Unfortunately, it is not uncommon for parenting arrangements to fall apart and this sometimes results in one parent or caregiver choosing to retain the children. We understand that this is an extremely stressful time and we are here to help.
If your children have been retained, you should contact us straight away. In many cases it can be as simple as negotiating directly with your ex-partner or his/her lawyer. If for whatever reason we are unable to negotiate for the return of the children, it may become necessary to make an application for the children to be returned to your care. This is called a Recovery Application and requires you to file an affidavit which sets out the evidence you rely on in support of your application.
We can also make an application for your case to be heard urgently. Ordinarily the Family Law Act requires that parties attempt mediation prior to initiating Court proceedings, however if your matter is urgent, such as in the case of a recovery application, the Court is able to waive this requirement.
To help your lawyer file your recovery application as quickly as possible, we recommend that you spend some time prior to your Smart Start  appointment preparing a summary of your parenting matter. In particular you should focus on:

The historical parenting arrangements for your children;
Details of any previous Court proceedings;
The circumstances under which your children were retained;
Information about where you think the children are; and
If you are concerned that your children are at risk of harm, the details of the asserted risk.

If you’re not sure where your children are, we can seek that the Court make Orders to assist in locating your children.
What if I was the one who kept the kids?
Sometimes parents choose to retain their children for good reason. There is no presumption under the Family Law Act that children should continue to live with the parent they have historically lived with.
If you cannot reach an agreement about where your children should live, the Court will need to make a decision which is in their best interests.
If you have decided to keep the children, you should file an application straight away seeking that the children live with you. However, if you have been served with an application seeking that the children be returned to your ex-partner you will need to respond to the application and attend the Court hearing. Our Family Lawyers are able to assist with drafting your documents and representing you at Court.
How we can help
Irrespective of whether you have kept the children or your ex has retained them, our experienced Family Lawyers can assess the strengths and weaknesses of your case. If you do need to go to Court, our lawyers are skilled litigators who can draft your documents and represent you when your matter is listed.
Call us today on 1300 553 343 to book your fixed fee initial consultation or click the Smart Start button below.
Download Family Law Information Pack 
Book a Smart Start Appointment
 
By Linsey Wilson

The post Help my ex kept our kids! appeared first on Roberts Legal.

SafeWork NSW – “Johnny on the spot” – New power to issue on the spot fines against individuals and corporations
Employers need to be aware that following amendments to the Work Health & Safety Regulation 2017 (the Regulations)[1], SafeWork inspectors have been granted additional powers to issue on the spot penalty notices against persons conducting business or undertakings (PCBU’s) for both a failure to notify the Regulator of a notifiable incident arising out of the conduct of its business or for failing to display a copy of an improvement, prohibition or non-disturbance notice issued by SafeWork.
The on the spot fine is $6,000.00 for a failure to notify an incident. PCBUs may still be prosecuted for these offences by way of the issue of a Summons by the Regulator in the appropriate Court for maximum penalties of $10,000.00 for an individual and $50,000.00 for a body corporate.
Businesses and their Officers should ensure that in the event that they have an incident in the workplace, they obtain immediate legal advice about whether it is a notifiable incident under the Work Health & Safety Act 2011 (NSW) (the Act) and the Regulations, as they may now be issued with either on the spot fines or prosecuted for breaches as indicated.
In addition, Businesses and their Officers should also be aware that if they are issued with improvement, prohibition or non-disturbance notices, a failure to display those notices can result in on the spot fines of $3,000.00, or if under the existing powers of prosecution by way of Summons, in the case of an individual, a maximum penalty of $5,000.00 and in the case of a body corporate a maximum penalty of $25,000.00.
In the event your business is issued with any notices by SafeWork, you should seek immediate legal advice as to an appropriate response in terms of your obligations and if the notice and its obligations can be challenged.
 
Other proposed Amendments to the Act and Industrial Manslaughter in other States & Territories
The latest changes to the regulations go hand in hand with the current Bill[2] being considered before NSW Parliament to amend the Act to include a new Category 1 offence of Gross Negligence, ban insurance and indemnities for penalties and increase and index penalties under the act to the CPI. For information regarding this Bill see our previous article.
While NSW moves forward with its own amendments to the model, Work Health & Safety legislation has fallen short of introducing any industrial manslaughter legislation which has been occurring in other states and territories.
Labor government states and territories have chosen to implement their own legislation as to the creation of industrial manslaughter offences with varying maximum penalties, which once again brings into question the use of National harmonised safety legislation and a model act.
Western Australia, as part of its Work Health & Safety Bill 2019,  is seeking to create two separate manslaughter offences with a maximum of 20 years goal and $5 million in penalties for individuals and $10 million for bodies corporate who are found guilty of industrial manslaughter which involves engaging in conduct knowing that the conduct is likely to cause the death of an individual and who acted in disregard of the likelihood of death.
Victoria were the next to act by passing the Workplace Safety Legislation Amendment (Workplace, Manslaughter & other matters) Bill 2019 on 26 November 2019 which will commence operation on 1 July 2020. It introduces maximum fines of $16,522,000.00 for bodies corporate and gaol terms of up to 20 years for company officers negligently causing the death of a work or a member of the public
The Northern Territory on 27 November 2019, passed the Work Health & Safety (National Uniform Legislation) Amendment Bill 2019 which introduced the Work Health & Safety offence of industrial manslaughter with penalties of imprisonment for life for individuals and penalties of $10,205,000.00 for bodies corporate. Queensland and the ACT already have existing industrial manslaughter offences.
It remains to be seen whether the remaining states and the Commonwealth adopt a similar approach, however given that they are currently governed by Coalition Governments this would appear to be unlikely in current government terms.
 
SafeWork Australia releases report into workplace fatalities
SafeWork Australia has released a report into the number of work-related fatalities across Australia for 2018.[3] The report indicates that most fatalities occurred in the transport and warehousing, agriculture and forestry and construction industries.
In 2018 Nationally there were a total of 144 workers fatally injured at work with a rate of 1.1 deaths per 100,000 workers. Overall there were 38 deaths in the transport industry, 37 in the agriculture and forestry industries and 24 in the construction industry. In addition to the figures with respect to Australian workers the report states that 62 members of the public were killed by the actions of a worker or in a workplace incident.
The findings of the report reflect the serious risks associated with the transport, agriculture and construction sectors. All Businesses and their Officers operating in those industries should ensure they have proper Work Health & Safety management systems and are compliant with legislative requirements. This is particularly the case given that the Regulator’s enforcement matrix provides for prosecution to occur in cases where there are workplace fatalities.  Given the new offences and penalties regime, the risks of large penalties and custodial sentences for individuals associated with a serious workplace incident are significant.
Roberts Legal is able to assist Companies and their Officers in ensuring that they have compliant systems through various fixed fee packages and compliance products.
 
Drug & Alcohol Policy – Dismissal for drinking two beers before work overturned
In a recent case which highlights that while employers have the best of intentions in regard to drugs and alcohol in the workplace, they need to ensure that any policies have a consistent approach and managers enforcing those policies have a full understanding of how they operate.
The Fair Work Commission’s Deputy President, Geoffrey Bull, has agreed with an employee of Circo Australia Pty Limited, who operate the Villawood Immigration Detention Centre, that his termination as a Detainee Service Officer was unfair, following his dismissal for consuming two beers before commencing his unscheduled shift.
In the case of Morcos vs Circo Australia Pty Limited [2019] FWC7675 (21 November 2019), Deputy President Bull considered that the employee, Mr Morcos, had been unfairly dismissed when he was terminated for attending the workplace after drinking alcohol when he knew that the site’s blood alcohol limit was zero. The worker initially told his employer that he had only had one beer at lunchtime before commencing his shift at 6:00pm but later admitted that he had a second beer at 3:30pm.
The worker’s blood alcohol level at the time of testing was beneath the driving limit of 0.05 and he registered a blood alcohol reading of 0.037. Notwithstanding that Circo had a “zero tolerance” approach to workers working under the influence of drugs or alcohol, Deputy President Bull found that as the employer’s policy provided that any reading between 0.01 and 0.05 resulted in a worker being stood down and given a formal warning, Mr Morcos should remain employed. The actions of the manager in terminating Mr Morcos for serious misconduct was inconsistent with the policy.
The Deputy President Bull found that the employer’s policy did not state that knowingly attending work having consumed alcohol, was considered to be serious misconduct and there were inconsistencies in its application and approach. Accordingly, the Commission ordered that Mr Morcos be reinstated to his former position but declined to make an order for compensation for lost wages during the time between his termination and reinstatement.
Whilst this is an employment related matter, it illustrates how Work Health & Safety policies such as those dealing with drugs and alcohol, can result in employment and industrial consequences. Businesses should be aware that there are risks associated with drugs and alcohol in the workplace and should have appropriate policies and testing regimes, particularly in hazardous industries. Businesses that already have existing drug and alcohol policies, should review and update policies regularly and ensure that they consistent throughout and enforced appropriately, as reliance on badly drafted or enforced policies in a disciplinary / termination context can have unwanted consequences.
By Jeremy Kennedy
Find out more about our WHS capability

[1] Work Health & Safety Amendment (Miscellaneous) Regulation 2019
[2] Work Health & Safety Amendment (Review) Bill 2019
[3] Work-related Traumatic Injury Fatalities, Australia 2018 – SafeWork Australia
The post WHS Update appeared first on Roberts Legal.

Major WHS Changes for Companies and their Officers
Following findings of the Federal Senate Inquiry –‘They never came home – the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia’ into the model Work Health & Safety Act and its operation since 2011 the NSW Parliament has been the first state to act to implement key recommendations arising from this inquiry without waiting for changes to the model act or other states.
Insurance & Indemnity Safety Net to be Banned
The most controversial and worrying of these changes for companies and their and officers[1] are proposed amendments to the Work Health & Safety Act 2011 (NSW) (The Act) which will make any form of insurance to cover penalties under the Act for work health and safety offences illegal and to make it an offence to take out any such insurance, offer such insurance or to enter into any type of agreement for an indemnity in relation to penalties.
The Work Health & Safety Amendment (Review) Bill 2019 was introduced to the Legislative Assembly of NSW Parliament on 12 November 2019 and which inserts a new section 272A into the act making it an offence to enter into a contract of insurance or other form of indemnity arrangement if a person is convicted and found liable for a monetary penalty under the Act or to take the benefit of a contract of insurance or other form of indemnity arrangement for a monetary penalty under the Act.
In addition to a prohibition on such insurance and indemnity arrangements the proposed amendment provides for penalties for breaching the insurance/ indemnity prohibition in the case of individuals of up to $50,000.00 and in the case of a body corporate up to $250,000.00.
The amendments also provide for offences by Officers if they ‘aid, abet, cancel, induce with threats or promises, or conspire to effect the commission of the offence’ of taking out such insurance or providing such indemnities.[2]
The proposed amendments will commence upon the passing of the bill, however will not have retrospective operation for insurance or indemnity agreements that existed at the time of the commencement of the bill, that is, existing arrangements for insurance will not be considered to be illegal under the Act and could potentially be relied upon if a person is prosecuted for an offence that occurred prior to the passing of the bill.
Current Insurance for Work Health & