The Family Law Act 1975 has recently been amended with effect from 6 May 2024.
The amendments place additional emphasis on safety as well as simplifying and converting to “plain English” the framework in which the court allocates parental responsibility and determines what is in a child’s best interests.
This article discusses what the key amendments mean for schools, focusing on the amendments to parental responsibility and the assessment of the “best interests” of the child.
*Whilst this article refers to “parents” for sake of simplicity, it is noted that by court order a non-parent (including grandparents and other non-parent carers) can be allocated parental responsibility and/or an order made in their favour for a child to live with, spend time with, or communicate with them.
Schools regularly have to navigate complex and separated family arrangements. This can involve the school needing to interpret court orders, parenting plans and letters from the parents’ lawyers.
Not infrequently, the court orders are ambiguous and the school may be confronted with parents arguing about what the orders mean.
All too often, each parent adopts a self-interested interpretation, and, in the absence of a further court ruling, the school is often left in the invidious position of having to make sense of the orders in the context of its legal duties to the student, its contractual arrangements with the parents, and its responsibilities under education regulations. At Moores we regularly advise schools navigating such issues.
The changes to the law resulting from the recent amendments are significant, and we expect that schools will be impacted by matters such as changes in terminology in orders, changes to the content of new orders, and parents misunderstanding the effect of the new laws.
Importantly, at the outset we note that existing court orders will not be affected by the amendments. The amendments will only apply to orders made in cases (including Application for Consent Orders) that are determined by the Court on or after 6 May 2024.
Before diving into the key amendments, we will take a moment to provide a refresher on the concept of parental responsibility.
Parental responsibility primarily relates to long-term decision making. It is a separate concept to where the child lives, who the child spends time with, and who the child communicates with.
For example, court orders can provide for a child to live in a shared care arrangement but with one parent having sole parental responsibility. Conversely, the orders can provide for the child to spend limited time with one parent yet still provide for equal shared parental responsibility.
Specifically, parental responsibility is concerned with the making of decisions about “major long-term issues”, which is defined in the Act as meaning:
“…issues about the care, welfare and development of the child of a long – term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Examples of major long-term decisions that are relevant to schools include:
Examples of non-major long-term decisions (for simplicity, we will refer to these as “day-to-day decisions”, although that terminology is not used in the Act) include:
However, the line is not always clear-cut. For example, consider a student ordering food from the canteen, which is ordinarily a day-to-day decision. However, it is not difficult to imagine major long-term issues arising, for example, if the student suffered from allergies, or had received medical advice to adhere to a certain diet due to serious health issues, or if the student’s religion mandated certain dietary requirements.
If there is no court order in place allocating parental responsibility, the Act provides that by default each parent has parental responsibility for their child, and this can be exercised either jointly (together) or severally (individually). This has not been changed by the removal of the “presumption” of equal shared parental responsibility (explained further below) which only affects cases where a court is making parenting orders.
The family law courts have power to make orders allocating parental responsibility. Most commonly, this will be dealt with in the first order in a suite of parental orders.
Broadly speaking, there are three main ways parental responsibility can be allocated by court orders:
In line with the wording of the new amendments, we expect this will likely be referred to as “joint decision-making” in orders made after 6 May 2024**.
Parents who have equal shared parental responsibility are required to consult each other about decisions relating to major long-term issues (see further above) and make a genuine effort to come to a joint decision about such issues.
There is no obligation to consult for day-to-day decisions.
Importantly, the obligation to consult is an obligation between the parents, and any failure by a parent comply with that obligation does not make their unilateral instructions ineffective or unauthorised. This is confirmed by section 61DAA(2), which states:
“To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Notwithstanding that, when parents are separated and have equal shared parental responsibility, it may still be prudent for schools to endeavour to obtain joint instructions from parents about major long-term issues, depending on the circumstances. Issues also arise when parents who both have parental responsibility give conflicting instructions.
