, except in accordance with the provisions of the lease that specify:

 

  • the outgoings that are to be regarded as recoverable; and
  • in a manner consistent with the regulations, how the amount of the outgoings will be determined and how they will be proportioned to the tenant; and
  • how any outgoings or any part of the outgoings may be recovered by the landlord from the tenant.

 

Furthermore, the outgoings under s 39(2) of Victoria’s Act, may also prescribe the manner in which the amount of outgoings can be determined and apportioned by a tenant.

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Can a person enter into a property to regain possession of an object?

Any person who has ever played a ball game in the backyard has probably thrown or kicked a ball into a neighbouring property. Therefore, can a person enter a neighbour’s property to retrieve something? For the most part, there is no implied permission for a person to retrieve an object without the consent of the owner – including pets. Express permission must be obtained by the owner accompanied by an explanation as to why entrance into the property is necessary.

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What type of tenant am I?

Trying to determine who is a boarder or lodger is somewhat a legal grey area. Broadly speaking, borders and lodgers receive meals from a landlord – with the landlord also retaining a position of authority over the property.  

Meanwhile, a sub-tenant is classified as someone who lives with a head-tenant – the person whose name is on the lease – with permission from the landlord. A sub-tenant has to pay rent to the head-tenant. Furthermore, the landlord exercises no legal control over a sub-tenant, and it is the head-tenant who is seen to be the landlord in such a scenario.

To complicate matters further, if a head-tenant sublets the property without permission from the landlord, the action may be a breach of the tenancy agreement and the landlord can potentially terminate the lease. However, if a tenant takes in a boarder or lodger, they don’t require the permission from the landlord as long as the number of people staying on the property does not exceed the maximum number outlined in the tenancy agreement.

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Can the creation of a sublease be prevented?

A common law right does exist which allows for a tenant to sublet their interest, however, it is common practice for a covenant in a lease which does not allow for, or restricts a tenants ability to create a sublease.

Therefore, if a common law right does exist for a tenant to create a sublease, can a landlord prevent a tenant from subletting their interest? Unless there is an absolute prohibition preventing a tenant from assigning a sublease, there is no impediment for a tenant to sublet a possessory interest in regards to the rental property.

On the other hand, if there is an agreement between the landlord and the tenant which contracts out their common law right to sublet the property, then any action in which the tenant sublets their interest in the property will be considered as a breach of the covenant.

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When can the equitable right of redemption be enforced?

Once the mortgagee accepts payment, the equitable right of redemption is enforceable – even in instances where payment is made after the due date. Additionally, the equitable right of redemption can also be enforced by a Torrens title mortgagor even though they retain legal title, as Finkelstein J stated in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (in liq)(No 3) (2008) 246 ALR:

“In my view a mortgagor of Torrens land has a legal right to obtain a discharge of mortgage on payment of the amount secured by the mortgage (or, subject to any rights of foreclosure, a lesser sum if the proceeds are insufficient to cover the debt) and equity applies the appropriate remedy, usually in the form of a mandatory injunction or specific performance.”

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Are landlords free to enter a rental property for inspection?

All jurisdictions in Australia grant landlords the right to enter a property to view its state of repair. However with that being said, the jurisdictions vary greatly in enforcing that right. For example, in Victoria and Western Australia, landlords are only allowed to enter the property once a year, and at a reasonable time of day. Meanwhile in New South Wales and the ACT, landlords have the ability to enter into a property twice a year on the proviso that two days’ notice has been issued.

The essential thing for tenants to remember is that besides the aforementioned statutory rights of entry, unless more extensive rights of entry have been included in the lease, landlords are not allowed to enter into the rental property without the permission of the tenant, as this would interfere with their rights of exclusive possession.

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What terms can be found within a standard leasing agreement?

Residential tenancy agreements should have a number of standard terms, and generally speaking, such terms cannot be varied by a landlord.

Some of the most important terms that cannot be varied include:

  • the existence of an agreement;
  • the right to occupy and possess the property;
  • the amount of rent that should be paid, which includes either increases or reductions in rent;
  •  rights such as the right to quiet enjoyment, and to use the property;
  • the obligations of the landlord in relation to the property, such as urgent repairs and access to the property.

The above standard terms is just an outline and do not include all standard terms that should be in a leasing agreement.

Landlords must provide a written agreement at the commencement of the leasing period and depending on the laws of the jurisdiction, landlords may not be able to increase the rent for a specified period, nor are they also allowed to terminate the agreement if no grounds are provided

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What are the laws in relation to misleading representation and the sale of land?

Section 30(1) of the Australian Consumer Law (ACL) proscribes that a person in a trade or commerce in connexion with the sale or grant, or the possible sale or grant of an interest in land, or in connection with the promotion by any means of the sale or grant in an interest in land, make false or misleading representations concerning:

 

  • sponsorship, approval or affiliation; or
  • the nature of the interest in the land; or
  • the price payable for the land; or
  • the location of the land; or
  • the characteristics of the land; or
  • the use to which the land is capable of being put or may be lawfully put; or
  • the existence of availability of facilities associated with the land.

 

Turning to case law regarding false or misleading representations in connection with the sale or grant of land, the matter of Pryor v Given (1979) 24 ALR 442; (1980) 30 ALR 189 (FC) can shed some light as to the approach by the court.

The matter of Pryor v Given was an appeal to the Federal Court of Australia regarding a decision under s 53A(1)(b) of the former Trade Practices Act 1974 (the TPA) in which the appellant was convicted of making misleading statements in the sale of land. The basis for initiating legal action centred around  advertisements for the sale of land in various media that included the words “a wonderful place to live” and “watch it grow”, with the ads also including a pictorial representation of a number of houses. 

The court in Pryor v Given looked at the advertisements as a whole, that took into account both the words and pictures and found that a representation was made by the appellants that houses could be built on the land when in fact, the land was subject to a planning scheme requiring special approval from the responsible authority, and furthermore, potential purchasers were also subject to onerous conditions. The court held that anyone who saw the advertisements could only come to the conclusion that houses could be built on the land in question.

Ultimately, the court found that the appellant had engaged in a misleading representation concerning the use of the land contravening s 53A(1)(b) of the TPA, which was a precursor to s 30(1)(f) of the ACL.


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What types of conduct may be considered unconscionable?

When determining whether a person is in contravention of s 21, s 22(1) of the ACL outlines the types of conduct that may be considered unconscionable by the courts which includes the following:

“(1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a)  the relative strengths of the bargaining positions of the supplier and the customer; and

(b)  whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)  whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e)  the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f)  the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g)  the requirements of any applicable industry code; and

(h)  the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

 (i)  the extent to which the supplier unreasonably failed to disclose to the customer:

 (i)  any intended conduct of the supplier that might affect the interests of the customer; and

(ii)  any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j)  if there is a contract between the supplier and the customer for the supply of the goods or services:

(i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii)  the terms and conditions of the contract; and

(iii)  the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv)  any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l)  the extent to which the supplier and the customer acted in good faith.”

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Can a dealing for registration be possible if there is a caveat in place?

Generally, a dealing lodged for registration may not be able to go ahead to register if there is a caveat in place restraining the registration of the dealing on the title.

There may be some notification requirements to the caveator that a dealing has been lodged for registration. Depending on the jurisdiction, a caveator has between 14 to 30 days to agree to the registration of the dealing, or to commence proceedings to establish the right for the caveat to be maintained – or the caveat may lapse.

If a caveat is defective in form, it may not be considered. Alternatively, if an extension has been granted, the court will allow for a period of time to ensure the matter can be appropriately dealt with.   

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What must the vendor disclose in a contract for the sale of residential land?

Vendors under a contract for the sale of land should attach all disclosure documents, conditions, warranties, along with disclosing, and describing any serious defects in the title of the property that the purchaser must accept.

The documents that may be attached include:

  • zoning or planning certificates;
  • plans showing the position of sewer lines in relation to the land;
  • a copy of the property certificate and the official plan of the land such as a deposited (subdivision) plan, or if the property is a strata title, a copy of the whole strata plan;
  • any documents creating easements, covenants, and any restrictions shown on the property certificate;
  • notice conforming to the legal requirements in relation to the wording and print size outlining the rights available to the buyer, and also the cooling-off notice;
  • a certificate of home warranty insurance should also be attached to the contract by the owner, developer or builder.

Failure to include all the required documents may grant the buyer the right to cancel the contract within the specified time period which may differ according to the jurisdiction.

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How are financial contributions concerning repairs and maintenance dealt with in relation to strata property?

Issues relating to financial contributions towards the maintenance and repairs necessary to the common property tend to be an area that is particularly fraught. In Julian-Armitage v The Proprietors Astor Centre [1988] QCA 111, the issue before the Court was whether the owner of the lower ground unit (the appellant) had to share the maintenance costs in relation to the operation of the lifts servicing the other units in the plan – despite having no use for the lift.

The Court held that the appellant was responsible for contributing to the body corporate for the upkeep and maintenance of the common property. This included the sharing of the costs of the electricity used to operate the lifts, despite not having any personal use for the lifts.

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What obligations does a landlord have to keep a rental property in reasonable shape?

 

All States and Territories have laws in place which require lessors (landlords) to keep property in reasonable shape, and using s 72(2) of Queensland’s Residential Tenancies Act 1997 as our example, the landlord at the start of a tenancy must ensure:

·         the premises and inclusions are clean;

·         the premises are fit for the tenant to live in;

·         the premises and inclusions are in good repair;

·         the lessor is not in breach of a law dealing with issues about health and safety of persons using or entering the premises.

Section 72(3) of the Queensland Act further requires while a tenancy continues, that the lessor:

·         maintain the premises in a way that remains fit for a person to live in;

·         must maintain the premises and inclusions in good repair;

·         ensure any law dealing with issues about health or safety of persons using or entering the premises is complied with;

·         any common area must be kept clean.

Turning to case law, in the matter of Proudfoot v Hart (1890) 25 QBD, 42, the Queen’s Bench stated that keeping a premises in a reasonable state of repair, such repairs will “… have regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it…”

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Can a person still be liable for the injuries caused by a trespasser?

How a person enters into the land may not determine whether they are owed a duty of care (see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479). However, the situation that gives rise as to how a person entered into the premises may still be a consideration.

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What is the basis of claim of right in Australia?

We should start off with what is meant when the term, ‘claim of right’ is used, and some guidance can be found in Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343, where Gleeson CJ, Gummow and Hayne JJ said:

“[S]everal points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden v Hensler (1987) 163 CLR 561 at 592-593:

‘It is not ignorance of criminal law which founds a claim of right, but ignorance of the civil law because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law...’

Second, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; 86 A Crim R 412 that, although an honest claim ‘may be both unreasonable and unfounded’, if it is of that quality then the claim ‘is less likely to be believed or, more correctly, to engender a reasonable doubt.’

Third, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.”

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What information must be included in a loan contract?

For an equitable right of redemption to be enforced, all of the terms of the loan contract must have been complied with, and compliance may mean the following:

 

  • the mortgagor tenders payment on the contractual date for repayment, therefore, they will be will exercising their contractual and legal right to redeem;
  • the mortgagor has money payable on demand,  which means they can repay the amount at any time a valid demand has been made;
  • upon the passing of the contract date for repayment, the right to redeem the secured property can only be enforceable in the equitable jurisdiction.

 

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What is ‘ownership’ in property law?

Possession and ownership can be seen as two sides of the same coin, and that assumption is both correct…and kind of incorrect.

Arguably, the biggest distinction between possession and ownership is that of permanence – which has more of an association with ownership. Additionally, a person can have possession of something but not necessarily ownership. For example, if you borrow a pen from someone you have possession of the pen, but not ownership, because in this example, possession is temporary, therefore, ownership cannot be claimed. However, the most important part of the example is that the owner has the better right to possession.

Although there may be slight differences between the concept of possession and ownership, the law generally treats both in a similar manner. Turning back to our pen example, if someone interferes with the possession of the pen by wrongly and directly interfering with the person’s right to possession, the owner can recover possession because they have a better right to the property – even where ownership is absent.

Our pen analogy can be extended to renting property. Sure, the tenant has possession, while the owner temporarily gives up their ownership rights. However, the owner still possesses residual rights and can bring a lease to an end provided the legal requirements have been adhered to.

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Family Law QLD FAQ

What happens if the intention of the will maker is unclear?

In circumstances where the will is unclear, assistance from the courts may be required so a determination can be made in trying to ascertain the meaning behind the words used in the will. Besides the will not giving effect to the person’s intentions, the courts may also rectify any clerical errors made in the will.

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What is a testamentary guardianship?

A testamentary guardian is a person who is responsible for taking care of the child’s daily and long term needs if there is no surviving parent, and there are no other court orders stating who the child shall live with.

If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent – such as the ability to make important life decisions on the child’s behalf. Additionally, testamentary guardians also need to  ensure that the child is adequately housed, clothed, and educated.

Similar to the types of considerations you would make in the best interests of your child, deciding who is to be your child’s testamentary guardian is extremely important. Therefore, it’s essential that you have an in-depth discussion with a potential guardian addressing issues such as; how you wish your child to be raised, which may include matters such as, religious and educational considerations. Having such a discussion will ensure that your child will be properly looked in accordance with the wishes of you and your partner.

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What are the requirements of a parenting plan?

 The courts and the Family Law Act 1975 (Cth) (the Act) encourages parents to reach agreements without legal intervention. Under the provisions of s 63B of the Act, parents are encouraged to:

  • agree to matters concerning the child;
  • take responsibility for parenting arrangements and to resolve any conflicts;
  • use the legal system as a last resort;
  • minimise any present and future conflict by using, or reaching an agreement;
  • reach an agreement where the best interests of the child is the paramount consideration.

When parents agree to a parenting plan, for it to be valid, the plan must conform to the requirements set out in s 63C(1), which are:

  • the plan is in writing;
  • the plan is signed and dated by the parties;
  • the plan is to deal with matters such as who the child is to live with, spends time with, communicates with, along with maintenance and other issues (s 63C(2)).

