There are a number of amendments to the Family Law Act 1975 (Cth) (the Act) that will change the approach to parenting matters. This article explores four key changes to the Act that directly impact families and children.

What is the purpose behind the amendments?

The amendments to the Act aim to make the family law system safer and simpler to understand for separating families to navigate, and provide the Federal Circuit and Family Court of Australia (the Court) with more discretion to determining parenting arrangements.

Will current parenting orders be changed?

The changes to the Act do not apply retrospectively. This means the new law is only applicable to matters that are decided by the Court after 6 May 2024, not before.

Four key amendments to the Act

1. A new definition for “best interests of the child”

The most important consideration in determining arrangements for a child will remain the same as it was previously – that arrangements must be made in their “best interests” and not in the interests of the parents.

Prior to the new amendments, when asked to determine what was in a child’s best interests, the Court focused on two primary considerations and 14 additional considerations. Due to the new amendments, that list is now shorter with only six “general considerations” and two “further considerations” (applicable only if a child is Aboriginal or Torres Strait Islander). The list of considerations is non-hierarchal and the Court is not required to place more weight to any one factor over the others. The six general considerations when determining the best interests of the child are:

1. What arrangements promote the safety of the child and the child’s carers (whether or not a person has parental responsibility for the child), including safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
2. Any views expressed by the child.
3. The developmental, psychological, emotional and cultural needs of the child.
4. The capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs.
5. The benefit to the child of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so.
6. Anything else that is relevant to the particular circumstances of the child.

In considering the above matters, the Court must take into account:

• Any history of family violence, abuse or neglect involving the child or a person caring for the child; and
• Any family violence order that applies or has applied to the child or a member of the child’s family.

As has always been the case, the Court must give greater weight to the need to protect a child from physical or psychological harm or from being subjected to, exposed to abuse, neglect or family violence over the benefit of a child having a meaningful relationship with both parents.

For an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture is given particular importance.

2. Removal of the presumption of “equal shared parental responsibility” and reference to “substantial and significant time”

Before the amendments to the Act, the law required the Court to presume that “equal shared parental responsibility” was in the best interests of a child. This often meant the parents had joint responsibility for making long term decisions for a child, such as those relating to schooling, health or religion. The presumption however did not apply if there were reasonable grounds to suspect harm, neglect, abuse or family violence.

The presumption was removed due to a misconception amongst the community that “equal shared” parental responsibility accorded to a child spending equal time with parents. The Court will now tailor decisions about parental responsibility, renamed as “joint decision making” about long term issues, to the circumstances of the particular child and their parents.

As has always been the case unless other ordered by the Court, if it is safe to do so, parents of a child are to consult with each other about major long term issues in relation to the child, and when doing so, have regard to the best interests of the child as the paramount consideration.

Now, with the removal of the presumption, it is more likely that parenting orders will allow a parent to have ‘sole parental responsibility’ for all or some long term decisions for a child. As a consequence of the removal of the presumption of “equal shared parental responsibility” the Court is no longer required to consider the pathway of equal time or substantial and significant time arrangements for a child where equal shared parental responsibility applied.

The amendments aim to reduce pressure to agree to parenting arrangements in circumstances of family violence, and give the Court more discretion to decide parental responsibility and care arrangements.

3. Grounds for making changes to final parenting orders

There has always been an ability to apply to the Court to amend final parenting orders pursuant to the case of Rice v Asplund if:

• There has been a “significant change in circumstances”; and
• It is in the child’s best interests for the final orders to be reconsidered; or
• There is agreement from all parties to the final order.

The intention of Parliament was to codify the rule in Rice v Asplund within the Act. A recent case heard by Judge O’Shannessy suggests the Act may not have actually “codified” Rice v Asplund. Under the relevant section a, “significant change in circumstances” is not a pre-requisite or threshold to re-open the proceedings, but rather a factor to be taken into consideration.

The changes to the Act also provide that the Court may regard the following factors when considering whether to entertain a new application after final parenting orders are made:

• The reasons for the final order and the material on which it was based;
• Whether there is any new material available that was not available to the Court that made the final order;
• The likelihood that if the final order was reconsidered, the Court will make a new parenting order that affects the operation of the final order in a significant way; and
• Any potential benefit or detriment to the child that might result from reconsidering the final order.

What is still the same is the principle that continued litigation over a child is generally not in their best interests.

4. The role of the Independent Children’s Lawyer

An Independent Children’s Lawyer (ICL) is sometimes appointed to represent a child’s best interests in a family law matter. The Court may appoint an ICL when it needs to hear an independent assessment about the child’s best interests.

Prior to 6 May 2024, an ICL was not required to meet with or speak with a child they represented. Under the new amendments an ICL is obligated to meet with and speak with the child, unless:

• The child is under five years of age (except where it is considered appropriate); or
• The child does not want to meet with the ICL or express their views; or
• There are ‘exceptional circumstances’ (for example, risk of psychological harm).

This requirement allows the ICL to get first-hand information and views from the child, which can be expressed to the Court on their behalf. Some commentators are concerned this requirement may lead to a greater need for the child to engage with experts and advocates in family law proceedings (which is already acknowledged not to be in a child’s best interests) and create further pressure or influence on a child to express a particular view to the ICL.

Ultimately, how the Courts will adopt these changes and, in turn, what practical effect these changes will have on families is yet to be seen. Until formal decisions are made by the Court, there will continue to be an element of uncertainty.

How we can help

Our Family and Relationship Law team understands that appropriate arrangements for the care of children following separation is a priority for parents. Often parents have different views about what is in their child or children’s best interests. The recent changes to the law may cause further uncertainty. Our empathetic approach and expertise can help guide you through the process and determine the best arrangements for your child.

Contact us

Please contact us for more detailed and tailored help.

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This article was originally published 31 July 2024. Updated 16 August 2024.

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.

The number of states and territories that have embedded child safe standards in legislation is growing. In 2024, Tasmania and the Australian Capital Territory introduced child safe standards, and a bill has been proposed in Queensland for the same.

These developments highlight a growing expectation that organisations engaging with children will take proactive steps to provide a safe environment for children. Following the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, all jurisdictions have been guided by the nationally consistent approach set out in the 10 National Principles for Child Safe Organisations. However, in light of the broader application of child safe standards in legislation, more Australian jurisdictions are communicating a clear commitment to child safety, meaning that organisations should carefully consider strategies to ensure that child safety is a central consideration in all operations.

What are the 10 child safe standards?

The 10 Child Safe Standards are derived from the National Principles for Child Safe Organisations as follows:

1. Child safety and wellbeing is embedded in organisational leadership, governance and culture.
2. Children and young people are informed about their rights, participate in decisions affecting them, and are taken seriously.
3. Families and communities are informed and involved in promoting child safety and wellbeing.
4. Equity is upheld and diverse needs are respected in policy and practice.
5. People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice.
6. Processes to respond to complaints and concerns are child focused.
7. Staff and volunteers are equipped with the knowledge, skills, and awareness to keep children and young people safe through ongoing education and training.
8. Physical and online environments promote safety and wellbeing while minimising the opportunity for children and young people to be harmed.
9. An organisation’s implementation of the Child Safe Standards is regularly reviewed and improved.
10. An organisation’s policies and procedures document how the organisation is safe for children and young people.

What jurisdictions have now legislated the Child Safe Standards?

Victoria and New South Wales were early adopters of child safe standards, which were introduced in 2016 and 2020 respectively. In Victoria, there is an additional standard to address the cultural safety of Aboriginal children and young people.

In Tasmania, the 10 child safe standards were introduced under the Child and Youth Safe Organisations Act 2023, which requires prescribed organisations such as accommodation providers, religious entities, childcare services, child protection and out-of-home care services, disability service providers, and educational and health service providers to comply with the Child and Youth Safe Standards from 1 January 2024.

From 1 July 2024, a broader range of organisations are required to comply with the Child and Youth Safe Standards, including:

• a club, association or cadet organisation that has a significant membership of, or involvement by children;
• a coaching or tuition service for children;
• an entity that provides commercial services to children including, but not limited to entertainment or party services, gym or play facilities, photography services; and talent or beauty competitions;
• a transport service specifically for children; and
• a Neighbourhood House that provides community development, support, training and activity programs.

The Australian Capital Territory has also legislated the 10 child safe standards under the Human Rights Commission (Child Safe Standards) Amendment Act 2024. From 1 August 2024, all providers of services for children and young people will need to implement the Child Safe Standards in the Australian Capital Territory. 

Queensland is also in the process of legislating the Child Safe Standards through the Child Safe Organisations Bill 2024, which was introduced into Parliament on 12 June 2024.

Organisations that engage with children in South Australia, Western Australia and the Northern Territory are encouraged to comply with the National Principles for Child Safe Organisations, but these jurisdictions are yet to legislate child safe standards.

How we can help

Meeting the Child Safe Standards is not a tick the box compliance exercise and requires leadership, careful planning, changes in policies and practices, training, empowerment of children and young people, among other things. Organisations operating in multiple jurisdictions should consider adopting a consistent approach to protecting children from abuse and risk of harm, irrespective of whether compliance with child safe standards is required.

Our Safeguarding Team can:

• support you to understand how these standards apply to your organisation, and provide tailored support with updating your policies, procedures, codes of conduct, and practices to ensure they are fit for purpose and align with the child safe standards;
• audit your existing approach to child safety to identify gaps and priorities to meet your obligations;
• provide child safety training to help your people understand their obligations to provide a safe environment for children and young people.

If your organisation needs assistance in determining how these changes impact you, please contact our Safeguarding Team.

Contact us

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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.

The breakdown of a marriage or de facto relationship can be an unsettling and stressful time.

As a starting point, we have prepared a booklet to answer some common questions you may have before and after a separation.