Increasingly, schools are needing to take a more nuanced approach to such issues, particularly where there is also a Family Violence Intervention Order (FVIO) or other form of state-based protection order in place. Whilst it is beyond the scope of this article to discuss such cases, we note that there is a complex interaction between FVIOs and family law orders, and which order prevails requires a case-specific analysis. In addition, the school has an independent duty of care to it students and staff – and a duty to protect health and safety so far as is reasonably practicable under OHS laws – which also need to be taken into account in addition to considering what is provided for by the orders.
This can and does mean that schools need to exercise an independent assessment of risk and make a decision. Seeking to ignore court orders, or taking no action, may not be sufficient to discharge the duty. And taking no action because there are no court orders may also be insufficient, as the exercise of the duty of care requires independent judgment. It is also not acceptable to expect parents in the context of family violence to “sort it out”, particularly as encouraging contact might be a breach of the order and could endanger family members.
In line with the wording of the new amendments, we expect will likely be referred to as “sole decision-making” in orders made after 6 May 2024**.
When the court orders allocate sole parental responsibility to one parent, it has the effect of making that parent solely responsible for making major long-term decisions. The other parent is however still able to make day-to-day decisions for the child whilst in their care.
Some orders specify that a parent with sole parental responsibility must still inform the other parent of their decision. This is an obligation between the parents and does not create an obligation on schools to inform the other parent of the relevant decision.
A hybrid order allocates sole parental responsibility to one parent in relation to defined matters, with all other matters being subject to equal shared parental responsibility.
**Pending any emerging case law, we presume that the difference between the terminology “decision-making” and “parental responsibility” is largely semantic and in line with the policy of the new amendments to adopt a plain English approach, particular in court orders. The concept of “parental responsibility” still remains in the Act as amended, however we expect to see the terminology “decision-making” used more commonly in court orders.
Perhaps the most important change brought in by the new amendments is the removal of the presumption of equal shared parental responsibility.
The presumption meant that when making a decision about parental responsibility, the court’s default position was to order equal shared parental responsibility unless a specified reason applied. Whilst family violence, child abuse, and the best interests of the child were all reasons by which the court could not apply the presumption, in practice sole parental responsibility was the exception rather than the rule.
The new law now means that the court will make a decision about parental responsibility based on the child’s best interests alone, with no “default” position. We expect that this will have two main consequences:
Again, we note that in a situation where there are no court orders in place in relation to parental responsibility, the law remains the same that both parents have parental responsibility, which can be exercised by them either jointly or individually.
As part of the amendments, sections of the Act have been also repealed that provided that when the Court made orders for equal shared parental responsibility, that it had to consider whether an order for “equal time” or “substantial and significant time” was in the child’s best interests and reasonably practicable.
These provisions had been misunderstood by many members of the community as creating a right for parents to spend equal time with their children, which was never the intention.
It is now abundantly clear that parenting arrangements are determined by a court having regards to the “best interests” of the child as the most important consideration, and that there are not any other starting points or presumptions.
We expect that this will have the consequence that there is likely to be a greater diversity in the content of the orders made after 6 May 2024.
In particular, for the past nearly two decades, a very common type of arrangement outside of shared care arrangements was for the non-residential parent (more commonly, though not always, the father) to spend time with the child on alternate weekends with perhaps another night in the off-week, along with half of school holidays and special occasions. This reflected the concept of “substantial and significant time” in the Act.
This concept sometimes worked in favour of the “spend time” parent, for example there was often a good argument that “substantial and significant time” was the “baseline” when parents lived in proximity and there were no significant risk issues. At the same time, in many cases, the “spend time” parents found it difficult to negotiate more time once the residential parent offered the bare minimum that met the definition of “substantial and significant time”.
However, with the concept and terminology of “substantial and significant time” now completely removed from the Act, this dynamic is likely to change.
In contested proceedings, the court is required to tailor the arrangements for the children in a “bespoke” fashion, having regards to their best interests without any pre-conceived notions about what that may look like. Likewise, in negotiated matters, parents can no longer use “substantial and significant time” as a legislative “baseline”. Hopefully, this will lead to parents taking a more child-focused and case-specific approach to considering what arrangements are appropriate rather than with reference to arbitrary standards.
Schools can expect to see orders in the future taking a more nuanced and less “boilerplate” approach to parenting arrangements.
