De facto break up entitlements
If you’re leaving a de facto relationship, it’s important to seek legal advice quickly and work out what your rights are. Essential time limits apply, and if you leave things too long, you might miss out and risk losing entitlements you may have had.
If you’re entering a de facto relationship declining to get married is not enough to protect you.  You might find yourself surrendering assets or hard-earned superannuation to your de facto partner even though the parties adhered to a ‘what’s mine is mine’ arrangement during the relationship.
If you and your partner both agree to keep your assets separate, you might want to consider entering into a binding financial agreement that can protect you if things go pear-shaped down the track.  We can provide you with advice on how to enter into a binding financial agreement or even practical information on how to insulate yourself against possible future claims.
What are you entitled to in a defacto relationship?
You may be entitled to a share of the contributions made by you and your partner before or during the relationship and any future needs you may have going forward. You should seek legal advice to work out what you might be entitled to (it might be more than you’ve been led to believe).
In certain circumstances, a family lawyer might be able to advise you on a potential ‘range.’ A range is what percentage of the property pool the court might award you if the matter were litigated. Once you have this advice, you can use it to inform your position later on during negotiations. Learn more about the property settlement process.

 
What is a de facto relationship?
De facto relationships are defined in section 4AA of the Family Law Act.  There are some factors which a court might consider when determining whether a de facto relationship exists.  Some of those factors are:

How long the parties were together.
The nature of their shared residence.
Whether there was a sexual relationship.
Whether there was financial dependence.
How they owned and used property.
Whether there was a mutual commitment to a shared life.
Whether they had children.
Whether they represented themselves to the outside world as a couple.

How long before a de facto can claim?
For a court to make an order about de facto property matters, the period of the de facto relationship must have been at least two years.  However, ff there are children or if substantial contributions were made during this short period, this rule can be circumvented. Section 90SB of the Family Law Act provides that a court can make an order for maintenance or an order declaring or adjusting property interests for former de facto couples if the court is satisfied that one of the following gateway requirements is met:

that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
that there is a child of the de facto relationship who is a child of both parties to the relationship; or
that the relationship has been registered under a prescribed law of a State or Territory; or
that both of the following apply:

the party to the de facto relationship who applies for the order or declaration made substantial contributions to the welfare of the family or to the property; and
a failure to make the order or declaration would result in serious injustice to the applicant.

Short defacto relationship case
The Family Court case of Lee & Hutton [2013] FamCA 745 (30 September 2013) determined by Watts J looked at whether there was an available gateway in the Family Law Act to allow the court to entertain Ms Lee’s property settlement application.
Ms Lee relied on three different portals, asserting:

that the period of the relationship was at least two years. His Honour found the period falls 16 days short of two years.
that either of her two planned but sadly unsuccessful pregnancies satisfied the condition of there being a child of the de facto relationship. His honour found that those pregnancies do not satisfy the necessary jurisdictional condition.
she made substantial contributions to property and/or to the welfare of the family and failure to make the order would result in serious injustice to her. His honour found that whilst Ms Lee had not made substantial contributions to property, her contributions to the welfare of the family made up of herself and Mr Hutton, particularly arising from the first unsuccessful pregnancy and the second aborted pregnancy, were substantial. His honour also found Ms Lee met the second requirement that failing to recognise these contributions would result in serious injustice to the applicant.

Consequently, Ms Lee passed through the third gateway and the court went on to consider her substantive application for property settlement.  However, His Honour did not go on to determine that issue and referred the case back to the Registry for further directions.  Those directions would almost certainly include a direction for the parties to mediate or participate in some other form of dispute resolution.
Short Chronology of Ms Lee and Mr Hutton’s background and relationship

Mr Hutton was born in 1963.
Ms Lee was born in 1969.
Mr Hutton had been married on two prior occasions.
The parties met online through a dating website in November 2008.
The relationship commenced on 8 February 2009 and ended on 24 January 2011.
Ms Lee became pregnant for the first time in August 2009 miscarried on 4 November 2009.
Ms Lee became pregnant for a second time at Christmas 2009 and at Mr Hutton’s insistence terminated the second pregnancy on 20 February 2010.

Whether because of the miscarriage or termination there is is a “child of the relationship”
His Honour considered at length the decided authorities regarding the definition of “child” before deciding that neither the foetus lost through miscarriage nor the embryo terminated by the applicant, was a child for the purpose of s 90SB(b) of the Act.
What if there had been a child of the parties who had died before the time of the order
His honour then went on to consider whether the child had to be alive at the time of the order.  He found that Parliament’s failure to use the words “is or was” in the drafting of the relevant section of the Family Law Act indicated that Parliament intended the s 90SB(b) gateway to refer to a living child at the date of the order.
Watt J went on to say, “Even if the foetus or the embryo were “children” for the purposes of s 90SB of the Act, in the circumstances of this case they do not currently exist.  I acknowledge this interpretation leads to the circumstance where the death of a child born to the parties that were in a de facto relationship (which does not meet any of the other tests in s 90SB) extinguishes the possibility of a claim being made by a party under the Act. It also seems that an applicant who had a valid application at the time the application was filed ceases to have any right to have an order made in circumstances where a child of the relationship died between the time of the application and the time of the order (if s 90SB(b) of the Act is the only gateway relied upon).”
The Third Gateway/Portal – Section 90SBC
 This entry point has two requirements both of which must be met.  They are:

the party who applies for the order or declaration made substantial contributions to the welfare of the family or to the property; and
a failure to make the order or declaration would result in serious injustice to the applicant.

The First Requirement – Contribution
Contribution to property
Ms Lee claimed that she made a contribution to the property by the improvement of the respondent’s business assets (in accordance with s 90SM(4)(b) of the Act). Whilst the court accepted Ms Lees evidence that in a period of just less than two years she had:

provided suggestions and feedback on names for various products, which Mr Hutton implemented;
wrote an email for Mr Hutton to the major shareholder of his business which helped improve a strained relationship between Mr Hutton and that shareholder;
participated in meetings and revised documents for Mr Hutton’s company;
coordinated the production of a promotional video for the company.

His Honour found she had not made the “substantial” contributions required by the Act.
Contribution to the welfare of the family
His Honour found that a contribution made by one party in a childless de facto relationship for the welfare of both parties was a contribution to “the welfare of the family”.  However, that contribution had to be found to be substantial “judged within the confines of a period of fewer than two years” where the household employed a cleaner and gardener.
His Honour found that if the extent of the applicant’s contributions to the welfare of the family, had been limited to the evidence of the various household tasks, assistance and support provided by Ms Lee during the less than two-year relationship would not on their own have been substantial as they were not unusual or out of the ordinary.
His Honour then went on to consider Ms Lee’s further contributions to the welfare of the family as “an intended parent”:
“I accept that in this case, the applicant’s contributions to the welfare of the family also include her participating with the respondent in attempting to enlarge their family by having a child.…… [including] the applicant committing to carry a child to term on two occasions; being involved in medical consultations; her physical discomfort during the two pregnancies and the physical effects and emotional and psychological pain arising from the foetal demise and from the termination of the second pregnancy…….I acknowledge that minds might differ about what factual circumstances might satisfy the requirement that there be a substantial contribution to the welfare of the family. In exercising the discretion to make a declaration, the court must consider the facts of a particular case.……… Based upon the facts detailed above, the [Ms Lee’s] contributions to the welfare of the family in attempting to have a child with the respondent lifts her overall contributions to the welfare of the family out of the ordinary. For the purpose of s 90SM(4)(c) of the Act, I find that the applicant’s contribution to the welfare of the family constituted by the respondent and herself when evaluated within the context of their relationship and their mutual expectations was substantial.’
The second requirement – serious injustice to the applicant
The second requirement in relation to the issue of substantial contributions and that is “a failure to make the order or declaration would result in serious injustice to the applicant”. Because the question before Watt J was limited to whether a gateway a requirement had been met he noted: “the ultimate precise result cannot be known until there is full testing of the evidence at a final hearing” and that a “broad-brush” approach should be taken.
In making his determination His Honour noted that:

Ms Lee’s application to the Family Court, as a result, was made as a result of a threat by Mr Hutton to sue her in an NSW state court for $169,733.02 which Mr Hutton says Ms Lee owes to him; and
if Ms Lee successfully invokes the de-facto property adjustment provisions of the Family Law Act, the NSW State law is excluded and the ability of Mr Hutton to sue Ms Lee for a debt in a State court is ended. If not Mr Hutton would be able to sue Ms Lee for the debt in a state court, in circumstances where the State court could, as his Honour put it, “largely not take into account the history of the parties particularly their efforts to have a child together”.
there was a substantial financial disparity between the parties in Mr Hutton’s favour. Mr Hutton estimated his net wealth to be $4 million to $5 million.