These steps do not have to be taken alone. We recommend you seek expert legal advice to guide you through the process and address all concerns specific to you and your circumstances.

If there has been family violence in the relationship, seek advice and support from a family violence professional or service.

I am thinking about separating, what should I do?

Our separation booklet is a guide to taking the first steps in a separation. It covers frequently asked questions and provides an overview of a property settlement and parenting arrangements. Download your copy here.

When will I need a lawyer?

You may feel daunted at the concept of meeting a family lawyer, however, having an initial consultation as soon as possible is empowering. It will allow you to obtain the knowledge you need to make informed decisions about your life after separation.  

We recognise that every situation is unique. It is our goal to work collaboratively with you to achieve the best outcome. This involves understanding your situation, giving comprehensive advice and providing options as to how best to move forward.  

How we can help

We provide advice in relation to all aspects of family law including financial settlements and parenting issues. Importantly, we appreciate other support avenues are sometimes required for couples such as family therapy and counselling, and we have the insight and capability to make these referrals where necessary.

Contact us

Please contact us for more information or to make an initial appointment.

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When it comes to protecting a family’s wealth in the event of separation, financial agreements under the Family Law Act 1975 (Cth) are an increasingly common and effective tool. A financial agreement is an agreement entered into between spouses (married or de facto) which address how the property and financial resources of the relationship are dealt with at separation. If drafted correctly and carefully it enables parties to mutually contract out of the right to bring a claim against each other in the Federal Circuit and Family Court of Australia (the Court). Financial agreements can be made before or during a relationship or after separation.

When can a claim arise?

A party to a relationship can have a claim for property settlement once married or in the case of a de facto relationship once the parties have been living together for two or more years. There are sometimes exceptions to this rule such as the birth of a child or significant intermingling of finances. 

A property settlement order from the Court can take into account inheritances received by one party, and can divide the assets inherited.

How does the Federal Circuit and Family Court of Australia treat inheritances?

If there is no financial agreement in existence, inheritances and gifts received by a spouse directly in a relationship are considered to be property of the relationship to be divided as determined by the Court upon separation. Whilst it is certainly not the case that any inheritance is always divided on an equal basis, a Judge has a wide discretion to apportion inheritances having regard to the particular facts and circumstances of the relationship. In the absence of a financial agreement, there is no guarantee that an inheritance will be protected.

How does a financial agreement work?

A typical financial agreement is designed to regulate and determine the impact of separation on the entirety of the parties’ financial relationship (i.e. it deals with all assets and liabilities). A common approach is to divide the assets and interests into each parties excluded assets (kept separate in the event of relationship breakdown), and “joint assets” being those assets which are agreed to be divided in the event of relationship breakdown. There can also be agreed on additional payments from one party to the other, depending on the circumstances.

Alternatively, there is nothing that prevents parties having an agreement that is more limited in scope, such as just excluding claims in relation to inherited assets only. This is known as an Inheritance Protection Agreement (IPA).

The significance and value of an IPA is that it specifically deals with possible or expected inheritances, gifts or particular assets and excludes them for the sole benefit of one of the parties. There is no requirement in the legalisation that the IPA contemplates a just and equitable division of all assets. As long as the IPA is compliant and has been carefully drafted in accordance with the requirements set out under Part VIIIA of the Family Law Act 1975 (Cth) it will be enforceable.

The Federal Circuit Court of Australia (FCCA) case of Wood v Grover [2015] illustrates the enforceability of a financial agreement which quarantines future inheritances. The Husband sought to set aside a financial agreement entered into prior to marriage. The financial agreement specifically sought to protect any inheritances that were likely to be received by either of the parties. At the time of signing the agreement, the Husband had approximately $13,500 worth of assets. The Wife had approximately $656,000 and was likely to receive significant inheritances.

The Husband argued that the financial agreement should be set aside as he had not received the requisite advice regarding the terms of the agreement. The Husband also relied upon the grounds of unconscionable conduct, duress and undue influence. Ultimately, Judge Neville found that the financial agreement was valid and took no issue with the exclusion of significant future inheritances.

Preliminary questions

A financial agreement is a contract, and the Family Law Act 1975 (Cth) requires disclosure as well as prescribing other formalities for the Agreement to be enforceable.

As the parents passing on the inheritance, a preliminary question is the level of disclosure that you are comfortable providing in order to make the agreement binding.

How we can help

At Moores, we prepare financial agreements as well as IPA’s for all types of relationships. As illustrated in Wood v Grover [2015] FCCA, it is imperative the financial agreement is drafted in accordance with the requirements set out in the legislation. Each agreement needs to be carefully tailored to the circumstances of the relationship and immediate families’ requirements.

We are well versed in the approach and negotiation of financial agreements and would welcome a discussion with you or your clients at any time about the benefits of entering into a BFA.

Contact us

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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.

The recent Federal Court case of Roxanne Tickle v Giggle for Girls provides a unique opportunity to obtain greater clarity on the scope of anti-discrimination protections for transgender people in Australia.