It should be noted that a parenting plan will only be valid if it was made free from threat, duress, or coercion (s 631A). 

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Which professions are required to report child abuse?

The class of persons required to mandatorily report child abuse if in the course of performing their duties or functions, has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused are the following classes of professionals:

  • Registrars or a Deputy Registrar of a Registry of the Family Court of Australia;
  • Registrars or a Deputy Registrar of the Family Court of Western Australia;
  • Registrars of the Federal Circuit Court of Australia;
  • family consultants;
  • family counsellors;
  • family dispute resolution practitioners;
  • arbitrators;
  • lawyers independently representing a child's interests.

Beyond federal legislation, the States and Territories also requires teachers, doctors, other medical and mental health care professionals, and community service employees to report child abuse if there are reasonable grounds for concern, irrespective of any confidentiality obligations.

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How does the family counselling process operate?

Any statements made by the parties to the dispute and any child during family counselling and family dispute resolution are for the most part, confidential. However, it should be highlighted that the confidentiality requirements is also extended to the Child Responsive Program.

Family counsellors, practitioners, or any other professional referred to by the family counsellor or practitioner, generally cannot disclose any information contained in statements. However, under the following circumstances, a family counsellor, practitioner or other professional may be compelled to release information contained in the statement under the following circumstances:

·         the counsellor or practitioner is compelled by law to report the information, such as instances of child abuse or if a there is a risk of abuse;

·         the parties or persons with parental responsibility for the child involved in the matter have provided their consent;

·         the counsellor or practitioner holds the reasonable belief that disclosure is necessary in order to protect the child from harm, or to protect against threats to a person’s life, health or property;

·         the information would help the independent child’s lawyer to perform their role;

·         under s 60L of the Family Law Act 1975 (Cth), it is necessary for the provision of a family dispute resolution certificate. 

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What types of trusts may be void for interfering with a marriage (or family relationship)?

Trusts which are created disturbing the welfare of a marriage will usually be considered as void. So for example, a trust instrument that is created requiring a person to separate from their spouse in order to receive a benefit, may be considered void because it may encourage a beneficiary to initiate an action of divorce from their spouse. However, the High Court in Ramsay v Trustee Executors and Agency Co Ltd (1949) 77 CLR 321 arguably took a different approach and upheld a testator’s wish that his trustees convert his estate and to hold the proceeds in trust “...to pay the income...to my son...for such period...as he shall remain married to his present wife...and on the termination of such period in trust for my...son absolutely provided however that should my...son predecease his said wife during such period...my estate shall go to my...nephew...and my sister...in equal shares.” The Court in Ramsay held that “...this provision contained nothing which offended against public policy as having, or tending to have, an adverse effect on the son’s marriage and it was wholly valid.”

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Can a person lose property if their spouse becomes bankrupt?

With the introduction of the Bankruptcy and Family Law Legislation Amendment Act 2005(Cth)(the Amendment) afforded non-bankrupt spouses greater protections in property proceedings with the insertion of the s 59A provisions into the Bankruptcy Act. The provisions provides that ss 58 and 59, being the vesting sections, are subject to orders made under Pt VIII of the Family Law Act 1975 (the FLA). So what does that exactly mean? Well, what it essentially signifies is that the income of the bankrupt does not vest in the trustee, therefore, allowing a non-bankrupt spouse the ability to seek maintenance from a bankrupt spouse. 

The Amendment gave a non-bankrupt spouse the right to share property of a bankrupt spouse, and if we look to s 4(1) of the FLA under the definition of “matrimonial cause” at paragraph (cb), reference is made to proceedings between:

 

  • a party to a marriage; and
  • the bankruptcy trustee of a bankrupt party to the marriage.

 

Trustees can join a party to family law proceedings if the court is satisfied that any interest of the creditors of a bankrupt will be affected in a property proceeding, as outlined in s 79(11) of the FLA. What we should highlight is if proceedings are on foot which includes a creditor and non-bankrupt spouse, neither party has greater priority over the other under s 79 of the FLA. In Billtoff and Billtoff (1995) FLC 92-614, the Full Court of the Family Court of Australia at Perth said:

“Although, there is a general rule, it is not absolute, is not prescribed by statute and there are a number of well recognised exceptions. There is no requirement of that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under sec 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.”

Under the provisions of s 79(12) of the FLA, there will be certain circumstances where a trustee in bankruptcy must be joined to the proceedings, and the bankrupt needs to obtain leave in order to make submissions if the trustee is a party.


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What are the voluntary reporting requirements relating to child abuse?

 The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

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What are the technical requirements of parenting plans?

Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) sets out the following technical requirements that must be met:

  • the plan must be in writing;
  • the plan must be signed by all parties;
  • the plan must be dated;
  • the plan must deal with one or more of the following: the person or persons with whom the child shall live with; the time the child is to spend with the other person or persons; the allocation of parental responsibility for the child; if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made when exercising the responsibility; the communication the child is to have with another person or other persons; maintenance of the child; the process used for resolving disputes about the terms or operation of the plan; the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan; any aspect of the care, welfare, development of the child or any other aspect of parental responsibility; and
  • the plan must not be made under any threat, duress or coercion.

For parties who have separated, a formal parenting plan is not compulsory.

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Are marriages involving a transgender person valid?

The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.

The Full Court rejected the approach adopted in the English decision of Corbett v Corbett (orse. Ashley) in particular the notion that one of the purposes of marriage is that of procreation. The Full Court in Re Kevin stated (at 78,143):

“[W]e reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside of marriage and many people who are married neither procreate, nor contemplate doing so.”

Additionally, the Full Court also held the term ‘man’ in the Act should be afforded its “contemporary ordinary everyday meaning” (at 78,139).

Ultimately, the Court upheld the validity of Kevin’s marriage and should be regarded as a man for the purposes of marriage as defined in the Act due to some of the following reasons (at 78,170):

  • Kevin had always perceived himself to be a male;
  • Kevin was perceived by those who knew him to have had male characteristics since he was a young child;
  • Kevin undertook sex reassignment surgery;
  • at the time of marriage, Kevin’s appearance, characteristics and behaviour was perceived as a man by his family, friends and fellow employees;
  • Kevin was accepted as a man for a number of social and legal purposes;
  • Kevin’s marriage as a man was accepted in full knowledge of his circumstances by his family, friends and work colleagues.

It should be highlighted, that the Full Court left open the question of whether a person who has yet to undertake a surgical procedure, should be regarded as a member of their psychological gender. 

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What proof is required to show that a marriage has come to an end?

The Family Law Act 1975 (Cth) fails to explicitly state what is necessary to establish separation. However, the union’s end will be demonstrated upon a change in the overall character of the relationship; this does not include examples of fighting or infidelity.

While there may be a general social presumption that a harmonious marriage revolves around a quiet coexistence founded upon monogamy, the law recognises the various forms that marriage may take. When determining the change in the overall character of the relationship, the courts will look into the full circumstances surrounding the breakdown of the relationship which may include the following lines of inquiry:

·         do the parties continue to cohabitate?

·         do the parties still engage in sexual relations?

·         do the parties present themselves in public as a couple?

·         do the parties care jointly for any children?

·         do the parties still support and protect one another?

It must be noted that there is no set formula to establish the end of a marriage; rather, the courts will look towards the natural indicators from before to after, the alleged separation in adducing evidence of the breakdown of a marriage.

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What are some of the signs that demonstrate that a matrimonial relationship has come to an end?

There are no hard and fast rules as to what signs are determinative of a healthy marriage because each relationship is unique. However, there are a number of general signs that can be used to indicate a close matrimonial relationship, such as the living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship (per In the Marriage of Pavey (1976) 25 FLR 450 at 455).

However, the Full Court of the Family Court (the Court) In the Marriage of Pavey recognised that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before, and after. The Court In the Marriage of Spanos [1980] FLC 90-871 said (at 75,516): “Marriage is made up of a number of variable components, the presence or absence of some or all of which and their degree and frequency of occurrence pointing the one way or the other in each individual case.”

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What are the effects of common law divorce?

Finkelstein J in James v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 493 (FCA) said (at 503 [41]):

“According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: already being married; being under age; in the case of a minor; not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.”

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What are the acceptable grounds for divorce in Australia?

Irretrievable breakdown of marriage is the only grounds for divorce in Australia. In order to prove this is the case, the parties must have lived separately from each other for at least 12 months. This period begins on the day after one (or both) of the parties intends to end the marriage, and communicates it to the other.

There must also be no reasonable likelihood of the parties reconciling. After the 12 month period has passed, and the parties are not reasonably likely to reconcile, one or both may apply for divorce. 

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Do I have to pay child support if the child is not mine?

As a rule, child support is only payable by the parent of the child. Accordingly, the Department of Human Services (the Department) is unable to accept an application for a child support assessment unless the person listed in the application is the legal parent of the child in question: if the child in question isn’t yours, you needn’t pay child support. Note that the law considers biological children, adopted children and children as defined under the Family Law Act 1975(Cth) to be eligible for child support. 

Under s 107(1) of the Child Support (Assessment) Act 1989 (Cth), if the Department accepts an application for child support from you, you can apply to the court for a declaration that they should not be assessed because you are not the parent of the child. If the court makes that declaration, s 107(5) holds that the Department is presumed to never have accepted the application your child support, and your obligations for this will end that day.  

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How are financial and property issues resolved in relation to de facto relationships?

De facto couples who have shared a genuine domestic relationship of trust and intimacy for at least two years or more, are able to apply for division of property settlement orders. However, it should be highlighted that there are a number of complex issues that need to be navigating in relation to resolving financial and property issues between de facto couples.

Firstly, there is no requirement that parties must have children in order to demonstrate trust and intimacy, however on the other hand, having a child is not always sufficient in demonstrating the existence of a legal de facto relationship. However with that being said, it may be advantageous for parties in de facto relationship who have been involved with one another previously to register their relationship in a state or Territory – irrespective if the relationship was same sex or not.

Under the Family Law Act 1975 (Cth)(the FLA), applications for property division in relation to de facto couples must be made within two years of the conclusion of the relationship, however, limitations may still exist in regards to the ability of the parties to utilise the provisions of the FLA when dealing with property matters. For example, in certain jurisdictions, the legislative instruments may mean that the Commonwealth provisions may not be applicable for such matters.  

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What are the eligibility requirements for unpaid maternity or paternity leave under the provisions of the Fair Work Act?

In order for casual employees to be eligible for unpaid parental leave, they must satisfy the following criteria under s 67 of the FWA:

  • the employee is, or will be, a long term casual employee of the employer immediately before the date, or expected date, of birth or placement of the child, or the date on which the employee’s leave is to start; or
  • but for the birth or placement of the child, or the taking of the leave, the employee would have had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

As many readers may have noted, unpaid maternity or paternity leave is only available to ‘long term’ casual employees, which means that the employee must have been employed on a regular and systematic basis during a period of at least 12 months, as outlined under s 12 of the FWA.

Similar to the definition of ‘casual employee’, there is no formulaic approach to employment on a ‘regular and systematic basis’. However, case law regarding the matter has stated that the work must be regular and systematic, rather than specifically looking to the hours and the days of work. Therefore, a defined pattern of rostered hours may be a strong indicator of regular and systematic employment, along with the offer to the employee to undertake work – and regular acceptance of available work by the employee, may also be considered as evidence of regular and systematic employment, as was noted in Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078.

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Property QLD Newsletters

An explanation of outgoings and commercial leases

Most of us probably at some point in time may have harboured dreams of breaking off the shackles in our work-a-day lives and starting a small business of our own. However, if you are about to start your own business, there are a number of important matters that need to be considered and one of the primary issues may be related to the paying of rent, and other amounts payable which are also known as ‘outgoings’.

Any reference to ‘outgoings’ in a commercial lease, usually means increases in taxes and rates that may include the running of the physical building or shopping centre in which the enterprise is located for example.

Who has to pay outgoings in a commercial lease?

For the most part, a lessee will not be responsible for the payment of any outgoings unless so provided within the leasing agreement, and which is also recoverable within legislation.

All States and Territories have some sort of provision in regards to outgoings, and we can look at s 39 of Victoria’s Retail Leases Act 2003 as our statutory example, with the section stating a tenant is not responsible for any outgoings, except in accordance with the provisions of the lease that specify:

 

  • the outgoings that are to be regarded as recoverable; and
  • in a manner consistent with the regulations, how the amount of the outgoings will be determined and how they will be proportioned to the tenant; and
  • how any outgoings or any part of the outgoings may be recovered by the landlord from the tenant.

 

Furthermore, the outgoings under s 39(2) of Victoria’s Act, may also prescribe the manner in which the amount of outgoings can be determined and apportioned by a tenant.

What are the types of outgoings that cannot be recovered by a lessor?

Although a lessee won’t be responsible for any outgoings that are not included within the leasing agreement, legislation also further specifies outgoings that cannot be imposed on the lessee, and we can now turn to s 23 of the Retail Leases Act 1994 of New South Wales, which states:

“A provision in a retail shop lease is void to the extent that it requires the lessee to pay any amount in respect of the capital costs of the building in which the retail shop is located or (in the case of a retail shop in a retail shopping centre) of any building in the retail shopping centre or any areas used in association with any such building.”

Furthermore, if we can also use s 7(3) of Queensland’s Retail Shop Leases Act 1994 to further highlight outgoings that cannot be recovered, with the section outlining a number of outgoings that are not recoverable by the lessor which includes:

 

  • land tax payable on the land on which a building or centre is situated;
  • expenditure of a capital nature, which includes the repayment of capital costs;
  • contributions to a depreciation or sinking fund;
  • insurance premiums for loss of profits;
  • lessor’s contributions to merchants’ associations and centre promotions funds;
  • payment of interest and charges on amounts borrowed by the lessor;
  • another item prescribed by regulation.

 

As with other types of legislation, there will be differences amongst the States and Territories, so it’s always useful to be mindful of the laws where you intend on starting your business because there may be differences.