His Honour found that there would be serious injustice if Ms Lee were precluded from obtaining the order under s 90SM of the Act.
Is a de facto partner a spouse?
Under the Family Law Act, your de facto partner is treated in an almost identical way to a married spouse.  At the end of the relationship, you might still be liable or be entitled to spousal maintenance or a property split in your favour, just like a marriage.
What are the critical time limits I need to think about?
You have until two years after the de facto relationship ended to finalise your de facto property or maintenance issues.  We strongly recommend doing something about it well before this time limit expires.  Difficulties may arise if the parties have different opinions about exactly when the relationship ended.  Perhaps the parties lived under the same roof for a while. Maybe a party filed a form with Centrelink months earlier.  Leaving things for over 12 months is a bad idea and advice about your de facto property matters should be sought as soon as possible.
How are de facto property splits worked out?
Your family lawyer will consider the property pool, the contributions you and your partner made during the relationship and any future needs you or your partner may have going forward.  In certain circumstances, they might be able to advise you on a potential ‘range.’ A range is what percentage of the property pool the court might award you if the matter were litigated.  Once you have this advice, you can use it to inform your position later on during negotiations.  You should seek legal advice to work out what you might be entitled to (it might be more than you’ve been led to believe). Learn more about the property settlement process.
How to protect yourself in a de facto relationship?
A binding financial agreement is a unique document prepared by your solicitor which says how you and your partner’s property will be divided when you separate.  It operates instead of the rules of the Family Law Act.  For many people, this is quite ideal, especially when they want to quarantine assets they built up before the beginning of the de facto relationship.
Because parties are effectively contracting out of the Family Law Act, the Family Court has been quite happy to overturn poorly drafted agreements or where specific procedures were not appropriately followed.
It is, for this reason, it is vital you receive quality legal advice about your agreement and what steps are required, and you ask your solicitor to make sure they tick all the boxes.
If you’re thinking of getting a binding financial agreement, contact us.
De facto relationships and children?
Parenting matters are treated the same as de facto relationships as they are for couples who are married.  The court addresses the children’s best interests as a paramount consideration.  Like all parenting matters, it’s best to work things out in an amicable, sensible and mature fashion with your former partner, unless there are concerns about domestic violence or child abuse.
How long is a de facto relationship?
For a court to make an order about de facto property matters, the period of the de facto relationship must have been at least two years. If there are children or if substantial contributions were made during this short period, this rule can be circumvented.
Difference between a de facto relationship v marriage?
Under the Family Law Act, your de facto partner is treated in an almost identical way to a married spouse. At the end of the relationship, you might still be liable or be entitled to spousal maintenance or a property split in your favour, just like a marriage.
If you’re entering a de facto relationship declining to get married is not enough to protect you. You might find yourself surrendering assets or hard-earned superannuation to your de facto partner even though the parties adhered to a ‘what’s mine is mine’ arrangement during the relationship.
Are same-sex considered to be in a de facto relationship?
Yes. A de facto relationship is any relationship between two people who live together in a marriage-like relationship, including same-sex couples.
Do I have to register my de facto relationship?
There is no obligation to register a de facto relationship to be entitled to a property settlement. Not all states or territories make provision in their state legislation for the registration of de facto relationships.
Need advice now?
Cudmore Legal Family Lawyers Brisbane Co is on hand to deal with all of your de facto family law matters, before and after separation.
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Introduction 
Welcome to Cudmore Legal, where we specialize in providing empathetic and expert child support services in Australia. Understanding the complexities and sensitivities involved in child support matters, our team of experienced family law professionals is dedicated to offering comprehensive support and guidance. Whether you are establishing, modifying, or disputing child support arrangements, our expertise in family law ensures your child’s best interests are at the forefront. 
Why Choose Cudmore Legal for Your Child Support Needs? 
Expert Family Law Knowledge – Our team is well-versed in the intricacies of Australian family law, particularly in matters of child support, ensuring informed and effective guidance. 
Personalized Support – We recognize the unique nature of each family’s situation. Cudmore Legal provides tailored advice and solutions to meet your specific child support needs. 
Child-Centric Approach – Our primary focus is the well-being and best interests of the children involved. We strive to achieve arrangements that support their needs and future. 
Compassionate and Understanding Service – We approach every case with empathy and understanding, offering support and guidance through what can be a challenging time for families. 
Effective Dispute Resolution – Our team is skilled in negotiation and dispute resolution, aiming to reach amicable agreements that serve the best interests of the child and the family. 
Our Child Support Services 
Initial Consultation – We start with a detailed discussion to understand your situation and the needs of your child. 
Assessment of Child Support – Our experts assess your child support situation, considering all relevant factors to ensure a fair and appropriate arrangement. 
Negotiation and Mediation – We facilitate negotiations and mediations to reach mutually agreeable child support arrangements, minimizing conflict and stress. 
Legal Representation – If necessary, Cudmore Legal provides robust legal representation to protect your rights and your child’s best interests in court. 
Ongoing Advice and Support – We offer continued support and advice for any future modifications or enforcement of child support arrangements. 
Client Testimonials 
Read about the experiences of families who have navigated child support with the assistance of Cudmore Legal. [Insert client testimonials that highlight our empathy, expertise, and dedication to children’s welfare.] 
FAQs 
What factors are considered in determining child support in Australia? 
Factors include the income of both parents, the needs of the child, and the time each parent spends with the child. 
How can I modify an existing child support arrangement? 
Modifications can be made through mutual agreement, mediation, or, if necessary, through court proceedings. 
Is legal representation necessary for child support matters? 
While not always required, legal representation can ensure your rights are protected and the best interests of the child are prioritized. 
How does Cudmore Legal handle disputes in child support? 
We focus on resolution through negotiation and mediation, but are prepared to provide strong legal representation if disputes escalate. 
Can Cudmore Legal assist with cross-border child support issues? 
Yes, we have experience dealing with international aspects of child support and can provide guidance on these complex matters. 
Contact Us 
For compassionate and expert guidance on child support matters, turn to Cudmore Legal. Contact us today to ensure the best possible outcome for your child and family. 
Conclusion 
At Cudmore Legal, we are committed to providing exceptional child support services in Australia. Our blend of expert legal knowledge, personalized support, and a child-centric approach ensures that we are your ideal partner in navigating the complexities of child support. 
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Our custody lawyers can assist you with making a parenting plan
A parenting agreement is often done by way of a parenting plan or a consent order. A parenting plan is less formal than consent orders and is any document which is signed and agreed to by the parties and concerns parenting. While there is no formal penalty for breaching a parenting plan, in many circumstances, they are a handy document.
People use parenting plans for many reasons:

They want to have the parenting arrangements put in writing.
They want something in place they can rely on for guidance.
They have parenting proceedings on foot, and they want something temporary in place in the meantime.
They can’t see or speak to the kids without one, because of a Protection Order.

When emotions are running high after a split and children are sometimes involved it’s good to have a piece of paper which spells out who sees the kids and when. A good family lawyer can help you negotiate a parenting plan.
A parenting plan can be:

any written document, and;
signed by the parties, and;
details parenting matters.

Enforceability of a parenting plan
Parenting plans are not enforceable. They do not serve as a foolproof way to ensure the other parent complies with parenting arrangements. If a matter goes to Court, a Court may ‘have regard’ to a parenting plan. The Court might then decide how much weight to give to give to it depending on the individual circumstances.
High Conflict Relationships
Sometimes, despite whatever advice given to them by their Family Lawyer, parties remain in an intractable, never-ending conflict, unable to see eye to eye with the other person. These people have a lot of difficulty co-parenting. Even in these circumstances, these types of people will benefit from an agreement which is set out very clearly and in plain English
The parties may also benefit from having clear and comprehensive parameters for communicating with each other and with the child. For example, changeover arrangements which occur before and after school can enable the parties in these types of relationships to avoid seeing each other, if at all!
Where to now?
While they won’t always provide the security and certainty of final Court Orders, in many cases Parenting Plans help many people reach agreement on parenting arrangements. Cudmore Legal Family Lawyers Brisbane Co are Family Lawyers who can work with you to develop a Parenting Plan suited to your needs.
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Domestic Violence Order Lawyers Brisbane
Domestic Violence Applicant Advice
Firstly, it goes without saying that if you need urgent help, call the police on 000.
What happens in our domestic violence applicant consultation?
In our domestic violence advice consultation, we will discuss your likelihood of applying for a temporary or permanent protection order.
We will examine the relationship between you and the respondent to see if it fits in the appropriate category for an order. We will discuss if anyone else can be included in the domestic violence order. At this point, we will get the full details of the respondent.
We will discuss the option of a temporary order and whether that is suitable in your circumstances. If you already have a temporary arrangement, we can discuss a permanent protection order and its suitability.
After we have examined the above, we will discuss the actual grounds of the application order and whether or not the actions of the respondent warrant an application.
If we can establish grounds, then we will discuss whether a domestic violence order will be appropriate or whether it can be proven that is necessary and desirable.
In the end, we will make sure you get an opportunity to ask any questions. If we believe you will have success in applying for a domestic violence order, we will provide you with the likely costs involved.
What is domestic violence?
Threats, intermediation, physical or emotional abuse against you or your children are all forms of domestic violence that occurs within a domestic relationship.
The abuse can encompass, but is not limited to:

psychological
physical
sexual
financial
emotional

Do I need a Domestic Violence Lawyer?
You can apply for one yourself, with the police or with the assistance of a domestic violence lawyer. We recommend you speak to a lawyer before applying for an order.
How does a domestic violence order protect me?
There are standard conditions in all orders to keep you safe. However, you can seek to impose other requirements if the court thinks it necessary for your safety. You might want the respondent to stay away from school or your workplace.
How long does a protection order protect me?
Depends on your circumstance but is usually two years from the date of the order. Sometimes a judge might make a more extended order if they are satisfied that it is necessary to do so.
What is the penalty for breaching a Domestic Violence Order?
Domestic Violence Orders are civil matters which means that having one against you does not give you a criminal record, however, breaching the order is a serious criminal offence which may result in a fine and further penalties.
The post Applying for a protection order appeared first on Cudmore Legal.

Introduction 
Mediation is a crucial step in resolving family law disputes in Australia. It offers a less confrontational and more collaborative approach compared to court proceedings. Effective preparation for mediation can significantly influence the outcome, making it essential to understand how to prepare adequately. This guide offers detailed insights into preparing for mediation in family law in 2023. 
Understanding the Mediation Process 
Before diving into preparation, it’s important to familiarize yourself with the mediation process. Mediation involves a neutral third party who helps the disputing parties communicate, negotiate, and reach an agreement. Knowing the stages of mediation and what to expect can help reduce anxiety and increase effectiveness. 
Steps to Prepare for Mediation 
Educate Yourself About Mediation: Understand the guidelines, rules, and legal requirements specific to your state or territory in Australia. This knowledge will help you navigate the process more effectively. 
Identify Your Goals and Concerns: Clearly define what you want to achieve through mediation. Consider your priorities, needs, and the outcomes you desire. 
Gather Relevant Documents: Compile all necessary documents and information related to your case. This may include financial statements, property valuations, and any relevant communication. 
Seek Legal Advice: Consult with a family law attorney, like those at Cudmore Legal, to understand your legal rights and obligations. They can provide valuable advice on how to approach the mediation. 
Consider Your Children’s Needs: If children are involved, prioritize their well-being and consider their needs and interests in your preparations. 
Practice Effective Communication: Mediation requires clear and respectful communication. Practice expressing your views calmly and listening actively. 
Develop a Negotiation Strategy: Think about your negotiation approach, including your willingness to compromise and areas where you might be flexible. 
Prepare Emotionally: Mediation can be emotionally taxing. Consider strategies to manage stress, such as mindfulness or speaking with a counselor. 
Plan for Different Scenarios: Think about various outcomes and how you might respond. Being prepared for different scenarios can help you stay calm and focused. 
Be Open to Creative Solutions: Mediation allows for flexible and creative solutions. Be open to different ideas that might meet both parties’ needs. 
During the Mediation Session 
Stay Focused on Your Goals: Keep your objectives in mind and work towards them. 
Be Respectful and Cooperative: A collaborative approach can lead to more productive discussions. 
Use Your Lawyer Wisely: If your lawyer is present, rely on their guidance but remember that the final decisions are yours to make. 
Conclusion 
Preparing for mediation in family law is about understanding the process, knowing your goals, gathering necessary information, and being emotionally and mentally ready. With the right preparation, mediation can be a powerful tool for resolving disputes amicably and effectively. 
For those embarking on mediation, Cudmore Legal offers expert guidance and support. Our team is dedicated to helping you prepare thoroughly, ensuring you approach mediation with confidence and clarity. 
The post Mastering Preparation for Mediation in Family Law in Australia  appeared first on Cudmore Legal.

What is a protection order?
Commonly referred to as a domestic violence order, protection order or in some states an intervention order. And, if someone lodges one against you it can be of both criminal and civil significance. Civilly you could be subjected to a Protection Order, and criminally you may face assault or other charges.
You must comply with the conditions of a Protection Order, even if the Protection Order is a temporary one. If you breach a term, you’ll find yourself back in front of the Magistrate, and this time, it’s a criminal offence. If you don’t contest a Protection Order, there are real and potential consequences including:

contacting the ‘aggrieved’;
contacting or visiting your children;
approaching the aggrieved at work (what if you work near them or regularly attend their workplace for alternative reasons?);
staying in a home, you currently share (even if the house is owned or rented in your name);
approaching relatives or friends (if named in the order);
holding a weapons licence;
going to a child’s school or daycare centre; and
any other conditions deemed necessary or desirable.

Definition of aggrieved
The ‘aggrieved’ or the applicant in domestic violence case is the person that requires protection from the ‘respondent’. An aggrieved can be a husband, wife, spouse, former spouse. They are the person that is applying to the Magistrate court.
What is an ouster order?
An ouster order is one of the main reasons to contest a Protection Order. It’s a condition concerning a Protection Order that forces you to leave the family home.
How long does a Protection Order last?
Most Protection Orders last for two years however the court can extend the order if it feels it’s appropriate.
What is a Temporary Protection Order?
A Temporary Protection Order is like a Protection Order, but it’s for a shorter time to protect those in danger up until the date that a magistrate can decide, the application for the full Protection Order. A hearing for a final order will follow afterwards, but it is usually a long wait. It’s essential to follow and obey the temporary order and obtain legal advice as soon as possible.
Can I contact the applicant under a Protection Order?
No, usually a ‘no contact’ order is added to the Protection Order. Commonly used in circumstances when an Aggrieved person doesn’t want to talk to you. If you’ve sent text messages containing abuse to your ex-partner, it’s more than likely these will be annexed to an Application and used to justify the handing down of a ‘no contact’ provision.
Each Magistrates court has its version of a ‘no contact’ clause which states, generally, the following:

That you cannot contact or attempt to reach the Aggrieved by any means (including phone, text message or via the internet).
As an exception to the condition, you can generally contact the other person if it is to have contact with children by written agreement.

