What happens when “Dad”, the sperm donor, who is registered on the birth certificate as Dad and has a close fatherly bond with a child, now 11 (let’s call her Amy), is faced with Mum and her same sex partner deciding to up and move to New Zealand, thus impacting his relationship with Amy?
The High Court in Masson v Parsons had to decide if Dad really was a parent under the Family Law Act and therefore to stop Mum moving, in “the best interests of the child”. Dad asked the court to prohibit the move, and he sought equal parental responsibility and substantial spend time arrangements with Amy.
Interestingly, Mum had agreed before the donation occurred that Dad would have an ongoing role in the child’s life. Both Amy and her younger sister called him “Daddy”.
The problem was in the NSW law that irrebuttably presumed that a sperm donor in his situation was not a parent of the child. Did this clash with the Family Law Act, a federal law, and should the latter take precedence because federal laws take precedence over state laws?
In the words of the court:
“To characterise the biological father of the child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of that procedure. Those are not the facts of this case.”
Critically, the High Court confirmed that the ordinary, accepted English meaning of the word parent is to be applied. The definitions in the Family Law Act relating to “parent” were not exhaustive. Instead, ordinary understandings of “parent” had to be applied and added to those in the Act. To put it neatly, as an English case they quoted said, you have to look at all the life circumstances of the case, including whether they may appear to be a parent “genetically, gestationally and psychologically”.
And the High Court made the orders that Dad sought.
Despite what you might read in the media, it is unlikely that sperm donors who never had any intention of taking on parental rights or responsibilities could now be legally recognised as a father of the resulting child against their will. Note that the High Court specifically did not address this issue. Current Victorian law is similar to NSW where a sperm donor has no parental rights. And the Family Law Act may support this position where the biological parent is truly a “sperm donor” only.
No. These State laws only apply to sperm donors where a child is conceived by artificial insemination. If you have a biological child – even if resulting from one encounter with the child’s other parent – you have responsibilities to the child, including the obligation to pay child support.
Interestingly, even though the child in this case was born from IVF, Mr Masson always had financial responsibility to pay child support, in any event, because his name was on Amy’s birth certificate. Had it not been, he would now be obliged to pay child support for another reason, having been found to be a parent by the court.
If you’re not sure about your parental rights, or you’re considering artificial conception and would like more information, please do not hesitate to contact us.
It is not uncommon to discover an error within a deed establishing a trust.
The recent decision of the Federal Court in Trustee for the Michael Hayes Family Trust v Commission of Taxation[1] provides some helpful guidance on resolving such errors.
A Trust was established with two key beneficiaries being named in the deed, one of which was a family trust and the other of which was a self managed superannuation fund.
Unfortunately, in preparing the trust deed, the prior trustee company for the self managed superannuation fund was named rather than the current trustee company.
The settlor and trustee entered into a deed to rectify this issue. However, during an audit investigation the Commissioner sought to argue that the prior trustee company named in the trust deed was in fact the key beneficiary of the trust.
The Commissioner argued that there was no ambiguity present in the trust deed, therefore the company named in the deed should be construed to be the key beneficiary of the Trust. However, the Court held that a broader approach should be taken. Against the background to the arrangement that was being put in place, the reference to prior trustee company as a key beneficiary made no sense. Accordingly, the Court concluded that the key beneficiary of the Trust was in fact the current trustee company for the self managed superannuation fund.
The Court also considered the effect of a deed of rectification, and concluded that such a deed would be effective if it recorded the fact that the parties were under a mutual mistake. However, where the deed of rectification was questioned by a third party, such as the Commissioner, there was utility in making a Court Order.
Where a mistake exists in the trust deed:
In recent times, one of the most common error we have seen in trust deeds is the incorrect execution of the deed by the trustee company. Without rectification, this error could lead to the deed being invalid, as was the case in Re Narumon.[2]
Should you encounter any issues in relation to errors in trust deeds, please do not hesitate to contact us.
[1] [2019] FCA 426[2] Re Narumon Pty Ltd [2018] QSC 185
The Family Courts will now take real steps to prevent victims of violence from being psychologically re-injured during court proceedings.
Currently, self-represented parties may run their case as a lawyer would, including by cross-examining the other party.
Where there has been family violence, this can create, at a minimum, enormous stress for the victim, who may be cross-examined by their perpetrator and have to cross-examine the same perpetrator.
Sadly, this has caused many to succumb to the influence of their abuser or settle poorly to avoid facing further trauma in court.
Under current Victorian law relating to intervention orders, Magistrates have for many years had the power to compel Victoria Legal Aid to offer legal representation to unrepresented parties for the purpose of cross-examining the other. The relevant legislation states not that the court may order representation in these circumstances, but that they must.
Despite what happens in intervention order cases, those same two parties have been permitted to cross-examine each other in family law proceedings.
The problem can be traced to Australia’s Constitution – family law operates at a federal level while legal aid is operated independently by the states and territories. Family violence protection funding exists in intervention order cases but not federal family law cases.
Community concern has increased pressure to introduce similar provisions in family law cases. Further, a government study in 2018 found that the majority of family law cases involving direct cross-examination had no specific family violence safeguards in place for either party.
Simply put, the new amendments change all this. The cross-examination by either party (who is unrepresented) of the other will now be prohibited – in all cases involving family violence that are listed for final hearing from 10 September 2019.
This applies when there is an allegation of family violence and:
The court can also make an order that personal cross-examination will not be permitted in some other circumstances. This may occur, for example, where the parties only have an interim intervention order in place from their incomplete state-based proceedings and the court determines that this is necessary for a person’s protection.
Where a self-represented party is prohibited from cross-examining the other, they will now have to get a lawyer, either privately or through a new government funded scheme administered by Legal Aid.
Thankfully, the family law and family violence landscape continues to adapt.
In other news, the Australian Law Reform Commission recently recommended that family law matters be administered at a state-based level to improve communication between the family violence, criminal, child protection and family law sectors. On the other hand, the federal government seeks to merge the Family Court and the Federal Circuit Court with the new merged court to retain only federal powers. As they say, watch this space.
For any family law enquiries, please do not hesitate to contact us.
The privacy of individuals and how organisations protect this privacy continue to gain attention in the media, with data breaches involving two prominent Australian organisations hitting the news in the last week.
It has been reported in Australian media that Westpac has been subject to an enumeration attack – when a malicious actor uses brute-force to either guess or confirm valid users in a system. Westpac confirmed that it “had detected mis-use of the [New Payments Platform’s] PayID functionality and we took additional preventative actions which did not include a system shutdown.” Westpac did not release the number of individuals affected, though The Age reported that 100,000 individuals’ names and phone numbers were compromised during the attack.
Additionally, on 4 June 2019 the Australian National University (ANU) stated that it had recently become aware that it’s system had been the subject to unauthorised access to significant amounts of personal staff, student and visitor data extending back 19 years. While the access occurred in late July 2018, ANU only became aware of the attack two weeks ago. The information that was compromised included include names, addresses, dates of birth, phone numbers, personal email addresses and emergency contact details, tax file numbers, payroll information, bank account details, and passport details.
Personal information is incredibly valuable, particularly as the world becomes increasingly connected through technological advances. Personal information can be used to carry out identity theft by impersonating the person to whom the information relates. Additionally data breaches can be a threat to the safety of individuals if they are at risk of serious harm due to the information being released.
Additionally, the introduction of the Notifiable Data Breach Scheme (NDB Scheme) in February 2018 has placed organisations on notice that the security of personal information is a serious issue in Australia. Eligible data breaches are now reportable to the Office of the Australian Information Commissioner (OAIC) and individuals affected. Eligible data breaches arise when:
Before the introduction of the NDB Scheme, a voluntary reporting scheme existed. In the 12-month period following the introduction of the NDB Scheme, a 712% increase in the number of reports made to the OAIC was recorded.
