This newsletter links to media releases, reports, cases and laws relating to planning, environment & sustainability.
CORPORATIONS – members’ scheme of arrangement – application under s 411 of the Corporations Act 2001 (Cth) for orders to approve scheme – application granted
Trade marks are everywhere in our world and any business needs to understand how to protect their intellectual property just as much locally as globally.
It has often been said that a trade mark can be your most important and valuable tool to market your business, your goods or services.
Trade marks can be misunderstood. The perception it is just “a logo” could not be further from the truth. Trade marks are not just ‘a logo’. It can be a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of any or all of these.
Business owners must also remember that different rules can apply in different countries to determine ownership and associated rights.
In Australia, the “use” of a trade mark play a significant part in determining such things as:
Ownership;
Distinctiveness;
Removal for non-use;
Any infringement.
In Australia we give priority to people who are “first to use” and can demonstrate evidence of that use, even if another party has applied to register that mark as a trade mark in Australia first. The Full Court of the Federal Court considered this matter in the case of Anchorage Capital Partners Pty Limited v ACPA Pty Ltd [2018] FCAFC 6 (2 February 2018).
Other countries have a “first to file” system. This system gives rights to the party who first filed a trade mark application in that country for such mark, even if another party has used that trade mark in that country prior to the filed application.
Protecting your trade mark and intellectual property should not be taken lightly. You can be drawn into lengthy and costly disputes if you don’t get the right advice. At FC Lawyers our team has handled many successful registrations in Australia and throughout the world to protect our clients intellectual property.
Contact our team today to discuss your intellectual property legal needs.
The post Should I file a trade mark if I have been using it for years? appeared first on FC Lawyers.
Going to Court for your family law matter can be costly, time-consuming, and stressful. Therefore, it is usually beneficial to settle before commencing Court proceedings so you can move forward with your life sooner with clarity and certainty.
Settling Your Family Law Matter
There are various ways you can settle your family law matter. You may settle through negotiations with assistance from a mediator, a family lawyer, or by directly liaising with the other party yourself.
Engaging a family lawyer can help take the stress out of the negotiation process because you can remain at arm’s length and let them diffuse any intensity and strategise to achieve the best result for you.
Children’s Matters
If your family law matter involves children, it is compulsory for you and the other parent to attend mediation and obtain a certificate from a family dispute practitioner confirming both parents made a genuine effort to resolve the dispute. One reason for this is because the stress of Court proceedings runs contrary to the best interests of the child, which is the most important consideration in the Court’s eyes.
If you and/or your child is at risk of family violence or child abuse, or the matter is urgent, you may be exempt from attending mediation. You should contact your family lawyer to find out how to participate in mediation, or if you are unsure whether you fit into one of the exceptions or not.
Financial Matters
If your family law matter is for a property settlement only, mediation is not compulsory. However, it can certainly be a less expensive way of resolving the matter and prevent the property pool from becoming diminished through unnecessary legal fees.
Property and financial matters can often be complicated, especially when there is a large asset and liability pool, or if you are unsure of the value of any assets held by you or your partner. Engaging a family lawyer to stand in your corner during this process can make all the difference when trying to negotiate a fair and reasonable outcome for you.
Fighting Your Case
Despite genuine attempts to find solutions, sometimes it’s simply not possible to settle your family law matter. In these situations, parties have no choice but to go to Court.
Situations in which it may be more appropriate to commence Court proceedings include:
If the other party’s offers are unreasonable and would place you at a disadvantage;
If the other party is not co-operating or responding to your attempts to settle;
If the other party refuses to compromise and find a common ground for settlement;
In children’s matters, if the child is at risk of serious harm or neglect in the care of the other parent; or
In children’s matters, if the child is at risk of not benefiting from a meaningful relationship with both parents.
Instead of trying to navigate the Court system and draft Court material yourself, having a family law solicitor to handle your matter is the best way to ensure you achieve the best outcome.
The post How Do I Know When To Fight And When To Settle My Case? appeared first on Collective Family Law Group.