Another key change brought in by the new amendments is the simplification of how the court assesses what is in the best interest of a child.
The previous law set out in section 60CC contained two “primary” considerations and 14 “additional” considerations (many containing sub-provisions) that had to be taken into account by the court. These provisions, some of which substantially overlapped, were often criticised as being cumbersome and inconvenient to address in submissions and judgments.
The amendments have simplified the section 60CC considerations to six matters, as follows:
It is beyond the scope of this article to dive into what the considerations that were removed and whether this rewording has a substantive impact with an added focus on safety, or whether the new section is better thought of as simplifying and consolidating the previous considerations. We are aware of family lawyers with views both ways and will need to await emerging information to clarify the issue.
We do note however that “safety” is the key theme of the new amendments, and we expect to see orders following 6 May 2024, particularly those made in contested proceedings, paying even more attention to this aspect.
There are many people online and on social media making a variety of claims about the effect of the amendments.
In closing, here is a list of four claims about the amendments that are NOT correct:
The removal of the presumption is a matter only effecting the process by which the court makes a determination about parental responsibility in cases before it on or after 6 May 2024. As discussed above, when no court orders are in place, each parent still has parental responsibility by law and this can only be altered by a family law court order (and/or restrained by the effect of a Family Violence Intervention Order). When family law court orders are in place, the orders will almost always set out how parental responsibility is allocated.
The amendments will not disrupt any existing orders. They will only effect cases (including Application for Consent Orders) determined by the court on or after 6 May 2024.
There was never any presumption of shared care in the law and it was not even the starting point. However, shared care is no longer a mandatory consideration if the court orders equal shared parental responsibility. Instead, the court is simply required to consider what arrangements are in the best interests of the child, which may or may not be shared care, depending on the circumstances of the case.
On balance, we consider that the emphasis on safety in the new amendments and removal of the concept of “substantial and significant time” may result in some cases where the non-residential parent’s time is limited further than would have been under the previous law. However, the “best interests” of the child remains the test for what is appropriate, with gender not being a relevant consideration in the court’s assessment. We expect that cases where “no time”, “supervised time”, or very restricted time arrangements are ordered will remain where the child is assessed as being at an unacceptable risk in the care of the relevant parent.
Get in touch with the Education Team at Moores if you would like support with interpreting court orders or navigating complex parenting arrangements for your school.
You may also like to consider whether any upcoming staff PD days should contain a refresher and update on family law as it applies to schools.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Exclusionary discipline is under the spotlight as being too punitive an intervention, particularly for certain student cohorts. As well as exclusionary discipline being criticised by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royalty Commission), significant changes are occurring in Queensland.
In March 2024, parents and students in Queensland have recently ‘won’ the right to be able to successfully appeal against suspensions and have be reinstated to attend school, as the Queensland government is moved to introduce an appeal right for suspensions in public schools. The Bill to amend the Education (General Provisions) Act 2006 aims to:
School behaviour management frameworks are critical to how Schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities. Our recent work with clients underscores the ongoing fraught tension which Schools are grappling with. For example, often we are called to assist clients with student discipline matters, only to find behaviour management frameworks are inadequate. Sometimes the behaviour management frameworks have been updated but not implemented through fatal flaws in the process.
Many Schools continue to be challenged by balancing behaviour concerns that can put the school community at risk and ensuring its disciplinary process does not expose it to discriminatory practices or fall short of its duty of care obligation to students.
In this article, we explore the trends and tensions in a dynamic landscape and how Schools should be prepared to respond to the challenges of rethinking exclusionary disciplinary practices.
Definition: Exclusionary discipline refers to the actions by an educational authority or institution that result in students’ withdrawal of education or training, including suspensions and expulsion.
The Organisation for Economic Co-operation and Development (OECD) has revealed that Australian “learning environments are comparatively less favourable in terms of disciplinary climate, intimidation or bullying, and student truancy” than other OECD countries.1 We also now know that extended social disruption such as the Melbourne lockdowns sowed the seeds for ongoing challenges schools are experiencing in today’s learning environment.