The breaches that occurred at Westpac and ANU are indicative of the most common cause of data breaches, being malicious or criminal activity. 60% of the reports made to the OAIC in the first 12 months of the NDBS fall into this category. In order to reduce the opportunity for malicious attacks to occur, the OAIC recommends:
In its Notifiable Data Breaches Scheme 12‑month Insights Report, the OAIC identifies training and preparation as key tips for best practice in relation to data breaches.
We encourage organisations to prepare for a data breach before it happens to ensure a swift and cohesive response in the event that one occurs. The following recommendations are useful starting points:
1. Implement a Data Breach Response Plan
A DBRP provides practical guidance on how to reduce the impact of a breach, meet obligations under the NDB Scheme and reduce harm to individuals. A DBRP should be tailored to your organisation and set our how you will assess whether there is a risk of serious harm and whether the breach is reportable – elements that we often find are lacking in DBRPs.
2. Test your Plan
The OAIC encourages organisations to carry out regular exercises or data breach simulations, as they are a critical way that organisations can ensure preparedness as they often highlight deficiencies and risky dependencies. Moores recently carried out a data breach simulation workshop with our clients, which allowed clients to consider how to assess harm and the special considerations that were required for their data breaches.
3. Train your staff
All employees should be trained on how to detect and report email‑based threats (such as phishing), understand basic account security (such as secure passwords) and how to protect their devices. Human error contributed to 35% of all data breaches in the first 12 months of the NDB Scheme. Education should also focus on data handling practices and how to report suspected privacy breaches. Moores regularly runs this training with our clients to raise awareness throughout the organisation.
Moores is able to support organisations who are navigating the privacy landscape by providing an assessment of their privacy practices and updating their Privacy Policy or Data Breach Response Plan. Additionally, we can run training and simulations that are targeted at your organisation’s unique practices and in a format that is practical for employees.
For more information, please do not hesitate to contact us.
The Federal Court of Australia (the Court) has dismissed an employee’s disability discrimination and victimisation claims against his employer, a family law practice, finding that the employer did everything necessary to assist the employee to return to work following a major depressive episode.
In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436 , Mr Tropoulos, a family lawyer (the employee), argued that Journey Lawyers Pty Ltd (the employer), discriminated against him and failed to provide “reasonable adjustments” for his disability in breach of the Disability Discrimination Act 1992 (Cth) (DD Act).
Despite the employer’s support, several return to work attempts failed with the employee being unable meet the reduced hours of work and working at one tenth of his previous working capacity.
In a third attempt to facilitate the employee’s return to work, the employer sought to reduce the employees’ expected earnings and reduce his salary and responsibilities associated with mentoring other lawyers The return to work plan also included a gradual increase to hours of work.
The Court had to determine whether the legal practice should have made “reasonable adjustments” for the employee with respect to his disability. The employee argued that his employer should have:
While medical advice was provided by the employee’s psychiatrist in support of the employees’ return to work, the Court noted the psychiatrist had previously misjudged the employee’s capacity, and that such advice was coloured by optimism. The Court placed weight on the fact that the legal practice had not received a formal “return to work” plan from the employee’s treating psychiatrist, and lacked knowledge about the employee’s disability and the adjustments that he required.
The Court accepted that the employer had facilitated an informal return to work plan for the employee, and had attempted to:
The Court held that by taking the steps above, that the employer had made reasonable adjustments for the employee within the meaning of the DD Act.
The Court rejected the employee’s claims that the legal practice’s failure to implement his proposed reasonable adjustments constituted disability discrimination, finding that the employee had not been treated less favourably than an employee, without his disability, would have been treated in materially similar circumstances. The Court accepted that, even if the employer’s conduct had amounted to disability discrimination, the employee’s case on liability would have failed on the bases that
In considering the inherent requirement exception, the Court set out the relevant question for determination – would the position be essentially the same if that requirement were dispensed with? The existence of a requirement within an employment contract does not of itself confirm that it is an inherent requirement of the particular position in question. In this case, the Court found that the ability to put legal knowledge and skills into practice in such a way as to derive an income was an inherent part of the employees’ role as a senior associate and that the employee, because of his disability, was unable to carry out the inherent requirements of his role.