Why you should upgrade to a smarter Last Will & Testament I wanted to get in touch because we’ve been noticing that more and more Australian’s are considering Wills with Testamentary Trusts, and for good reason.
With a Testamentary Trust you could reduce the taxes on your estate by $155,000 or even more.
If you’ve recently become the owner of property, shares or other assets, you should consider upgrading to a more sophisticated will that properly protects your assets and reduces unnecessary tax.
To find out how, download our FREE guide
Principal Lawyer Stephen Booth has written about the recent Comcare V Banerji case, involving a public servant who anonymously criticised the Government on migration policies and asylum seeker detention on Twitter. This case sheds some light on an employer’s rights to enforce a code of conduct with respect to conduct outside work.
We sought damages for our client in a case brought in the Supreme Court of NSW for serious injury as a result of improper sepsis treatment.
Our client had been feeling very unwell for two days with fever, a bad headache, vomiting and generalised achiness. She presented to hospital and underwent a blood test, the results of which were consistent with a serious bacterial infection. A nurse identified that she may be suffering from sepsis. However, the hospital’s sepsis pathway, which required IV antibiotics to be given to our client within one hour of her admission, was not followed. Instead, a diagnosis of gastritis or gastroenteritis was made, and our client was discharged without any further treatment.
The experts we engaged in this matter found that our client was actually suffering acute bacterial infection of the bloodstream at the time of discharge and was at high risk of harm, including death, in the event her condition remained undiagnosed and in the event she was not promptly administered antibiotics.
Over the next several hours, our client became increasingly unwell and eventually telephoned for an ambulance. She was conveyed back to the same hospital and admitted. Again, a nurse correctly identified that our client may be suffering from sepsis. However, IV antibiotics were not administered for a further three-and-a-half hours after her admission.
By the time IV antibiotics were finally administered, our client had gone into septic shock and experienced multiorgan failure. She was placed in an induced coma and admitted to the intensive care unit. In order to try to raise her extremely low blood pressure, high doses of inotropic medication in the form of noradrenaline and vasopressin were administered.
Our client’s injuries and disabilities
As a result of her severe illness, septic shock and multi-organ failure, and the need for our client to be administered inotropic medication, she suffered extensive injuries and disabilities including hypoxic respiratory failure, kidney failure, partial amputation of several of her fingers and toes, loss of tissue on the sole of her foot, nerve damage, neuropathic pain, scarring, muscle wasting and psychiatric injury. Our client spent many months in hospital and then in rehabilitation recovering from her injuries.
Investigation and litigation
We successfully obtained expert evidence to support our client’s case that the hospital should have admitted our client upon her first presentation and treated her for serious bacterial infection. Our experts also took the view that the hospital should have commenced our client on IV antibiotics within an hour of her second admission. If either of both steps had been taken, our client would have most likely avoided the injuries and disabilities she went on to suffer.
We sought damages for our client for past medical expenses, future treatment, loss of income, personal care and domestic assistance, pain and suffering and occupational therapy aids and equipment. We were able to successfully negotiate a resolution to the case for a large sum for our client.
If you or a loved one has experienced improper treatment from a health care practitioner, our expert lawyers can help advocate for you and seek justice. Please talk to us about the options available.
More about Sepsis
Do you know the warning signs of deadly sepsis?
What is sepsis and how can it be treated?
The post Improper sepsis treatment caused serious injury | Our Client’s Story appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.
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What happens if there is an internal dispute within a company and ASIC forms are lodged without officeholder or member consent to change the company details of the company on the ASIC register? As was recently held by Black J of the Supreme Court of NSW in In the matter of Seabay Kitchen Pty Ltd [2019] NSWSC 790, if the Court is satisfied that no corporate step was taken to effect the company changes, the Court can order rectification of the invalid forms from ASIC’s register.
A refresh on the role and powers of ASIC
ASIC is Australia’s integrated corporate, markets, financial services and consumer credit regulator.