Background of Roxanne Tickle v Giggle for Girls

Roxanne Tickle lodged a discrimination claim in the Federal Court against Giggle for Girls on the basis of her gender identity, and is seeking damages of $200,000. Giggle for Girls is a social networking app developed exclusively for women to share experiences and speak freely in a “safe space”. Roxanne Tickle was assigned male at birth, but now identifies as female and has a birth certificate designating her sex as female. Ms Tickle downloaded the app and was required to upload a selfie as part of the registration process. Artificial intelligence assessed her photo as being of a woman and she was able to access the app. However, Ms Tickle was later removed from the app by Giggle for Girls’ CEO, on the basis that she was male and her onboarding selfie appeared to be of a man.

Ms Tickle claims that Giggle for Girls has discriminated against her under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) on the basis of her gender identity by treating her less favourably in the course of providing goods and services. Ms Tickle argued that she was treated less favourably than cisgender women (being women whose gender identity corresponds with their sex assigned at birth), because of her gender identity of being a transgender woman.

Giggle for Girls are defending the case on the basis their refusal to allow Tickle to use the app constituted lawful sex discrimination as a special measure. A special measure is an action taken to advance equality of a particular group that would otherwise experience disadvantage, in this case females. Because Giggle for Girls perceives Ms Tickle as male, they consider it is lawful to discriminate against her on the basis that it is part of a special measure.

Australia’s Sex Discrimination Commissioner also made submissions in this case, noting that ‘for a person to be of the female “sex”, it is sufficient if that sex is recorded on the person’s birth certificate and/or they have undergone gender affirming surgery to affirm their status as female’.

Notwithstanding this, the evidence provided to date suggests Ms Tickle, as a trans woman, was treated differently to how the respondents treated people with a different gender identity, namely cisgender women.

Judgment has been reserved and we are awaiting the decision in this case.

Why is this case significant?

This case has provided the Court with the ability to determine the extent to which the Sex Discrimination Act protects transgender people from discrimination on the basis of their gender identity. The Sex Discrimination Act was reformed more than a decade ago to add protections for transgender and gender diverse people, however, this is the first time these laws are being tested in court.

This case also highlights the distinction between sex discrimination and gender identity discrimination, and the challenging overlap when special measures to rectify one form of disadvantage, in this case on the basis of sex, intersect with other areas of discrimination.

Sex is not defined in the Sex Discrimination Act, however, generally refers to the sex assigned at birth as male, female or intersex, which is based on physical features such as chromosomes, hormones and organs. Gender identity is defined as the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. As such, this case serves as a prime opportunity to clarify this distinction as it relates to instances of discrimination.  

In addition, the need for greater protections for transgender people are now at the forefront of public discourse.

The Trans Justice Project and Victorian Pride Lobby’s collaborative report into anti-trans hate in Australia published in August 2023 was the largest ever investigation into anti-trans hate in Australia. Their study found that 49.2% of transgender participants directly experienced online anti-trans abuse, harassment or vilification in the 12 months prior to the report, and 1 in 6 transgender participants experienced anti-trans violence in the previous 12 months.

This issue is also pertinent to schools, with Equality Australia’s report ‘Dismissed, Denied and Demeaned: A national report on LGBTQ+ discrimination in faith-based schools and organisations’ finding that many independent schools had enrolment policies that required enrolment based on a student’s assigned sex at birth, and provided teachings that openly condemned homosexuality and transgender people and encouraged their school communities to hold similar beliefs.

The Australian Law Reform Commission’s recent report, Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws¹, has recommended changes to narrow the circumstances in which religious educational institutions can discriminate against students and workers. While the ALRC report recognises that institutions should be allowed to preference staff in line with their beliefs so long as it is proportionate and ‘reasonably necessary’ to maintaining a community of faith and does not breach existing discrimination laws, it recommends amendments to the Sex Discrimination Act and Fair Work Act 2009 (Cth) to ensure students and staff do not face discrimination on the basis of their gender identity among other attributes.

Potential impact on your organisation

Many organisations grapple with the delicate balance of upholding the rights and dignity of transgender people in their communities, whilst respecting and addressing the responses they receive from others in their community when supporting transgender people. In religious organisations, the balance can be even harder to achieve.

Steps taken to support and accommodate transgender people may range from navigating access to bathrooms, participation in sport, use of pronouns and the extent to which organisations provide education and/or public support on issues involving the transgender community. However, it is important to recognise that these issues feed into a range of legal obligations held by organisations, whether it be the duty of care that schools owe to all students, the obligation to address bullying and harassment on the basis of gender identity, privacy obligations relating to unauthorised disclosure of medical information pertaining to transgender and gender diverse individuals, or discrimination in the course of various areas of public life.

This case provides a timely reminder of the need to ensure your organisation proactively considers the implications of actions aimed at improving gender representation and inclusion, to ensure they are not unintentionally exclusionary of transgender people.