Finally, the Court held the alleged detriments imposed on the employee had not been imposed “because of” the employee’s assertion of his legal rights.
Describing the obligations on employers, the Court noted that it is not an employer’s obligation to take responsibility for the recovery of an employee’s health.
The application by the employee was dismissed by the Court, and the employee was required to pay the employers’ costs on a party-party basis.
Enterprise bargaining in Australia can resemble a blood sport – players jostle for position and try to land as many hits on their opponent as they can, with the ultimate goal to get the enterprise agreement over the line or kill a deal and limp off the field.
Too often we see employers reach agreement with their employees and bargaining representatives, only to lodge the enterprise agreement and have it rejected by the Fair Work Commission (the Commission) for procedural deficiencies.
To ensure you aren’t given a yellow card for a technical foul, you need to understand the rules of play. If your enterprise agreement doesn’t comply with technical requirements of the Fair Work Act 2009 (Cth) (the Act) and the Fair Work Regulations 2009 (Cth) (the Regulations), you’re unlikely to get it over the line without significant delay, and may be directed to start again.
For more information on enterprise bargaining, please do not hesitate to contact us.
To create a child safe culture you need to ensure your organisation has the right people on board. Drawing on lessons from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), we know that organisations that failed to undertake careful pre-employment screening and reference checks, failed to act on red flags or allowed staff to work with children without a Working with Children Check (WWCC), ultimately failed to protect children.
To address these risks, the Royal Commission included in its recommended National Child Safe Standards that organisations should ensure that people working with children are suitable and supported. This has been adopted in several states including Victoria where organisations must screen, supervise, train and have in place other human resources practices that reduce the risk of child abuse by new and existing personnel. Ensuring that only suitable individuals are hired (or recruited as volunteers) to work with children also accords with an organisation’s overarching duty of care.
This article will set out safeguards and practices that organisation should have in place along the recruitment process.
Child safety should be a consideration from the very beginning.
Consider:
These considerations will help you to determine the requirements you might need to put in place. For example, a WWCC may be needed, multiple reference checks or a police check.
We recommend that job advertisements clearly state that the organisation’s commitment to child safety and zero tolerance for child abuse.
Before an interview even takes place, consider an application through a child safety lens. Be alert to potential red flags in a person’s resume or cover letter.
Examples include:
While the examples above may be innocent and may not be indicative of anything sinister, it is worth noting them in your consideration of the applicant and asking further questions in any interviews and reference checks.
The first tip for running interviews is to ensure that they are face-to-face wherever possible. Telephone interviews or even Skype can make it difficult to read a person’s body language.
Interviews should be conducted by a diverse mix of individuals, particularly in gender and age. The interview should also include questions about child safety, such as behaviour and scenario-based questions. For example, “Please provide me with examples of how you have responded to a child safety issue” or “How would you respond to a child who does not listen to your instructions?”
Asking child safe questions also emphasises to the applicant that your organisation takes child safety seriously.
Before an offer is made to an applicant, there should be a screening process. If an offer is made before screening, it should be made clear to the applicant that this is conditional on them passing screening.
Subject to the requirements of the role, screening should include a WWCC and/or police check. If the applicant has spent a significant amount of time overseas or interstate, you should consider asking for a police check in their countries of residence, noting that a WWCC is only state based.
You should also conduct careful reference checks with at least two previous employers or organisations where the applicant has volunteered, particularly where the applicant has interacted with children. Often, organisations will ask questions to merely confirm the details on the applicant’s resume. However, a child safe approach would include questions regarding the applicant’s work with children, any concerns they might have had or were raised about the applicant, and how children perceived them.
You may also wish to do your own research into the applicant. This could include searching their name on Google and ensuring that their LinkedIn is consistent with their resume.
Once you are satisfied about the applicant’s suitability to work with children and you make an offer that is accepted, the process continues. It is important that provisions are placed in your contacts of employment such as requiring employees to notify you of any child related charges and offences, maintaining a valid WWCC, and the right to dismiss them for any breach of your child safety policies and codes of conduct.