As per the Australian Securities and Investments Commission Act 2001, ASIC is required to:
maintain, facilitate and improve the performance of the financial system and entities in it;
promote confident and informed participation by investors and consumers in the financial system;
administer the law effectively and with minimal procedural requirements;
enforce and give effect to the law;
receive, process and store, efficiently and quickly, information that is given to them;
make information about companies and other bodies available to the public as soon as practicable; and
take whatever action they can, and which is necessary, to enforce and give effect to the law.
The laws that ASIC administers, such as the Corporations Act 2001 (Cth) (the Act), relevantly includes the requirement to maintain publicly accessible registers of information about companies, financial services licensees and credit licensees as per s 1274(1) of the Act.
There is no obligation upon ASIC under the Act to ensure that the documents lodged to ASIC’s register contain accurate information.
As per section 1274(8) of the Act, when a document is submitted for lodgement, ASIC may refuse to register or receive the document if, for example, the document contains a matter contrary to law, is false or misleading, or if it contains an error.
ASIC also has the power to request any other such document in support of the document that has been lodged, if ASIC considers it necessary to form an opinion whether it wants to refuse to receive or register the first‑mentioned document; section 1274(9) of the Act.
Significantly, the discretionary powers of section 1374(8) and (9) of the Act is at the time of lodgement and does not assist those seeking to withdraw the forms once lodged and reflected on ASIC’s register.
What can ASIC do if there is an internal dispute about forms lodged on their register?
When there is a dispute between officeholders and/or members of small proprietary companies, unless it will result in a greater impact in the market and benefit the general public more broadly, ASIC will unlikely become involved.
ASIC can take action where there has been a breach of the Act, however this is an exercise of discretion as to whether they investigate a report of a potential breach.
A case example
In In the matter of Seabay Kitchen Pty Ltd [2019] NSWSC 790, the defendant caused the lodgement of two ASIC Form 484 forms, which changed the company details to remove the plaintiff as the sole director and sole shareholder of the company and replace the defendant as the sole director and sole shareholder. These forms were lodged with ASIC by the defendant unlawfully, and without the plaintiff’s consent, using the company’s corporate key.
McCabe Curwood acted for the plaintiff in these proceedings.
The plaintiff set out in her evidence that she did not resign as director or authorise the transfer of her shares in the Company to the defendant, and she submitted that the Forms 484 certified by the defendant and lodged with ASIC recorded a false account of the relevant transactions.
Black J, in regards to the validity of the two forms, held that the transactions were ineffective, in that:
So far as the transfer of shares is concerned, section 1071B of the Act provides that a company may only register a transfer of securities if a proper instrument of transfer has been delivered to the company, in which his Honour was satisfied that there was no evidence of.
His Honour was also satisfied that the plaintiff did not resign as a director of the Company and was not, and could not have been, removed as a director of the Company where she was its only shareholder and did not assent to her removal in a general meeting. The defendant also could not be appointed as director other than in accordance with the Company’s constitution or by resolution in a general meeting under the replaceable rule in section 201G of the Act where that rule is applicable, or in another manner authorised by the Act. There was no suggestion that any of these steps took place.
His Honour observed that what effectively took place was that the defendant, regardless of his intentions, procured the lodgement of Forms 484 with ASIC recording changes in shares and the directorship. His Honour noted that this did not assist the defendant, as lodgement of such a form is not a means recognised by the Act for the transfer of shares, the removal of directors or the appointment of directors, as distinct from the notification of those events by lodging ASIC forms when the events otherwise validly occur.
The plaintiff sought for the Court to make an order under section 1322(4)(b) of the Act that the relevant Forms 484 lodged with ASIC be withdrawn from ASIC’s register.
Black J noted that the Court has power to rectify the register where
“… the process leading to entry of the current information as to the directors, shareholders and registered office … was not properly founded by any corporate process and the register should be rectified on that basis. … [T]here is a public interest in the adoption of a proper process for changes in directors and shareholders and for notifications to ASIC of directors and shareholdings, which warrants rectification of the register …”
His Honour was thereby satisfied that the Court had power to rectify the register to correct the incorrect information included in the two invalid forms, and the forms were subsequently removed from ASIC’s register.