How are outgoings paid?

Outgoings can be paid by either calculating a base amount that is an annual projection which is to be paid proportionately during the same time as rent; with a final adjustment made at the end of the year, or alternatively, outgoings can also be paid in arrears once receipts are received by the lessee from the lessor.

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Property law and trespassing

Many of us are understandably protective of our property boundaries and any encroachments by other people, animals or even objects can lead to disputes between neighbours. We recognise that boundaries between properties exist, but when does the law consider that a boundary has been crossed, metaphorically, and perhaps more importantly for this piece, literally? Read on to find out.

An owner or tenant generally has the right to refuse a person permission to come onto their property and any person who enters without permission, or refuses to leave after permission has been withdrawn, may be considered as a trespasser. Alternatively, anyone who accidentally finds themselves on a person’s land by either stumbling, or being forced onto the property via a push for example, may not be deemed to be trespassing.

What happens if a person refuses to leave after being asked to do so?

An owner or a tenant has the capacity to ask a person to leave, and if the person refuses to do so, the occupier can call the police to request the person to be removed. In addition to being a criminal offence, trespassing can also be considered a civil tort and the owner or tenant may be able to bring an action of damages.

However, it should be highlighted that under certain circumstances, permission to enter into a property can be implied, such as when a delivery is being made.

Can a person enter into a property to regain possession of an object?

Any person who has ever played a ball game in the backyard has probably thrown or kicked a ball into a neighbouring property. Therefore, can a person enter a neighbour’s property to retrieve something? For the most part, there is no implied permission for a person to retrieve an object without the consent of the owner – including pets. Express permission must be obtained by the owner accompanied by an explanation as to why entrance into the property is necessary.

Can a person impound any pets that have entered into their property?

It may be somewhat hard to believe, that any pets that has wandered onto another person’s property, may be impounded if the animal has entered into the property without the consent of the owner or tenant. The pet may be impounded for a certain number of days depending on the jurisdiction, after which, the pet must be taken to a council pound. Any person who has made the decision to impound the pet must ensure that the animal is properly cared for by providing adequate food, water and shelter.

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An introduction to subleases

Subleases are commonly used in relation to rental property, and there are a number of associated considerations which this piece will touch upon.  

An introduction to subleases

A sublease is when a tenant disposes their possessory interest of the rental property which is less than a whole. Subleases should be distinguished from assignments, which are actions that involve a tenant disposing the whole interest in the rental property – irrespective of the conveyance which was described as a sublease.

In instances where a sublease is created, it does not affect the rights associated between the tenant and the landlord. However, the creation of a sublease does produce a situation where a simultaneous relationship between the landlord and the tenant, as well as the landlord and the subtenant, has been established. Although, there is no privity of estate or contract that exists between a landlord and the subtenant, upon the valid determination of the lease between the landlord and the tenant, the sublease will also be determined as well.

Can landlords prevent subleases from being created?

A common law right does exist which allows for a tenant to sublet their interest, however, it is common practice for a covenant in a lease which does not allow for, or restricts a tenants ability to create a sublease.

Therefore, if a common law right does exist for a tenant to create a sublease, can a landlord prevent a tenant from subletting their interest? Unless there is an absolute prohibition preventing a tenant from assigning a sublease, there is no impediment for a tenant to sublet a possessory interest in regards to the rental property.

On the other hand, if there is an agreement between the landlord and the tenant which contracts out their common law right to sublet the property, then any action in which the tenant sublets their interest in the property will be considered as a breach of the covenant.

When can a tenant create a sublease?

Contrary to a covenant against subletting the property by a tenant, he or she is able to do so and the landlord cannot unreasonably withhold consent. The common law will deem consent to a sublease as unreasonable when:

 

  • the reason for withholding consent has nothing to do with the relationship between the landlord or tenant in regards to the subject matter of the lease; or
  • the tenant is respectable and responsible; or
  • the reason outlined by the landlord for withholding consent relates to the effect of an action of assignment on potential investors.

 

In contrast withholding consent will be deemed as reasonable when:

 

  • the reason for withholding consent is what a reasonable landlord might do under the circumstances; or
  • the person in which the interest is to be assigned may use the lease to harm or injure property that is in close proximity to the property of the landlord; or
  • the landlord has serious doubts in regards to the ability of the assignee to pay rent.

 

When a matter of law involves the question of reasonableness – such as whether or not a landlord has been unreasonable in withholding consent for a tenant to sublet the property – boils down to the facts of each individual case.

In deciding on reasonableness, the test from International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd is to be applied requiring the court to make an assessment on what a reasonable landlord would do under the circumstances in regards to the matter before the courts.

Statutory protections also exist which outlines that consent to sublet a property may not be unreasonably withheld in the majority of jurisdictions within Australia, and we can look towards s 80(1) of the Property Law Act 1969 (WA) as our legislative example which states the following:

“In every lease containing a covenant, condition or agreement against assigning, underletting or parting with the possession, or  disposing of the land or property leased without licence or consent, that covenant, condition or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a condition to the effect that the consent shall not be unreasonably withheld and that no fine or sum of money in the nature of a fine shall be payable for or in respect of the licence or consent, but the last mentioned condition does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expense incurred in relation to the licence or consent.”

However, it is important to note that if a lessee assigns a sublease, they are then assuming the responsibility that if the subtenant fails to honour the clause of the head lease, then the onus of the original lease will fall back onto the tenant.

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An introduction to mortgages and property

Many Australians achieve their dream of home ownership by taking out a mortgage. There are generally two types of mortgages in operation in regards to property, which are: security that involves the actual conveyance of a legal estate to the mortgagee; and a mortgage where the lender acquires an enforceable charge against the property. A person who is borrowing the money is usually referred to as a mortgagor and they usually also have the right of equity of redemption: But what does that exactly mean? Well, read on and find out.

Mortgagor’s rights: Equity of redemption

There exists with the mortgagor an equitable right to redeem (also referred to as equity of redemption) and will occur upon the securing of a loan contract amounting to a mortgage. When an equitable right of redemption does arise, it gives way to a proprietary interest, rather than a personal contractual right which can be alienated, and be dealt with in the same way when reference is made to other equitable property interests.

When can the equitable right of redemption be enforced?

Once the mortgagee accepts payment, the equitable right of redemption is enforceable – even in instances where payment is made after the due date. Additionally, the equitable right of redemption can also be enforced by a Torrens title mortgagor even though they retain legal title, as Finkelstein J stated in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (in liq)(No 3) (2008) 246 ALR:

“In my view a mortgagor of Torrens land has a legal right to obtain a discharge of mortgage on payment of the amount secured by the mortgage (or, subject to any rights of foreclosure, a lesser sum if the proceeds are insufficient to cover the debt) and equity applies the appropriate remedy, usually in the form of a mandatory injunction or specific performance.”

The loan contract

For an equitable right of redemption to be enforced, all of the terms of the loan contract must have been complied with, and compliance may mean the following:

 

  • the mortgagor tenders payment on the contractual date for repayment, therefore, they will be will exercising their contractual and legal right to redeem;
  • the mortgagor has money payable on demand,  which means they can repay the amount at any time a valid demand has been made;
  • upon the passing of the contract date for repayment, the right to redeem the secured property can only be enforceable in the equitable jurisdiction.

 

What relief can be sought before, and after the contract date?

Before the passing of the contract date, the relief that can be sought will be specific performance in aid of the contractual right. On the other hand, upon the passing of the contract date, if the mortgagee accepts payment, then the mortgagor will be entitled to enforce their equitable proprietary right of redemption.

When can the equitable right be extinguished?

There are various situations where the right to redeem in equity can be extinguished, and can be generally done so under the following circumstances:

 

  • the mortgagee chooses to foreclose a property;
  • the mortgagor has not enforce their right within the statutory limitation period;
  • the mortgagee has purchased the right of redemption.

 

However, it should be highlighted that equitable jurisdictions may be reluctant in interfering with the enforceability of the right of redemption. One such example that may be considered as interference in the enforceability of the right of redemption will be a situation where either a right or option to buy a mortgaged property extinguishes the right to redeem. Such a right can only be done so via a separate and independent agreement. 

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When are landlords allowed to re-enter a rental property?

When taking a look at rental properties, perhaps the two most contentious issues facing tenants will be the right of the landlord to enter into the property for inspection, and their right of re-entry in the event of non-payment of rent. There’s obviously two competing interests at issue here, being: the landlord’s right to protect their property interest; and the tenant’s right to privacy and enjoyment of the property. Due to the fact that the issue of re-entry by a landlord to either inspect the property, or non-payment of rent may be a touchy area, there are numerous covenants implied by legislation that deal with such issues that this piece will attempt to cover.

Landlord’s right to enter a property for inspection

All jurisdictions in Australia grant landlords the right to enter a property to view its state of repair. However with that being said, the jurisdictions vary greatly in enforcing that right. For example, in Victoria and Western Australia, landlords are only allowed to enter the property once a year, and at a reasonable time of day. Meanwhile in New South Wales and the ACT, landlords have the ability to enter into a property twice a year on the proviso that two days’ notice has been issued.

The essential thing for tenants to remember is that besides the aforementioned statutory rights of entry, unless more extensive rights of entry have been included in the lease, landlords are not allowed to enter into the rental property without the permission of the tenant, as this would interfere with their rights of exclusive possession.

Landlord’s right to enter a property for non-payment of rent

Traditionally speaking, the common law in the absence of an express covenant saying otherwise, landlords weren’t able to determine a lease for non-payment. Although, legislation has superseded the common law position and landlords have the right of re-entry for non-payment of rent. However, like the right to enter a property for inspection, the right to re-entry for non-payment of rent differs between the jurisdictions.

Besides non-payment of rent: Are there any other instances where a landlord can enter a rental property?

Besides a breach of the covenant of non-payment of rent, legislation provides landlords the right to re-enter a property for other breaches of any other covenants implied by law, or expressed in the lease where a breach has continued for the minimum period as expressed in statute.

The obvious question would be: What are some of the covenants that would allow a landlord to re-enter a property for breach? Of course the non-payment of rent is one, along with non-payment of rates and taxes in respect to the rental property, and failure to conform to the covenant to repair.

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Rental agreements and renter’s rights

There’s no escaping the fact that property prices are rather high in Australia. Therefore, a large number of people will be involved with the rental market, and because there are probably more renters then properties to lease, it’s important that renters are aware of their rights, especially when it comes to what their residential agreements should entail.

What disclosures are required of landlords?  

Prior to signing an agreement, either the landlord or an agent acting for the landlord must not induce a potential tenant to sign a tenancy agreement via false, misleading or deceptive statements, representations or promises.

Furthermore, before a landlord is able to enter into an agreement with a tenant, either the landlord or the agent must disclose the following:

  • if the property is to be sold, or there has been preparations made for a contract of sale in relation to the rental property;
  • if a mortgagee is undertaking action for possession of the property, or has commenced proceedings in a court to enforce a mortgage over the rental property.

Beyond the disclosure requirements, certain material facts in relation to the property must also be made, which can include whether the property has been subject to flooding or bush fire damage over the preceding years, whether the property has been subject to any health and safety risk not apparent to a reasonable person upon inspection of the premises, or the property is part of a shared driveway or walkway, may be some of the material facts that must be made to a tenant before an agreement has been reached.

Standard rental agreement terms

Residential tenancy agreements should have a number of standard terms, and generally speaking, such terms cannot be varied by a landlord.

Some of the most important terms that cannot be varied include:

  • the existence of an agreement;
  • the right to occupy and possess the property;
  • the amount of rent that should be paid, which includes either increases or reductions in rent;
  •  rights such as the right to quiet enjoyment, and to use the property;
  • the obligations of the landlord in relation to the property, such as urgent repairs and access to the property.

The above standard terms is just an outline and do not include all standard terms that should be in a leasing agreement.

Landlords must provide a written agreement at the commencement of the leasing period and depending on the laws of the jurisdiction, landlords may not be able to increase the rent for a specified period, nor are they also allowed to terminate the agreement if no grounds are provided.

Are additional terms allowed in the rental agreement?

Generally speaking, landlords can include additional terms in the rental agreement but the terms must not conflict with any relevant Acts, regulations, and must not be inconsistent with the terms set out in the standard form. 

If a tenant is dissatisfied with the additional terms, they may make a request to a landlord or the agent to vary or remove the additional terms. Alternatively, an application can be made to a State or Territory tenancy tribunal to make such terms void.

  

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Misleading representation and the sale of land: The law in Australia

Consumers in Australia enjoy a number of safeguards from false or misleading representations made in the sale of goods and services from vendors with the protections also extending to the sale or grant of an interest in land. The purchasing of land is obviously a major financial undertaking so it only makes sense that laws exist preventing a person from making false or misleading representations when selling or granting land under the provisions of the Australian Consumer Law (the ACL).

The Australian Consumer Law

Section 30(1) of the ACL proscribes that a person in a trade or commerce in connexion with the sale or grant, or the possible sale or grant of an interest in land, or in connection with the promotion by any means of the sale or grant in an interest in land, make false or misleading representations concerning:

 

  • sponsorship, approval or affiliation; or
  • the nature of the interest in the land; or
  • the price payable for the land; or
  • the location of the land; or
  • the characteristics of the land; or
  • the use to which the land is capable of being put or may be lawfully put; or
  • the existence of availability of facilities associated with the land.

 

Turning to case law regarding false or misleading representations in connection with the sale or grant of land, the matter of Pryor v Given (1979) 24 ALR 442; (1980) 30 ALR 189 (FC) can shed some light as to the approach by the court.

The matter of Pryor v Given was an appeal to the Federal Court of Australia regarding a decision under s 53A(1)(b) of the former Trade Practices Act 1974 (the TPA) in which the appellant was convicted of making misleading statements in the sale of land. The basis for initiating legal action centred around  advertisements for the sale of land in various media that included the words “a wonderful place to live” and “watch it grow”, with the ads also including a pictorial representation of a number of houses. 