Can I contact my children under a Protection Order?
Usually, you will only be able to speak to your children during a time in which the Aggrieved person has agreed to in writing.
At this point, you might need the intervention of a Family Lawyer, who can attempt to negotiate a written agreement with your ex-partner.
If you have a ‘no contact’ Order on you, it’s important you seek legal advice as soon as possible as it could be weeks, or even months, before you reach a written agreement allowing you to speak to your children again.
If you disregard a ‘no contact’ provision via a careless text message, it is a criminal offence.
Why is it important to consult with a domestic violence or DVO lawyer?
Every DVO has a standard condition that the respondent must be of good behaviour and not commit domestic violence against the aggrieved or any other person named in the order, including children, relatives or friends. When a court makes a DVO, it can set out specific conditions that must be followed and obeyed by the person who has committed the violence. These rules can impact on your life, and it’s essential that you be fully aware of the consequences of these rules before the court makes the order.
How to get an AVO or Protection Order Dropped or Removed

Firstly follow and obey the Temporary Protection Order, even if you feel that you have a valid defence and will defeat an attempt to turn the temporary order into a permanent Protect Order.
Gather any physical evidence relating to any incidents or events the aggrieved application refers to, such as clothing, photos, videos, and objects.
Assemble any documents or records that could relate to the case, such as letters, emails, phone and GPS files, computer records, and records that might show where you were at the time of an incident; and
Make a list of possible witnesses—include every person you think has information about the event, the accusations or the petitioner—and obtain the witnesses’ contact information.
Even if you plan on consenting to the order, these items could prove useful in negotiating the terms of the Protection Order.

What not to do when faced with a Protection Order
It’s a criminal offence to contravene any of the conditions of a Temporary Protection Order or Protection Order.

Do not destroy evidence that you think could hurt you, as this may cast you in a suspicious light with and can lead to criminal charges;
Do not try to talk to the aggrieved or witnesses you expect will testify for them, (including text messages or email);
Do not disregard a temporary restraining order in any way making it even harder for you to defend against the request for a Protection Order.

You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process.
How much does it cost to contest a Protection Order?
Our domestic violence lawyers (Brisbane DV Lawyers) can help if you’ve been served with an application.
Consent to Protection Order or adjourn the matter at courtNegotiate the terms of a proposed Protection OrderDefend and contest Protection Order at TrialThis package includes:advising you on the procedure before and after court;advising and assisting you on implications of an order being made against you; andrepresenting you at court.This package includesadvising you on the procedure before and after court;advising and assisting you on implications of an order being made against you;one letter to the other side proposing varied terms;advising and helping with putting together sworn statements; andrepresenting you on the day of court and making submissions as to why the conditions should be altered.This package includes:advising you of your likely outcome of successfully defending an order;gathering evidence, including sworn statements from witnesses, police reports and hospital records; andcorresponding to the other side requesting they discontinue the application.This is the second step if we are unable to negotiate with the other side to drop the application the matter must go to trial:representing you in court to advise you do not consent;preparing documents for trial; andrepresenting you at trial.$800 – $1,200$800 – $3,500$3,500 – $8,000These packages do not include disbursements (such as court fees, document retrieval fees etc.) and travel costs.
Domestic Violence Fact Sheet
Below we have prepared a simple fact sheet to help you with contesting a protection order.

The post Contesting A Restraining Order, Protection Order & Fighting A DVO appeared first on Cudmore Legal.

01 May 2024
The ACCC has issued a draft determination proposing to grant authorisation to Virgin Australia and Air New Zealand for proposed unilateral code sharing arrangements on trans-Tasman routes.
Virgin Australia and Air New Zealand are seeking authorisation for Virgin Australia to place its airline code on trans-Tasman routes operated by Air New Zealand, which are sold in Australia and originate in Australia (VA coded trans-Tasman services). The codeshare rights are provided on the condition that Air New Zealand specifies the fares at which Virgin Australia may market and resupply those itineraries.
Free sale codeshare agreements allow the marketing carrier (Virgin Australia) to sell an unlimited number of seats on the operating carriers services (Air New Zealand) providing that there is inventory available.
“This proposed code sharing arrangement has the potential to increase ticketing choices for Australians travelling to New Zealand, and provide Velocity frequent flyer program benefits and international lounge access for eligible Virgin Australia customers,” ACCC Deputy Chair Mick Keogh said.
Virgin Australia and Air New Zealand will also be able to jointly provide businesses with discounts and other marketing offers for VA coded trans-Tasman services.
Currently Virgin Australia operates its own services on routes between Queenstown and Melbourne, Sydney and Brisbane. The proposed arrangements do not apply to these routes nor to any routes where Virgin Australia commences operating its own services in competition with Air New Zealand.
The ACCC notes concerns that the code sharing arrangements may result in increased demand for Air New Zealand trans-Tasman services and upward pressure on airfares.
“We consider it unlikely that any significant increase in passenger demand for trans-Tasman services due to this code sharing arrangement would raise airfares,’ Mr Keogh said.
“On current information, we also consider that the code sharing arrangements do not materially reduce Virgin Australia’s incentive to operate its own services on other trans-Tasman routes.”
The ACCC has also granted interim authorisation to allow Virgin Australia and Air New Zealand to commence commercial planning for any marketing and selling of fares for VA coded trans-Tasman services.
“The interim authorisation excludes the direct or indirect marketing, provision of offers and sale of fares to all customers before the ACCC makes its final determination,” Mr Keogh said.
The ACCC is seeking submissions in response to the draft determination by 8 May 2024, before making its final decision.
Further details about the application and how to make a submission are available on the ACCC’s public register here.
Background
Virgin Australia currently operates Australian domestic and short-haul international flight services. The six international destinations to which Virgin Australia currently operates are: Queenstown, New Zealand; Tokyo (Haneda), Japan; Nadi, Fiji; Denpasar (Bali), Indonesia; Port Vila, Vanuatu; and Apia, Samoa. Virgin Australia currently has non-reciprocal codeshare arrangements with several partner airlines that operate long-haul international air passenger services to/from Australia.  
These arrangements allow Virgin Australia to place its code on long haul international services operated by the partner airline. The partner airlines specify the fares at which Virgin Australia may market and resupply these services to customers in Australia. Virgin Australia’s Partner Carriers currently include Qatar Airways, United Airlines, Singapore Airlines, Hawaiian Airlines, All Nippon Airline and Air Canada.
Air New Zealand is New Zealand’s national flag carrier. In addition to its operations on the trans-Tasman, Air New Zealand currently operates services to several destinations in the Pacific, Asia and North America.
Air New Zealand is currently in an airline alliance with United Airlines, Cathay Pacific and Star Alliance involving 26 international airlines.
Note to editors
ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act (CCA).
Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct would be likely to outweigh any public detriment.

If your matter is in the Federal Circuit and Family Court of Australia, then there will be information disclosed in the proceedings in relation to children and/or financial matters that you naturally do not want disclosed to third parties.
Thankfully, Section 121 of the Family Law Act 1975 (“the Act”) provides protection to litigants that makes it an offence to publish proceedings and pictures identifying the parties and people connected to the proceedings (including children and witnesses) involved in such proceedings.
So what if I do contravene Section 121 of the Act?
Contravention of Section 121 of the Act is an indictable offence and is punishable upon conviction by imprisonment for a period of up to one year.
But what does “publish” mean?
This means publication in a newspaper or periodical, and by electronic means, including radio, television and social media. Of course, when the section was first included in the Act, social media was not a known term, unlike now, and the word “social media” is not used in the section.
There are some exceptions to Section 121 of the Act which allow the release of documents to the parties’ legal team, to Legal Aid and to authorities connected to the welfare of children.
So what can you post on social media about the Court proceedings?
To be completely safe it is best not to post anything on social media about your Court proceedings, particularly anything that identifies parties to the proceedings or anything which is insulting or disrespectful to the other party. Not only could this be a contravention of Section 121 of the Act, but you could find that your posts are annexed to Affidavits filed in the Court as evidence of your contravention and your conduct.
So what are these new changes? 
The Family Law Amendment Bill 2023 (“the Bill”) will amend the Family Law Act with most changes taking effect from 6 May 2024. The new changes repeal Section 121 of the Act and insert a new Part XIVB, called “Restriction on communication of accounts and lists of proceedings”, and spans from Section 114N to Section 114T.  The changes modernise the Section and make it easier to read with modern terminology, whilst still upholding the parties’ rights to confidentiality in the Court proceedings. In particular, the word “publish” has been replaced with “communicates to the public” and “communicates” is defined as including “by means of internet” with an example listed as “online communications and communications using a social media service.” Importantly, the new changes clarify that private communication with a family member or friend regarding the Court proceedings is not a contravention of the Section. The new changes retain the existing penalty for contravening the Section, being a maximum of one year imprisonment.
These new changes clarify the law in relation to communication of proceedings to the public and address misconceptions about its operation.
It is important to be ahead of the new changes to the Family Law Act 1975. The solicitors from Michael Lynch Family Lawyers can help you understand the  changes. If you would like to talk to one of our solicitors about your matter, please contact our office at (07) 3221 4300 or [email protected].

The post The Do’s and Don’ts of Social Media Posting when in Court – a review of section 121 of the Family Law Act and the new reforms appeared first on Michael Lynch Family Lawyers.

In Australia, the demand for cleaning services continues to grow. Residential and commercial spaces are increasingly turning to professional services to meet their cleaning needs.
So, if you’ve been thinking of opening up your own cleaning company then this would be a good time to get started on that idea. 
However, just because there’s a massive demand for something, it doesn’t guarantee your company will be invincible. One of the best ways to protect your cleaning company and set it up for a successful future is by taking care of the legal considerations.
Don’t know where to start? We’ve got you covered. Keep reading to learn more.  
How Do I Start A Cleaning Company?
When it comes to starting a cleaning company, there’s a number of matters you will need to take care of. Decisions will need to be made, finances will need to be sorted out and agreements will need to be drawn up – to name a few things.
Even if you’re only planning on starting a small cleaning company, you will still need to plan everything accordingly. The best way to organise all your ideas, research and goals is to put it all in a business plan. 
A business plan can be something you keep for your eyes only. It can act as a blueprint for your company, keeping you on track when you are caught in the whirlwind of starting your cleaning company. 
A few things you may want to include in your business plan are:

Market research 
Company goals
Specific services you will be offering
The locations your cleaning company will operate in 
 Budget 
Advertising/marketing
Legal considerations

Remember, your business plan doesn’t need to be anything fancy or formal – it just needs to make sense to you and anyone else that may look at it.  
Setting Up A Cleaning Company: Legal Steps 
Now that you’ve properly planned out your cleaning company, you’re officially ready to set it up. When it comes to setting up any kind of company, there’s three main elements that need to be fulfilled: Registration, IP protection and legal agreements. 
Let’s discuss them in more detail below.
Register Your Company 
Before you start your cleaning company, you will need to make sure it’s legally registered with the Australian Securities and Investments Commission (ASIC). Every single company in Australia needs to be registered with ASIC, regardless of size and industry. 
All companies also need to follow the rules and regulations set out by ASIC, such as changing company details, annual fees and audits – it’s important to be aware of your duties under ASIC as a company owner. 
Talking to a legal expert can help you better understand the legal obligations that come with running a company. Moreover, company registration can be a bit complex, having a legal expert help you out can make this process much easier. To register your company, you’re required to figure out matters such as what kind of company you will be registering, the company directors and shareholders as well as how the company will be governed. 
Obviously, all these decisions will form the foundation for your company, having a huge influence on its future direction and success. Getting a legal expert to assist you during this process makes the difference between your cleaning company having strong or shaky foundations. 
Protect Your Intellectual Property 
Once your cleaning company is registered, the next step is to secure its legal protections. Intellectual property (IP) is one of the most important parts of your company to legally secure. 
You’re cleaning company’s intellectual property could be anything – from a unique business name, logo, catch phrases or internal company materials – making sure your IP is secured can prevent others from stealing or copying it (and even if someone does try to steal it, you’ll be able to enforce your rights if you’ve managed to legally protect it). 
The legal protection you seek for your IP will depend on the IP itself. For things like a logo, catchphrase or a name, you will need to go the route of registering a trade mark. First, you’ll need to make sure the trade mark isn’t already taken, then, you’ll have to fill out an application form with IP Australia. After that, the trademark will go through a process over a course of several months before it can officially be registered. It’s important to start this process as early on as possible and have a legal expert guide you through it – IP is a complex area of law but once you’ve protected your IP, you won’t have anything to worry about. 
For other forms of IP, you’ll need to utilise legal instruments such as confidentiality clauses, non compete agreements or non-disclosure agreements to secure it. Talking to a legal expert and allowing them to draft the relevant materials can ensure you have legal protection that’s catered especially to your cleaning company. 
Get Professional Contracts Drafted 
Speaking of contracts, IP protection is not the only time you’ll be required to have professionally drafted contracts in place. Securing professionally executed legal agreements is the next phase in setting up your cleaning company. 
Contracts are important – they limit your liabilities, protect your revenue streams, distinguish the responsibilities and rights of each party as well as create a method for dispute resolution. When you have a cleaning company, all of these matters are of significant importance. Getting the right legal agreements and ensuring they’ve been drafted specially for your cleaning company is the best way to ensure you’re giving your cleaning company the best start possible.
A few contracts you may want to consider getting include:

Cleaner Services Agreement
Dry Hire Agreement
Employment Contracts
Website Terms and Conditions
Privacy policy 

As you might imagine, there’s legal agreements for different scenarios/aspects of the business. For instance, you’ll need a legal agreement to be signed when welcoming a new client. However, you will also need a different set of legal agreements for your cleaning company’s website. 
Talking to a legal expert can help you decide what legal agreements are needed for your company – be sure to have this conversation as some legal documents (such as a privacy policy) might be legally required. 
Are There Any More Legal Considerations For Opening A Cleaning Company? 
When thinking about the legal factors of starting your own cleaning company, it’s important not just to consider legal protection but also, legal compliance. 
As a cleaning company, there will be a number of rules and regulations you will need to follow. As such, it’s important to make sure your cleaning company is keeping up with these standards. Failing to comply with the relevant rules and regulations could lead to fines, legal penalties and a bad reputation for your cleaning company. 
A few regulations you will need to think about as a cleaning company: 

Australian Consumer Law (ACL): The ACL sets the standards for consumer interactions with businesses. Ensure your cleaning company’s policies and practices are in line with ACL requirements such as false advertising, refunds, quality of services, deceptive conduct and pricing. 
Employment Laws: If your cleaning company is going to be hiring employees or contractors, then you’ll need to make sure you’re treating them according to national minimum standards. This means, fair pay, breaks, leave, safety measures, the right equipment and much more! 
Data and Privacy Laws: Naturally, you’ll be collecting information off clients when running a cleaning company. As such, it’s your legal duty to ensure clients are aware their information is being collected and that information is being kept safe. Legal instruments such as a Data Breach Response Plan are useful when keeping up with your privacy obligations, chat with our legal experts to find out more.  

Can I Purchase A Cleaning Company Franchise? 
Yes, instead of starting a cleaning company from scratch you can always opt to buy into an already established franchise. It’s important to remember though, franchising is a pretty regulated area. 
Every franchisor and franchisee needs to follow the Franchising Code of Conduct – you’ll need to make sure your own conduct and that of the franchisor is adhering to the code. More so, there’s a fair bit of paperwork and agreements that need to be dealt with before you can run your franchise company. To ensure you’re being treated well, it’s a good idea to chat with a legal expert in franchising so they can give you the right kind of guidance. 
Next Steps 
A cleaning company can be a stable and profitable company to invest your time and resources into. However, if you want to give your cleaning company the best chance of success, then it’s imperative to take care of the legal considerations first. To summarise what we’ve discussed: 

The demand for cleaning services in Australia is growing, making a cleaning company a potentially sound business venture 
Developing a business plan that includes market research, company goals, services offered, operating locations, budget and advertising strategies is high recommended 
Register your company with the Australian Securities and Investments Commission (ASIC) to ensure legal compliance and understand your obligations as a business owner
Protect your intellectual property (IP), such as business names and logos, through trademark registration and legal instruments like confidentiality clauses 
Ensure all necessary contracts, such as cleaner services agreements and employment contracts, are professionally drafted to safeguard your business
Adhere to legal standards and regulations, including the Australian Consumer Law and employment laws, to avoid fines and maintain a good reputation
Consider buying into a franchise as an alternative, understanding the requirements and regulations under the Franchising Code of Conduct

If you would like a consultation on how to open up a cleaning company, you can reach us at 1800 730 617 or [email protected] for a free, no-obligations chat.
The post How To Open Up A Cleaning Company  appeared first on Sprintlaw.

30 April 2024

Airport monitoring report 2022-23 key results

Click to enlarge
The aeronautical operations of Brisbane, Melbourne, Perth and Sydney airports returned to profit in 2022-23, the first full financial year since the end of COVID-19 travel restrictions, the ACCC’s latest Airport Monitoring Report shows.
In contrast, all four monitored airports reported losses on their aeronautical operations in 2021-22.
The four airports reported a total of 100.7 million passengers passing through in 2022-23, up 127.4 per cent from the previous year. However, the number of domestic passengers was still 10.4 per cent below 2018-19 (pre-pandemic) levels, and international passengers 31 per cent below.
“Australia’s four largest airports reported a significant increase in aeronautical revenues and a return to aeronautical operating profits in 2022-23, as interstate and international travel restrictions ended and people returned to the sky,” ACCC Commissioner Anna Brakey said.
“The airports stayed open during the pandemic and continued to incur some aeronautical expenses, without their usual level of accompanying revenues. As passengers returned in 2022-23, aeronautical revenues increased more than expenses, which lifted profit margins closer to pre-pandemic levels.”
Perth Airport recorded an aeronautical operating profit margin of 34.6 per cent in 2022-23, followed by Sydney Airport with 29.1 per cent, Brisbane Airport 28.8 per cent, and Melbourne Airport 22.9 per cent.
Perth Airport’s aeronautical operating profit margin was slightly higher than the 34.2 per cent it recorded in 2018-19, but Sydney, Brisbane and Melbourne’s were lower than 2018-19.
The four airports combined invested $559 million in aeronautical operations in 2022-23, which is a relatively modest amount compared to years prior to the pandemic. Much of this investment was by Melbourne Airport in a range of facilities such as roads, taxiways and terminals.
The airports reported a significant increase in both revenues and operating profits for their car parking operations in 2022-23.
The four airports collectively earned $337 million in operating profits from car parking activities, an increase of 168 per cent on the previous year. All four airports reported operating profit margins above 60 per cent for car parking.
Landside access revenues also increased as more people used taxis, ridesharing services and other types of transport to get to the airport.
The overall quality of service at each of the airports was rated as ‘good’ in 2022-23. The data underpinning the ratings, which is drawn from surveys of passengers and airlines, as well as objective measures of performance, was collected for the first time since the pandemic.
Earlier this year, the ACCC submitted to the government’s Aviation White Paper process that commercial arbitration should be available to resolve any disputes between airports and airlines over airport charges.
“We believe there needs to be greater requirements on airports to provide information to airlines, to address the imbalance of power in commercial negotiations,” Ms Brakey said.
“We have also recommended the Aeronautical Pricing Principles be reviewed, including to make them mandatory and enforceable.”
The Aeronautical Pricing Principles set the framework for addressing prices, service delivery and the conduct of airports in negotiations with airlines.
Background
The ACCC monitors the performance of the four largest airports in relation to aeronautical and car parking services following a direction from the Australian Government requiring it to consider prices, costs and profits. The ACCC also monitors the quality of these services, as well as landside access services.
The possible ratings for airport quality of services are ‘very poor’, ‘poor’, ‘satisfactory’, ‘good’ or ‘excellent’.
Operating profit is measured by earnings before interest, taxes and amortisation (EBITA). Operating profit margin is EBITA as a percentage of revenue.
Aeronautical operations are those that directly relate to the provision of aviation services, including runways, aprons, aerobridges, departure lounges and baggage handling equipment.