Further, while the initial use of artificial intelligence in this case reached a finding that aligned with Ms Tickle’s gender identity, it is also crucial for organisations to be conscious of how they use artificial intelligence and the potential risks of discrimination with these models. For schools, you can read more about the tips and traps for managing the risks associated with  artificial intelligence in our recent article.

How we can help

Rather than wait for an issue to arise, we recommend that organisations:

• obtain legal advice about the steps that they are required to take to prevent discrimination and harassment, and whether exceptions apply, before engaging in potentially discriminatory conduct.
• review their policies to ensure they have robust strategies to proactively create inclusive environments, and minimise the risk of potential discrimination claims.

Our Safeguarding team can assist with drafting or amending policies and guidelines tailored to your organisation’s needs, and delivering training to ensure you understand your obligations and opportunities to implement best practice.

Contact us

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.

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¹ALRC, Summary Report – Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, Report 142, December 2023.

Being an executor of a deceased estate can be a time consuming and sometimes thankless task. 

In recognition of this, whilst an executor is normally expected to act gratuitously, the law provides for certain circumstances in which an executor may be remunerated for their time and effort in administering the estate. This is referred to as executor’s commission.

Executor’s commission – am I entitled to it?

While the process of administering an estate can be complex, merely acting as an executor does not automatically entitle you to any payment from the estate. This is the case even if you are not a beneficiary of the estate.

An executor can receive commission in any of the following situations:

1. Where the Will specifically authorises payment to the executor;
2. Where the beneficiaries agree; or
3. The Supreme Court orders that commission should be paid.

Unless the estate is particularly complex, it would be unusual for an executor who is also a beneficiary to receive payment, as the benefit they stand to receive under the Will is usually considered to be sufficient reward.    

Remuneration clause in the Will

A Will-maker may specify an amount of remuneration to be paid to an executor in their Will. This may be either in the form of commission, a percentage, calculated with reference to the value of the estate, or a pecuniary gift in lieu of commission.

An independent professional, such as a lawyer or accountant, may commonly agree with a Will-maker that they would accept appointment as executor on the understanding that they would be paid their usual professional fees for all work completed by them. The remuneration clause in the Will would then normally reflect this.

Wills made on or after 1 November 2017

A remuneration clause in a Will made on or after 1 November 2017 will only be valid if the Will-maker has provided their written informed consent to the inclusion of the clause before making the Will. If such consent cannot be established, the executor may not rely on the remuneration clause.

Consent of Interested Beneficiaries 

If the Will is silent as to executor’s remuneration, or a remuneration clause is ineffective as the Will-maker did not provide their prior consent (or it does not set out the amount and type of remuneration to be paid), an executor (other than a professional trustee company) may still receive payment for acting if they have the informed consent of all interested beneficiaries.

An interested beneficiary is a beneficiary whose entitlement would be directly affected if commission were to be allowed to the executor. To be able to consent to commission being paid to an executor, the beneficiary must be at least 18 years of age, and not under a disability that impairs their ability to provide consent. 

Section 65D of the Administration and Probate Act 1958 (the Act) outlines the information that an executor seeking to be paid must provide to beneficiaries for their consideration. This includes the basis on which the executor seeks payment, the method of calculation of payment (such as a percentage or fixed amount), the estimated value of the payment, and the beneficiaries’ right to have the payment reviewed by the Court. 

An executor who fails to provide this information to the relevant beneficiaries is not entitled to receive payment. A beneficiary is also entitled to obtain independent legal advice before deciding to enter into any agreement with an executor in respect of commission.

In order for the beneficiaries to properly assess the request, and understand exactly what the executor has had to do during the administration of the estate, the request should not be made until the estate administration has been completed or nearly completed.

If any affected beneficiary cannot or does not provide informed consent, an executor cannot rely on the consent of the other beneficiaries to claim commission, even if all other beneficiaries of the estate are amenable. 

On application to the Court

An application to the Court should only be made where there is no effective remuneration clause in the Will, and where the interested beneficiaries have either not provided their informed consent to a request from the executor, or are unable to do so.

Pursuant to s 65 of the Act, the Court may award such commission or percentage of the estate that the Court thinks is reasonable for the executor’s “pains” and “troubles. “Pains” generally refers to responsibility, anxiety and worry. “Troubles” generally refers to the work carried out by the executor to administer the estate.

While the Court may theoretically award up to 5% of the value of the estate, in practice, the range is generally between 1% and 3.5%. It is unusual for the Court to award more than 3.5%.

In support of an application, an executor must be able to provide detailed records outlining all work done by the executor personally and the time taken by them dealing with the estate. For this reason, an application should again only be made towards the end of the estate administration process. Relevant factors the Court will generally take into account include:

• the time that the executor was required to spend personally on the administration;
• the nature and amount of work completed by the executor personally, and whether this has benefited the estate;
• the complexity and size of the estate;
• whether the estate has been involved in any dispute or litigation; and
• the extent to which an executor has engaged professional assistance with the administration, to minimise the executor’s own “pains and troubles”.