The court in Pryor v Given looked at the advertisements as a whole, that took into account both the words and pictures and found that a representation was made by the appellants that houses could be built on the land when in fact, the land was subject to a planning scheme requiring special approval from the responsible authority, and furthermore, potential purchasers were also subject to onerous conditions. The court held that anyone who saw the advertisements could only come to the conclusion that houses could be built on the land in question.

Ultimately, the court found that the appellant had engaged in a misleading representation concerning the use of the land contravening s 53A(1)(b) of the TPA, which was a precursor to s 30(1)(f) of the ACL.

The Australian Consumer Law and misleading statements in the sale of land

One of the interesting aspects of the s 30 provisions of the ACL is that there is no need to establish that a sale resulted from, or was likely to result from the making of the misleading representation. Under the provisions, representations made in ‘connection with the promotion of the sale’ of land via a brochure made available to the public, can be considered enough to show that a person engaged in false or misleading statements, as was the case in Videon v Barry Burroughs Pty Ltd (1981) 37 ALR 365.

In Videon v Barry Burroughs Pty Ltd, the Federal Court of Australia held that:
“For a misleading statement to be made “in connection with the promotion of the sale” there is no necessity to establish that a sale resulted from or was the likely result of the making of a statement. The fact that a brochure containing the statement was available to the public is sufficient and there is no need to establish that it was read by any person...”

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Protecting property purchasers: A look at unconscionable conduct laws

Traditionally, equitable intervention in relation to unconscionable conduct was connected with mortgages. However, the decision in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, paved the way for the equitable doctrine of unconscionability that was distinct from undue influence, while providing for a wider application than contracts of mortgage, and contracts of loan.

The doctrine of unconscionable conduct under the common law

Unconscionable conduct is generally applied in instances where one party is disadvantaged by another, and is unfairly taken advantage of.

The doctrine was affirmed in Amadio where the plaintiffs had executed a mortgage, favouring the bank as a guarantee for the extension of credit that was granted to their son. The plaintiffs were unaware of the difficult financial position of their son, while also having no appreciation of the nature of the mortgage, and the guarantee was made even though they had a limited grasp of the English language. As a consequence, the plaintiffs were almost wholly dependent on their son in relation to their understanding of the agreement. Meanwhile, the bank understood that any understanding of the agreement by the plaintiffs was derived from their son.

Ultimately, the court held that both the mortgage and guarantee should be set aside due to the fact that if the plaintiffs had understood the nature of the agreement as well as the financial state of their son, they would not have entered into the agreement. Mason J outlined the common law doctrine of unconscionability with the following statement (at 502):

“Relief on the grounds of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party, who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.”

Corporations and unconscionable conduct

In the event that it is a corporation, or an individual who is engaged in a trade or commerce who is involved in unconscionable conduct, s 20 of the Australian Consumer Law (ACL), gives effect to the common law, and more generally, statutory relief is also provided by the provisions found in both the ACL, and fair trading legislation across all jurisdictions in Australia.

Complimenting the ACL, the National Credit Code (NCC) can also be applied in circumstances where relief in respect of unconscionable terms or excessive interest in relation to consumer credit contracts is required. 

For consumers, s 21 of the ACL prohibits unconscionable dealings and provides that a corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services, engage in conduct that is in all the circumstances, unconscionable. Meanwhile, fair trading laws extends the prohibition to individuals dealing in trade or commerce.

When determining whether a person is in contravention of s 21, s 22(1) of the ACL outlines the types of conduct that may be considered unconscionable by the courts which includes the following:

“(1)  Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:

(a)  the relative strengths of the bargaining positions of the supplier and the customer; and

(b)  whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)  whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e)  the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f)  the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and

(g)  the requirements of any applicable industry code; and

(h)  the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

 (i)  the extent to which the supplier unreasonably failed to disclose to the customer:

 (i)  any intended conduct of the supplier that might affect the interests of the customer; and

(ii)  any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j)  if there is a contract between the supplier and the customer for the supply of the goods or services:

(i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii)  the terms and conditions of the contract; and

(iii)  the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv)  any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)  without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l)  the extent to which the supplier and the customer acted in good faith.”

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Caveats, registration, and land ownership in Australia

Property ownerships is a goal that many Australians aspire towards, and because prices are so high, certainty of title by way of the Torrens system provides peace of mind for property owners. However, what about the status of unregistered interests in land known as caveats? What effect does a caveat have on land? Can a piece of land affected by a caveat still be dealt with? There are a number of issues relating to caveats that this piece will cover.

The effect of caveats on land

The operation of a caveat, acts as an injunction to the Registrar in the restraining of any registering dealings with the land without the caveator’s consent. However, in jurisdictions where a caveator can consent to the registration of a dealing, such as Victoria, the caveat may not lapse, as stated in s 90(1)(b) of the  Transfer of Land Act 1958 (Vic) for example.

Registered dealings where a caveator has consented, and there is no evidence of fraud or an agreement to the contrary, the interest that is registered will not be subject to an interest claimed by a caveator. However, some interests will not be overridden by registration and will still remain after registration, even if the land is ‘protected’ by a caveat. It should be highlighted however, that the laws associated with caveats can differ between the jurisdictions.

Can the Registrar note a caveat on the register?

There is no requirement in all jurisdictions for the Registrar to note the caveat on the register. However, caveats can be registered, and the notation in the register has the effect of giving notice to the world of the caveator’s interest in the land, while also providing direction to the Registrar. Additionally, the Registrar may be restrained from any dealings prohibited by the caveat, until the caveator has been given the opportunity to establish their clam to the land. However, the Registrar may provide notice to the registered proprietor that a caveat has been lodged.

Can the interests of a caveator be affected by the Registrar?  

The Registrar may not be able to register dealings that affect the estate or interest of the caveator, although, there may be some exceptions. Matters such as registration of transmissions, vesting orders, discharges of mortgages, and transfers pursuant to writs may be some examples of exceptions. Furthermore, some jurisdictions make an allowance for ‘permissive’ or ‘conditional’ caveats.

Can a dealing for registration be possible if there is a caveat in place?

Generally, a dealing lodged for registration may not be able to go ahead to register if there is a caveat in place restraining the registration of the dealing on the title.

There may be some notification requirements to the caveator that a dealing has been lodged for registration. Depending on the jurisdiction, a caveator has between 14 to 30 days to agree to the registration of the dealing, or to commence proceedings to establish the right for the caveat to be maintained – or the caveat may lapse.

If a caveat is defective in form, it may not be considered. Alternatively, if an extension has been granted, the court will allow for a period of time to ensure the matter can be appropriately dealt with.   

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What should be in the contract for a sale of residential land?

Purchasing property is an immense financial undertaking and it is essential that the contract for the sale of land meets all of the legal requirements to ensure that the process will proceed as smoothly as possible. Therefore, basic information beginning with the price, the parties to the contract, the property and the promise should all be featured within the contract.

Beginning with the opening page of the contract, generally speaking, the following particulars should be included:

 

  • the selling agent – if there is one;
  • the party purchasing the property and the seller;
  • the price (obviously);
  • the amount to be deposited;
  • a full description of the property by the address;
  • the nature of any improvements;
  • any particulars that are included within the title;
  • any furnishings or chattels.

 

In addition, the contract should also include a cooling-off period and a statement must be included within its prescribed form outlining that the cooling-off period lasts for three clear business days in Victoria, or five business days in New South Wales to name two examples. The absence of such a statement may provide the buyer with an opportunity to withdraw from the contract before the sale has been finalised.

Information that should be included within the contract

There are a number of things that buyers should be mindful of in relation to contracts dealing with the sale for residential land, such as a description to any improvements to the property, and anything excluded from the sale should also be clearly outlined within the contract. In addition, the settlement time should also be provided for in the contract, and can be between 30-90 days depending on the jurisdiction.

Once all of the particulars and the necessary disclosure documents have been incorporated, the contract is ready to be dealt with.

What must the vendor disclose?

Vendors under a contract for the sale of land should attach all disclosure documents, conditions, warranties, along with disclosing, and describing any serious defects in the title of the property that the purchaser must accept.

The documents that may be attached include:

  • zoning or planning certificates;
  • plans showing the position of sewer lines in relation to the land;
  • a copy of the property certificate and the official plan of the land such as a deposited (subdivision) plan, or if the property is a strata title, a copy of the whole strata plan;
  • any documents creating easements, covenants, and any restrictions shown on the property certificate;
  • notice conforming to the legal requirements in relation to the wording and print size outlining the rights available to the buyer, and also the cooling-off notice;
  • a certificate of home warranty insurance should also be attached to the contract by the owner, developer or builder.

Failure to include all the required documents may grant the buyer the right to cancel the contract within the specified time period which may differ according to the jurisdiction.

Warranties: Essential promises

Providing that the contract states otherwise, the seller at the date of the contract warrants:

  • that the land does not contain any sewers that is the property of a recognised authority;
  • the zoning or planning certificate outlines the true status of the land, which can include planning and zoning information;
  • the land is not subject to any adverse affectation (eg a proposal by a public authority to acquire part, or all of the land).

Additionally, vendors are also required to include a warning that dwellings must be fitted with smoke alarms.

One of the things to bear in mind is that there is the possibility that a contract can be rescinded for breach of warranty: If the seller fails to disclose the matter; the buyer was unaware of its existence; and the buyer would not have entered into the contract if they were aware of the matter in question. 

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Funding the maintenance of strata title

Through the City Futures policy research centre, UNSW surveyed 1,550 strata owners, managers and peak body representatives focusing on strata titled developments. The results were released in a study titled Governing the Compact City. Some of the more pertinent findings from the report suggested that 39 per cent had some issue with strata management relating to repairs and who should pay and 51 per cent of owners in strata titled developments have had a dispute with a neighbour. Roughly 3 million Australians currently live in strata developments; the report highlights some of the difficulties faced by those in such accommodation, particularly a lack of understanding of the general duties required of everyone residing in strata-titled developments.

What are the responsibilities and duties of strata title owners?

The report’s findings highlight that many disputes surrounding strata property relate to maintenance and repair issues. Specifically, debates about who should pay abound. First, maintenance for the common property is the responsibility of the body corporate that must manage, control and care for the property that benefits all owners in the title.

Conversely, when a dispute arises between an individual proprietor and the body corporate in relation to the repair and maintenance of property, the courts must try to identify the common property, and henceforth evaluate.

In Allen v Proprietors of Strata Plan 2110 [1970] 3 NSWR 339, the question before the Court as to whether the rising damp on the lower ground unit was the responsibility of the owner or the body corporate was raised. The Court had to determine the origin of the dampness, as well as whose responsibility it was to carry out the repairs. The plaintiffs argued that the repairs were the responsibility of the defendant, being that the common boundary was at the centre of the external wall between the unit and the common property. In each jurisdiction, there is a requirement that the boundaries are set out regarding each lot and the relationship to the common property. As such, the Court then had to determine whose duty it was to repair the rising damp.

Ultimately, the Court held, with guidance from the relevant legislation, that it was the duty of the body corporate to maintain the common property and to keep it in serviceable repair. As such, the cleaning of the drains after a heavy downpour was the domain of the body corporate. When evaluating the common boundary, the courts must refer to any relevant state legislation which can outline that the common boundary may be outside, the middle, or inside of walls, floors or ceilings.

Financial contributions in strata titled property

Issues relating to financial contributions towards the maintenance and repairs necessary to the common property tend to be an area that is particularly fraught. In Julian-Armitage v The Proprietors Astor Centre [1988] QCA 111, the issue before the Court was whether the owner of the lower ground unit (the appellant) had to share the maintenance costs in relation to the operation of the lifts servicing the other units in the plan – despite having no use for the lift.

The Court held that the appellant was responsible for contributing to the body corporate for the upkeep and maintenance of the common property. This included the sharing of the costs of the electricity used to operate the lifts, despite not having any personal use for the lifts.

How are disputes resolved in strata titled property?

As noted earlier, 51 per cent of owners in strata property have had a dispute with a neighbour. As such, appropriate dispute resolution procedures must be in place to ensure that disagreements are appropriately dealt with.

Jurisdictions such as New South Wales have a process in place that begins with mediation or a hearing conducted before the relevant body, with the goal of resolving any disputes before escalating the hearing to the Supreme Court, a body which can only deal with questions of law. Conversely, in Victoria and South Australia, the matter will first be heard by the Magistrates Court; in Queensland, the first stop for disputes will be before a Commissioner.     

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Under what circumstances are landlords legally required to make repairs to rental properties?

Many people will probably have seen a new item on one of those nightly current affair programs exposing the unscrupulous behaviour of a landlord who refuses to comply with their obligations to make the necessary repairs in regards to a rental property. However, allow us to take a moment to make the point that we’re not for one moment suggesting that all landlords are immoral, nor are we saying that all tenants are angelic. There are many shades of grey – but with that being said – landlords do have an obligation to keep the premises in a reasonable state of repair and fit for its designated purpose, which may be an issue that many tenants may experience from time to time.

The obligation to keep the premises in a reasonable state of repair

All States and Territories have laws in place which require lessors (landlords) to keep property in reasonable shape, and using s 72(2) of Queensland’s Residential Tenancies Act 1997 as our example, the landlord at the start of a tenancy must ensure:

·         the premises and inclusions are clean;

·         the premises are fit for the tenant to live in;

·         the premises and inclusions are in good repair;

·         the lessor is not in breach of a law dealing with issues about health and safety of persons using or entering the premises.

Section 72(3) of the Queensland Act further requires while a tenancy continues, that the lessor:

·         maintain the premises in a way that remains fit for a person to live in;

·         must maintain the premises and inclusions in good repair;

·         ensure any law dealing with issues about health or safety of persons using or entering the premises is complied with;

·         any common area must be kept clean.

Turning to case law, in the matter of Proudfoot v Hart (1890) 25 QBD, 42, the Queen’s Bench stated that keeping a premises in a reasonable state of repair, such repairs will “… have regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it…”

What happens if a repair is urgent and the tenant is required to pay?