Your regular wrap-up of some of the world’s leading and intriguing IP stories

6 min read

Turtle wash out: criticism not an infringement of moral rights
By Veronica Sebesfi
In Hoser v Georges (No 2) [2024] FedCFamC2G 243, Judge Mansouriadis in the Federal Circuit and Family Court of Australia (Division 2) clarified the scope of the moral right of integrity of authorship, which is the right ‘not to have the work subjected to derogatory treatment’ per s195AI(2) of the Copyright Act 1968 (Cth). Derogatory treatment is defined in s195AJ as:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
(b) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.
The applicant self-publishes papers on the taxonomy of reptiles in his own ‘Australasian Journal of Herpetology’. The respondents included members of the ‘Turtle Taxonomy Working Group’. The respondents published academic books and papers in which they referred to several of the applicant’s self-publications and criticised his approach to taxonomy and nomenclature. The applicant alleged in an amended statement of claim that the respondents had made statements that conveyed imputations that were prejudicial to the applicant’s honour and reputation as the author of the works, and therefore his works had been subjected to derogatory treatment.
Judge Mansouriadis was required to consider whether the amended statement of claim disclosed a reasonable cause of action for infringement of the applicant’s moral rights.
Judge Mansouriadis considered whether ‘the doing of anything else in relation to the work’ in s195AJ(b) includes making statements about the information or ideas conveyed by the work or the author of the work. Relying on other sections of the Copyright Act, his Honour concluded that s195AJ(b) refers to doing anything to the ‘particular form of expression in which an author convey[s] ideas or information to the world’. Like the rest of the Copyright Act, the moral right of integrity of authorship is a right concerning the material form in which the author expresses their ideas, rather than the ideas or information conveyed.
Judge Mansouriadis concluded that the amended statement of claim did not allege that the respondents did anything to the writing or any medium recording the writing in the works that they referenced, and therefore there was no reasonable cause of action for infringement disclosed in the statement of claim.
This case is a reminder that the scope of moral rights protection does not extend to critical remarks about the author themselves or the ideas contained in their works.
Foreign words as trade marks? The latest word from the Federal Court
By Rob Vienet and Stefan Ladd
The Federal Court has delivered its judgment in Caporaso v Mercato Centrale Australia (MCA), a case concerning the use of foreign words as trade marks.
By way of background, Caporaso Pty Ltd is the registered owner of various trade marks incorporating ‘MERCATO’ (the Italian word for ‘market’). Those trade marks are registered in respect of various goods (including meat, fish, poultry and coffee), and services (including retail services, and services for providing food and drink). In 2023, Caporaso brought proceedings against MCA, alleging that the latter’s use of various trade marks incorporating ‘MERCATO CENTRALE’ in respect of an online food and beverage delivery service amounted to trade mark infringement.
The Federal Court found that ‘MERCATO CENTRALE’ was not deceptively similar to Caporaso’s marks for ‘MERCATO’ and, as such, MCA’s conduct did not amount to trade mark infringement. Key to this was the finding that the word ‘CENTRALE’ was distinctive (as opposed to merely descriptive), and was of equal significance and impact, both visually and aurally, to ‘MERCATO’, such that members of the target audience would not consider ‘MERCATO CENTRALE’ to be a sub-brand of ‘MERCATO’.
However, although MCA was successful in defending the infringement aspect of the case, its cross-claim seeking the cancellation of Caporaso’s registrations was largely unsuccessful. An interesting part of the judgment was the finding that ‘MERCATO’ had distinctiveness in relation to certain goods and services, which was heavily influenced by the statement that the absence of that word from the Macquarie Dictionary made it ‘considerably more difficult for a party in [MCA’s] position to establish that the word in its ordinary signification is directly descriptive of the relevant [goods and services]’.  
The case demonstrates how Australian courts are approaching the issue of foreign language words in the context of trade mark infringement and revocation claims, and follows a line of cases that considered similar issues (see Cantarella v Modena in relation to oro and cinque, Goodman Fielder in relation to LA FAMIGLIA, and Cantarella v Lavazza in relation to oro). In particular, it is a reminder that the court will not assume that the meaning of a foreign word will be understood by ordinary Australian consumers in a trade mark context.
The judgment is subject to an appeal, so stay tuned for further updates.
New Zealand expands protection for geographical indications
By Tommy Chen and Bryanna Workman
The New Zealand Parliament has recently passed legislation that implements the European Union-New Zealand Free Trade Agreement (the EU-NZ FTA) and expands protection for geographical indications. New Zealand producers and businesses that import food and beverage products into New Zealand will need to comply with the expanded regime from 1 May 2024. [This was intended to cover businesses that are not located in New Zealand, but import goods into New Zealand]
The EU-NZ FTA was signed in July 2023. New Zealand already had a standalone geographical indications registration scheme for wines and spirits, and the new legislation expands the scheme to cover all other goods. As required by the EU-NZ FTA, it recognises 1975 geographical indications from the EU as registered geographical indications in New Zealand, without going through an application and opposition process. The full list of new geographical indications can be found here. 
From 1 May 2024, no person or business can use any of these terms in New Zealand in respect of the ‘product class’ for which the geographical indication is registered, unless the product meets the requirements for use of the geographical indication under EU law. There are some limited exceptions to this prohibition, including to enable use of a person’s own name or the name of their predecessor in business, or the customary names of plant varieties and animal breeds.
A small number of geographical indications are subject to a phase-out period. For example, the term ‘Feta’ for cheeses is subject to a nine-year transition period, and the terms ‘Sherry’ and ‘Prosecco’ for wines are subject to a five-year transition period. Additionally, businesses that have used the term ‘Gruyère’ or ‘Parmesan’ continuously for at least five years before 1 May 2024 may continue to use it. However, any businesses seeking to rely on the phase-out period or prior use exception must ensure that the country of origin of the goods is legibly and visibly indicated on the product.
Compared with the existing regime, the new legislation also introduces the following new civil and administrative enforcement measures. [The new legislation is amending the existing regime, so it doesn’t have standalone new civil and administrative enforcement measures]
Expanded standing to commence civil proceedings: Any person ‘with an interest in upholding the restrictions on use of the registered geographical indication’ may commence proceedings to seek relief for a breach of a restriction on use of a registered geographical indication.
Introduction of GI officers: The Government may appoint ‘GI officers’, who can investigate the origin of goods and issue notices of direction to persons who have breached a restriction on use of a geographical indication. Failure to comply with a notice of direction may result in the imposition of infringement fees or court fines.
Implementation of border protection measures: New Zealand customs may investigate, inspect, intercept and detain products suspected to breach the restrictions on use of geographical indications.
Further information about the expanded regime can be found on the website of the Intellectual Property Office of New Zealand. 
It remains to be seen whether Australia will accept similar demands in relation to geographical indications if and when the FTA is agreed, as negotiations with the EU are still stalled.
UK zeroes in on US patent misuse doctrine 
By Matthew Wang
The Court of Appeal of England and Wales recently handed down its decision in AstraZeneca UK Ltd v Tesaro Inc [2024] EWCA Civ 78, concerning the royalty provisions in patent licences for the cancer treatment drug Zejula. In doing so, the court placed considerable emphasis on the US doctrine of ‘patent misuse’.
In 2012, AstraZeneca granted two patent sub-licences to Tesaro, for patents containing second medical use claims of, or methods of treatment using, existing compounds within the class of drugs known as PARP inhibitors, one such drug being niraparib (marketed by Tesaro as Zejula). Although all sales of Zejula were for the treatment of cancer, not all were for uses or treatments falling within the claims of the patents. The issue before the court was whether the royalties under the sub-licences were calculated by reference to all sales of Zejula or only sales that fell within the scope of the claims of the licensed patents.
In the first instance, before the High Court of England and Wales, Mr Justice Richards held that the royalty was to be calculated using total sales of niraparib for use as cancer treatments – effectively, all net sales of Zejula.
In February 2024 the Court of Appeal unanimously reversed this position, holding that the royalty was limited to sales for uses or treatments that fall within the scope of the claim of the licensed patents only. A principal reason for this involved interpreting the contract to give effect to a lawful meaning, rather than an unlawful meaning. The court favoured the narrower interpretation, which would avoid contravening the US law doctrine of patent misuse. This doctrine holds that a royalty in a patent licence based on total sales (not just sales of the patented product or process) may be ‘patent misuse’. Therefore, there is a defence under US law to a contractual claim for such a royalty in its entirety, particularly where the patent holder ‘conditions’ the licence grant on payment of royalties over products that do not use the teaching of the patent.
Further, the court found that the following factors supported this interpretation:
The licence grant and the royalty provision in the sub-licences used the same definition of Licensed Product, which incorporated the critical definition of Compound: ‘….niraparib and Mk-2512 the use of which may be claimed or covered by, or the Exploitation of which may be claimed or covered by, one or more of the Licensed Patents’. Construed in the context of the grant of the licence, the effect of the italicised words is to align the licence’s scope with the claims of the licensed patents. Accordingly, the same limitation applied to the royalty provision.
The temporal scope of the royalty provision was dictated expressly by whether a granted patent in a given country ‘covers or claims’ the exploitation of the licensed product. Similar limitations were thought to apply to the subject matter of the royalty.
The royalty provisions in the head licences granted to AstraZeneca were limited to use of the product that would infringe the claim of the patent in the absence of the licences. The head licences were cross-referenced in the sub-licences, and so could be examined to resolve any ambiguity in the sub-licences. Further, the court took into account evidence that, during negotiation of the patent sub-licences, AstraZeneca communicated to Tesaro that the downstream royalties under the sub-licences matched the upstream royalties under the head licences. That would only be the case if the two sets of agreements had royalty obligations of the same scope.
IP Australia adopts Madrid Goods and Services list
By Tim Golder and Ye Rin Yoo
On 26 March 2024, IP Australia adopted the Madrid Goods and Services (the MGS) list for the classification of goods and services in the registration of trade marks. Previously, it adopted a combination of the Nice Classification and IP Australia’s own national classification. The change seeks to align IP Australia’s classification with the World Intellectual Property Organization and other international trade marks offices that use the MGS list.
In Australia, an application to register a trade mark can be filed based on:
a ‘picklist’ of goods and services; or
without a ‘picklist’, by drafting the goods and services in free text.
The adoption of the MGS list particularly affects applications filed based on a ‘picklist’ because the goods and services can only be selected from that list.
The MGS list’s benefits include:
a more extensive list of goods and services from which a selection can be made; and
a potentially lower chance of an objection to the classification of the goods and services overseas, if a Madrid application is filed based on the Australian application that designates various overseas jurisdictions.
However, that more extensive list does not necessarily mean broader claims in each class. For example, in Class 35, the MGS list has removed broad claims for ‘retail services’ and ‘wholesale services’, and replaced them with more specific ones (eg ‘retail services relating to clothing’). The MGS list has kept the broad claims for ‘software’ in Class 9 and ‘software as a service’ in Class 42. This remains inconsistent with other jurisdictions, such as New Zealand and the United States, where those claims would be objected to and further specifications required.
Further, the MGS list does not address other classification issues, including the following (also discussed in our Insight IP Australia releases new guidance on classifying emerging technology trade marks).
the overcrowding of trade marks classified in Class 9 and Class 42, which may lead to increasing difficulty in obtaining registration for them; and
the uncertainty surrounding the scope of trade marks for virtual and real world goods and services. Certain virtual goods and services may not be cross-searched against, or considered similar to, their counterpart real world goods and services. Eg under IP Australia’s current cross-searching practice, Class 9 is not cross-searched against Class 25, so an earlier trade mark for Class 25 ‘clothing’ may not be cited against an application to register a trade mark for Class 9 ‘virtual clothing’. Even if cited, IP Australia’s current position is that virtual goods (eg Class 9 ‘virtual clothing’) are not similar to their counterpart real world goods (eg Class 25 ‘clothing’).
Therefore, while adoption of the MGS list will have practical benefits, businesses may want to consider filing an application:
without the picklist, so as to draft goods and services that may potentially be broader or more accurately describe the goods and services; and
specifically claiming virtual goods and services, if there is a genuine intention to use the trade mark for them.
Letter of consent system now in effect in Japan
By Tim Golder and Ye Rin Yoo
The letter of consent system in the registration of trade marks (discussed in our previous article) is now effective in Japan.
To recap our earlier article, the Japan Patent Office (the JPO) objects to an application for the registration of a trade mark if it is identical or similar to an earlier trade mark for identical or similar goods or services. Until recently, the applicant had to submit arguments or adopt an ‘assign back strategy’ (assign its trade mark to the earlier trade mark owner, then have it assigned back) to overcome this.
From 1 April 2024, the JPO will accept a letter of consent from the earlier prior trade mark owner as part of its consideration whether to withdraw the objection. It will only accept a letter of consent for an application filed after 1 April 2024. An application filed before 1 April 2024 would need to be re-filed or re-designated in Japan for the JPO to accept a letter of consent.
However (and unlike in Australia and New Zealand), the JPO will not simply withdraw an objection based on the existence of a letter of consent. It will need to be satisfied by:
the copy of the letter of consent – the appropriate form of which is still yet to be confirmed; and
the proof of no likelihood of confusion – we await further guidance on this. It is possible that the JPO will consider a coexistence agreement between the parties, depending on the terms. However, the existence of an agreement is unlikely to be sufficient proof on its own.
If the JPO is satisfied regarding both of the above, it will withdraw the objection. If not, it will maintain the objection, and the applicant may ultimately need to revert to the ‘assign back strategy’ to overcome it.
A trade mark registered on the basis of a letter of consent and its use can be challenged by any party if there is unfair competition or actual consumer confusion.
Overall, though, we await further guidelines on the new letter of consent system in Japan.