Reimbursement & payment of estate expenses

Separate to commission, an executor is entitled to be reimbursed for all debts and expenses incurred by them in the administration of the estate. 

An executor may also engage tradespeople and other professionals to assist throughout the administration process where appropriate, and pay their reasonable fees out of the estate. However, an executor cannot then claim commission on work which has been delegated to other persons.

How we can help

Executor commission is not an automatic right, and an executor should consider obtaining legal advice before making a claim for commission.

The Deceased Estates team at Moores would be pleased to assist you with any queries you may have about seeking or responding to a request for executor’s commission.

Contact us

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.

From 1 July 2024, a broader range of workers will be covered under the Reportable Conduct Scheme (Scheme) in Victoria, including workers indirectly engaged by an organisation, such as labour hire workers, secondees, directors of companies, individual business owners and students undertaking placements. Previously, the head of entity of an organisation covered by the Scheme was only required to report and investigate allegations of child abuse (known as ‘reportable allegations’ under the Child Wellbeing and Safety Act 2005 (Vic)) by workers with a more formal or direct relationship with the organisation, including employees, contractors and volunteers (including volunteer board members).

In light of these new changes, organisations should carefully consider whether they need to report and investigate reportable allegations against a broader range of workers, and whether their child safety policy, procedure and code of conduct should be updated and communicated to workers.

Who will be affected by the changes?

Currently, organisations are required to make reports to the Commission for Children and Young People (CCYP) and investigate reportable allegations in relation to workers, including employees, contractors and volunteers. The new changes expand the workers covered under the Scheme and will now include:

• labour hire workers and volunteers;
• secondees;
• directors of companies; and
• individual business owners.

Labour hire workers and secondees

A labour hire worker and secondee will be covered under the Scheme when:

• the work performed is in or as part of an organisation covered by the Scheme; and
• the work performed is under the direction, supervision or control of the organisation.

A number of factors will be considered including:

• whether the work performed is part of the operations of the organisation; and
• whether the person has opportunity to interact or contact children.

This requires assessment of each worker based on the individual circumstances of their engagement. For example, the following workers will now likely be covered by the Scheme:

• a casual relief teacher engaged by a registered school via a labour hire arrangement; and
• a disability worker seconded by their employer to work at a disability residential home with children to fill in for a staff member who is on leave.

In these cases, the head of the organisation in which the worker is placed will now have an obligation to report and investigate reportable allegations against the worker.

Directors of companies

Where an organisation engages a company to perform work and the director of the company performs the work, the director will be considered a worker of the organisation for the purposes of the Scheme. It is irrelevant whether the company engaged is covered by the Scheme.

For example, where an IT company is engaged by a school to upgrade their computer system and the director of the IT company is the person who completes the upgrades, the head of entity at the school will likely be required to make a report if they receive a reportable allegation about the director.

Individual business owners

An individual business owner (also known as a sole trader) will now be covered under the Scheme where:

• the business is subject to the Scheme; and
• the business engages employees, contractors or volunteers.

This amendment clarifies that individual business owners will be subject to the Scheme in the same way as the workers they engage.

For example, where a business owner of an overnight camp for children engages staff to run the camp, the business owner will now be covered under the Scheme.

Student placements

Students undertaking placements, such as a student teacher undertaking a placement at a school, may be covered by the expanded definition depending on the arrangements of their placement. The key considerations are:

• whether the student is considered a worker or volunteer worker of their educational institution; and
• whether the student has been ‘supplied’ to the placement organisation by the educational institution via an agreement.

Reporting historical allegations

The expanded definition also has implications for the obligations of an organisation to report historical allegations. If an entity receives a historical allegation about a worker covered under the expanded definition after 1 July 2024, the entity may be required to make a report to the CCYP. Whether a report needs to be made will depend on:

• whether the alleged conduct occurred before the organisation was covered by the Scheme;
• if the alleged conduct was within the course of the worker’s employment or engagement with the organisation; and
• whether the worker is currently employed or engaged by the organisation.

For example, if a principal of a school becomes aware of a reportable allegation against a casual relief teacher who is engaged via a labour hire agreement on 3 July 2024 (i.e. after 1 July 2024) which is alleged to have occurred while the casual relief teacher was working at the school in 2012, the principal may be required to report the allegation to CCYP and investigate the allegation.

For further information about reporting historical allegations, please see the CCYP Information sheet which provides diagrams showing how the considerations will impact the requirement to report.

How we can help

We recommend that organisations review their policies, procedures, code of conduct, contracts and agreements to ensure that they accurately reflect the expanded coverage of the Scheme, and communicate those changes to relevant workers.

Moores can assist to:

• advise on the expanded workers now potentially covered under the Scheme;
• review and, if necessary, update child safety policies, procedures and code of conduct; and
• provide training to your workers about their child safety obligations.