There’ll of course be circumstances where repairs are urgently required and there is no choice but for a tenant to arrange for repairs to be made immediately. Looking towards s 72 of Victoria’s Residential Tenancies Act 1997 for example, a tenant may arrange for urgent repairs to be carried out to the rented property if the tenant:

·         has taken reasonable steps to arrange for the landlord or the landlord’s agent to immediately carry out the repairs; and

·         is unable to get the landlord or agent to carry out the repairs.

If a tenant does have to use their own money in undertaking any urgent repairs, in New South Wales and Victoria, tenants can be reimbursed for up to $1000 or such other prescribed amount, and within 14 days, must provide written notice to the landlord about the costs associated in organising for the urgent repairs to be undertaken.

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What duty of care do property owners owe to visitors?

In law school, one of the first cases many students would encounter is that of Donoghue v Stevenson [1932] AC 562, which was a matter that established the principle that one person owes another a duty of care – paving the way for the concept of modern negligence.

The basic facts of Donoghue v Stevenson involved Mrs Donoghue consuming a bottle of ginger beer with a snail in it. Mrs Donoghue felt ill and bought an action against the manufacturer, Mr Stevenson. The House of Lords found for Mrs Donoghue and ruled that it was reasonably foreseeable that an injury may be suffered due to the acts or omissions of Mr Stevenson. Lord Atkin set out the duty by saying (at 580): “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Reference to ‘neighbour’ in this instance is broader than the people in the immediate vicinity, with Lord Atkin observing that ‘neighbour’ in a legal context are (at 580) “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

The decision in Donoghue v Stevenson established the general laws of duty of care under negligence in relation to occupier’s liability – meaning that a person who is an occupier of private property has a duty to take reasonable care in the preventing of foreseeable risks of injury to anyone who comes onto the land or premises.

Who is an occupier?

An occupier is someone who ultimately decides who to let in, or exclude from the land, building or premises in their possession.

When determining the liability of an occupier, the consideration is whether the risk of injury is real, and what a reasonable owner or occupier would do under the circumstances in the prevention of injury.

Can a person still be liable for the injuries caused by a trespasser?

How a person enters into the land may not determine whether they are owed a duty of care (see Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479). However, the situation that gives rise as to how a person entered into the premises may still be a consideration.

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Claim of right laws and property in Australia

People are generally fiercely protective of their property and it’s not unusual to see a person make a ‘claim of right’ in relation to tangible property, or money (obviously). The essential element of a claim of right is the person holds the belief that they are legally entitled to the property.  

The basis for claim of right

We should start off with what is meant when the term, ‘claim of right’ is used, and some guidance can be found in Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343, where Gleeson CJ, Gummow and Hayne JJ said:

“[S]everal points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden v Hensler (1987) 163 CLR 561 at 592-593:

‘It is not ignorance of criminal law which founds a claim of right, but ignorance of the civil law because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law...’

Second, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; 86 A Crim R 412 that, although an honest claim ‘may be both unreasonable and unfounded’, if it is of that quality then the claim ‘is less likely to be believed or, more correctly, to engender a reasonable doubt.’

Third, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.”

A claim for moral rights is insufficient

Oftentimes, a claim of right may be attached to a ‘moral right’, however, the common law deems this as insufficient, as Murphy J in R v Salvo [1980] VR 401 (CCA), observed in a matter involving the obtaining of property by deception, with a focus on the term, “dishonestly” which was used in the relevant legislation:

“The word ‘dishonestly’ implies reference to a standard of morality underlying the law. The law sets standards of legality and illegality but cannot set and never has purported to set standards of morality. Standards of morality underlie the law: they derive not from the law but from the standard of ethics accepted by the community.”

A person must hold the belief for a claim of right

When a person is making a claim of right, it must be shown they held the belief, although, the belief does not need to be reasonable. In R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; 86 A Crim R 412 (CA), Callaway J said:

“Fraud and dishonesty may be regarded as interchangeable terms in relation to an offence of misappropriating property…The common law concept of dishonesty, at least in a criminal context, is subjective. If a person has a belief inconsistent with dishonesty, he cannot be convicted of an offence of which that is an element even if his belief is unreasonable. The reasonableness of the belief goes only to its plausibility: ‘a man may be stupid, unreasonable, or wrong-headed man, without being a dishonest one.’”

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An introduction to mortgages and loan contracts

The majority of Australian home owners will more likely than not, be subject to a mortgage. For the most part, there are two broad types of mortgages in use:

 

  • security that involves the actual conveyance of a legal estate to the mortgagee; or
  • a mortgage where the lender acquires an enforceable charge against the property.

 

By understanding what a mortgage contract entails, may assist you if you’re considering purchasing a property, or by having a greater understanding of what the ‘right of equity of redemption’ means – and how it may apply to you. 

Equity of redemption

There exists with the mortgagor (the person borrowing the money) an equitable right to redeem (also referred to as equity of redemption) and will occur upon the securing of a loan contract amounting to a mortgage. When an equitable right of redemption does arise, it gives way to a proprietary interest, rather than a personal contractual right which can be alienated, and be dealt with in the same way when reference is made to other equitable property interests.

When can the equitable right of redemption be enforced?

Once the mortgagee accepts payment, the equitable right of redemption is enforceable – even in instances where payment is made after the due date. Additionally, the equitable right of redemption can also be enforced by a Torrens title mortgagor even though they retain legal title, as Finkelstein J stated in Australian Securities and Investments Commission v GDK Financial Solutions Pty Ltd (in liq)(No 3) (2008) 246 ALR:

“In my view a mortgagor of Torrens land has a legal right to obtain a discharge of mortgage on payment of the amount secured by the mortgage (or, subject to any rights of foreclosure, a lesser sum if the proceeds are insufficient to cover the debt) and equity applies the appropriate remedy, usually in the form of a mandatory injunction or specific performance.”

What must be included in a loan contract?

For an equitable right of redemption to be enforced, all of the terms of the loan contract must have been complied with, and compliance may mean the following:

 

  • the mortgagor tenders payment on the contractual date for repayment, therefore, they will be will exercising their contractual and legal right to redeem;
  • the mortgagor has money payable on demand,  which means they can repay the amount at any time a valid demand has been made;
  • upon the passing of the contract date for repayment, the right to redeem the secured property can only be enforceable in the equitable jurisdiction.

 

Can relief be sought before or after the contract date?

Before the passing of the contract date, the relief that can be sought will be specific performance in aid of the contractual right. On the other hand, upon the passing of the contract date, if the mortgagee accepts payment, than the mortgagor will be entitled to enforce their equitable proprietary right of redemption.

Can an equitable right be extinguished? 

There are various situations where the right to redeem in equity can be extinguished, and can be generally done so under the following circumstances:

 

  • the mortgagee chooses to foreclose a property;
  • the mortgagor has not enforced their right within the statutory limitation period;
  • the mortgagee has purchased the right of redemption.

 

However, equitable jurisdictions may be reluctant to interfere with the enforceability of the right of redemption. One such example that may be considered as interference in the enforceability of the right of redemption, will be a situation where either a right, or option to buy a mortgaged property, extinguishes the right to redeem. Such a right can only be done so via a separate and independent agreement. 

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Why it’s important to determine your tenancy status if an issue arises

In many Australian capital cities, the high cost of living means that many people have to share the costs of renting with others. Therefore, it’s essential that you’re aware of your tenancy status in the event that if any issues arise, you’ll have an understanding of the rights and remedies available whether you’re a boarder, lodger, sub-tenant, or co-tenant.  

Determining your tenancy status

Trying to determine who is a boarder or lodger is somewhat a legal grey area. Broadly speaking, borders and lodgers receive meals from a landlord – with the landlord also retaining a position of authority over the property.  

Meanwhile, a sub-tenant is classified as someone who lives with a head-tenant – the person whose name is on the lease – with permission from the landlord. A sub-tenant has to pay rent to the head-tenant. Furthermore, the landlord exercises no legal control over a sub-tenant, and it is the head-tenant who is seen to be the landlord in such a scenario.

To complicate matters further, if a head-tenant sublets the property without permission from the landlord, the action may be a breach of the tenancy agreement and the landlord can potentially terminate the lease. However, if a tenant takes in a boarder or lodger, they don’t require the permission from the landlord as long as the number of people staying on the property does not exceed the maximum number outlined in the tenancy agreement.

What rights are available to you in a shared household?

Having an awareness of your status in a shared household is important when trying to understand your rights and responsibilities. For instance, if you are a co-tenant, this means that your name is on the lease with another person and you cannot be forced to leave by the other tenant. In contrast, if you’re a sub-tenant, the head-tenant can evict you but must still follow the proper legal procedures required from a landlord under the law. On the other hand, if you are a boarder or lodger, the only right you have is one of reasonable notice when being evicted.

We began the article with the question: what type of tenant am I? So naturally, we should end the piece with some sort of answer. The short answer is that the law is unfortunately murky when it comes to shared housing, and there are no actual laws that clearly define what is a sub-tenant, boarder or lodger. The best course of action that you can take if you are experiencing a problem is to contact a lawyer for any difficulties you may be experiencing. 

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How do the concepts of possession, ownership and title impact property rights in Australia?

The practice of law is complex and matters can turn on the meaning of a sentence, or even a word. For instance, when looking at ‘possession’ and ‘ownership’ in relation to property, the majority of people will assume that both terms mean essentially the same thing, and in everyday usage, yes, that would be the case. However, when looking at possession, ownership and title to property via a legal prism, there are some distinctions between possession, ownership, and title.

What is ‘ownership’ in property law?

Possession and ownership can be seen as two sides of the same coin, and that assumption is both correct…and kind of incorrect.

Arguably, the biggest distinction between possession and ownership is that of permanence – which has more of an association with ownership. Additionally, a person can have possession of something but not necessarily ownership. For example, if you borrow a pen from someone you have possession of the pen, but not ownership, because in this example, possession is temporary, therefore, ownership cannot be claimed. However, the most important part of the example is that the owner has the better right to possession.

Although there may be slight differences between the concept of possession and ownership, the law generally treats both in a similar manner. Turning back to our pen example, if someone interferes with the possession of the pen by wrongly and directly interfering with the person’s right to possession, the owner can recover possession because they have a better right to the property – even where ownership is absent.

Our pen analogy can be extended to renting property. Sure, the tenant has possession, while the owner temporarily gives up their ownership rights. However, the owner still possesses residual rights and can bring a lease to an end provided the legal requirements have been adhered to.

Title and property

Title is generally affixed to property that has greater value, such as a vehicle or land. Much like ownership, ‘title’ can also signify ‘possession’, therefore, it’s often used interchangeably. Additionally, ‘title’ similar to ‘ownership’ can mean more than ‘possession’.

The registering of property under the Torrens system is arguably the most pertinent example of legal title which generally speaking, is more than mere evidence of ownership. In fact, it is in many ways the lynchpin of property rights under Australian law.

Finally, title can also be in reference to possessory title, such as when a person takes and possesses an object.

Concluding remarks

Making a distinction between possession, ownership and title may seem like a finicky exercise, and although the differences may be minor in many respects, the concepts may have an impact on claims to property rights. 

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Family Law QLD Newsletters

Under what circumstances can the contents of a will be contested?

It’s never easy when someone close has passed away, and the pain can be exacerbated if there happens to be an issue with the will. It’s unfortunately not uncommon for someone to be dissatisfied with some of the contents of a will, and there may be instances where the person may want to challenge the will. Therefore, questions that may arise can include: Under what circumstances can a will be challenged? Also, who can challenge a will? Maybe some of the lines of inquiry for anyone who wishes to contest a will.

Grounds for challenging a will

When a will is open to the grant of probate, a person wanting to contest the will may question the validity of the will on some of the following grounds:

 

  • the will was not the final document;
  • the person lacked the mental capacity;
  • the will was altered after it was signed;
  • the person was unduly influenced by another person who may benefit from the will;
  • the will was revoked;
  • the will lacked clarity.

 

What happens if the intention of the will maker is unclear?

In circumstances where the will is unclear, assistance from the courts may be required so a determination can be made in trying to ascertain the meaning behind the words used in the will. Besides the will not giving effect to the person’s intentions, the courts may also rectify any clerical errors made in the will.

Is there a time limit for when a will can be challenged?

The laws will vary depending on the jurisdiction, and readers should be mindful that there are time limits in place as to when a person can challenge a will. For example, in New South Wales an application must be made within 12 months, while in Victoria, a testator family maintenance claim must be done within six months after the grant of probate or letters of administration being made.  

There are a number of complex that arise when contesting a will, and it is always a good idea to seek legal help for anyone requiring assistance for any matter related to contesting a will. 

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Testamentary guardianships and children

Having children changes a person’s worldview, and formerly unimportant issues all of the sudden take on a different complexion when we have kids of our own. There’s nothing quite like being responsible for another person to overhaul someone’s life, and all of the sudden matters such as schooling and kid friendly restaurants seem to take prominence. Because parents are responsible for a child’s wellbeing, issues such as what happens if the parents of a child unexpectedly pass away becomes a matter that needs to be dealt with – irrespective of how uncomfortable the subject may be. Anyone who has a child under the age of 18 must consider the prospect of appointing a testamentary guardian to look after their child if the worst does happen. Deciding who should be your child’s testamentary guardian if you and your partner pass away, may prevent additional heartache if the worst case scenario does arise, while ensuring that the child will be properly cared for.

What is a testamentary guardianship?

A testamentary guardian is a person who is responsible for taking care of the child’s daily and long term needs if there is no surviving parent, and there are no other court orders stating who the child shall live with.

If a testamentary guardian does take up the role of a primary carer, he or she will generally have the same types of powers, rights and duties of a natural parent – such as the ability to make important life decisions on the child’s behalf. Additionally, testamentary guardians also need to  ensure that the child is adequately housed, clothed, and educated.

