The Australian Taxation Office has recently issued Practice Statement Law Administration 2020/3 (PSLA 2020/3) which provides for the administration of penalties imposed under s166(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (“SISA”) for contraventions involving SMSFs.

PSLAs are internal documents which provide direction to ATO staff on approaches to take when performing duties on the laws they administer. They are not law or public rulings and cannot be relied upon to provide interpretative advice on particular legislation, but do provide helpful insight as to the approach case officers will take.

Section 166(1) of SISA

Section 166(1) sets out a list of the SISA provisions where liability for an administrative penalty applies if that provision is breached. These provisions include many well-known SMSF compliance sections such as the in-house asset rule, the prohibition on borrowings and providing a loan or financial assistance to a member or relative.

The purpose of the section is to encourage voluntary compliance by ensuring that there are consequences where trustees or directors of trustee companies have behaved poorly. Section 166 also aims to shift trustee behaviours for better compliance, particularly where an educational approach taken by the ATO has not been effective.

Penalty amounts for breaches of SISA provisions, measured in penalty units, are also specified in s166. The penalty applies to the trustee of the SMSF. If the trustees are individuals, separate penalties are imposed on each trustee for the same offence. If, however, the trustee is a company, a single penalty is applied which is shared between the directors. Importantly, a penalty must be paid from personal funds, not from the SMSF assets.

PSLA 2020/3

The purpose of PSLA 2020/3 is to provide guidance to ATO staff on a number of matters arising from a contravention of a provision listed in s166 of SISA, including penalty remission considerations. It includes a number of indicative examples of compliance treatment and the approach that can be taken by the ATO when considering a remission of penalties.

Remission of Penalties

The ATO has an unfettered discretion to remit all, part of or none of a penalty imposed. According to the practice statement “remission provides the administrative flexibility to ensure that the penalty imposed is appropriate for the observed behaviour”.

The ATO is directed to consider the individual circumstances of the case when making a remission decision and in particular, for each case:

• The background and experience of the trustees and/or directors;
• Historical compliance by the trustees or directors;
• Attempts to voluntarily disclose prior to ATO intervention; and
• Any circumstances that may have caused or contributed to the contravention, or affected the ability to rectify the contravention.

The practice statement also outlines a number of other factors to be considered, including:

• Would the main objectives of s166 be compromised if the penalty was remitted;
• Did the trustee act in a way that would reasonably be expected of another trustee in the same circumstances?
• The seriousness of the contravention. For example, how were the fund’s assets affected?
• Whether the penalty is unreasonable such that it would cause unintended or unjust results;
• Were there multiple breaches of the same provision? An example of this may be where there have been multiple withdrawals of member funds without satisfying a condition of release; and
• Has a particular event resulted in breaches of multiple provisions referred to in s166(1)? If one particular event results in breaches of multiple provisions, the ATO could potentially remit the penalty for the secondary contravention and then consider whether there should be a remission of any part of the penalty for the primary contravention.

Whilst good prior compliance or even attempts to rectify the breach may support a penalty being remitted, this may be outweighed by other factors that would warrant otherwise. It is also important that trustees or directors are aware of their role and responsibilities in acting in this role. The practice statement specifically notes the relevance of the trustee or directors being required to declare that they understand their duties and obligations at the time of setting up the SMSF when considering penalty remission. The trustee declaration form is required to be kept for the life of the SMSF and for a period after wind-up of the SMSF, and made available to the ATO if requested.

A trustee or director who is dissatisfied with a remission decision has rights to appeal in certain circumstances, which may include applying to the Administrative Appeals Tribunal or Federal Court of Australia.

Tips and Awareness

Whilst there should never be an intention to establish and operate a SMSF with a view to contravening any of the administrative penalty provisions, PSLA 2020/3 is now a valuable published tool in understanding the practical approach taken by the ATO around the issue of penalty remission.

Steps or actions that trustees or directors could take which could result in penalties being remitted, all or in part are:

• Immediately taking action to rectify the breach as soon as they become aware of the contravention;
• Initiating and putting in place measures to ensure that a breach does not happen again;
• Promptly engaging with the ATO by making voluntary disclosure. This is likely to be seen as favourable by the ATO, although all of the circumstances of the contravention will be considered. In some cases, the ATO may require an enforceable undertaking to be provided by the trustees or directors demonstrating how a contravention is intended to be rectified;
• If a contravention is identified, noting down the circumstances that may have contributed to the contravention or inhibited the rectification of the breach. In example 11 of the PSLA which involved a borrowing, the case officer determined that there should be further remission for one of the trustees because he was in hospital and temporarily incapacitated at the time of the contravention and the other trustee had acted on her own and claimed full responsibility; or
• Providing an undertaking to the ATO to further educate themselves on what a SMSF can and cannot do such as completing a SMSF education course.

How we can help

An understanding of the compliance requirements is paramount in operating a SMSF. There are onerous responsibilities imposed on trustees or directors and contraventions of any provision outlined in s166(1) of SISA can result in one or more administrative penalties applying. PSLA 2020/3 now gives an understanding of the approach by the ATO to administering penalties and the factors that will be considered in determining remission of penalties. For more information or guidance regarding any of the above, please do not hesitate to contact us.

The National Employment Standards (NES) has recently been updated to improve unpaid parental leave for parents, including for parents of stillborn babies, infant deaths and premature births.

The key changes are two-fold:

1. Eligible employees can now take up to 30 days of flexible unpaid parental leave in the two years following birth or adoption. Leave can be taken as:
   • Single continuous period of one or more days; or
   • Separate periods of one or more days each.
     ** Note that these 30 days are to come out of the employee’s entitlement to 12 months of unpaid parental leave.
2. Employees who have experienced the trauma of stillbirths, infant deaths and premature births will now have access to improved unpaid parental leave entitlements.

The entitlements are available to full time, part time and casual employees.

How we can help

For more information on what this might mean for your organisation or how to apply it practically, please do not hesitate to contact us.

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A third-party delivery driver has been ordered to pay a music store manager $45,000 in aggravated damages and compensation, for repeatedly engaging in sexual harassment and other inappropriate behaviour.

The manager, employed full-time at a Sanity retail business in Hobart, gave evidence to Tasmania’s Anti-Discrimination Tribunal that a delivery driver engaged by Toll Transport had, over a period of four years between 2013 and 2017, engaged in “sleazy, intimidating and favouring behaviour towards her” by:

• Referring to her as “Juicy Lucy” on six occasions.
• Using the words “nice pants” and slapping her on the bottom (and instructing the manager not to inform her boss about the incident).
• Repeatedly asking the manager about her relationship status.

The Tribunal considered that the allegations were supported by compelling evidence and was “comfortably satisfied” that sexual harassment had occurred, contrary to section 17(2) of the Anti-Discrimination Act 1998 (Tas):

• The respondent’s slapping of the complainant on the buttocks clearly constitutes an unsolicited act of physical contact of a sexual nature given the part of her body that was touched and in the context of the comments made about her clothing.
  
• The Tribunal also finds that referring to the complainant as Juicy Lucy amounted to an unwelcome remark with sexual connotations.
  
• Questioning the complainant about her boyfriend does not neatly fit within the definitions of sexual harassment contained in s.17(3). It is, however, part of the contextual material that enabled the Tribunal to be comfortably satisfied that the behaviour engaged in by the respondent towards the complainant was, in the case of the physical contact, of a sexual nature, or constituted remarks with sexual connotations.

The principal aggravating factor justifying the quantum of damages was a defamation letter the Toll driver had instructed his lawyers to send the manager that demanded she:

• Provide a written apology to the driver, acknowledging the manager’s allegations were defamatory
• Publicise the apology
• Pay the driver the sum of $30,000

The Tribunal described this act as ‘disgraceful’, contributing significantly to the deterioration of the manager’s mental health (but falling short of a diagnosed mental health disorder).

Key Implications

The key lessons that can be distilled from this case are as follows:

• Be wary of an oppositional or adversarial response to allegations of discrimination, particularly where this is unsupported by evidence or without a proper basis – doing so might work against your case, constitute victimisation and increase your legal exposure.
• Industrial Courts and Tribunals have the flexibility to give significant awards of compensation, reflecting community expectations and the need to discourage unlawful sexual harassment.
• Sexual harassment and discrimination laws apply to everyone that attends your workplace, including visitors and contractors. Workplace safety is everyone’s responsibility.

How we can help

For more information or guidance regarding any of the above, please do not hesitate to contact us.

Lucy Orchard v Frayne Higgins [2020] TASADT 11 (1 September 2020)

In 2017, the Fair Work Commission (FWC) was alerted to a number of Awards that were ambiguous about when casual employees are entitled to overtime pay and what rate applies. In October 2020, a Full Bench of the FWC made an important decision regarding overtime entitlements, amending a list of 97 Awards after consulting both employer and union representatives.

Click here for a link to the final determination to see whether the Modern Award covering to your organisation is listed, which includes the Aged Care Award 2010, the Clerks – Private Sector Award 2020, the Children’s Services Award 2020, the Educational Services (Schools) General Staff Award 2020, Educational Services (Teachers) Award 2020 and the Nurses Award 2010.

You might have assumed that the Full Bench would declare that one consistent method of calculating overtime pay for casual employees would apply, but this is not the case. The Full Bench decision confirmed that different Awards require different approaches, so you will always need to check your Award to confirm the correct approach.

Cumulative versus compound approach

The key issue in this case was whether the overtime rate of pay for casual employees under 97 Awards is calculated on a cumulative or on a compounding basis. This table illustrates the difference between the cumulative and compound approach:

Surprisingly, there is no single and consistent approach that is applied across the Modern Award system. The Full Bench took into account existing practices in the industry, the wording of the Award and the views of employer and employee representatives. This means that some Awards will continue to adopt a cumulative approach and some will apply a compounding approach. For example:

• the Aged Care Award 2010 will adopt the compounding approach.
• the Educational Services (Schools) General staff Award 2020 will adopt a cumulative approach.

Changes to 96 of the 97 Awards considered will come into effect on 20 November 2020. Amendments to the Aged Care Award 2020 will come into effect on 1 March 2021 because the pandemic has affected the ability of employers to make the required adjustments to address the Award variation.

Other Award interpretation issues

Given that the approach can vary between Awards, employers should pay careful attention to the correct approach for all relevant Modern Awards that apply to their workers. If your organisation is covered by more than one Modern Award, not knowing the differences can result in non-compliance, triggering a liability to rectify underpayments and potentially statutory penalties.

The types of issues our clients commonly encounter include:

• When are part-time and casual employees entitled to overtime? Is it when they work outside their agreed overtime hours or when they work outside the ordinary spread of hours under the Award?
• What is a “regular” pattern of work for a part-time or casual employee?
• When is an employee entitled to shift work penalties under the applicable Award?
• How should an employer pay an employee who is on call and who deals with the issue quickly over the phone?
• Does the system of RDOs comply with the requirements in the applicable Award?
• When does an employee who has been performing higher duties and receiving the higher duties allowance) need to be reclassified?

How we can help

There are many strategies for dealing with these types of issues, for example, the solution might be to obtain and rely on legal advice, or to sidestep the issue by adopting a new workplace practice, or to bargain for a new enterprise agreement so that employees’ terms of employment are aligned to your business’ practices (rather than needing to accommodate the arrangements in the Award). There may be others.

For more information or guidance, please do not hesitate to contact us.

Many international students are facing the challenge of being unable to go home, or being unable to travel to Australia.

Schools are currently dealing with navigating changes to homestay arrangements, for example for one family to have a break, or contemplating students going on holidays with homestay families.

School’s duty of care heightened

The National ESOS Code and supplementary requirements of state regulators, which, in the case of the VRQA in Victoria, are extensive, prescribe a number of strict documentary and standard-based requirements.

There is a heavy emphasis on child safety in living arrangements, with schools no longer permitted to outsource the vetting or review of homestay arrangements.

None of these requirements changes as a result of the COVID-19 global pandemic.

Indeed, there are new additional clarifications and requirements to take account of the fact that many students will not be going home for holidays.

Additional rules and requirements (VRQA’s resource)

The VRQA has published a resource which assists schools to meets these requirements in the current climate. (refer to VRQA guidance)

It is an ongoing obligation of schools to monitor the government’s advice in relation to COVID-19 and to take this into account regarding the care, welfare and safety of students.

A few key matters to note:

• Remote checks: While schools must approve a homestay only after all elements of homestay checks are completed, during COVID-19, schools can undertake site visits of the homestays remotely.
• No rented premises or holiday camps: Students are not permitted, during holidays, to live in commercially operated premises and cannot attend residential holiday programs. If moving to another homestay (for example, to live with another school family during school holidays), the new homestay is subject to the same rules as the permanent/regular homestay;
• Sharing a room ok: The students may share a bedroom in the homestay during holiday period, provided two students of the same gender share one bedroom and that the parents of the international student have given informed consent.
• Going on holidays: In relation to travel, while the school may permit the students to go on holidays with their homestay families, they must ensure that proposed accommodation is suitable and that homestay families and the students are aware of the existing travelling restrictions due to COVID-19, and that the parents of the student have given informed consent. For students returning home, schools must ensure such transitions do not include overnight stops in any Australian cities.

Schools must continue to keep:

• Informing parents about homestay and boarding accommodation available in the school;
• Ensuring the students are aware of the precautions that must be taken to protect themselves from COVID. Further, the students must have knowledge about the directions given by the government that must be followed such as wearing masks, social distancing, and other travel restrictions;
• Evaluating the need of each student in relation to accommodation and coping with absence from family for an extended period;
• Evaluating the school’s facilities and whether they can provide support to international students and have appropriate boarding or homestay accommodation; and
• Employing sufficient international student’s coordinator to provide support to the students

How we can help

For more information or guidance regarding your obligations and duty of care, please do not hesitate to contact us.

We are often asked by clients what they can do to reduce the risk of challenge to their Will.

We see many cases where parents have been estranged from their children, or one child has particularly supported parents in old age. These parents often wish to provide more for one child than other in their Wills.

As a starting point, we have “testamentary freedom” under Australian law. This means we can give our assets however we want after death. However, each State has laws which limit this freedom by requiring proper provision for eligible family members. This is referred to a “family provision” claim in Victoria, under Part IV of the Administration & Probate Act, and is based on the obligation to fulfil a “moral duty”.

But what about the case of an estranged child? Is it proper to leave them out, or give them less in your Will?

In general, the answer may be yes. Courts hearing family provision claims are required to have regard to the totality of the relationship, but unusual factors such as hostility, estrangement or other disentitling conduct are given additional weight. However, as the following case demonstrates, estrangement is just one factor. and may not be decisive.

Joss’ case

Joss v Joss was a claim by an adult daughter, Jessica, from the estate of her very wealthy father. The deceased, Peter Joss, died aged 93 leaving his surviving wife Judith and a son Ronald. His estate was valued at $12.4m, but that appears to have been a fraction of the overall family wealth, as no other family member claimed competing need. Judith was the sole beneficiary of his Will.

Jessica identified as a transgender female. She had a traditional Jewish upbringing and a close relationship with her parents as a child. She began identifying as female at the age of 10 but did not talk about her gender dysphoria with her parents. She had no friends at school and was expelled twice. She was depressed, prone to violent anger, lied and stole from her parents on several occasions, but refused to see a psychiatrist.

Despite this Jessica maintained a relationship with her parents. She worked in her father’s office during University holidays. In 1984, at age 25, she found a job in Sydney and her parents furnished an apartment for her. She moved to London in 1986, saying she was not coming home again, but returned to Melbourne in 1987. Again, her parents furnished an apartment for her. However, in 1987 she sought a move to Germany, which deeply upset her father and he did not speak to her for 2 years. Nevertheless, her father continued to provide financial help to her, including legal costs of divorce and immigration proceedings in the USA in the 1990s. Around this time, she revealed her gender identity to her family.

Jessica ultimately returned to Melbourne. Her family bought her an apartment and gave her a job in their business. In 1998, she began receiving $500 per month from her father. In 1999, aged 40, Jessica began taking feminisation hormones and quit her job, which was the last time she had been in paid employment.

By this stage, Jessica began making increased demands from money. She sought to have her parents pay for her gender reassignment surgery, which they refused to do. A number of further incidents, offending and embarrassing her family, ultimately led to her parents ceasing to have contact with her. This in turn led to Jessica threatening to kill herself, and acquiring a cross-bow with plans to kill Peter at their Synagogue. She was admitted to hospital and diagnosed with mixed personality disorder.
Her parents took out an intervention order against Jessica. However, her father still paid her legal costs of that proceeding. Over the following years, despite not seeing her father, he also paid off her credit cards, bought her a car, gave her $6,000 to move residences, and continued to pay her a weekly allowance (which increased to $1,600 tax free).

Jessica sought provision of $5.56m at trial (having offered to accept $2.5m before trial). In opposition to her claim, the Estate submitted that the estrangement and Jessica’s plans to kill her father nullified his moral duty to her. However, the judge did not accept this submission. Whilst her conduct reduced the extent of the moral duty, the judge found Peter still had a moral obligation to provide for her. This stemmed from the fact that Jessica had been wholly maintained by her father since at least 1999, and this meant she had become unable to provide for herself.

The judge awarded Jessica a sum of $3.225m. This represented provision for all of Jessica’s needs, given that the estate was very large, and there were no competing needs. The amount was broken down as follows:

• A capital amount of $2.4m, to provide a secure income at the same level of her allowance ($1,600 per week), for Jessica to invest as she chooses.
• Funds for secure an appropriate accommodation – although Jessica wanted a minimum of $1m, the judge found $600,000 was adequate to purchase a modest apartment, and $25,000 to furnish it.
• $100,000 for gender reassignment surgery & associated medical costs.
• $100,000 for miscellaneous items.

In summary, it appears that the estrangement had minimal impact. The judge did not allow for a lavish house, upmarket furniture, or travel-related expenses connected with having surgery in Sydney, which arguably could have been awarded for the estrangement. However, the key feature of the case was the extreme family wealth and extent of Jessica’s reliance on it. Where the estate is smaller, or there are competing needs, then estrangement of a claimant remains a highly relevant factor.

How we can help

For more information or advice on reducing the risk of challenge to your Will, please do not hesitate to contact us.

[2020] VSC 424 (Hollingworth J)

It is important to understand the effect of your relationship on your Will. Whether you are married or in a de facto relationship, divorced or separated, your Will should reflect your current circumstances.

If your relationship status changes and you do not update your Will (or have a Will in place), there is a chance your assets will not pass as you intend. This could be costly and cause unnecessary stress to your loved ones in order to attempt to give effect to your intentions.

Marriage revokes a Will

You may not know that marriage actually revokes a Will. If you do not update your Will once you have married, your assets may pass to your new spouse. Whilst this may be your intention, if you have children from a previous relationship or other people you may wish to provide for, this could be unfavourable.

Whilst marriage revokes a Will, the clauses in the Will that provide for the spouse, whether it be an executor appointment or a gift, are not revoked. Again, this means whilst your spouse could still inherit, other beneficiaries, such as your children, may miss out.

There is also an exception in that your Will is not revoked by your marriage if the Will is made in contemplation of your marriage. We would recommend you seek advice if you have a Will in place and intend to marry.

Separation

When spouses or de facto partners separate, it is common for them to finalise a property settlement to divide the assets between them. However, separation does not have any legal effect on your Will, whether or not you have finalised a property settlement.

If your Will provides for your spouse or partner and you do not update your Will after separation, then upon your death your spouse or partner will still inherit from your estate in the manner provided in your Will. Similarly, if you do not have a Will in place and you have separated, then your assets will be distributed as per the Rules of Intestacy whereby your assets will highly likely pass to your spouse or partner.

Whilst there may be avenues available to your loved ones to challenge this, it would be costly and stressful and could be avoided by updating your Will once you separate.

Effect of divorce on a Will

Whilst parties may separate and finalise a property settlement to divide their assets, divorce is a further and final step people may choose to take to finalise a relationship. Whilst some may find they do not need to go down the path of divorce, there may be reasons to do so, for example, ensuring that your former spouse does not benefit from your estate once you have died.

The law in Victoria provides that if you divorce, the clauses in your Will that refer to your former spouse, such as their appointment as executor or distribution of assets to them, will be invalid. Whilst this may appear be in line with your intentions, it is not necessarily that simple and could cause expense and delay in dealing with your estate.

How we can help

An out of date Will (or not having a Will) can be costly, time consuming and unnecessarily stressful for your loved ones. We always recommend you review your estate planning arrangements every three to five years or as your personal or financial circumstances change.

Whilst actually updating your Will may not be necessary each time, by having it reviewed, you can be certain that your assets will pass as you intend. For more information, please do not hesitate to contact us.

In October, the federal government announced that a specific CGT exemption for granny flats with family members would apply so long as a detailed written agreement is prepared. The announcement is expected to apply from July 2021.

Moores welcomes the announcement. When granny flat arrangements work well, it enables families to care for ageing or disabled family members and can strengthen multi-generational relationships. But it is often legally complex to deal with undocumented granny flat arrangements that are no longer working. Undocumented arrangements leave all parties at risk if the living arrangements don’t work out or relationships break down, and can also cause complications in administration of deceased estates where there are undocumented or uncertain interests in property.

Historically adapting a family home for multi-generational living – typically called a granny flat arrangement – has risked a portion of the family home becoming subject to capital gains tax whether the granny flat was a separate structure or by way of extended family members contributing a cash sum to hold an interest in or to extend the same home. The potential tax liability has been a barrier to families formalising these arrangements.

Key lessons

Having formal written agreements in place means that all parties can enter into the arrangement with eyes open, including as to any impact on estate planning. Written agreements will also help to protect the older person from elder financial abuse while living in a multi-generational household. Enforceable agreements will also protect older people – who often make a significant financial contribution to the property – if the arrangement does break down.

Formal granny flat agreements usually need to consider some of the following matters:

• Legal and/or equitable interests in the property (and impact of Centrelink gifting rules or assets tests on aged care pensioners).
• The parties’ rights and obligations – maintenance, rates and bill paying, necessary adjustments to the property in the event the older person’s mobility or health deteriorate.
• Expectations around care needs of the older person, domestic responsibilities, privacy within the home, caring for any grandchildren in the home.
• What will happen if the older person’s care needs increase and a move into residential aged care is necessary: how that move will be funded.
• The exit strategy if the arrangement comes to an end due to:
  • Divorce or separation of the adult children
  • A breakdown in relationships between the older person and the adult children
  • Bankruptcy or mortgage default

How we can help

If you or your clients would like further guidance or advice on granny flat arrangements, please do not hesitate to contact us.

$5.2 million.

This is the damages bill that ASX-listed company, TechnologyOne, has been ordered to pay its former senior executive who was dismissed for having raised complaints of bullying.

It is understood to be a record compensation order in the Fair Work Division of the Federal Court, and an important reminder that adverse action claims give rise to uncapped compensation.

In Roohizadegan v TechnologyOne Limited (No 2) [20250] FCA 1407, the Court was satisfied that TechnologyOne’s former Victorian State Manager, on seven separate occasions, exercised a workplace right by making complaints in relation to bullied by his superiors (in the form of, among other allegations, being sworn at and exclusion from management meetings).

Critically for the employer, it failed to conduct any investigation in relation these matters before dismissing him, leading the Court to give a rather a scathing portrayal of TechnologyOne’s CEO and ultimate decision maker concerning the employee’s dismissal:

“He twice rejected professional HR advice that it would be unfair to dismiss Mr Roohizadegan on the basis of mere allegations. In the end, his choice was to stand with the bullies rather than the bullied. To achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted: and that there will be a not insubstantial price for failing to do so.”

TechnologyOne has indicated it will appeal the decision.

Moores’ Commentary

In most cases, former employees looking to challenge a dismissal will invariably have a choice as to one of the following avenues:

1. The traditional ‘unfair dismissal’ claim (which focuses on broad principles of fairness and proportionality);
2. A ‘discrimination’ or ‘general protections’ claim (which alleges broadly that an employee was dismissed for a prohibited reason); and
3. A breach of contract claim.

Since the introduction of the general protections provisions in 2010, there has been a growing trend in ex-employees favouring adverse action claims at the expense of the unfair dismissal regime. We expect the trend to now continue in light of this judgement.

Roohizadegan demonstrates that the remedies for a successful adverse claim can be significant and seemingly limitless.

The $5.2 m order for damages was comprised of:

• $2,825,000 for future economic loss
• $756,410 to compensate forgone share options
• $1,590,000 in damages for breach of contract
• $10,000 in general damages, and
• $47,000 in penalties.

This is a stark contrast to claims in the unfair dismissal jurisdiction, whereby compensation is strictly capped by legislation at a maximum of six months’ lost wages (and is rarely more than 8 weeks’ lost wages).

How we can help

Given that the adverse action arena is becoming increasingly popular and heavily litigated, it’s important that employers understand their legal obligations and how to successfully navigate the legal landmines when responding to a complaint or claim.

Employers should:

• Be aware of the potential for adverse action claims to arise following termination of employment.
• Obtain advice before engaging in a disciplinary or dismissal process.
• Be transparent and identify the lawful reason for the dismissal – the decision maker will ultimately be cross examined on the reasons leading to termination of employment.
• Avoid multiple decision makers where possible, and remove those who are conflicted from the decision making process.
• Ensure workplace decisions are appropriately documented. Be aware that all documents will be discoverable.

For more information or guidance regarding your legal obligations, please do not hesitate to contact us.

Even in the midst of COVID-19, schools continue to navigate issues relating to separated families and complex family arrangements. Indeed, rules around travel and distancing have, in many cases, exacerbated existing issues and made matters more challenging for schools and families.

1. Rights and Responsibilities

It’s common for parents to interact with schools and assert their “rights” to access children or to require the schools to take certain steps they want. Parents may also do this via a lawyer. It is worth noting that the Family Law Act carries the overarching obligation that the best interests of the child is the paramount consideration when considering what time each child should spend with each parent.

Parents do not have “rights” under this legislation. This is consistent with a school’s duty of care, which provides that protection of students, rather than meeting demands of parents, is the school’s primary obligation.

The court considers that the best interests of the child are met by

• firstly, encouraging a meaningful relationship between parent and child; and
• secondly; protecting that child from harm or from being exposed to family violence.

Parental responsibility is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

Equal Shared Parental Responsibility:

The legislation provides a presumption of equal shared parental responsibility.

This requires both parents to consult the other regarding any major long-term issue and make a genuine effort to reach a resolution in relation to their child, including education.

From a practical perspective, it is important that both parents be provided with all information regarding the child including school reports, newsletters and be able to attend school functions that parents would normally attend.

2. There is a dispute about school pick up. Are there court orders in place?

Separated families are frequently unable to reach an agreement regarding spend time arrangements for their child and will apply to the Family or Federal Circuit Court for orders.

Typically, Court Orders will stipulate if the parents have equal shared parental responsibility and what time each child spends with what parent. This includes which parents collects which child on which day. Notably, step-parents are allowed to have time with their step-child during their spouse’s time/days, so requests from parents that step parents “should not be allowed” to collect children will often need to be disregarded.

Critically, it is not the job of the school to “police” the separated families’ parenting arrangements. The onus is on the parents to continue to provide updated orders to the school. If they continue to disagree and give conflicting instructions to the school, the school can require the parents to sort matters out between them and then report back.

3. What do we do if there are no court orders?

If there is no formal documented agreement between the parents, the school should request a parenting plan or an agreement in writing between the parties about the spend time arrangements for the children.

For example, if the parent who does not have primary care of a child requests they be allowed to collect the child on a Tuesday afternoon, you should ask for an agreement in writing between them and the other parent.

4. Is there an intervention order protecting a student?

Intervention orders are becoming increasingly common in family law proceedings. Most of our education community will be familiar with family violence intervention orders which is typically an order, in place between family members.

An intervention order is a civil order and can be applied for by an individual personally or Victoria Police can apply for an intervention Order on behalf of a person and their children. An Intervention Order is made in the Magistrates Court, not the Family or Federal Circuit Court

5. Does the intervention order override the family law orders?

Typically, the interaction between intervention orders and family law orders can be complex, however, they do exist together. Importantly, a family law order will typically prevail over an intervention order to the extent of any inconsistency between the two documents.

This means that it is possible a parent, who is subject to an intervention order prohibiting that person from attending school, may still be permitted to collect their children on their spend time day under Family Court orders.

Because of this, and especially where family violence is of concern, it is important for the school to seek independent legal advice about how best to manage that family and the safety of the child and protected parent.

In an emergency situation where a school fears for the safety of a child (for example, when a parent who is clearly agitated or affected by drugs or alcohol is insisting they pick up their child), the safety of the child comes first. If necessary, keep the child in a secure location while seeking advice and contacting the primary caregiver and police.

Enrolment Procedure:

6. Who should sign the enrolment form?

Wherever possible, both parents sign the enrolment agreement so they are jointly and severally liable for fees. A school is not obliged to “re-jig” payment arrangements where one parent contacts the school, notifying of a separation and advising they intend to cease payment. The school may change arrangements if it chooses, or may need to if there are interim orders or other evidence as to the parents’ agreement regarding fees.

7. Can a parent withdraw a child from school without the consent of the other parent?

In most circumstances, no. Given the parents will likely have equal shared parental responsibility they need to consult the other before making any long term decisions regarding that child, such as changing their school enrolment.

8. What should we do if we are served with a subpoena?

A subpoena is a document that is issued by the Court for either the production of documents or attendance of a staff member to give evidence at a contested hearing.

A subpoena, similar to court orders, will always have basic form requirements such as being addressed correctly to your organisation, comply with timeframes for service and be accompanied by conduct money.

Parents who are before the court often want access to confidential material such as counselling records, to gain evidence about a child’s wellbeing.

In certain circumstances, your school may be able to object to a subpoena on specific grounds – most commonly if a subpoena is too broad or compliance may adversely impact a student’s wellbeing. Please note, the inconvenience of complying will not be considered adequate basis for a school to refuse. If you are responding, you should always seek independent legal advice, and this includes regarding privacy, so you do not inadvertently breach privacy of staff or students by complying with the subpoena.

Please note, if you do not raise an objection to a subpoena, you need to comply in full or risk being in contempt of court.

COVID-19:

9. Do parenting orders continue to operate despite COVID-19?

All separated families have a continuing obligation to act in accordance with Court Orders. COVID-19 is no excuse. If parents are making demands on the school and failing to agree, the school can advise parents to apply to the COVID-19 list at the Family Court to seek urgent orders.

How we can help

If you would like any further assistance managing separated families, responding to subpoenas or assistance with enrolment documentation, please do not hesitate to contact us.