Research into the impacts of exclusionary discipline conducted by the Centre for Inclusive Education and the Queensland University of Technology advocates that exclusionary discipline “should only ever be used as a last resort” because it is:
The Disability Royalty Commission also made findings that schools inappropriately use exclusionary discipline against students with disabilities, recommending a review of all regulations and other instruments regulating exclusionary discipline.3 We explore this in more detail in our article: ‘What schools should know about the recommendations of the Disability Royal Commission’, which lists a range of mechanisms schools can adopt without waiting for regulatory intervention in their state.
Queensland is the latest to introduce legislation that essentially provides for greater checks and balances on school practices and requires the use of supportive interventions. The Education (General Provisions) and Other Legislation Amendment Bill 2024 (Bill) introduces an appeal right for suspensions that are:
The Bill also formalises requirements for schools to implement student support plans for students that have been suspended or are at risk of being excluded. These student support plans must include:
The Queensland Government is taking submissions regarding these proposed amendments until 25 March 2024. More information about the consultation process is here.
Assessing the use of exclusionary discipline through a human rights lens raises the bar on what appropriate use looks like. There is increasingly greater willingness, through research and the Disability Royal Commission, to point to human rights concerns related to the practice of exclusionary discipline.
Schools are often faced with needing to balance multiple obligations, such as ensuring exclusionary discipline is not unlawful or discriminatory, with obligations to address health and safety risks in the school community. We are noticing a trend whereby this balancing exercise alone may soon no longer be enough to justify exclusionary discipline as a type of behaviour management response. In fact, it is possible that exclusionary discipline as a type of behaviour management response may become discriminatory: the Disability Royal Commission proposed the exemption to unlawful discrimination (i.e., the allowance for lawful discrimination) on the grounds of health and safety under equal opportunity law in Victoria be repealed.
In an evolving landscape of policy making and legislative change, the misalignment between exclusionary discipline and human rights remains a question for policy makers. As stated in the Victorian Charter of Human Rights and Responsibilities Act 2006: “Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.”4. With the expansion of the school environment, how this looks in practice for schools is relevant.
As mentioned earlier, we consider school behaviour management frameworks are critical to how schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities.
Schools should look at their behaviour management frameworks holistically and what is in their toolkit when it comes to disciplining students. Codes of conduct, disciplinary management and response policies and procedures, mechanisms for assessing reasonable adjustments, handling complaints and grievances all fall within the framework, complemented by the enrolment agreement and other tools available to Principals. There is no one size fits all approach to student behaviour management and, as we recently explored at our Moores Schools Legal Agenda on 27 February 2024, how to implement disciplinary responses that are acceptable within the school community and balance school’s legal requirements is an ongoing area of focus.
We recommend schools look at:
Get in touch with the Education Team to discuss how we can help you with your school’s behaviour management framework review needs, and support you to respond to challenging disciplinary matters. We support schools both proactively and reactively in this space: implementing procedures and training for staff to respond to serious breaches of student codes of conduct and navigating the disciplinary (and possible expulsion) process with families, students and schools.
1 Organisation for Economic Co-operation and Development, Education Policy Outlook In Australia (10 April 2023).
2 Queensland University of Technology, What does exclusionary discipline do and why should it only ever be used as a last resort? (12 March 2024) https://research.qut.edu.au/c4ie/2020/10/15/what-does-exclusionary-discipline-do-and-why-should-it-only-ever-be-used-as-a-last-resort/.
3 Final Report – Volume 7: Inclusive education, employment and housing, p13
4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s17 (Protection of Children and Families).
Structuring of Wills can include many forms of trusts, from an optional testamentary trust which provides flexibility as to income and capital for beneficiaries, to restricted trusts which provide a beneficiary with access to income but limited or no access to capital.
A life interest (or capital protected trust) is a trust in a Will in which there are restrictions imposed on a particular beneficiary’s access to capital of the trust – typically called “the life tenant”. The beneficiaries entitled to the capital of the trust at the end of the life interest, generally on the death of the life tenant, are called “the remainder beneficiaries”.
Typical scenarios where life interests might be incorporated in a Will include:
Assets which form part of the life interest remain as part of the estate of the deceased (and held by the trustees of the life interest – often the executors of the estate). At the end of the life interest, the remaining capital continues to be dealt with as part of the initial Willmaker’s estate for the benefit of the remainder beneficiaries, rather than forming part of the life tenant’s estate.
The inclusion of a life interest or capital protected trust in a Will needs to be carefully considered. Whilst they essentially allow a Willmaker to “rule from the grave”, they can be problematic and complex to administer, and advice should be sought on their use and the drafting of the terms of the trust.
Below are some of the advantages and disadvantages of incorporating a life interest in a Will.
Life interests or capital protected trusts are effective structures for preserving wealth for future generations. They can, however, be complex and costly to administer and require careful consideration of the terms and the assets intended to form part of the trust. To learn more about how Moores can help you decide if a life interest or capital protected trust is right for you, get in touch with our Wills, Estate Planning and Structuring team.
As part of the stronger regulatory approach of the Office of the Australian Information Commissioner (OAIC), there is a renewed focus by the national privacy regulator on organisations reporting more than 30 days after a data breach. This comes with a clarification that the clock starts ticking (the 30-day reporting obligation) from the moment “a reasonable person would conclude that the access or disclosure would be likely to result in serious harm to any of the individuals to whom the information relates”, and not when an investigation is completed. This means, if, at any time during a cyber incident investigation, the organisation has enough information to reasonably conclude that the data breach would be likely to result in serious harm to any of the individuals to whom the information relates – the clock has started.
The OAIC demonstrated its stronger regulatory approach to the Notifiable Data Breach (NDB) Scheme in 2023 by making two determinations against organisations who reported under the NDB Scheme but did not meet the 30 day reporting requirement:
Specifically, the OAIC determined that both Pacific Lutheran and Datateks failed to:
In both Pacific Lutheran and Datateks, the data breach was caused by an email address of a staff member of the organisations being subject to unauthorised access by a third party who then used that email account to send phishing emails to other staff in the organisation and external contacts. More information about cybercrime statistics is here. The unauthorised access to the email accounts was identified within one day and both organisations swiftly commenced investigations.
This swift identification of the data breach and commencement of an investigation was not sufficient to demonstrate all reasonable steps had been taken to complete the assessment of the data breach within 30 days.
The Privacy and Data Security Team at Moores also publish summaries of the NDB statistics reported by the OAIC each year: 2022 NDB statistics and 2023 NDB statistics.
The OAIC clarified that the reporting obligation arises when an eligible data breach is identified and not:
Critically, the OAIC determined that organisations cannot wait for the investigation to be concluded to make the determination as to the requirement to report and cannot “pause” the 30 day period by appointing an IT company to conduct an investigation into the breach.
An eligible data breach includes unauthorised access to information that a reasonable person would conclude would be likely to result in serious harm to any of the individuals to whom the information relates. This means if, any at point during a data breach investigation, the organisation receives information that means there is a reasonable belief the unauthorised access is likely to result in serious harm to an individual to which the affected information relates – the 30 days starts.
A key factor is that the organisation does not need to know that serious harm has or will result from the unauthorised access – it is enough that serious harm is likely.
We can help you through the process of managing data breaches: from preventative security audits and training, to implementing a data breach response plan, to making the assessment as to your reporting obligations and implementing learnings from the breach and privacy-by-design. Get in touch with our Privacy and Data Security Team to arrange a time to meet.
Moores Practice Leader, Rebecca Lambert-Smith and Associate Yoni Ungar, sit down in a Moores Q&A to discuss the ATO’s new self-assessment requirements for income tax exempt not-for-profits.
Long-awaited reforms to the Australian government’s Deductible Gift Recipient (DGR) registers have now come into effect, easing administrative burdens for cultural, environmental, harm prevention and overseas aid charities. However, most organisations will not benefit from these reforms until they make key changes to their governing documents.
As flagged in our article last year, in early 2023 the Australian Government introduced reforms to ease the administration of four categories of DGR. These four DGR categories were administered by the following Australian Government departments:
On establishment, new organisations had to apply to the relevant department for DGR endorsement and obtain the written approval of two Ministers – a process which often took years to finalise. These organisations were then subject to ongoing administrative and reporting requirements, including submitting annual audited accounts to the relevant department, providing statistical information about donations and operating a public fund.
A streamlined endorsement process From 1 January 2024, these four registers were abolished. These DGR categories are now administered by the Australian Taxation Office (ATO). The ATO is now assessing applications for DGR endorsement, with processing times reduced to months or even weeks. Charities whose applications were not finalised before 1 January 2024 have been notified that the ATO will complete the assessment of their applications. All new applications must be made directly to the ATO.
Reduced reporting requirements Established organisations no longer need to provide additional statistical returns and audited accounts to the ATO. Instead, it is sufficient to comply with their Australian Charities and Not-for-profits Commission reporting requirements.
Simpler administration Importantly, organisations in these DGR categories will no longer be required by legislation to operate a public fund to receive all DGR gifts (and income generated from those gifts). Instead they may be able to operate a simpler gift fund (discussed further below).
Reduced membership for environmental organisations Finally, the requirement for an environmental organisation to have membership consisting of either at least 50 individual members or only body corporate members has been abolished. This means that environmental organisations that have a body corporate sole member could consider seeking to adopt an alternative, simpler governance model (where the board and members are the same individuals). New environmental organisations can also be established with this simpler model.
Receipts Organisations were previously required to issue receipts for gifts and deductible contributions in the name of their public fund. From 1 January 2024, all receipts must be issued in the name of the organisation.
Public funds must comply with certain ATO requirements, including having a separate bank account and being operated by a management committee. The management committee must constitute at least three people, a majority of whom must satisfy the ATO’s responsible person test (as set out in paragraph 21 of Tax Ruling TR 95/27) – being individuals with a degree of responsibility to the community, typically with a professional occupation. For many organisations, this means that the public fund cannot be operated directly by the organisation’s board, but requires a separate management committee. Further, some organisations find it challenging to recruit sufficient individuals to the management committee that meet the responsible person test.
Gift funds don’t need their own committee of management or their own bank account. Instead, the organisation operating the gift fund needs to have clear accounting practices in place to track the funds and ensure that they are used appropriately. This can significantly streamline the organisation’s administration.
Despite the reforms, organisations still need to follow the requirements set out in their governing documents (their Constitution or Rules) if those requirements are compatible with the new laws. In particular, any public fund clause in an organisation’s governing document must be amended and replaced with a gift fund clause before the organisation can cease to comply with the public fund management committee requirement.
If you’ve been planning on setting up a cultural, environmental, harm prevention or overseas aid charity, the process is now significantly more streamlined. We can help you get established.
If you operate an existing cultural, environmental, harm prevention or overseas aid charity, we can help you understand the implications of these changes, as well as amend your governing document to take advantage of the new flexibility in relation to gift funds.
Contact our Charity and Not-for-profit law team for more information on how we can help your organisation.
A woman in Shanghai, China recently made headlines when she cut her children out of her Will and instead elected for the major beneficiaries of her fortune to be her cats and dogs. Her reasoning? Her children no longer visited her while her pets were always there for her.
This is not a novel situation.
Had she lived in Victoria, she would have been advised that she couldn’t leave her wealth to her pets, but there may be other steps she could take to ensure they were appropriately cared for following her death.
On a practical level, a gift left in a will to a pet directly would fail.
Unfortunately for many pet lovers out there, the position of the law is that a pet is a ‘chattel’ or ‘personal property.’ This means that practically, a pet cannot own property or be a beneficiary of a Will – even though they are very much part of the family!
If the Will does not provide for other beneficiaries in the event a gift cannot take effect, the most likely outcome is that the default statutory intestacy laws would apply instead. These laws operate to distribute your estate to your next of kin, and apply where you do not leave a Will, or your will is unable to effectively deal with your estate.
This may be very different to how you envisaged your estate being distributed. In addition to your wealth potentially passing to the very people you meant to exclude, it may also mean that your pet doesn’t end up being looked after by the right person or in the way you expected after your death.
To avoid this, some alternative options to ensure your pet/s are taken care of after your death include:
Succession law in Victoria is largely guided by the principle of ‘freedom of testation’. This means that subject to certain limitations like not being able to leave assets directly to pets, a person largely has the freedom to make a Will that leaves their property as they please.
This freedom is however qualified by the risk of challenge to a Will or estate by disappointed family members.
Under Victorian law, certain “eligible persons” (as defined by the Administration and Probate Act 1958) can make a claim seeking provision or additional provision from your estate, if they can establish that you had a moral obligation to provide for him and did not discharge that obligation by your will. This is known as a family provision claim.
Importantly, a moral obligation is usually assumed in the case of spouses, partners and children. There is no equivalent moral obligation to provide for one’s pets (although many people naturally wish to do so).
A willmaker who prioritises their pets over immediate family members in their Will therefore runs the risk that their estate may up end up defending a claim from one or more disappointed family members.
However, this does not mean that your Will should not consider the future care and well-being of feathered, furry or scaly family members after your death, if this is important to you. In this situation, it is important to consider your objectives carefully and obtain specific legal advice when making your Will.
This will enable you to plan appropriately, to ensure that:
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and we can help you prepare your Will to ensure that everyone in your family is cared for, including your beloved pets.
In recent decades, family trusts have become a popular vehicle for Australians to protect and grow their wealth, owing to the flexibility, asset protection and tax efficiency advantages they provide. However, the succession and control of trusts on the death of the original family members who established them is often poorly understood and inadequately planned for, despite the sometimes significant assets at stake.
Trusts hold assets externally from an individual. Those assets do not pass in accordance with the will of the person who established or controls the trust.
The governing document of a trust is a trust deed. The trustee of a trust is bound to act in accordance with the trust deed. Key considerations when considering succession of family trusts as part of an overall succession plan include:
As circumstances change, a trust deed needs to be flexible enough to permit it being changed to meet those circumstances, but often they are not.
Often a trust deed will provide a mechanism for a trustee to vary its terms but the extent to which these variation powers are permissive or restrictive varies from trust to trust and sometime does not exist at all. But can a trust deed be varied if the trust deed is silent on a power of variation? In some circumstances the beneficiaries may be able to consent to changes. In others, the Court’s assistance may be required.
The Court has the power to vary the terms of trusts1, and this was highlighted in two judgments: W E Pickering Nominees Pty Ltd & Ors v Pickering & Ors [2016] and Re The Pickering Family Trusts [2024] stemming from the same subject matter.
Two brothers, Ted and George, operated a large and successful business through a unit trust. The units of that trust were held respectively by two discretionary family trusts; ‘Ted’s Trust’ and ‘George’s Trust.’
Ted’s Trust named Ted, Ted’s wife, their children, and their grandchildren as beneficiaries. George’s trust followed suit for his own family. Ted died in 2012. George died in 2020.
For business and tax planning reasons, the trustee and existing beneficiaries of each trust sought to expand the beneficiary class beyond those named in the trust deeds.
The trustees and adult beneficiaries were able to agree on amendments to the trust deeds; however, neither trust deed gave the trustee the power to vary the deed or expand the classes of beneficiaries. The trustee and beneficiaries required the assistance of the Court to give effect to their proposed amendments to the trust.
In the 2016 case, the trustee and adult beneficiaries requested three variations to the trust deed:
The Applicants argued that the Court had power under sections 63 and/or 63A of the Trustees Act 1958 (Vic) to give effect to the variations sought. The Court declined to do so, saying that ‘conferring on the trustee a power to vary the terms of the trust is neither expedient nor in the management or administration of trust property’2. Additionally, the Court was not persuaded that it was authorised to use section 63A to ‘grant a general power to amend or a power to appoint an appointor.’3
The matter returned to Court and the expansion of the class of beneficiaries was re-addressed.
A new arrangement was proposed which would name the beneficiaries and potential beneficiaries of one family trust as beneficiaries and potential beneficiaries of the other. It was reasoned that a reduction in potential entitlement in one trust should be expected to be accounted for by an increase of potential entitlement in the other trust.4
By applying to Court together, each trustee gave undertakings as to how the trusts would be administered, and those representations gave rise to further possible financial benefits for beneficiaries for whom the Court’s consent was required.5
The Court accepted that the new arrangement was beneficial to the beneficiaries for whom its consent was to be extended and that it was a proper and fair one.
Too often trusts and other entities are established to own substantial family wealth without proper consideration of whether the trust deed and other key documents are fit for purpose, flexible enough to change as circumstances change, and work within the broader succession plan.
Once established, it is critical that ongoing specialist advice is sought to ensure that the trust’s “settings” can do the job that is desired of it.
Moores has one of the largest specialist estate and trust law teams in Australia. Our team is a market leader in designing and implementing complex succession and wealth planning solutions and resolving disputes concerning trusts and estates.
1 Trustee Act 1958 (Vic), s63A.
2 W E Pickering Nominees Pty Ltd & Ors v Pickering & Ors [2016] VSC 71, paragraph 77-78.
3 Ibid, paragraph 60.
4 Re The Pickering Family Trusts [2024] VSC 5, paragraph 84.
5 Ibid, paragraph 92.
Organisations, including not-for-profit organisations and schools, are on notice that the Office of the Australian Information Commissioner (OAIC) is going to take a “stronger regulatory approach” to enforcement of the Notifiable Data Breach (NDB) Scheme from 2024. The national privacy regulator announced the stronger regulatory approach is due to information security being a regulatory priority in its bi-annual report publishing statistics of reporting trends under the Scheme.
We recommend organisations prepare for this new, stronger regulatory approach from the OAIC by:
In 2023, 892 notifications were made to the OAIC under the NDB Scheme.
Health service providers made the most notifications under the NDB Scheme, making 18% of all notifications. In addition, 37% of notification involved health information being subject to the breach. This is significant, because the regulatory response and imposition of civil penalties against organisations takes into account the emotional harm caused by privacy breaches, and the breach of health data can generally have a heightened negative impact on individuals; not to mention the possibly discriminatory consequences.
Cyber security incidents represented 42% of notifications:
Human error represented 28% of notifications:
In July to December 2023, compromised or stolen credentials were a leading cause of all data breaches. The OAIC identifies that the large-scale data breaches in recent years have put organisations at heightened risk of cyber incidents from compromised passwords because those passwords have previously been compromised. In addition to implementing multi-factor authentication and strong password requirements (including regular changing of passwords), organisations can:
The privacy and data security team at Moores can help you prepare for data breaches through privacy training, privacy audits and designing custom privacy and data protection procedures and internal tools for staff. We can help you respond to a data breach by assessing the breach under the Notifiable Data Breach Scheme, and helping you implement a Data Breach Response Plan.
A Mutual Wills Agreement (MWA) is an agreement between two people to make their Wills in particular terms and to not alter those terms in the future.
A MWA does not arise merely by a couple executing Wills together but requires an actual agreement to limit the future alteration of the Wills. This agreement is generally set out in a separate contract or referenced in the Wills themselves. However, in the recent decision of Re Miglic the Supreme Court of Victoria found a verbal agreement made nearly 30 years prior to death constituted a binding and enforceable MWA.
There was no written record of any MWA.
In support of the MWA:
Against the MWA:
The Supreme Court of Victoria found that Kurt and Marilyn had entered into a binding verbal MWA at the time of executing their 1993 Wills. The findings further noted:
The outcome of the finding is that Marilyn’s 2018 Will remains valid, but her estate is subject to a trust that reflects the terms of the 1993 Will. Lisa and Andrea will therefore receive the vast majority of her estate.
This case highlights the complexities in planning for blended families.
It also highlights the importance for a couple to be clear around whether they intend that their Wills could be changed in the future as circumstances or objectives change, or if they intend to be bound to the agreed plan. If the latter is the case, then this needs to be recorded in a written MWA. While a verbal agreement was upheld in this case, it is likely that this is the exception rather than the rule.
For expert advice or guidance regarding Estate Planning and whether a Mutual Wills Agreement may be appropriate, contact our team.