During induction, the child safety policies should be provided to the individual (if they have not already been) and if possible, an assessment of whether they have read and understood it should occur.
You should also introduce a probationary period during which the applicant will be supervised with children. This should be carefully monitored and feedback should be invited from children and / or their parents about the employee or volunteer.
Organisations should clearly record the steps they take to recruit and retain the right people. Following the Wrongs Amendment (Organisational Child Abuse) Act 2016 (Vic), if an abuse occurs, there will be a presumption that the organisation failed in its duty of care unless it can prove that reasonable precautions were taken to prevent the abuse. The changes reverse the onus of proof to help reduce the barriers in legal proceedings for survivors. Insurers may also require these records as a condition of cover.
Ensuring the individuals you engage are suited to work with children is an ongoing process that involves continuous monitoring, training and evaluation.
Some recommended next steps are:
Moores has experience working with organisations to create child safe practices. If you would like to discuss this article with us further, or learn more about our child safety services, please don’t hesitate to contact our Practice Leader, Skye Rose, on (03) 9843 2100.
A Sydney-based fashion industry start-up and its sole director have been ordered to pay over $300,000 in penalties for underpaying three workers more than $40,000, including engaging one worker as an unpaid intern when she was, in fact, a part-time employee. The Federal Circuit Court decision highlights the significant legal, financial and reputational risks associated with incorrectly classifying workers and engaging “unpaid interns”.
In Fair Work Ombudsman v Her Fashion Box Pty Ltd [2019] FCCA 425 the Fair Work Ombudsman (FWO) commenced legal proceedings against Her Fashion Box Pty Ltd (HFB) and its sole director, Kathleen Purkis, (Ms Purkis), for pecuniary penalties due to 19 contraventions of the Fair Work Act 2009 (Cth) (FW Act). Ms Purkis was the sole director and majority shareholder of HFB, and was responsible for the overall direction, management and control of the Business.
The FWO submitted that HFB and Ms Purkis underpaid three employees their minimum Award entitlements, including one graphic designer who was engaged on the basis of an ‘unpaid internship’.
Ms Va, the ‘intern’, had already completed university and was working at HFB for 2 days per week for 6 months. Ms Va was employed from July 2014 to December 2014 and then again in January 2015. During the engagement, Ms Va:
While the FWO had recovered some of the underpayment amounts from HFB and back paid the employees, it commenced legal proceedings after a lack of co-operation by HFB with FWO inspectors. FWO also sought court orders requiring HFB and Ms Purkis back-pay the employees in full (as they were only partially back-paid prior to the proceeding).
The Federal Circuit Court found that there were significant contraventions of the FW Act by underpaying the workers, and found that Ms Va was actually an employee who should have received minimum wage entitlements. The court ordered HFB and Ms Purkis pay pecuniary penalties of $329,133 for these contraventions of provisions of the FW Act.
The case highlights that organisations cannot avoid paying lawful entitlements to their employees simply by labelling them as interns.
Unpaid placements are lawful where they are part of a vocational placement related to a course of study. However, it is unlawful to exploit workers when they are fulfilling the role of an actual employee. Business operators who try to exploit workers as a source of free labour risk facing enforcement action from the Fair Work Ombudsman.
Moores advises employers and service providers on the appropriate classification of its workers, whether they are employees, volunteers, independent contractors or interns. If you would like further assistance, please do not hesitate to contact us.
Of course, parents want to assist their children and that often extends to financial assistance. Sometimes, adult children expect a parent to assist. Before money passes hands, families need to consider how they can avoid creating any unforeseen legal consequences.
Courts have previously commented on the vulnerability of parents who contract with their children, which often “stems not from a failure to comprehend the nature of the transactions in which they are asked to participate or from insufficient information concerning their implications. It stems from the love of their children. Their desire to help and protect them, to advance their interests, to maintain a close relationship, to avoid causing disappointment, hurt or distress, to maintain the relationship all make it difficult to say “no”’ (Watt v State Bank of New South Wales [2003] ACTCA 7).
Moores recently acted for a client whose sibling had signed loan agreements with their mother, in her capacity as the mother’s attorney (lender) and in her personal capacity (borrower). Our client was concerned about whether the arrangement was above board. While the signing of the loan agreement on behalf of the lender and as borrower is a conflict of interest, was the advancing of the loan contrary to the mother’s interests? In the circumstances, it was not because:
Had Mum been in different financial circumstances, or had the loan arrangement been undocumented or at a 0.00% rate of interest, the circumstances may have allowed the sibling to challenge the arrangement as amounting to unconscionable conduct, and to have the loan agreement set aside.
If you or your clients are considering an intra-familial loan arrangement, there are some key issues that they should consider before doing so:
Moores can provide you or your clients with specialist legal advice about matters to consider before an advance of funds is made, and can document the arrangement as required. Please do not hesitate to contact us.
Does a section 90B Financial Agreement prevent the Court from considering an Interim Spousal Maintenance Application?
The recent case of Barre & Barre & Anor [2018] FCCA 97 (“Barre & Barre”) considers an application made by the Wife to the Federal Circuit Court of Australia (“the Court”) for interim periodic spousal maintenance where a Section 90B Financial Agreement exists between the parties, which determines how the property pool will be divided in the event of separation.
The basis of the Wife’s application for interim spousal maintenance formed part of her final application to set aside the parties’ Financial Agreement pursuant to Section 90K of the Family Law Act 1975 (Cth) (“the Act”).
The Wife maintained that she would suffer hardship if the Court did not set aside the Financial Agreement due to a material change in circumstances, being the birth of children during the marriage.
The Husband maintained that the Wife’s application was without merit and bound to fail. He opposed the Wife’s application for interim spousal maintenance on the basis that the issue of spousal maintenance is dealt with in the Financial Agreement and therefore the Court does not have jurisdiction to deal with the Wife’s application.
The Wife submitted the Agreement was not compliant with Section 90E of the Act as it failed to specify the quantum of spousal maintenance to be provided.
The Wife relied on the decision in Boyd & Boyd [2012] FMCAfam 439 to support her application as it considered the history and proper construction of section 90E as follows:
Essentially the legislature requires that any consent order or financial agreement specify which portions of any lump sum or property order conferred thereunder are for either spousal or child maintenance, so that the social security implications of such an order or agreement is apparent.
She further submitted that since the birth of the children and subsequent separation from the Husband, her ability to maintain herself was “substantially altered” given her ongoing financial responsibility for the care of the children.
The Husband submitted that whilst the Agreement did not define the quantum of spousal maintenance, it could be reasonably inferred that it was the intention of the parties for it to be included. At the time of entering in the Agreement, the parties were in employment, able to support themselves at that time and intended to do so in the future. In turn, given the Agreement deals with the issue of spousal maintenance the Court’s jurisdiction is ousted.
The Husband further argued that the Wife was in a de facto relationship with Mr O and therefore there is an obligation on Mr O to provide for the Wife and not him.
Ultimately, the Court was satisfied the Agreement did not make specific reference to spousal maintenance and that such a reference cannot be reasonably inferred.
In failing to adequately contemplate the provision of spousal maintenance, the agreement did not preclude the Wife from making an application to the Court and the Wife’s interim application was upheld.
His Honour, Judge Kemp, considered that whilst the agreement contemplated the parties having children, it was silent as to the impact of having children on each of their earning capacities. The Husband had the financial capacity to reasonably contribute.
The Court considered the Wife had a reasonable shortfall of $381 per week between her income and related expenses and ordered the Husband pay to the Wife the sum of $381 per week until final resolution of the matter.
Baree & Barre is an interim decision in relation to the provision of spousal maintenance. The matter remains on foot and therefore the issue of whether the Financial Agreement should be set aside pursuant to Section 90K of the Act on the basis of a material change of circumstances and associated hardship has not yet been determined.
Barre & Barre sheds light on the importance of careful drafting that contemplates a complete range of future circumstances, especially in the situation of a young couple prior to marriage.
If you require further information or assistance, please do not hesitate to contact us.