Similar to the types of considerations you would make in the best interests of your child, deciding who is to be your child’s testamentary guardian is extremely important. Therefore, it’s essential that you have an in-depth discussion with a potential guardian addressing issues such as; how you wish your child to be raised, which may include matters such as, religious and educational considerations. Having such a discussion will ensure that your child will be properly looked in accordance with the wishes of you and your partner.

Who can be a testamentary guardian?

Any adult can be a testamentary guardian, and there is no requirement that the person must be related. Additionally, more than one testamentary guardian may be appointed, however, disputes may arise in such a circumstance and any surviving parent, or any other testamentary guardian can apply to the courts to have the appointment cancelled.

Can my choice of testamentary guardian be overruled?

The courts will always strive to fulfil the wishes and intentions as expressed in your will. However, the courts can also exercise their discretion to appoint another person as the child’s guardian if it considers it to be in the child’s best interests to do so.

Do testamentary guardians have the power to administer my estate?

No, testamentary guardians do not have the power to administer the estate. The power to administer an estate rests with a trustee who is nominated in the will. However, testamentary guardians may have the ability to retrieve funds from the estate to support the child up until the age of 18.

It may be uncomfortable to deal with the subject matter of death, but it is essential that such issues are dealt with, especially if you have kids. Appointing a person to be your child’s testamentary guardian is an important undertaking, therefore, it is crucial that you talk to a lawyer to ensure that your child is properly cared for in the event of your unexpected passing. 

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Can casual employees receive paid maternity or paternity leave?

Casual employees often miss out on some of the benefits that part-time and full-time employees enjoy, and concerns can arise especially when the employee is about to become a parent. Some casual employees may wonder if not only are they entitled to maternity or paternity leave in the first place, but will they also be entitled to be paid during leave?

There are two main Acts that provide entitlements for paternity and maternity leave and pay, being: the Fair Work Act 2009 (the FWA) and the Paid Parental Leave Act 2010 (the PPL Act). Expectant parents who are casual employees will understandably hold concerns about the eligibility requirements regarding parental leave and pay, and hopefully this piece can shed some light on the matter.

Who is a casual employee?

Before further exploring the eligibility requirements for casual employees in regards to unpaid parental leave, we should first determine: ‘Who is a casual employee?’ Well, believe it or not there is no set definition of what constitutes casual employment. However, case law has put forward the view that a casual employee may involve “... informality, uncertainty, and irregularity of an engagement that gives it the characteristic of being casual” as was suggested in Reed v Blue Line Cruises Ltd (1996) 73 IR 420.

There is no definition in the FWA of what is casual employment, and the High Court in Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 has also said there is no set meaning. However, a commonly accepted definition can be found in Australian Communication Exchange v Deputy Commissioner of Taxation (2003) 53 ATR 834; 201 ALR:

“A casual employee shall mean an employee who is engaged by the hour and who may terminate employment or be discharged at any moment without notice.”

Eligibility for unpaid maternity or paternity leave under the Fair Work Act

In order for casual employees to be eligible for unpaid parental leave, they must satisfy the following criteria under s 67 of the FWA:

  • the employee is, or will be, a long term casual employee of the employer immediately before the date, or expected date, of birth or placement of the child, or the date on which the employee’s leave is to start; or
  • but for the birth or placement of the child, or the taking of the leave, the employee would have had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

As many readers may have noted, unpaid maternity or paternity leave is only available to ‘long term’ casual employees, which means that the employee must have been employed on a regular and systematic basis during a period of at least 12 months, as outlined under s 12 of the FWA.

Similar to the definition of ‘casual employee’, there is no formulaic approach to employment on a ‘regular and systematic basis’. However, case law regarding the matter has stated that the work must be regular and systematic, rather than specifically looking to the hours and the days of work. Therefore, a defined pattern of rostered hours may be a strong indicator of regular and systematic employment, along with the offer to the employee to undertake work – and regular acceptance of available work by the employee, may also be considered as evidence of regular and systematic employment, as was noted in Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078.

Eligibility for paid maternity or paternity leave under the Paid Parental Leave Act

In terms of eligibility for paid maternity or paternity leave, under s 35 of the PPL Act, only requires that a person performs ‘paid work’. Therefore, a person who works for a company for remuneration will be eligible, or if the person is self-employed, the work performed for a business which is carried for profit and controlled by the person will also generally fulfil the eligibility requirements.

However, under s 31 of the PPL Act, a primary claimant must also:

  • Satisfy the work test: within the 13 months prior to the birth or placement of a child, they must have completed at least 330 hours of work in a consecutive 10 month period.
  • Satisfy the income test: a person satisfies the income test if their adjustable income for the relevant financial year is no more than the PPL income limit, which currently stands at $150,000 at the time of writing (November, 2012).
  • Satisfy the Australian residency test: a person satisfies the residency test: if they are an Australian resident; a special category visa holder residing in Australia; is the holder of a visa determined by the Minister for the purposes of s 729(2)(f)(v) of the Social Security Act 1991 (Cth); and either the person is in Australia, or the person is temporarily absent from Australia for no more than 13 weeks and the absence is in relation to a special benefit under the Social Security Act 1991. It should also be noted that a person may not satisfy the Australian residency test if at the time the paid parental leave claim is made, they have been absent from the country for more than three years.
  • Be the primary carer of the child: a person will be considered as the primary carer if the child is in the person’s care during that period, and the person meets the child’s physical needs more than anyone else during that period. Additionally for the most part, only one person can be a child’s primary carer on any given day.
  • Have not returned to work: a person will be deemed to have returned to work on a day on or after the birth or placement of a child if, on that day, the person performs one hour or more of paid work. However, defence force members and law enforcement officers are allowed up to 10 hours of ‘keeping in touch days’, which will not count as return to work, therefore, not disentitling the person from the benefit. For other employees, if the purpose for the day is to allow the person to keep in touch with their employment which will assist in the person’s return to work at the conclusion of the leave period – such a day will be considered as a ‘keeping in touch day’. However, for the day to be considered as a ‘keeping in touch day’, both the employer and employee must agree to the day, and it must not occur within 14 days of the child’s birth or placement. A person who is self-employed may be allowed to oversee their business and perform the occasional administrative task for business purposes without the work counting as a return to work. However, you should always check with your lawyer to get clarity of the situation.  
  • Not be entitled to the baby bonus, have a partner or ex-partner who is, or was, entitled to the baby bonus in relation to the child.

For a child who is adopted, the eligibility requirements are similar to the eligibility requirements for a birth of a child. The only really differentiator is that for a parent to be eligible for paid leave in regards to an adopted child – the child must be under the age of 16 at the date of placement (s 275(2)).

This is only a general introduction to maternity or paternity leave and pay. If you have any questions or concerns, please seek the help of a lawyer. 

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Mandatory reporting laws for child abuse and family violence

Unfortunately, instances of family violence and child abuse does occur and the Family Law Act 1975 (Cth) (the Act) recognising this reality, has made notification to a prescribed child welfare authority mandatory for certain professionals if they have reasonable grounds for suspecting that a child has been abused, or is at risk of abuse as outlined in ss 67ZA(2) of the Act.

Professionals required to report instances of child abuse

The class of persons required to mandatorily report child abuse if in the course of performing their duties or functions, has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused are the following classes of professionals:

  • Registrars or a Deputy Registrar of a Registry of the Family Court of Australia;
  • Registrars or a Deputy Registrar of the Family Court of Western Australia;
  • Registrars of the Federal Circuit Court of Australia;
  • family consultants;
  • family counsellors;
  • family dispute resolution practitioners;
  • arbitrators;
  • lawyers independently representing a child's interests.

Beyond federal legislation, the States and Territories also requires teachers, doctors, other medical and mental health care professionals, and community service employees to report child abuse if there are reasonable grounds for concern, irrespective of any confidentiality obligations.

“Interested person” and mandatory reporting obligations

In addition to certain persons, an “interested person” in proceedings is also compelled to report occurrences of child abuse. An “interested person” is anyone who is a party to the proceedings, and who is independent of the child’s lawyer.

When looking at the reporting requirements in relation to an “interested person”, the provisions set out two options. Section 67Z of the Act requires an “interested person” who has made an allegation about actual or a risk of abuse to file a “Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4)” to the court.

Alternatively, if child abuse occurs, or would occur due to exposure to family violence, an “interested person” is required to file a Form 4, which would then be served on the alleged perpetrator even if the person was not a party in the case. The Form 4 must also be served to the independent child’s lawyer.

What should be included in a Form 4 application: an “interested person” who intends to file a “Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4)” should include evidence detailing the alleged actions per Family Law Rule 2.04D. The form should detail the alleged abuse, whether any attempts at dispute resolution were undertaken, any advice received on community “services and options” if they were available to the victim, and if there are any risks in a delay of application.

Under certain circumstances besides a Form 4, an “Application in a Case” application may be required for interim protection orders.  

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An introductory guide to the family dispute resolution process

When dealing with family conflict, the law always encourages parties to resolve their disputes without having to resort to litigation, and there are a number of dispute resolution mechanisms available. The affected parties have the option to engage with a process of their own choosing, or alternatively, can seek the assistance of the court who may refer the parties to family counselling, family dispute resolution or other alternative family services as outlined in the Family Law Act 1975 (Cth) (the FLA) which can include:

  • private negotiations;
  • counselling;
  • family dispute resolution;
  • arbitration.

Private negotiation

Parties to a family law matter can engage with private negotiation either with the help of a lawyer or between the parties themselves.

The obvious attraction with negotiating privately is the cost benefit, however, family law matters can oftentimes be fraught, and if you do require assistance, an experienced legal practitioner who is skilled in the area of family law may be able to provide you with the appropriate assistance your matter requires.

Counselling

There is a number of counselling options available to parties involved in a family conflict and can involve either relationship or personal counselling. Additionally, the provisions of the FLA allow for accredited family counsellors to assist as well

How does the family counselling process operate?

Any statements made by the parties to the dispute and any child during family counselling and family dispute resolution are for the most part, confidential. However, it should be highlighted that the confidentiality requirements is also extended to the Child Responsive Program.

Family counsellors, practitioners, or any other professional referred to by the family counsellor or practitioner, generally cannot disclose any information contained in statements. However, under the following circumstances, a family counsellor, practitioner or other professional may be compelled to release information contained in the statement under the following circumstances:

·         the counsellor or practitioner is compelled by law to report the information, such as instances of child abuse or if a there is a risk of abuse;

·         the parties or persons with parental responsibility for the child involved in the matter have provided their consent;

·         the counsellor or practitioner holds the reasonable belief that disclosure is necessary in order to protect the child from harm, or to protect against threats to a person’s life, health or property;

·         the information would help the independent child’s lawyer to perform their role;

·         under s 60L of the FLA, it is necessary for the provision of a family dispute resolution certificate.

Family dispute resolution

Family dispute resolution is an all encompassing term that includes both mediation and conciliation, as outlined in s 10F of the FLA.

Family dispute resolution practitioners are integral to the mediation and conciliation process, and must possess the appropriate qualifications, training, experience, and accreditation as outlined in both the FLA and the Family Law Regulations 1984 (Cth) (the Regulations). Family dispute resolution practitioners must be registered with the Attorney-General’s Department in order to be accredited under the provisions outlined in the FLA.

The dispute resolution process

Generally speaking, family dispute resolution practitioners will initially speak to the parties individually before a joint session is held. The initial confidential preliminary sessions are conducted to outline the process. Furthermore, the preliminary discussions can also allow participants to raise any concerns they may have in relation to the family dispute resolution practitioner tasked to deal with their matter.

Once the joint sessions have commenced, depending on the circumstances surrounding each case, sessions can be conducted over the phone, via video, or in separate rooms where the practitioner will play the intermediary between the parties. Upon agreement between the parties, legal representatives or a support person can also be involved in a joint session.

The joint sessions allow the parties to articulate any outstanding issues that need to be dealt with and what they hope to achieve. An agenda is drawn up for the particular session and each issue is addressed and the parties are allowed to voice their thoughts without interruption. At the conclusion of the session, the practitioner may summarise and restate the points of discussion with the aim of identifying, and investigating any possible areas of agreement that may be reached.

It should be emphasised that the family dispute resolution process provides a space for the parties to express their feelings; however, it is generally not a therapy session.

What happens if an agreement is reached during the family dispute resolution process?

Any agreements reached can involve a family dispute resolution agreement, a signed memorandum of understanding, or alternatively, a parenting plan. The agreements are generally not legally enforceable. However, upon agreement between the parties, such agreements may be filed later in court, which will then take the form of consent orders – which are enforceable.

Arbitration

Upon agreement between the parties, arbitration can be undertaken prior to litigation or after a matter is heard in court, although arbitration is not compulsory.

Similar to the adversarial system found in court, the parties present evidence and arguments before an independent third party, who will then make a determination on the issues – which are legally binding.

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

 

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Trust instruments that disturb a marital relationship: Are they valid?

The area of trust law can throw up a number of difficulties, especially if a trust instrument is created that affects a marriage, or other family relationships because the issues that may potentially arise under such circumstances, can be rather thorny to put it mildly. Recognising that a trust instrument that interferes with family harmony may be fraught, the courts generally consider such trusts as void – for the most part.

The types of trusts which may be void for interfering with a marriage (or family relationship)

Trusts which are created disturbing the welfare of a marriage will usually be considered as void. So for example, a trust instrument that is created requiring a person to separate from their spouse in order to receive a benefit, may be considered void because it may encourage a beneficiary to initiate an action of divorce from their spouse. However, the High Court in Ramsay v Trustee Executors and Agency Co Ltd (1949) 77 CLR 321 arguably took a different approach and upheld a testator’s wish that his trustees convert his estate and to hold the proceeds in trust “...to pay the income...to my son...for such period...as he shall remain married to his present wife...and on the termination of such period in trust for my...son absolutely provided however that should my...son predecease his said wife during such period...my estate shall go to my...nephew...and my sister...in equal shares.” The Court in Ramsay held that “...this provision contained nothing which offended against public policy as having, or tending to have, an adverse effect on the son’s marriage and it was wholly valid.”

What are some of the public policy considerations?

In relation to public policy considerations, the law generally views clauses that require forfeiture of a life estate as contrary to public policy. Although in contrast, trusts that place a reliance on the beneficiary to marry to receive a trust, has been upheld as valid in some instances.

Public policy considerations generally view any trust that is constructed in a manner that would result in the separation between a parent and a child, will be void. Although, clauses that outline how a child should be raised – such as in relation to their religious upbringing for example – may not necessarily be considered as void under certain circumstances.  

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Bankruptcy and marital property: What are the effects?

When bankruptcy and family law collide, the results are how shall we say it? Complex. Although, we’ve dealt with a number of property matters in the past involving spousal relationships, we’ve never covered the area of what happens to the property of a spouse who has become bankrupt, and how bankruptcy affects the non-bankrupt spouse. Under s 58 of the Bankruptcy Act 1966 (Cth), once a person becomes bankrupt, that person’s divisible property vests in the trustee. However, under s 116 of the Bankruptcy Act, certain property such as superannuation, tools of the trade, some furniture, and transport can be exempt, but the fact still remains, that the interaction between bankruptcy and family law is extremely complicated.

Are there any effects on the property of the non-bankrupt spouse?

With the introduction of the Bankruptcy and Family Law Legislation Amendment Act 2005(Cth)(the Amendment) afforded non-bankrupt spouses greater protections in property proceedings with the insertion of the s 59A provisions into the Bankruptcy Act. The provisions provides that ss 58 and 59, being the vesting sections, are subject to orders made under Pt VIII of the Family Law Act 1975 (the FLA). So what does that exactly mean? Well, what it essentially signifies is that the income of the bankrupt does not vest in the trustee, therefore, allowing a non-bankrupt spouse the ability to seek maintenance from a bankrupt spouse. 

The Amendment gave a non-bankrupt spouse the right to share property of a bankrupt spouse, and if we look to s 4(1) of the FLA under the definition of “matrimonial cause” at paragraph (cb), reference is made to proceedings between:

 

  • a party to a marriage; and
  • the bankruptcy trustee of a bankrupt party to the marriage.

 

Trustees can join a party to family law proceedings if the court is satisfied that any interest of the creditors of a bankrupt will be affected in a property proceeding, as outlined in s 79(11) of the FLA. What we should highlight is if proceedings are on foot which includes a creditor and non-bankrupt spouse, neither party has greater priority over the other under s 79 of the FLA. In Billtoff and Billtoff (1995) FLC 92-614, the Full Court of the Family Court of Australia at Perth said:

“Although, there is a general rule, it is not absolute, is not prescribed by statute and there are a number of well recognised exceptions. There is no requirement of that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under sec 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.”

Under the provisions of s 79(12) of the FLA, there will be certain circumstances where a trustee in bankruptcy must be joined to the proceedings, and the bankrupt needs to obtain leave in order to make submissions if the trustee is a party.


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Reporting child abuse: Voluntary and mandatory reporting requirements

It’s generally accepted that parents are responsible for the care, protection and upbringing of a child. Matters to do with children and the family are usually dealt with under the Family Law Act 1975 (Cth), or alternatively, by the Federal Circuit Court. However, if a child has been charged with a criminal offence, is suffering from abuse, or is in need of care, the states and territories have the authority to act in respect to the maltreatment of a child. Therefore, the question that needs to be asked is: What are the general laws relating to the reporting of child abuse? Are reporting requirements voluntary or mandatory? There are a number of elements related to reporting of child abuse which this piece will broadly cover.

Voluntary reporting

The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Although there are no specific provisions in South Australia and Western Australia for voluntary reporting, both jurisdictions still provide for those who have acted in good faith when reporting maltreatment of a child to the relevant authority, and will generally be protected from civil or criminal liability.

Mandatory reporting

Although the majority of jurisdictions provide for mandatory reporting of maltreatment of a child, all States and Territories in Australia makes it an offence for certain professionals who fail to report suspected child abuse to the relevant authority. Similar to a number of the legislative instruments related to voluntary reporting, professionals that are legally compelled to report child abuse will generally be protected from civil or criminal liability and will not be seen to have breached professional confidentiality if they have acted in good faith.

Professionals who may be mandatorily compelled to report child abuse are generally in occupations that deliver health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly to children. Additionally, any person who holds a management position in organisations that are directly responsible for the provision of the aforementioned services wholly or partly to children are also required to mandatorily report child abuse (per s 27 Children and Young Persons (Care and Protection) Act 1998 (NSW)).

How are abused children cared for?

All States and Territories allow either the police or an authorised officer to enter any premises and remove a child from immediate danger, and to provide for their protection and welfare. If the child requires hospital care or immediate treatment, legislation provides that a child can be detained for a specific period of time before an application for an order for the provision of further care is required.

Depending on the situation, a child may also be removed against the will of a parent and be made a ward of the court. 

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What are the essential requirements of informal post-separation parenting plans?

It’s not unusual for parties who have separated to make their own private parenting arrangements in relation to their child. Private parenting arrangements are an attractive option because it is cost effective, relatively easy to produce, and obviously not as emotionally intensive as dealing with the formal legal system.

Parties who wish to undertake post-separation arrangements privately, can choose to do so in writing that takes the form of a parenting plan. However, one of the important things to keep in mind is that private arrangements are generally not legally enforceable.

What are the technical requirements of parenting plans?  

Section 63C(2) of the Family Law Act 1975 (Cth) (the Act) sets out the following technical requirements that must be met:

  • the plan must be in writing;
  • the plan must be signed by all parties;
  • the plan must be dated;
  • the plan must deal with one or more of the following: the person or persons with whom the child shall live with; the time the child is to spend with the other person or persons; the allocation of parental responsibility for the child; if two or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made when exercising the responsibility; the communication the child is to have with another person or other persons; maintenance of the child; the process used for resolving disputes about the terms or operation of the plan; the process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties of the plan; any aspect of the care, welfare, development of the child or any other aspect of parental responsibility; and
  • the plan must not be made under any threat, duress or coercion.

For parties who have separated, a formal parenting plan is not compulsory.

Do parenting plans have to be registered?

Parenting plans can no longer be registered, and any reference made to the registration of parenting plans are in relation to plans made before the commencement of the Family Law Amendment Act 2003.

Although there is no longer a formal obligation to register parenting plans, it should be highlighted that any plans will still have an effect as long as it meets the s 63C technical requirements outlined in the Act. 

Are parenting plans legally enforceable?

Due to the fact that parenting plans aren’t generally legally enforceable, any party who is in breach of the plan will not face any legal sanctions. Although, with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the 2006 Amendment), means that any previous court order addressing the same matters may be unenforceable.

For anyone who wishes to make the agreement legally enforceable, can apply to the court for a consent order to be made after an agreement has been reached.

Can parenting plans be varied, modified or terminated?

Under exceptional circumstances such as family violence, abuse, or the use of coercion or duress from one party to another in seeking a parenting plan, may allow the court to make a special order that permits other courts to vary an order.

Alternatively, parenting plans can be modified or terminated at any given time via written agreement between the parties.

We should add that this particular piece has not covered the complex area of parenting plans and child support. If you require any assistance with any family law matter, please contact a lawyer who will be able to assist.

 

         

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Getting a divorce? Here’s what proof you need

Under Australian law, a reason is no longer required to be given for an application for divorce. However, there must still be proof of the marriage’s ‘irretrievable breakdown’ in order for a divorce to be granted by the courts. Section 48 of the Family Law Act (the FLA) dictates that the courts will only make an order for divorce if the parties have shown that there has been an irretrievable breakdown of the marriage by separating from one another for at least one year. Other elements also must be proven to show an ‘irretrievable breakdown’ to allow the court to grant the parties a divorce.

How to prove the end of a marital relationship?

The FLA fails to explicitly state what is necessary to establish separation. However, the union’s end will be demonstrated upon a change in the overall character of the relationship; this does not include examples of fighting or infidelity.

While there may be a general social presumption that a harmonious marriage revolves around a quiet coexistence founded upon monogamy, the law recognises the various forms that marriage may take. When determining the change in the overall character of the relationship, the courts will look into the full circumstances surrounding the breakdown of the relationship which may include the following lines of inquiry:

·         do the parties continue to cohabitate?

·         do the parties still engage in sexual relations?

·         do the parties present themselves in public as a couple?

·         do the parties care jointly for any children?

·         do the parties still support and protect one another?

It must be noted that there is no set formula to establish the end of a marriage; rather, the courts will look towards the natural indicators from before to after, the alleged separation in adducing evidence of the breakdown of a marriage.

Must the desire for separation be mutual?

There is no requirement that both parties want a separation at law. However, it is necessary to inform the other party of the desire to put an end to the relationship. Communication of a desire to end a marriage can be done either explicitly, through words, or by actions which clearly demonstrate an inclination towards concluding the marriage.

The importance of the separation date

The date of separation is a crucial element in granting an order for divorce; under s 48 requirements under the Act, which mandates that a couple have remained separated from each other for a minimum of 12 months.

The 12 month separation period is also important because it may affect when child support and Centrelink benefits will become payable, as well as assisting the courts in calculating property settlements where relevant.

The conclusion of a marriage is never an easy thing. If you are experiencing any problems relating to your separation or divorce, please seek the assistance of a qualified legal practitioner – the advice contained within this article is subject to circumstance.

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What are the necessary legal requirements to establish separation?

For any parties to a marriage who have made the decision to undergo separation, there are a number of conditions that must be met in order to establish legal separation – namely, the intention to separate, acting on that intention, and unequivocal communication of the intention to separate.

Separation under the Family Law Act

Section 49(1) of the Family Law Act 1975 (Cth) (the FLA) states that at least one party to the matrimonial relationship can end cohabitation with their partner either through their actions or conduct. Further elaboration of separation can also be found in the comments of Watson J In the Marriage of Todd (No 2) (1976) 25 FLR 260 where his Honour said (at 262): “Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.”

What are some of the signs that a matrimonial relationship has come to an end?

There are no hard and fast rules as to what signs are determinative of a healthy marriage because each relationship is unique. However, there are a number of general signs that can be used to indicate a close matrimonial relationship, such as the living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship (per In the Marriage of Pavey (1976) 25 FLR 450 at 455).

However, the Full Court of the Family Court (the Court) In the Marriage of Pavey recognised that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before, and after. The Court In the Marriage of Spanos [1980] FLC 90-871 said (at 75,516): “Marriage is made up of a number of variable components, the presence or absence of some or all of which and their degree and frequency of occurrence pointing the one way or the other in each individual case.”

Communication and separation

The Court In the Marriage of Falk (1977) 29 FLR 463 observed that the intention to separate must be communicated, and can be done so directly or indirectly by words or by conduct, however, the communication must be effective (at 471). In determining whether communication was effective, an objective test is applied to determine whether the conduct was overt, unequivocal and specific (at 75,226).

It’s never easy when a marriage has come to an end and there are a number of important issues that need to be resolved under such circumstances. If you have any issue related to the end of a marriage, please seek the help of a legal practitioner who will be able to assist. 

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Bigamy: Elements of the offence explained

There’s no law against someone obtaining a divorce and marrying another person, however, there is a law against marrying one person, and then marrying someone else while the former union is still legally recognised – an act known as bigamy.

Bigamy is an offence in all States and Territories, and using s 360(1) of the Criminal Code 1899 (QLD) (the QLD Act) as an example, a person is guilty of a crime if:

  • married, goes through the form of marriage with any other person during the life of his or her wife or husband; or
  • a person who goes through the form of marriage with any person whom he or she knows to be married.

Are there any defences to bigamy?

Both the common law and statute provide for a defence of bigamy if there has been an absence of seven years. So looking to the QLD Act again, s 360(2) makes it a defence against a charge of bigamy if a person proves “...that at the time of committing the alleged offence the wife or husband of the person already married had been continually absent from him or her for the space of 7 years then last past, unless it is shown that the accused person knew that such wife or husband was living within that time.”

Another defence is if a person held an honest and reasonable belief that the former marriage is invalid (per Thomas v The King (1937) 59 CLR 279).

The effect of common law divorce

Finkelstein J in James v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 493 (FCA) said (at 503 [41]):

“According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: already being married; being under age; in the case of a minor; not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.”

What are the penalties for bigamy?

Although an offence of bigamy can land a person in jail. Perhaps the ultimate punishment as articulated by David Ross QC in Ross On Crime Fifth Edition is arguably the direst punishment of all: “Two mothers-in-law.”

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When it’s over: The Legalities of Divorce

In Australia, the Family Law Act 1975 (Cth) deals with the law of marriage and divorce. The Act intends to enable separation with as few problems as possible through reaching a mutually-beneficial agreement. Divorce law pertains only to the legal bonds between a couple; maintenance, property or children of the marriage are found elsewhere in theFamily Law Act 1975. 

Grounds for Divorce

Irretrievable breakdown of marriage is the only grounds for divorce in Australia. In order to prove this is the case, the parties must have lived separately from each other for at least 12 months. This period begins on the day after one (or both) of the parties intends to end the marriage, and communicates it to the other.

There must also be no reasonable likelihood of the parties reconciling. After the 12 month period has passed, and the parties are not reasonably likely to reconcile, one or both may apply for divorce. 

Making an application for divorce

Divorce applications should be made to the Federal Magistrates Court, and can be done at any time following the separation period. For the court to have jurisdiction over the proceedings, either the husband or wife must be an Australian resident or citizen, or living in Australia.

Either the husband or wife can apply; whether or not the other wants to get divorced is irrelevant. Alternatively, the parties may make a joint application. To apply for a divorce in the Federal Magistrates Court, the husband, wife or both must: 

  • File a complete application form (filled out by hand) and two copies;
  • Pay a filing fee. If the applicant suffers proven financial hardship, they may also file an application for a reduced fee. There is also an option of deferring payment, which is best for applicants seeking a reduced fee; getting the fee back after paying it can be extremely tricky;
  • Provide the marriage certificate. If there is no marriage certificate, the applicant must file an affidavit containing details such as the wedding vows, witnesses or promises of commitment. If the wedding took place overseas, it must be evidenced by an official extract from the foreign registry of marriages. If this is not in English, it must be accompanied by a certified translation and an affidavit stating the person who did the translating was competent to do so.