Key takeaways
As was emphasised in Seabay, to ensure that invalid company details are removed from ASIC’s register, it is necessary to show that every company change is in accordance with the company’s constitution or the Act.
You should also ensure that your company’s corporate key is secure and is only accessible by valid company officeholders. As occurred in Seabay, the ASIC forms were lodged using the company’s corporate key on ASIC’s online platform, which caused immediate changes to the company’s details. We note that new corporate keys can be requested by officeholders, so in the event of an internal dispute between directors, immediate injunctive relief may be required to prevent any further changes to ASIC’s register.
As was found in Seabay and the more recent decision of In the matter of McDonagh Management Pty Limited [2019] NSWSC 1099, the Court is “increasingly dealing with the consequences of abuse of corporate keys”, so safeguarding your corporate key is becoming ever more paramount to protect your company against unauthorised changes to ASIC’s register.
McCabe Curwood’s litigation and dispute resolution team has a great deal of knowledge and experience in relation to corporate disputes and applications under the Corporations Act. If you or your company require legal advice on any of the matters raised in this article, do not hesitate to get in touch with our firm today to ensure you and/or your company are adequately protected.
The post Withdrawing unlawful ASIC forms from ASIC’s register: the importance of safeguarding your company’s corporate key and ensuring proper corporate steps are taken to effect your company’s changes appeared first on McCabe Curwood.
The passing of the Environment Protection Act 2017 and the subsequent Environment Protection Amendment Act 2018 (New Act) signals a once in a generation reform of the environment protection regime in Victoria.
MIGRATION – jurisdictional error of inferior court – application for Constitutional writ relief for decision not to extend time to apply for judicial review of decision of Immigration Assessment Authority under s 477 of the Migration Act 1958 (Cth) – where trial judge failed to refer to applicant’s difficulties in accessing Australian legal system – whether failure to take into account all matters forming part of the applicant’s explanation amounted to jurisdictional error – whether failure to give adequate reasons amounted to jurisdictional error
MIGRATION – summary dismissal – application by Minister for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) in accordance with FEZ17 v Minister for Home Affairs [2019] FCAFC 76 – where claim for Constitutional writ relief has no reasonable prospect of success
Many industries are making efforts to become more sustainable. In this article, we’ll discuss how legal technology can do the same for law firms.
The post How Legal Technology Can Make Law Firms More Sustainable appeared first on Lawpath.
We acted for a 70-year-old man from Northern NSW who suffered significant injury to his right knee, following a bilateral total knee replacement procedure (TKR).
Our client underwent a TKR in both his left and right knees, during which his kneecaps were not resurfaced.
Not long after his knee replacement surgery, he experienced problems with both knees and sought medical advice from his treating orthopaedic surgeon.
He accepted the surgeon’s recommendation to undergo a resurfacing procedure, which involves cementing a plastic patella “button” onto the kneecap. A few months later whilst on holiday, he experienced a cracking sensation, felt a “pop” in his right knee and began experiencing significant discomfort and swelling. He was forced to cut his holiday short. This was later determined to have been caused by the patella button being torn from his kneecap.
The dislodged patella button was eventually removed by another surgeon, but our client has suffered significant pain and reduced motion in his right knee ever since. This injury has seriously impacted our client’s ability to function and enjoy his retirement. He now finds it difficult to undertake his share of the house and property maintenance (which was previously significant as he lives on a farm with his wife).
He is no longer able to drive for more than two hours and has had to sell his caravan, which he previously took on holidays with his wife. He has lost the capacity to enjoy most of his previous leisure activities and has lost enjoyment and amenity of life.
Medical evidence confirmed that our client was unable to undergo any further revision surgery due to the level of deterioration in his knee. His injuries can therefore only be managed through occupational therapy and medication and he has been advised that he will never see any major improvements in his knee.
We commenced legal proceedings against the surgeon who was alleged to have negligently performed the resurfacing procedure. We were able to achieve a successful outcome for our client, who received a considerable lump sum settlement.