The Rice v Asplund test is pivotal in determining whether existing child custody and parenting orders should changed. 
This test originated from a landmark 1979 case in Australia, where the courts set a precedent on the standards required for reopening cases concerning child custody arrangements. 
This blog post explores the origins, criteria, and implications of the Rice v Asplund test, understanding how it balances the need for stability in a child’s life with the necessity of adapting to significant changes in the family dynamic. 
Understanding this test is essential for legal professionals, parents, and policymakers as they explore the intricacies of family law and advocate for children’s best interests.
When is the Rice v Asplund Test Applied?
The Rice v Asplund test is applied in family law to determine whether existing final parenting orders should be revisited and potentially altered. 
This test is specifically used when one party seeks to change these orders due to a significant change in circumstances. 
The core principle behind applying this test is to avoid reopening cases and inviting further litigation unless there’s a compelling reason. 
This would typically involve a significant shift in the initial conditions when the orders were made.
The court typically considers the following scenarios as grounds for applying the Rice v Asplund test:
Significant Changes in the Child’s or Family’s Circumstances: This could include relocation proposals, serious health issues, or major alterations in the child’s needs or the parent’s capabilities.
Material Misrepresentation or Non-disclosure at the Original Hearing: If it emerges that crucial facts were hidden or misrepresented during the original proceedings, this could justify a reconsideration of the orders.
Developments That Affect the Child’s Best Interests: Any new developments that could significantly impact what is considered in the child’s best interests might prompt a re-evaluation under this test.
Courts are cautious not to allow this test to enable continual legal disputes over parenting arrangements, aiming instead to ensure stability and continuity in the child’s life unless substantial reasons for change are evident​ 
Also read: 6 Child Custody Agreements That May Work For You
What Constitutes a ‘Significant Change in Circumstances’ Under the Rice v Asplund Test?
Under the Rice v Asplund test in family law, a ‘significant change in circumstances’ refers to substantial and meaningful changes in the child’s life or the circumstances of the custodial parent that affect the child’s well-being.
This threshold is set high to prevent constant litigation over parenting orders and ensure the child’s environment is stable.
Here are some examples of what may constitute a significant change in circumstances:
Relocation: A parent planning to move a considerable distance, affecting the current parenting arrangements and the child’s access to both parents.
Change in the Child’s Needs: Significant changes in a child’s health, educational needs, or emotional development are not being met under the current orders.
Material Changes in Parental Circumstances: This could include severe illness, significant changes in employment status affecting a parent’s ability to care for the child, or substantial changes in living conditions.
Safety and Welfare Concerns: New evidence of child abuse, neglect, or domestic violence that was not previously disclosed or has arisen since the last order.
Non-disclosure of Relevant Information: If it’s discovered that critical information was withheld during the original hearing or misrepresented, which, had it been known, might have led to different orders.
Compliance with Current Orders: There are significant issues with adherence to the existing orders, such as consistent breaches by one parent.
The courts weigh these changes carefully to determine if they are substantial enough to justify revisiting the family’s situation. 
For matters like this, it’s always best to consult a child custody lawyer to ensure everything is well covered. 
This cautious approach is meant to protect children from the instability of ongoing legal conflict and ensure that any modifications to the parenting orders reflect the child’s best interests​.
Also read: What Happens When You Break Family Court Orders?
How Does the Court Determine a ‘Significant Change in Circumstances’?
Proving a “significant change in circumstances” is a key step in modifying existing parenting orders under the Rice v Asplund test. 
The court has wide discretion in determining what constitutes a significant change, but here are the common categories of factors they consider:
1) Changes Related to the Child
Age and Needs: As children grow, their needs evolve. Older children might need different living arrangements, schooling, or support that wasn’t necessary when the initial order was made.
Health or Disability: Changes in the child’s physical or mental health or the development of a disability can require significant modifications to care arrangements or decision-making.
Wishes of the Child: While not the sole factor, the court does consider a child’s expressed views, giving more weight to the opinions of older and more mature children.
2) Changes Related to the Parents
Income and Employment: Job loss, significant promotions, or changes in income can affect a parent’s ability to financially provide for or spend time with their child.
Relocation: If a parent needs to relocate significantly, this may necessitate a change in parenting time or shared care arrangements.
New Partners or Family Structure: Remarriage, new children, or changes in a parent’s living situation can impact the child’s environment and routine.
Capacity to Parent: A significant change in a parent’s mental or physical health affecting their parenting ability or the development of substance abuse issues may be considered.
3) Other Relevant Factors
Risk to the Child: If evidence of abuse, neglect, or an unsafe environment arises since the initial orders, the court prioritises protecting the child’s safety.
Violation of orders: Consistent failure by one parent to comply with existing orders might factor into the court’s decision-making.
Important note:
Not All Changes Qualify: Minor disagreements or slight adjustments to circumstances likely won’t meet the threshold of “significant”.
Case-by-Case Evaluation: The court evaluates the totality of the circumstances and the potential impact on the child’s well-being, so there’s no single checklist.
What Impact Does the Rice v Asplund Test Have on Parenting Orders?
Here are some specific impacts of the Rice v Asplund test on parenting orders:
Promotes Stability for Children: The test helps provide children with a stable and predictable environment, which is crucial for their development and well-being, by discouraging frequent litigation over parenting orders.
Mitigates Legal Conflicts: It helps reduce the emotional and financial costs of ongoing legal battles between parents, thereby minimising conflict and its negative impact on children.
Ensures Substantial Justification for Changes: The test requires that a significant change in circumstances be demonstrated before a court will reconsider existing orders. This criterion ensures that only meaningful and substantial changes can justify altering the arrangements that affect a child’s life.
Focuses on the Child’s Best Interests: By necessitating a significant change in circumstances, the test keeps the child’s best interests at the forefront of any decision to alter parenting orders. This ensures that any legal adjustments to the orders genuinely reflect what is best for the child rather than the preferences or convenience of the parents.
Encourages Finality and Resolution: The Rice v Asplund test underscores the finality of parenting orders, encouraging parents to reach a lasting agreement that considers future contingencies. Thus, further legal intervention is avoided unless absolutely necessary.
Can the Rice v Asplund Test Prevent Endless Litigation?
Yes, the Rice v Asplund test is designed to prevent endless litigation in family law cases, mainly regarding parenting orders. The test imposes a significant threshold that must be met before existing final parenting orders can be challenged and revised. 
Have your custody arrangements become unfair? Understanding the Rice v Asplund Test
The Rice v Asplund Test is a crucial principle in Australian family law. It provides a framework for determining whether existing parenting or custody orders should be changed. Understanding this test is essential if you feel your current arrangements are no longer in your child’s best interests.
Justice Family Lawyers are experts in navigating complex family law cases. We understand the intricacies of the Rice v Asplund Test and can guide you through the process.  Let us help you achieve the best possible outcome for you and your child.
Contact us today for a confidential consultation.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

Entering a second marriage often represents a beautiful new chapter, but navigating family finances and inheritance can get complicated.  
Australian law ensures a surviving spouse has a strong claim, but how do these rights impact children from a previous marriage? This blog explores the legal matters involving second wives, offering clear explanations and practical advice. 
What are the inheritance rights of a second wife in Australia?
The inheritance rights of a second wife in Australia depend on several factors, including whether there is a will, the will’s provisions, the family law and inheritance laws applicable in the state or territory, and any relevant pre-nuptial or binding financial agreements.
With a Will
If the deceased has a valid will, the second wife’s rights to inherit are defined by the terms of that will. However, if she believes the will does not provide adequately for her, she might be able to contest it under family provision laws.
Without a Will (Intestate)
If the deceased dies without a will, the second wife’s rights are governed by the intestacy rules of the state or territory. Typically, the surviving spouse will receive a significant portion of the estate, including personal effects, a statutory legacy (which can vary in amount), and a portion (or all) of the remainder depending on other surviving relatives, such as children.
Family Provision Claims
Regardless of the will’s contents, in most Australian jurisdictions, the second wife can claim the estate under family provision laws if she believes that adequate provision has not been made for her maintenance, education, or advancement in life.
Impact of Family Law
In cases where the estate includes assets subject to a family law property settlement (e.g., following a divorce), these assets may influence the estate’s distribution.
These rights are intended to balance the need to provide for a deceased person’s family while respecting their wishes as expressed in their will within the framework set by Australian law.
The exact outcomes can vary based on specific circumstances, including the size of the estate and any competing claims from other family members.
Also read: Letter of Wishes Australia: What It Is and How to Write One
Can a second wife be left out of a will?
Yes, a second wife can technically be left out of a will in Australia. However, under Australian law, even if a will explicitly omits a second wife, she may still have legal recourse to claim a share of the estate if she can demonstrate that the will does not make adequate provision for her maintenance, education, or advancement in life.
Australian jurisdictions provide mechanisms under family provision laws allowing certain individuals, including spouses, to contest a will if they believe they have not been adequately provided for. The courts will consider various factors, such as the second wife’s needs, her financial circumstances, the size of the estate, and the deceased’s obligations to her and other beneficiaries.
Contesting a will can be complex and subject to strict time limits, so anyone in this situation should seek legal advice from an expert will lawyer promptly to understand their rights and the viability of making a claim.
Also read: 5 Crucial Aspects of Blended Family Wills You Need to Know
How can I ensure my financial security if my husband’s children from his first marriage contest the Will?
Unfortunately, there’s no foolproof way to prevent your husband’s children from his first marriage contesting the Will. However, there are several proactive measures you can take to significantly strengthen your position and minimise the chances of a successful challenge:
1) Open Communication
Discuss potential inheritance issues openly and honestly with your husband.  Understanding his wishes and intentions early on will help you prepare accordingly. If possible, work towards fostering respectful relationships with his children to reduce potential animosity over inheritance distribution.
2) Seek Sound Legal Advice
Consult with an experienced estate planning lawyer who specialises in blended family situations. They can explain your rights and recommend strategies like Testamentary Trusts to protect your inheritance while considering your husband’s wishes for his children.
3) Thorough and Up-to-Date Will
A well-drafted will clearly outlining your intended distribution is crucial. Ensure it’s legally sound and reflects your current life circumstances. Update your will whenever circumstances change (new marriage, births, significant asset changes) to reduce the possibility of its validity being attacked.
4) Thorough Documentation
Keep detailed records of any financial contributions you make to shared assets. Additionally, document major gifts or loans made within the family, as these may impact the estate distribution and demonstrate your financial investment in the family’s well-being.
5) Consider a Financial Agreement
A Binding Financial Agreement (which can include a prenuptial agreement) can specify how assets will be divided upon death, providing more certainty than a will alone. This can be particularly beneficial in complex blended family situations.
Unsure About Your Second Wife Inheritance Rights in Australia?
Are you a second wife concerned about your inheritance rights? Justice Family Lawyers empowers you with the information and legal support you need to secure your future.
Don’t leave your financial security to chance—our specialised team is dedicated to ensuring your rights are protected, and your voice is heard. Whether drafting a will, setting up trusts, or contesting unfair wills, Justice Family Lawyers provides personalised and compassionate service.
Contact us today to ensure your interests are safeguarded in every aspect of estate planning. Secure your peace of mind with expert advice from Justice Family Lawyers.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