Serving the application

After filing, the court keeps the original application and returns the copies to the applicant. One is kept by them, and the other is served on the recipient. The husband or wife being divorced must be served at least 28 days prior to the divorce hearing. If the application for divorce is a joint one, there is no need to serve the document. 

Personal Service

The divorce application can be served to the husband or wife by any person over 18, except for the applicant for divorce. For example, a friend or relative may serve the document. A professional process server may also do so.

It is important to know that the document should be handed directly to the respondent; leaving them with someone else to hand them on is insufficient. If the server has not previously met the person they are serving, they should confirm their identity by asking about that person’s full name, the full name of the applicant for divorce, and the date and place of their marriage. Giving the server a picture of the respondent is a good idea.

Sometimes people really don’t want to get divorced; in the case that the respondent feels this way and won’t take the documents, they can be put down in the respondent’s presence. The server should then say “Your husband or wife is seeking a divorce from you. These are the papers and the Federal Magistrates Court will hear the application on (the date of the hearing)”.

The server must then fill out an affidavit of service which is signed and sworn or affirmed in front of a justice of the peace or solicitor. Alternatively, a more convenient way is the respondent signing an acknowledgement of service.  

Postal Service

Alternatively, the applicant can mail the document and acknowledgment of service for their soon-to-be-ex-husband or wife, complete with a postage-paid envelope. This method is not advised if it is unlikely the respondent will comply with the returning protocol.

Overseas Service

If Australia has an agreement with the country in question about civil proceedings, the Family Court registrar will send the documents to the relevant country. This process usually takes upwards of nine months, and tends to be expensive, particularly if translation is involved.

If the country is not party to any relevant conventions, service must either be by a process server or post.   

Service is often the most difficult practicality of divorce proceedings; if possible, it is always best to apply for a divorce jointly so that the requirement of service is dispensed with.

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Child Support – what if it’s not your child?

If you are assessed for child support, and believe you are not the parent of the child in question, it is possible to seek a court declaration that you should not be assessed because you are not the child’s parent. The Child Support (Assessment) Act 1989 was recently amended to clarify the impact of such a declaration. 

Section 107 Declarations

As a rule, child support is only payable by the parent of the child. Accordingly, the Department of Human Services (the Department) is unable to accept an application for a child support assessment unless the person listed in the application is the legal parent of the child in question: if the child in question isn’t yours, you needn’t pay child support. Note that the law considers biological children, adopted children and children as defined under the Family Law Act 1975(Cth) to be eligible for child support. 

Under s 107(1) of the Child Support (Assessment) Act 1989 (Cth), if the Department accepts an application for child support from you, you can apply to the court for a declaration that they should not be assessed because you are not the parent of the child. If the court makes that declaration, s 107(5) holds that the Department is presumed to never have accepted the application your child support, and your obligations for this will end that day.   

The effect of s 107A

In 2011, the Majority of the Family Court in Child Support Registrar v Farley [2011] FamCAFC 207 found that the Department’s approach to child support previously paid was incorrect in the circumstances of more than one child. Section 107A has been inserted into theChild Support (Assessment) Act 1989 (Cth) has now been adjusted to reflect the correct policy approach.

Section 107A was inserted into the Child Support (Assessment) Act 1989 to clarify the situation when there are two or more children and a s 107 declaration has been made in respect of one of the children.

When a s 107 declaration does not affect all children in a case, the child or children that remain will be reassessed for child support under s 107A(2). In most circumstances, this will result in a lower total amount of child support being payable for the past periods of assessment. Section 107A also details how money paid to the previous requirement (before the s 107 declaration was passed) is dealt with following the declaration.

The provisions contained in s 107A define the period of time for which the original assessment related to both the affected and unaffected children as “affected days”. The child support assessment applies to these “affected days”, but may be amended due to a s 107 declaration that at least one of the children is not the child of the assessed person. Any money paid under the pre-s 107 assessment may be contributed towards the remaining liability for those affected days.

In the case of the original and post-s 107 assessments covering the same time periods, any amount of child support paid are applied to the amended assessment. If the amended assessment covers a different period of time, child support paid may not be applied against the amended assessment. This could be for a number of reasons, such as the child in question turning 18 or the parents having another child who is then included in the assessment. In such a case, only the child support paid during the affected day will be applied to the remaining amount to be paid. 

Overpayment

After the court has made a s 107 assessment that the person being assessed is not liable to pay child support, the court must consider making an order under s 143 of the Child Support (Assessment) Act 1989. Before making orders in relation to the child, s 143 requires the court to look to: 

  • Whether the payee or payer knew or should have known they were not the parent of the child;
  • Whether the payee or payer’s behaviour or conduct led to the application for assessment of child support being accepted by the Department;
  • Whether there was delay by the payer in applying for a s 107 declaration after learning that s/he was not the child’s parent;
  • Whether the child will receive support from another person who is their parent;
  • The  relationship that exists between the payer and the child;
  • The respective financial circumstances of the payer and the child.

When a s 107 order applies to all the children in the assessment, any child support paid is an overpayment.

If you’ve been paying child support for a child that isn’t yours, the courts will make a s 107 declaration to remedy this. More than one child can make things complicated under s 107A, so don’t hesitate to seek legal advice if you’re unsure.  

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How are finances and property divided after a relationship has come to an end?

Matters involving finance and property always seem to be a significant point of conflict for divorcing or separating de-facto couples – irrespective of whether the relationship is same sex or not.

The general approach in Australia is that any earnings and gains in a marriage or de facto relationship, and alternatively, any liabilities and losses incurred, will be shared equally between the parties. As a consequence, monetary and property acquisitions made during the relationship is of great significance, therefore, if a relationship breaks down, differences of opinion regarding the contribution of the parties in obtaining any property and finances may arise.

When couples decide to separate or divorce, financial and property matters may become a significant point of conflict and can affect heterosexual and same sex couples. Therefore, conflict revolving around how financial and property are dealt with become significant issues that need to be resolved.

What is the general approach relating to how money and property is divided after the end of a relationship?

The general position in Australia relating to earnings, gains, liabilities and losses incurred in a marriage or de facto relationship are shared equally between the parties. Therefore, any monetary and property acquisitions during the relationship becomes significant and in the event of the dissolution of a relationship, differences between the parties may arise in relation to the financial and property contributions between the parties may become a point of disagreement.

Does divorce have to be finalised to ensure division of money and property?

There is no requirement that divorce must be finalised before property is to be divided. Additionally, financial and property matters can be managed post-separation. However, upon the completion of the divorce process, the parties have 12 months to finalise any financial and property matters, as well with any relevant spousal maintenance matters.

Making an application for financial orders

Prior to lodging an application for financial orders, the Family Court compels applicants to undertake a number of pre-action procedures, along with requiring the parties to make a genuine effort to resolve any disputes by undertaking the family dispute resolution process.

Furthermore, parties who have made an application for financial orders in the Federal Magistrates Court are also encouraged to resolve disagreements before the hearing and failure to do so, can result in the Court issuing an order to the parties to attend family dispute resolution during the filing of an application.

Although, allegations of fraud, expiration of the time limit, or instances where the dispute is genuinely difficult to resolve may be exceptions of the pre-action procedure requirements.

How are financial and property issues resolved in relation to de facto relationships?

De facto couples who have shared a genuine domestic relationship of trust and intimacy for at least two years or more, are able to apply for division of property settlement orders. However, it should be highlighted that there are a number of complex issues that need to be navigating in relation to resolving financial and property issues between de facto couples.

Firstly, there is no requirement that parties must have children in order to demonstrate trust and intimacy, however on the other hand, having a child is not always sufficient in demonstrating the existence of a legal de facto relationship. However with that being said, it may be advantageous for parties in de facto relationship who have been involved with one another previously to register their relationship in a state or Territory – irrespective if the relationship was same sex or not.

Under the Family Law Act 1975 (Cth)(the FLA), applications for property division in relation to de facto couples must be made within two years of the conclusion of the relationship, however, limitations may still exist in regards to the ability of the parties to utilise the provisions of the FLA when dealing with property matters. For example, in certain jurisdictions, the legislative instruments may mean that the Commonwealth provisions may not be applicable for such matters.  

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The laws in relation to child abuse

There are some crimes that are considered more abhorrent when compared to others, and any offence involving child abuse is deemed to be particularly heinous. Under the Family Law Act (the Act) child abuse can include any physical or sexual assault against a child, or a sexual activity where a child is used as an object for sexual gratification.

Under s 4(1) of the Act, abuse of a child means:

·         an assault, including the sexual assault of a child; or

·         a person (the first person) involving a child in a sexual activity with that first person or another person in which the child is used directly, or indirectly as a sexual object for the first person or another person where there is unequal power in the relationship between the child and the first person; or

·         causing a child to suffer serious psychological harm, including, but not limited to, when that harm is caused by the child being subject to, or exposed to family violence; or

·         serious neglect of a child.

The s 4(1) definition of abuse in the Act was derived from a number of court cases, but it was the matter of B and B; M and M (1988) 166 CLR 69; (1988) FLC 91-979 where the High Court formulated the test which was to be applied during some instances of child sexual abuse. The test that was set out by the Court involved three steps and the following three questions had to be asked when making a decision:

1) Is there a risk of sexual abuse occurring if custody or access is granted?

2) What is the magnitude of that risk?

3) Would granting custody or access expose a child to an ‘unacceptable risk’?

The Court will generally make their decision taking into account the best interests of the child and if a positive finding is made, then the civil standard of the balance of probabilities will be applied – but  at the “higher end” of the standard in accordance with the decision in Briginshaw v Briginshaw.

What are the circumstances which require mandatory notification to child welfare authorities?

A number of professions under State and Territory law require that if a person on reasonable grounds holds concerns that a child may be suffering abuse, they must report their concerns to the relevant welfare authority irrespective of any other law that may require confidentiality. Some of the professions that are affected by the requirement includes teachers, doctors and other medical or mental health professionals, along with community service workers, just to name a few.

In the legal realm, the Act also compels any court staff members, family and child counsellors and dispute resolution practitioners to report any information or suspicions of child abuse to the relevant child welfare authority. Therefore, a person in the course of performing their duties, functions or exercising of their powers under s 67ZA(3), that if the person has reasonable grounds for suspecting that a child:

·         has been ill treated, or is at risk of being ill treated; or

·         has been exposed or subjected, or is at risk of being exposed or subjected to behaviour which psychologically harms the child, must notify the prescribed child welfare authority of their suspicion.

Notification of child abuse can be done to any court that exercises a family law jurisdiction by filing a Notice of Child Abuse or Family Violence – Form 4 with an affidavit that sets out the evidence in which the allegations are based. The court must then consider if an order should be made in regards to the allegations.

This piece is only a broad overview of child abuse laws. If you, or anyone else you know requires help with any family law matter, please contact a lawyer who will be able to assist. Especially in regards to matters that are urgent. 

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Children and post separation arrangements: How does the law operate?

When a relationship has come to an end and there are children involved, there are a number of issues that parents must deal with, and one of the primary matters that must be addressed, is post separation parenting arrangements. There is no hard and fast rule in how arrangements should be organised, and the overriding consideration is always what arrangements will best suit the child in the particular familial circumstance. Generally speaking, the law encourages that a child spends significant time and communicates with the parent whom the child does not usually reside with after separation. The legislation states that a ‘substantial and significant time’ must be spent with each parent, but what does that mean? Again, there is no magical legal formula which outlines what is meant by ‘substantial and significant time’, however, there is a legal duty for each parent to encourage the child to have a relationship with the other parent when making post separation parenting agreements that may be substantial, significant or equal.

How is ‘substantial and significant time’ defined?

Although there are no explicit instructions on how parenting arrangements should be handled between the parties, the Act does offer some direction on what ‘substantial and significant time’ may constitute, and may include:

  • weekends and holidays
  • weekday arrangements
  • an allowance for each parent to be involved with the child’s daily routine
  • an allowance for participation by both parents in significant events and celebrations involving the child.

The Act also requires that any arrangements should include the views of the child, and that the type of arrangement organised should be age appropriate.

How is ‘equal time’ defined?

If the courts make an order for the child to spend equal time with both parents, it must be reasonably practical to do so, whilst still taking into account the best interests of the child.

Section 65DAA sets out what is considered as reasonable and practicable, and the courts may consider:

  • how far apart the parents live from each other
  • the capacity of the parents to implement the arrangements being considered
  • the capacity of the parents to communicate with each other and resolve any difficulties
  • the effects of the proposed arrangements on the child.

In circumstances where one parent wishes to argue against the ‘equal time’ arrangements, it must be up the complainant to demonstrate that the ‘equal time’ edict is not in the best interests of the child.

The wishes and best interests of the child requirements

In some circumstances, a child may be unwilling to spend time with the other parent for a number of reasons. However, the wishes of the child, and the legal, best interests of the child considerations are not always the same thing.

Case law has suggested that when a child’s reluctance to spend time with the other parent is so extreme that the child is suffering from a number of physical afflictions which may signify distress, is a scenario which may be considered as a significant factor when the courts are deciding on the type of order to apply.

Each parent must encourage and facilitate a relationship with the other parent

There’s no denying that parents who have separated with one another may not have the most amicable of relationships in all cases, however, the courts generally have still taken the approach that parents should seek to actively encourage and facilitate a positive relationship between the child, and the other parent – irrespective of the nature of the personal relationship between the parents.

The Act encourages parents to always seek the most appropriate post separation arrangements in regards to the child with as little legal input as possible. However, if you are experiencing any issues with post separation parenting arrangements, always seek legal advice.   

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