If your organisation needs assistance in determining how these changes impact you, please contact our Safeguarding Team.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

AI is already a central part of everyday life. When your call is answered by a chat-bot (“press ONE for reception”), that’s AI. When your streaming service recommends a new TV series for you, that’s AI. When your car suggests you avoid the freeway to shave ten minutes off your travel time? Yes, this is AI too. These kinds of AI operate largely in the background – and most of the time we probably don’t even notice that the AI is there, helping us. With the arrival of generative AI, the use of AI more generally has come rightly under scrutiny and required schools and other organisations to balance risk and opportunities inherent in the emerging technology and its ever-changing capabilities.

There is no doubt that AI has arrived, and it’s not going anywhere. Your staff and students are already using AI in every day school life, sometimes without knowing, and at other times knowingly but without adequate safeguards and guidelines.

Should I be worried?

As with any tool, AI can be used for good, or as a weapon to cause harm. Just last week, a Victorian school student was reportedly expelled for using AI to generate ‘deepfake’ nude images of female students in grades 9-12. A deepfake is a kind of image that takes a persons’ face (for example) and places it on a completely unrelated body. The result is an extremely convincing fake image a person in a situation that never occurred; often engaging in explicit or otherwise harmful activities. The technology can also create very convincing fake videos – recent news reports suggest that AI was used in the United States by an aggrieved school employee to frame a school principal with making racist remarks. The kind of AI that ‘creates’ content like this is called Generative AI. Generative AI can create images, write recipes, poetry, and even compose music. One of the scary things about generative AI is that practically anyone can use it: it is readily available and requires no special skills or training. Young people are increasingly accessing and being harmed by others using generative AI in the school environment.

AI can, on the other hand be used to help you streamline your school’s business operations, support student learning and help you draft documents by giving useful feedback on documents and suggest improvements. However, even when used with good intentions, AI can pose risks to you and your organisation. Schools have a duty of care to protect students from reasonably foreseeable harm. If the proper safeguards are not in place, the use of AI in your school could place your staff and students’ personal information and safety at risk, as well as expose your school to regulatory sanctions, or even legal action.

How can AI help me? What are the risks?

AI needs to be fed information in order to generate output. For example, AI can’t make a deepfake image without being given somebody’s photos to use and manipulate. It can’t write an article without being told what it is about and the kind of language to use (we assure you this article however is 100% human-authored!) This information in, information out process is where a lot (but not all) of the risk arises. AI is hungry for information, and you can never be sure what will happen to information once you feed it into the system. Some of the key risks that can arise from AI-use are outlined below.

Risk 1: Data breaches and non-compliance with privacy obligations

Let’s say you want AI to help you generate a new and more efficient way to prioritise student enrolment offers. To do this, you feed the AI existing student applications and the current rules your school uses to prioritise offers. The AI might then sort through the information you fed it and suggest a new way to organise or use that information to your benefit – wonderful! However, unbeknownst to you, you have just ‘disclosed’ (per APP6) students’ personal information to the internet at large. AI systems could potentially be used to track students’ online activities, infer sensitive information, or make predictions about their future behaviours or outcomes. These scenarios could infringe on students’ privacy rights and autonomy. The second you enter information into AI, you lose control of that information. It is now ‘on the internet’ forever.

This inadvertent disclosure of information could constitute a Notifiable Data Breach and attract regulatory sanctions from the Office of the Australian Information Commissioner (OAIC); particularly as enrolment applications generally include information about the health, and religious, cultural or racial identities of prospective students. It could also lead to serious harm to the people whose information has been disclosed – not to mention the reputational damage to your school.

Risk 2: Loss of intellectual property and inadvertent copyright breaches

Imagine that you would like to use AI to improve your school’s suite of policies and procedures. AI could potentially give useful feedback on how to streamline and otherwise improve your operational documents. However, as with the above example, you can only get out of AI what you put into it. In order to have AI assess and critique your policies, it needs to read them. Once you have given that commercial information to the AI, it will use it again to help it ‘learn’ and respond to other users’ questions. Perhaps your school’s valuable intellectual property will be used by the AI the next time anyone asks it to write a policy. If you don’t want to share your commercial-in-confidence material or intellectual property with the entire internet, beware of feeding it into the AI.

The risk also presents in the other direction. Imagine the AI suggests you re-write your procedures a certain way and you implement that suggestion. Then, to your horror, your school is sued for using another organisation’s intellectual property without their consent. It turns out the AI had given you a copy of someone else’s documents to use, and you had no idea. Without knowing it, your school has now infringed on somebody else’s copyright.