Our client said he was very satisfied with the positive outcome and the way he was treated by the team at Catherine Henry Lawyers.
If you or a loved one has experienced poor treatment from a health care practitioner, our professional health law team can help advocate for you and seek justice. Please talk to us about the options available to you.
*Contribution to this article was made by CHL paralegal Nick Audet.
The post Knee replacement surgery led to permanent injury | Our Client’s Story appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant and first respondent entered into a contract for construction of townhouses – where the first respondent sent emails attaching invoices to the applicant on the 5th and 15th of February 2019 – where the applicant then sent an email to the first respondent in response to matters raised in the email of 15 February 2019 – where the adjudicator on application of the first respondent subsequently determined the applicant had not provided a payment schedule pursuant to s 69 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) and the first respondent was entitled to payment of an adjudicated amount by the applicant – where the applicant seeks to challenge by way of certiorari the decision of the adjudicator – whether the adjudicator made a jurisdictional error in finding that the applicant had failed to provide a payment schedule – whether there was jurisdictional error because the two payment claims served by the first respondent were invalid
12 September 2019The ACCC will not oppose the proposed acquisition of rural wholesale buying group Australian Independent Rural Retailers (AIRR) by Elders (ASX: ELD).
Elders is an important competitor in rural retailing, but currently has minimal operations in wholesaling to independent rural retail stores. AIRR is an important wholesaler to independent rural stores, but has minimal assets of its own in rural retailing.
“The ACCC examined the proposed transaction closely, because it could give rise to vertical integration concerns. In particular, the ACCC assessed the risk that independent stores would be discriminated against by Elders in a way that harms competition,” ACCC Deputy Chair Mick Keogh said.
“We tested these vertical issues closely with industry participants and independent retailers. Market feedback suggested that most independent retailers consider they have sufficient alternative supply options if Elders attempted to discriminate against them.”
“It also appears that existing or potential new buying groups or wholesalers could expand in response to any future change in AIRR’s offering,” Mr Keogh said.
The ACCC also considered whether the transaction could result in reduced competition in towns where Elders and independent stores supplied by AIRR are in close proximity to each other.
“The vast majority of locations impacted have other stores competing with Elders and the AIRR-supplied stores, which are likely to prevent a softening of competition,” Mr Keogh said.
“In those cases where there were limited alternatives to the Elders and independent AIRR-supplied store, market feedback indicated that there were alternative wholesale supply options for the relevant independent store.”
The ACCC also considered the issue of Elders’ bargaining power with manufacturers or importers of rural merchandise. The ACCC concluded that while Elders would be in a strong bargaining position, suppliers still generally had other channels through which to distribute their goods, and any increase in buyer power was not likely to be substantial.
“Ultimately we decided that there would not be a substantial lessening of competition in any relevant market,” Mr Keogh said.
“There is significant consolidation in the rural retail sector, given the Elders proposal and the Landmark-Ruralco deal. We will look very closely at any further consolidation,” Mr Keogh said.
Further information is available at Elders Ltd proposed acquisition of AIRR Holdings Ltd
Background
Elders is a publicly listed company that provides a large range of rural services including the retail of rural merchandise through its retail stores.
Elders has approximately 450 points of presence across Australia which are predominantly comprised of company-owned, JV and real estate stores as well as financial services franchised stores. Elders’ rural merchandise retail network comprises approximately 216 of these 450 sites. It acts as a wholesaler to its own stores and supplies a small amount of product on a wholesale basis outside the Elders network. It also provides wool broking and livestock and real estate agency services in Australia, and operates a red meat supply chain in Indonesia and China.
AIRR is predominantly a buying group, which wholesales rural merchandise. It also owns six rural merchandise retail stores in Victoria (in Shepparton, Cranbourne, Stawell, Ararat, Camperdown and Violet Town).
AIRR supplies rural merchandise to nearly 2,000 independent retail stores across the country on a wholesale basis.