Enmeshment in family law refers to a complex psychological dynamic that often surfaces during family legal disputes, especially in custody battles and divorce proceedings. 
In Australian family law, understanding the concept of enmeshment is crucial for both legal professionals and families involved, as it can significantly impact the outcomes of cases and the well-being of all parties.
This introduction will explore the nature of enmeshment within Australian family law, highlighting its characteristics, legal implications, and court challenges. 
Additionally, it will discuss the various strategies and approaches used by legal practitioners to address and manage enmeshment in family dynamics, aiming to provide a balanced perspective that prioritises the emotional and psychological health of individuals, particularly children, within the family legal system.
What is enmeshment in a family?
Enmeshment describes a family dynamic where emotional boundaries are blurred or nonexistent. Instead of healthy closeness, enmeshed families become emotionally entangled.  This can involve parents relying heavily on their children for emotional support, stifling a child’s sense of individuality.  
Family members might feel overly responsible for each other’s feelings, and there may be a lack of privacy or open expression of needs.  While families naturally care for one another, enmeshment creates an unhealthy level of dependence that can hinder individual growth and well-being.
What is the difference between Parental Alienation and Enmeshment?
Here’s a comparison in table form that illustrates the differences between Parental Alienation and Enmeshment:
AspectParental AlienationEnmeshmentDefinitionParental alienation involves one parent manipulating the child to reject the other parent. This often includes false accusations and limiting contact.Enmeshment refers to a relationship dynamic where boundaries are unclear, and roles are overly intertwined, leading to excessive emotional dependency.FocusThe focus is on manipulating the child’s feelings toward the other parent, often to alienate them.The focus is on the blurred boundaries between family members, particularly between a parent and child, which affects the child’s ability to develop independence.Primary EffectThe child rejects or fears one parent without justification, influenced by the alienating parent’s behaviours and attitudes.Individuals in an enmeshed relationship may struggle with autonomy, have a developed sense of self, and may feel overly responsible for the emotional well-being of the enmeshed parent.Common TacticsInvolves active undermining of the other parent, including making derogatory remarks, limiting communication, or falsely portraying the targeted parent negatively to the child.They are involved in almost all aspects of each other’s lives to the extent that individual identities and personal boundaries are lost. Children may feel guilty or anxious about pursuing interests that diverge from those of their parents.ConsequencesThis can lead to a lasting psychological impact on the child, including trust issues and difficulty forming relationships outside the immediate influence of the alienating parent.Often results in dependency issues in adulthood, difficulty forming or maintaining relationships, and challenges in decision-making and self-care due to a lack of personal boundaries.Both Parental Alienation and Enmeshment are dysfunctional relationship patterns that can have profound long-term effects on children’s emotional and psychological development.
However, they differ significantly in dynamics and impacts, with parental alienation focusing on the exclusion of one parent and enmeshment involving an overly inclusive and boundary-less relationship dynamic.
Also read: Parental Alienation Signs and Examples You Should Watch Out
How does enmeshment affect children?
Enmeshment can have significant and long-lasting negative effects on children, including:
Difficulty developing a sense of self: Children in enmeshed families may struggle to form their own identities, interests, and values. They become overly focused on meeting the needs of their parents or family unit, suppressing their own individuality.
Low self-esteem and confidence: The lack of autonomy and the constant need to please others can erode a child’s self-esteem. They may feel they can’t make their own choices or that their opinions and needs don’t matter.
Co-dependency: Enmeshed children often grow into adults who seek out co-dependent relationships. They may feel incomplete without constant external validation and struggle to maintain healthy boundaries.
Anxiety and depression: The pressure to conform, coupled with repressed individuality, can lead to increased anxiety, feelings of guilt, and even depression.
Difficulty with conflict resolution: Never learning to navigate healthy disagreements, enmeshed children may avoid conflict at all costs in adulthood or lash out with poor coping mechanisms.
It’s important to remember that the severity of these effects can vary depending on the degree of enmeshment and the child’s resilience.
What defines parental enmeshment?
Parental enmeshment refers to an excessively close and entangled relationship between a parent and child, characterised by blurred boundaries and an overdependence on each other for emotional support and identity. 
In an enmeshed relationship, the distinction between the parent’s and child’s emotional and psychological experiences becomes unclear. 
Here are some key aspects that define parental enmeshment:
Lack of Boundaries: There is often a notable lack of psychological boundaries between the parent and child. This means the child’s personal feelings, thoughts, and experiences may be dominated or heavily influenced by the parent’s emotions or needs.
Overinvolvement: The parent is overly involved in the child’s life, decisions, and experiences to an extent that impedes the child’s ability to develop independently. The child’s achievements and failures are often perceived as a direct reflection of the parent.
Identity and Autonomy Issues: The child may struggle to develop a separate sense of self from the parent, resulting in challenges with autonomy and self-determination. The parent’s expectations and desires may significantly shape the child’s identity.
Emotional Overreliance: Both parents and children rely excessively on each other for emotional support, often excluding other relationships and opportunities for independent emotional growth.
Conflict Avoidance and Guilt: People in enmeshed relationships often avoid conflicts because they fear they will threaten the relationship. Children may feel a high level of guilt or anxiety about asserting their needs or desires if they conflict with their parents.
These characteristics can have long-term effects on the child’s emotional and social development, often carrying into adulthood. Therapy and counselling are commonly recommended to help individuals from enmeshed families establish healthier boundaries and develop a more independent identity.
How to Avoid Enmeshment
Avoiding enmeshment in family relationships, particularly between parents and children, involves cultivating healthy boundaries and fostering individuality. Here are some strategies to help prevent enmeshment:
Establish Clear Boundaries: Clearly define what is personal and what is shared in family interactions. Teach children that it is okay to separate private thoughts, feelings, and experiences from their parents.
Promote Independence: Encourage children to make decisions appropriate to their age and to take responsibility for those choices. Allow them to experience the consequences of their decisions, which helps build self-esteem and decision-making skills.
Foster Individual Interests: Support children in developing their own interests and hobbies, separate from their parents. This helps them build an independent and distinct sense of self.
Encourage External Relationships: Encourage children to form healthy relationships outside the family. This can include friendships with peers, relationships with mentors, and involvement in community activities.
Seek Professional Guidance: Therapy can benefit families struggling to establish healthy boundaries. Therapists can help families understand the dynamics of their relationships and learn healthier ways to interact.
Model Healthy Relationships: Parents can model healthy relationships by maintaining their own friendships and interests outside of the family. It’s crucial to show children that a life outside family obligations is healthy.
Communicate Openly: Maintain open lines of communication where family members can express their feelings and needs without fear of judgment or repercussion. This helps prevent misunderstandings and resentment that can lead to enmeshment.
Practice Self-care: Encourage all family members, including parents, to practice self-care. This emphasises the importance of taking care of one’s own emotional and physical needs and sets a precedent for personal well-being.
These strategies can help families maintain a healthy balance between closeness and individuality, which is essential in preventing enmeshment.
If you think your family might be struggling with enmeshment, consulting with a mental health professional and an expert family lawyer can provide further guidance and support.
Flacks and Chatburn [2014]
Flacks and Chatburn [2014] is a significant Australian family law case that deals with parental alienation and enmeshment issues. Here’s a breakdown of why it’s an important case:
Key Points of the Case:
Parental Alienation: The mother was found to have engaged in behaviours that alienated the children from their father. This included making negative comments about him, discouraging their relationship, and subtly undermining his role as a parent.
Enmeshment: There was evidence of an enmeshed relationship between the mother and children. The children were overly involved in the mother’s emotional well-being and were used as a source of support, blurring the typical parent-child boundaries.
Court Ruling: The court found that the mother’s actions harmed the children’s well-being and relationship with their father. Orders were put in place to protect the children’s connection with their father and to address the damaging effects of alienation and enmeshment.
Why this Case Matters
Highlights Complex Dynamics: This case underscores the complex nature of family dynamics, especially in highly contested divorce or separation situations. It brings to light unhealthy patterns like alienation and enmeshment.
Impact on Child Custody: Cases like Flacks & Chatburn demonstrate how parental alienation and enmeshment can be significant factors considered in child custody decisions. Courts recognise the potential harm and try to protect the child’s best interests.
Resources for Concerned Parties: This case, and others like it, provide a reference point for parents, legal professionals, and mental health experts dealing with similar situations.
Also read: Case Law on Parental Alienation in Child Custody Disagreements
Are unhealthy family dynamics impacting your case?
Enmeshment can significantly and negatively impact family law proceedings, especially during custody disputes. Understanding this complex dynamic and having legal representation will protect you and your children’s well-being is crucial.
Justice Family Lawyers is your advocate. We specialise in complex family law cases involving enmeshment and parental alienation. Our experienced team understands the emotional and legal complexities of these situations.
Contact us today for a confidential consultation. Let us fight for your rights and help you navigate this challenging situation.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

28 April 2024
The National Anti-Scam Centre’s collaborative efforts across government, law enforcement, consumer organisations and industry have boosted the community’s fight against financial crime, as the latest Targeting Scams report reveals a 13.1 per cent decline in reported losses to $2.74 billion in 2023.
The report compiles data reported to Scamwatch, ReportCyber, the Australian Financial Crimes Exchange (AFCX), IDCARE and ASIC.
It shows that Australians made over 601,000 scam reports to these organisations in 2023, an 18.5 per cent increase on 2022. In terms of financial losses, investment scams continued to cause the most harm ($1.3 billion), followed by remote access scams ($256 million) and romance scams ($201.1 million). With scam activity on the rise globally in recent years, the report highlights the impact of targeted and coordinated disruption activities across government, industry, law enforcement and community organisations, leading to lower overall financial losses.
“It is encouraging to see signs that our coordinated scam prevention, detection and disruption initiatives can stem the flow of funds to criminals and protect consumers,” ACCC Deputy Chair Catriona Lowe said.
“We are optimistic that our combined efforts will continue to reduce scam losses. We will continue this important work because losses remain too high and behind the numbers are real people who have lost money, often every last cent, to scams.”
“That’s why we remain committed to ensuring there are no weak links for scammers to exploit. A Scams Code Framework with strong, mandatory and enforceable obligations on banks, telcos and digital platforms will be central to this,” Ms Lowe said.
“Good data and intel sharing is also key and we will be adding to the number of parties sending data into the National Anti-Scams Centre having made good progress on sending data out.”
Scam trends
The Targeting Scams report shows some concerning emerging scam trends, despite the overall decrease in losses reported. There were increases in reports of financial losses to phishing scams, payment redirection scams and job scams.
The National Anti-Scam Centre is working to integrate data from many sources to provide more details on trends. The trends below are based on Scamwatch data only and should not be extrapolated to the combined data:

Older people suffered the greatest harm at the hands of scammers. People over the age of 65 were the only age group to experience an increase in reported losses. Losses for people over the age of 65 increased by 13.3 per cent in 2023 to $120 million. All other age groups reported a decrease in losses. People over the age of 65 were disproportionally impacted by investment scams. Many reported significant losses to scams resulting from contact initiated on social media.
Text messages were the most reported contact method with 109,621 reports (37.3 per cent increase from 2022). However, scam calls resulted in the highest reported losses at $116 million. Scams in which contact occurred via social media resulted in the second highest in reported losses, increasing by 16.5 per cent to $93.5 million.
Losses to job scams rose by 151.2 per cent to just over $24.3 million. People from culturally and linguistically diverse (CALD) communities were disproportionally impacted by job scams as were people looking for part-time work or seeking to supplement their income and ease cost of living pressures.  

“Scammers are financial criminals who use sophisticated technology and psychology to rob Australians of their money and personal information,” Ms Lowe said.
“Reports to Scamwatch indicate scammers are targeting older Australians with retirement savings, who may be looking for investment opportunities. We know of a recent case where an elderly woman lost her life savings after seeing a deepfake Elon Musk video on social media, clicking the link and registering her details online. She was assigned a ‘financial advisor’ and could see on an online dashboard she was apparently making returns, but she couldn’t withdraw her money.”
“While the National Anti-Scam Centre has made a positive impact since it was established on 1 July 2023, there is much more work to do. Over the next two years we will continue to invest in technology-based solutions  that will centralise intelligence and distribute information to those who can act on it – such as banks to freeze accounts, telcos to block calls or SMSs and digital platforms to take down websites or accounts,” Ms Lowe said.
“We will partner with other organisations to tackle the most harmful scams and we will continue to raise scams awareness with the people who are most at-risk as we work towards our common goal of making Australia a harder target for scammers.”
Top tips to avoid scams
STOP – Don’t rush to act. Scammers will create a sense of urgency.
THINK – Ask yourself if you really know who you are communicating with? Scammers can impersonate others and lie about who they are – especially online.
PROTECT – Act quickly if something feels wrong. If you have shared financial information or transferred money, contact your bank immediately. Help others by reporting to Scamwatch. 
Background
The data in this report is for the calendar year 1 January to 31 December 2023.
Reference to combined reports or combined losses include data from Scamwatch, ReportCyber, IDCARE, ASIC, and AFCX. These are the primary places that hold data relating to both scam losses and reports. Adjustments have been made to address duplication in reporting and to remove unreliable high loss reports from within those datasets.
In the future, through National Anti-Scam Centre data sharing arrangements, there will be more opportunities to integrate and de-conflict data. Future reports will also include additional data sets to produce a more accurate picture of scam activity in Australia.

When a court disagrees with a consent order, it won’t be approved as-is.  The judge will usually outline specific reasons for their disagreement. 
This could be due to the order being unfair, unreasonable, not adequately considering the needs of any children involved, or if one party was pressured into the agreement. In these scenarios, the parties involved must revise the order’s terms and resubmit the amended version. 
They may need to provide additional information or attend a court hearing to explain and justify the decisions within the revised consent order. 
It’s strongly recommended to seek legal advice throughout this process, as an experienced lawyer can help ensure the amended order meets the court’s standards, addresses the initial concerns, and protects the interests of those involved. 
Why Might a Court Disagree With a Consent Order?
Here are some common reasons why an Australian court might disagree with a consent order, especially within the context of family law:
Unfairness or lack of “just and equitable” terms: The court has a responsibility to ensure any agreement is fair to both parties. A consent order might be rejected if it heavily favours one person while significantly disadvantaging the other, particularly regarding financial settlements or property division.
Inadequate consideration of children’s best interests: The court prioritises the well-being of any children involved. A consent order may be rejected if the parenting arrangements, child support provisions, or other aspects are insufficient in protecting the child’s best interests.
Duress or undue influence: The court must ensure both parties entered the agreement freely and without coercion. The order may be deemed invalid if there is evidence of pressure, threats, or manipulation during the negotiation of the terms.
Lack of full disclosure: Both parties must completely and honestly disclose their financial circumstances. The order will likely be rejected if the court suspects that assets or income have been hidden, leading to an unfair agreement.
Procedural errors or incorrect format: Consent orders must follow specific legal requirements and formatting. If the document has administrative or technical errors, the court may not approve the orders until these errors are corrected.
Also read: How Long For Consent Order To Be Sealed
Can I Appeal a Court’s Decision on a Consent Order?
While you can technically appeal a court’s decision on a consent order in Australia, there are significant limitations, and success is not guaranteed. 
Limited Grounds for Appeal: Consent orders are unique because they represent an agreement between the parties, not a judgment imposed by the court. Therefore, you cannot appeal simply because you are unhappy with the outcome or have changed your mind. Valid grounds for appeal typically focus on procedural issues or specific circumstances, such as:
Fraud or Misrepresentation: If one party deliberately misled the other or misrepresented crucial information that influenced the agreement, there may be grounds for appeal.
Duress or Undue Influence: If you can prove you were pressured or coerced into agreeing to the terms, an appeal might be possible.
Lack of Jurisdiction: In rare cases, the court may not have had the authority to make the consent order in the first place.
New Evidence: If significant new evidence arises that was previously unavailable and could substantially impact the terms of the order, an appeal might be considered.
Difficulty in Appealing: Appealing a consent order is an uphill battle. Courts tend to uphold agreements freely entered into by both parties. You must present strong evidence to prove at least one of the limited grounds mentioned above.
How Do I Modify a Consent Order in Australia?
Modifying a consent order in Australia, particularly in family law matters such as child custody or property settlements, requires a specific process to ensure that the new order is legally enforceable. Here are the steps involved:
Review the Original Order: First, it is important to understand the terms of the original consent order. Check if there are any provisions about how and when the order can be changed.
Agreement Between Parties: If both parties agree to modify the consent order, they can negotiate the new terms mutually. The agreement must be in writing and should address all aspects of the order that are being changed.
Prepare a New Consent Order: A new consent order must be drafted once the parties have agreed on the changes. This should clearly outline the modifications and how they alter the original order.
File the New Consent Order: The new consent order must be filed with the court for approval. This typically involves submitting the agreement to the same court that issued the original order. The court needs to review the new consent order to ensure it is in the best interests of any children involved and that it is just and equitable to both parties.
Court Approval: The court will review the proposed modifications. If the court is satisfied that the changes are fair, reasonable, and in the best interests of the parties (especially children, in the case of custody agreements), it will approve the order. The court may request additional information or a court appearance if there are concerns or if the changes are significant.
Implementation: Once approved, the new consent order replaces the relevant parts of the original order and is legally enforceable. Both parties must adhere to the terms of the revised order.
If you do not have mutual agreement on the changes, you may need to apply to the court for a variation of the order.
This involves demonstrating to the court why the changes are necessary, such as a significant change in circumstances since the original order was made.
The court will then decide whether to modify the order based on the evidence presented.
Experienced Guidance Through Complex Family Law Matters
When the court disagrees with your consent order, it’s crucial to have experienced lawyers who can navigate the complexities of family law on your side. At Justice Family Lawyers, we specialise in reviewing and revising consent orders to meet the court’s requirements.
Contact us today to ensure your agreement stands the best chance of approval.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

Yes, it is possible to set aside consent orders in family law, but it can only be done under specific circumstances and usually requires demonstrating a valid legal ground.
Consent orders, which are agreements formally approved by a court and thus carry the same legal force as a judge’s ruling, are generally considered final. However, they can be set aside if new evidence emerges or if there was a significant mistake, fraud, or misrepresentation when the orders were made.
For example, if one party did not provide full and frank financial disclosure or if there was coercion or duress, a court might consider setting aside the consent order.
Significant changes in circumstances that could not have been anticipated when the order was made, especially those affecting the welfare of children, might also justify setting aside an order.
Courts typically require a substantial reason to overturn a consent order to avoid unnecessarily reopening settled matters and maintain the finality of judgments​.
The process usually involves filing a formal application with the court that originally issued the order, and it often requires legal advice or representation due to the complexities involved in demonstrating the required legal thresholds​.
Under What Circumstances Can Consent Orders Be Set Aside?
Consent orders can be set aside under various circumstances, primarily to ensure fairness and justice in family law. Here are some of the main circumstances under which consent orders can be challenged:
Material Non-disclosure: If one party fails to disclose significant financial or other relevant information that would have impacted the terms of the agreement, the consent order can be reviewed and potentially set aside.
Fraud or Misrepresentation: Similar to non-disclosure, if consent orders were based on fraudulent information or misrepresentations made by one party, this could be grounds for setting them aside.
Duress or Coercion: If it can be shown that a consent order was agreed to under duress or coercion, the court may consider setting it aside to ensure that all agreements were made freely and voluntarily.
Change in Circumstances: Significant changes in circumstances that were unforeseen at the time the consent orders were made, especially those affecting the welfare of children (such as a change in a parent’s health, lifestyle, or financial situation), may warrant revisiting and potentially setting aside the orders.
Error in Law or Process: Errors in the legal process or misunderstandings of the law at the time of agreement can also be grounds for setting aside a consent order.
Best Interests of Children: In cases involving children, if the consent orders are no longer in the best interests of the children involved, due to new circumstances or information, a court may consider setting aside the original orders.
These circumstances underscore the legal principle that consent orders while binding, are not beyond review if substantial reasons exist that challenge their fairness or appropriateness under current conditions.
The process typically involves legal proceedings where evidence is presented to justify the request to set aside the orders.
Also read: How Long For Consent Order To Be Sealed?
Can Consent Orders Be Set Aside If Both Parties Agree?
Yes, consent orders can be set aside if both parties agree. This is typically a simpler process than unilateral attempts to set aside consent orders because it does not require proving any of the usual grounds like fraud or material non-disclosure.
When both parties mutually consent to change or dismiss the orders, they can jointly apply to the court to have the order set aside or amended.
This mutual agreement is often reflected by submitting a joint application to the court, detailing the reasons for their decision and proposing how the terms of the original order should be modified or annulled.
The court respects such agreements as long as they comply with legal requirements and do not contravene any public policy considerations.
In cases involving children, even with mutual agreement, the court will review the proposed changes to ensure that they are in the children’s best interests before setting aside or modifying the original consent order.
The primary concern in these cases is to safeguard the welfare of the children, irrespective of the agreement between the parents.
What Happens After a Consent Order Is Set Aside?
After a consent order is set aside, several steps typically follow, depending on the nature of the order and the reasons for its annulment:
Reassessment and Renegotiation: The parties may need to renegotiate the terms of their agreement based on the new circumstances or information that led to the setting aside of the original order. This could involve revisiting financial settlements, property divisions, or arrangements concerning children.
Interim Orders: The court may issue interim orders to govern the situation until a new final agreement is reached or a new trial is conducted. This is particularly common in cases involving children, where immediate and ongoing arrangements must be specified to ensure their welfare.
Further Court Proceedings: Further legal proceedings might be necessary if the consent order was set aside due to fraud or significant non-disclosure. This could involve a full trial where all aspects of the case are reviewed in light of the newly available information.
New Consent Order: Once the parties reach a new agreement, this agreement can be formalised into a new consent order. The new order would then be submitted to the court for approval, ensuring that it complies with legal standards and serves the best interests of all involved, particularly any children.
Legal and Financial Adjustments: There may be significant legal and financial repercussions depending on how the consent order is adjusted. For instance, adjustments might need to be made to asset distributions, child support payments, or spousal maintenance.
The process is governed by the need to ensure fairness and legality in the new arrangements, safeguarding the rights and welfare of all parties involved. The court’s involvement is crucial in ensuring that any new agreement or order is just and equitable, particularly in light of the reasons for setting aside the original order.
Reclaim Your Rights with Justice Family Lawyers
Have you found yourself in a situation where a previous consent order no longer reflects your current circumstances or was established under less-than-truthful conditions? Justice Family Lawyers is here to help.
We specialise in reassessing and potentially setting aside flawed consent orders to ensure justice and fairness. Don’t let past agreements hold you back from what is rightly yours today. Contact Justice Family Lawyers for expert guidance and reclaim your rights!
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.

Gadens has advised Viva Leisure Operations Pty Ltd (a wholly owned subsidiary of Viva Leisure Limited (ASX: VVA)) on the recent acquisition of iFitness 24/7, a leading health club operator in the Northern Territory.
The addition of four new locations marks Viva Leisure’s inaugural entry into the Northern Territory market, elevating its portfolio to 173 locations nationwide. iFitness 24/7 is anticipated to bring in over 5,000 new members to Viva Leisure’s expanding network.
Viva Leisure intends to rebrand the newly acquired locations to Club Lime, increasing the number of clubs under this flagship brand to 112 and solidifying its position as Australia’s largest non-franchised health club brand.
Gadens has a longstanding relationship with Viva Leisure in supporting its strategic expansion across Australia.
Commenting on the transaction, lead partner Jeremy Smith, said: “It has been a pleasure to continue working together with the Viva team and we look forward to seeing the momentum that Viva will gain with a greater footprint throughout Australia.”
Practice groups: Corporate, supported by the Real Estate and Construction and Workplace Advisory and Disputes groups.
Key team members: Lead Partner Jeremy Smith was supported by Robert Wilson (Senior Associate), Daphne Chiang (Lawyer) and Stephanie Poloyannis (Lawyer).
The post Deal profile | Gadens advises Viva Leisure on the acquisition of iFitness 24/7 appeared first on Gadens.

26 April 2024
The ACCC will not oppose Metcash Trading Limited’s (Metcash) (ASX:MTS) proposed acquisition of wholesale food distributor SFG Group Holdings Pty Ltd, trading as Superior Food Services (Superior).
Superior purchases a wide range of food products from suppliers and distributes them to food service businesses such as restaurants, cafes, hotels and clubs, petrol and convenience stores, and institutions such as hospitals.
Metcash is a wholesale distribution company which supplies grocery and fresh foods to independent supermarkets and retailers. Metcash also operates Campbells, which also wholesales food and food adjacent products to retailers.
The ACCC’s review focused on how closely Metcash and Superior compete in the wholesale supply of food products to food service customers, how the acquisition may affect suppliers or increase Metcash and Superior’s buyer power, and the likely impact of the acquisition on prices, product range and quality.
“We conducted extensive market inquiries with customers, suppliers, competitors and industry associations. We ultimately found that the transaction would not be likely to substantially lessen competition,” ACCC Commissioner Stephen Ridgeway said.
Although both Metcash and Superior supply food products, market feedback indicates that they do not compete closely for customers.
Superior primarily sells and distributes products that are not suitable for direct retail sale, and Metcash does not have the product base to compete in any significant way for food service customers.
The merged entity will continue to be constrained in the supply of food service products by established competitors such as Woolworths-PFD Food Services and Bidfood.
“We found that Metcash and Superior make up a very small percentage of the overall demand from food suppliers, and that suppliers would continue to have many other alternative routes to market,” Mr Ridgeway said.
More information on this review can be found here: Metcash Trading Limited – SFG Group Holdings Pty Ltd
Background
Metcash is an ASX-listed wholesale distribution company with a food division that supplies dry grocery and fresh foods to independent supermarkets and convenience stores, including IGA, Foodland, Foodworks and Lucky 7 brands.
Metcash also operates Campbells, which supplies food and food adjacent products to grocery and convenience retailers, and remote communities through its network of 14 warehouses.
Superior is a privately owned food services distributor and supplies a wide range of dry, chilled, frozen, meat, small goods and seafood lines to food service businesses in all states and territories in Australia (excluding the Northern Territory). It trades under Superior Food Services, Mooloolah River Fisheries, Kay’s Meats, Global Meats and Sealanes.
‘food adjacent products’ refers to non-food items such as general merchandise, health and beauty products and tobacco.

Who can be elected to your strata committee?  More to the point, who can’t? The answer to the first question, in NSW at least, is just about anybody, including non-owners provided they are nominated by an owner who isn’t standing for election. The answer to the second is more complicated. Building managers and real estate […]