Risk 3: Teaching, learning and academic dishonesty

AI can be used in schools to personalise learning, provide real-time feedback and create immersive educational experiences. It can be used to develop teaching and assessment tasks and streamline assessment and grading. Be wary, however, of relying too much on AI to help you grade and assess student work (or to perform any other tasks involving students). Although AI could help you to save time and create engaging materials, keep in mind:

• The nature of AI is that it exhibits strong biases. This is because AI can only work from what it knows – and it is well-known that inherent gender, socio-economic and racial biases are built into practically everything on the internet. If you are not conscious of these biases in the AI, you could find your school becomes exposed to an action in discrimination.
• It is also well-known that AI can be used by students to cheat on assessment tasks. For example, students can ask an app like ChatGPT to write a 700-word essay on the literary importance of a book. The quality isn’t always great (AI hallucinates, see below), but it can often be enough for students to achieve pass-marks, even at university.
• AI can hallucinate. AI is currently considered unsuitable for research because it will make up whatever it doesn’t know. Students need to be educated about primary source evidence research vs AI algorithms which scan for correlation or opinion and present it as fact.

What should your school do to minimise risks?

There are countless benefits and risks associated with using AI. Below are some tips to help you prepare for, respond to and use AI, while minimising the risk to your school and community:

• Introduce safeguards:
  • Use compliant Privacy impact assessments suitable for the schools sector to ensure a privacy-by-design approach to any projects or work that may involve the use of AI.
  • Demand transparency: Schools and ed-tech companies should clearly communicate to students, parents, and educators what data is being collected, how it is being used, and who it is being shared with. They should also provide options for opting out of data collection where possible.

• Staff training on AI, its capabilities and how to avoid data breaches:
  • Whitelist any AI tools you have approved (e.g for report writing) and any that are used only within your closed system.
• Provide guidance:
  • Establish clear guidelines for data handling, specifying the types of data that can be fed into AI systems and ensuring that only de-identified or otherwise relevant and necessary information is used.Promote a culture of privacy awareness: Encourage a culture of privacy awareness within the school community, emphasising the importance of safeguarding students’ personal information and fostering a sense of responsibility and accountability among educators.
  • Consult the Australian Framework for Generative Artificial Intelligence in Schools published by the Australian Department of Education.

How we can help

Our Education team is in demand for up-to-date, informative and entertaining staff PD on privacy matters including AI. We can prepare all policies and procedures and assist organisations to maintain best practice in privacy and data protection. If you have existing policies, our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate risks posed by new technologies – you might be surprised by the gaps which exist! We can also provide tailored, interactive training to your organisation on your obligations under the Australian Privacy Principles, and other regulatory schemes in your jurisdiction.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.

Moores Practice Leader, Daniel Raso and Associate, Ellen Turner, sit down in a Moores Q&A to answer some commonly asked questions about our disputes expertise.

The Age has reported that Preshil in Kew is selling a section of its campus to help meet its payroll tax bill and other liabilities. Numerous independent schools we advise in Victoria are grappling with how to cover their payroll tax bill from 1 July 2024, on top of already increased operation costs in this high inflation environment. Preshil will not be the only school looking at a land sale to free up some cash. But while a sale of school land is a quick way to get some money, once the land is sold a school loses the ability to grow its student numbers at that campus as much as it otherwise could have. This article considers some of the other things schools could do with their (currently) surplus land to generate money while preserving their future ability to develop and grow.

Lease land or spaces

If a school has unused land or space, selling is not the only way to put it to use. A lease can generate income while preserving the long-term options for the land. Long-term ground leases can work particularly well for vacant land with no foreseeable use for the school. A long-term ground lease can often justify a tenant undertaking building works, the cost of which can be amortised over a long period (typically 20+ years). A council, other education provider or retirement village operator may be happy to take a long-term lease and build a facility approved by the school. Following the expiry of the lease, the land and its improvements revert to the school for it to use as it sees fit.

Develop for lease

Some schools may consider improving their surplus property before leasing. This approach requires the school to spend in order to obtain a higher rent from a commercial tenant than it would under a ground lease referred to above where the tenant undertakes the works. These developments could be ones where the tenant gets exclusive possession or ones for joint use between the school and the tenant. Examples of joint use developments include facilities that can be used for weekend tuition or sport facilities hired to clubs or leagues. For schools that are cash poor, which many are in 2024, the significant upfront investment required may make this option unviable.

Sell the air rights

This scenario is worth considering where a property has potential for multi-level development. The basic concept is for the school to retain facilities (either existing facilities or new facilities) at ground level but sell the right to develop above those facilities. While this option does involve the loss of long-term development potential, a new school building at the bottom of a multi-level development may sufficiently future proof the school such that the air rights above that building will never be needed. There are a range of considerations around this option, starting with what use is a suitable ‘neighbour’ for the school and whether the school should take the role of being the developer and sourcing the finance. Some schools may prefer just to be the landowner with oversight and rights required to protect its interests.

Conclusion

This article outlines just three alternatives to selling school land. There are other alternatives, including combinations of the ones outlined above. This article has done its job if it encourages a school thinking of a land sale to consider options which better preserve the school’s ability to grow. While it can be difficult for schools to fully understand and explore their options when it comes to dealing with their land, a school should not sell the family silver before it has done so.

How we can help

Moores has a strong history of supporting the education sector, from independent and catholic schools, to early childhood providers, higher education and education governance and industry bodies.

We are more than happy to guide your school through the process of determining how to best utilise any surplus land.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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.