Release number: 168/19ACCC Infocentre: Use this form to make a general enquiry.
Media enquiries: Media team – 1300 138 917
Audience
Media
Topics
Mergers
The Fair Work Commission (FWC) has once again considered the persistent challenges raised by an employee’s use of social media outside work.
The recent decision of the FWC decided that it was harsh for alarm and surveillance monitoring provider Staysafe Security t/as Alarmnet Monitoring (Alarmnet) to terminate long-term employee Creina Murkitt after she was found to have breached the company’s social media policy.1
The decision is a contrast to the recent High Court ruling that anonymous tweets criticizing the government’s immigration policy contravened social media guidelines and public service codes of conduct. In that decision, the termination of the former Department of Immigration and Citizenship employee was justified as reasonable administrative action (our update on the High Court’s decision can be accessed here).2
In this case, Ms Murkitt posted a disparaging rant on Facebook venting her frustration at the new owners of Alarmnet, describing her job as ‘thankless’ and specifically naming her employer, lamenting that, ‘I use (sic) to love my job at Alarmnet Monitoring’. After the Facebook post was drawn to the attention of Alarmnet, it was determined that it breached Alarmnet’s social media policy and amounted to serious misconduct warranting dismissal. At the time Ms Murkitt made the post, she was off work receiving workers compensation payments for psychological injury which she attributed to the conduct of Alarmnet’s new management.
The FWC was asked to determine whether Ms Murkitt’s conduct constituted a valid reason for her dismissal, and if it did, whether the dismissal was harsh, unjust or unreasonable. It was not in dispute that Ms Murkitt created the Facebook post, that it was critical of her employer and had become the subject of talk amongst a number of employees and a client of the company. This resulted in establishing a connection between the creation of the post and Ms Murkitt’s employment.
Alarmnet’s social media policy required employees to refrain from posting material that could adversely affect the ‘image, reputation, viability or profitability of the Company’ and evidence was adduced by Alarmnet that Ms Murkitt had received a copy of the policy and was aware of its contents.
The FWC concluded that Ms Murkitt was validly dismissed and a proper process had been followed. However, the FWC considered that the following factors led to Ms Murkitt’s dismissal being harsh, unjust or unreasonable:3
she had been employed at Alarmnet for almost 15 years and had not previously been the subject of formal disciplinary action;
at the time she made the post, Ms Murkitt was suffering from a psychological condition that made her unfit for work and Alarmnet failed to sufficiently take this factor into account when deciding to dismiss her; and
the Facebook post was a single event that did not cause financial harm to Alarmnet.
Overall, the FWC found that the sanction of dismissal was a disproportionate outcome when taking into account Ms Murkitt’s medical condition, length of service and lack of previous performance issues.
Although finding in her favour, Ms Murkitt was ultimately not awarded any compensation because the FWC formed the view that she would not have continued to work for Alarmnet if she had not been dismissed, she was receiving workers compensation payments at the level of 100% of her average earnings, and in light of her misconduct. As such, reinstatement was not considered appropriate.
Implications for employers
Consistent with the principles concerning damaging off-duty conduct notably expressed in Rose v Telstra Corporation Limited4 and O’Keefe v The Good Guys,5 the decision endorses the view that it is acceptable for employers to manage an employee’s social media use beyond workplace walls.
However, the FWC will pay careful attention to the context and circumstances surrounding an employee’s conduct when deciding whether a dismissal for a breach of a social media policy is warranted. The employee’s personal circumstances including their psychological state at the time the conduct took place, the impact on the employer’s business and reputation, as well as the impact on other employees needs to be considered. In some cases, a reprimand may be an appropriate course of action for breach of a social media policy.
In this case, although a social media policy existed and was distributed to employees, Alarmnet did not take steps to roll out training or educate its employees about their obligations. To reduce the legal challenges presented by social media, employers not only need to have a clear social media policy in place, but it needs to be kept up to date and properly integrated through workplace training.
Our employment team would be pleased to assist you to navigate the practical workplace challenges arising from social media.
This article was written with the assistance of Alexandra Armstrong-Millar, Law Graduate.
1Ms Creina Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622.
2Comcare v Banerji [2019] HCA 23.
3Fair Work Act 2009 (Cth), s 387.
4[1998] AIRC 1592.
5Damian O’Keefe v Williams Muir’s Pty Ltd t/as Williams The Good Guys [2011] FWA 5311
The post Fair Work Commission finds dismissal following Facebook tirade to be harsh appeared first on Hall & Wilcox.
With winter having now drawn to a close and the days increasingly getting longer, it must mean that the warmer months are on the way. If you’re like me and any of my colleagues, now is the time of year when everyone starts to get a bit itchy about being in the office and looks ahead to booking in their next holiday. International political crises to one side, increasingly, overseas travel seems like the destination of choice for a lot of Australians. Maybe it’s a trip to Bali for a few days, a weekend across the ditch to New Zealand, or maybe a longer trip to Europe or somewhere in the United States.
For families who have existing orders in place for the care arrangements for their children, what may not become obviously apparent is that, before leaving Australia, both parents will normally need to consent to that process occurring. There is a detailed process set out in the family law legislation, which explains exactly how parents who are the subject of existing parenting orders must both agree and document any international travel arrangements.
I won’t bore you with the details of the process here other than to say, it’s detailed! It can require things such as itineraries, copies of return airline flights, significant weeks or months of notice to the other party, confirmation as to which countries will be travelled through, as well as the release of passports which may be held by one parent or by the Court.
Ideally, talking with your former partner at an early stage about your intended travel will go relatively smoothly and agreement will be readily able to be reached.
However, what if you have incurred a significant amount of money towards that upcoming holiday by way of accommodation deposits and payment in full for discount airline flights, and there is a dispute, your former spouse doesn’t agree or, worse, doesn’t respond at all? What happens then?
Hopefully, the parenting orders set out what is to occur and offer a clear path to enable one person to travel overseas with the children provided certain notice is given to the other. Sometimes, however, that wasn’t ever thought of or the children were really young at the time the orders were made.
If that’s the case, then it may well be that you will need a separate Court application to permit the children to travel internationally. While, for you, the prospect of forfeiting the money you have already paid towards the holiday might be daunting, it can often be that the Court doesn’t share your concern as to the amount of those funds. When it comes to urgency of matters before the Court, rarely do applications for international travel stand at the top of the list in the current Court docket system.
Why is all this important? Well simply because now is the perfect time to get in front of these things. Dust off your old orders, read them, understand your obligations. Reach out to your former partner and try and clearly and calmly set out what the travel arrangements are and see if an agreement can be reached.
If there is a dispute, then most likely turning to a process of mediation or family dispute resolution may be your first point of contact. Hopefully, and in my experience, the majority of matters about international travel will resolve there.
If it doesn’t, you at least have some prospects of having the matter heard before a judge and some kind of interim decision made between now and when the travel would likely occur at Christmas. Leave it too late and not only will you be forfeiting the deposit for the trip if your former spouse refuses to agree, but you might find yourself going on the trip alone and the children having to remain in Australia either with some other family member or with your former partner.
If you have any concerns about the orders in your matter, the prospects of international travel and what might be required, our experienced family law solicitors Toowoomba are more than able to assist.
With winter having now drawn to a close and the days increasingly getting longer, it must mean that the warmer months are on the way. If you’re like me and any of my colleagues, now is the time of year when everyone starts to get a bit itchy about being in the office and looks ahead to booking in their next holiday. International political crises to one side, increasingly, overseas travel seems like the destination of choice for a lot of Australians. Maybe it’s a trip to Bali for a few days, a weekend across the ditch to New Zealand, or maybe a longer trip to Europe or somewhere in the United States.
For families who have existing orders in place for the care arrangements for their children, what may not become obviously apparent is that, before leaving Australia, both parents will normally need to consent to that process occurring. There is a detailed process set out in the family law legislation, which explains exactly how parents who are the subject of existing parenting orders must both agree and document any international travel arrangements.
I won’t bore you with the details of the process here other than to say, it’s detailed! It can require things such as itineraries, copies of return airline flights, significant weeks or months of notice to the other party, confirmation as to which countries will be travelled through, as well as the release of passports which may be held by one parent or by the Court.
Ideally, talking with your former partner at an early stage about your intended travel will go relatively smoothly and agreement will be readily able to be reached.
However, what if you have incurred a significant amount of money towards that upcoming holiday by way of accommodation deposits and payment in full for discount airline flights, and there is a dispute, your former spouse doesn’t agree or, worse, doesn’t respond at all? What happens then?
Hopefully, the parenting orders set out what is to occur and offer a clear path to enable one person to travel overseas with the children provided certain notice is given to the other. Sometimes, however, that wasn’t ever thought of or the children were really young at the time the orders were made.
If that’s the case, then it may well be that you will need a separate Court application to permit the children to travel internationally. While, for you, the prospect of forfeiting the money you have already paid towards the holiday might be daunting, it can often be that the Court doesn’t share your concern as to the amount of those funds. When it comes to urgency of matters before the Court, rarely do applications for international travel stand at the top of the list in the current Court docket system.
Why is all this important? Well simply because now is the perfect time to get in front of these things. Dust off your old orders, read them, understand your obligations. Reach out to your former partner and try and clearly and calmly set out what the travel arrangements are and see if an agreement can be reached.
If there is a dispute, then most likely turning to a process of mediation or family dispute resolution may be your first point of contact. Hopefully, and in my experience, the majority of matters about international travel will resolve there.
If it doesn’t, you at least have some prospects of having the matter heard before a judge and some kind of interim decision made between now and when the travel would likely occur at Christmas. Leave it too late and not only will you be forfeiting the deposit for the trip if your former spouse refuses to agree, but you might find yourself going on the trip alone and the children having to remain in Australia either with some other family member or with your former partner.
If you have any concerns about the orders in your matter, the prospects of international travel and what might be required, our experienced family law solicitors are more than able to assist.
The post Avoiding the Holiday from Hell appeared first on https://bwbfamilylaw.com.au.
Today (September 11) is the closing date for submissons to Planning NSW regarding the propsed Code of Coduct, Holiday Letting Register and Fire Safety Regulations. Even though the topic has becoming as frustrating, infuriating and, let’s face it, boring as Brexit, I could not let it pass. Here are my thoughts, presented in the full […]
On 12 September 2019 all staff at Brydens Lawyers will be encouraged to wear yellow and start a meaningful conversation with their colleagues about mental health and wellbeing in recognition of R U OK? Day.
Many of us have, from time to time, held concerns that a colleague may be feeling the pressures of work or life generally. It may be that they behave differently, are a little withdrawn or agitated. Generally we are pretty good at identifying a friend in need.
If that is the case then it is time to ask that friend or colleague, R U OK? It may be that they simply want someone to talk to. It may be that they require expert intervention. When you ask someone, R U OK, be prepared for the answer. If you do not think that you are the right person to have the conversation, then you should engage the assistance of a support network who can talk with your friend or colleague.
Mental health and wellbeing has been, quite properly, the subject of much discussion in recent years. There is no shame attached to mental health and wellbeing issues. It is a condition, like all other conditions, that can be readily identified and treated. Mental health and wellbeing concerns do not discriminate. They cover all socio-economic groups, men and women, the young and old.
One of the most concerning features of mental health and wellbeing issues is a reluctance on the part of those who are suffering to seek help or speak to someone. That is why it is incumbent upon all of us to ask, R U OK? Not just on 12 September 2019 but whenever we feel that someone may need help.
If there is someone that you feel requires professional support then there are a number of organisations available to assist.
For professional intervention or expert counselling contact:
Lifeline 13 11 14
Suicide Call Back Service 1300 659 467
Kids Helpline 1800 551 800
Griefline 1300 845 745
The post Latest News From Lee 12th September 2019 – R U OK? appeared first on Brydens Lawyers.
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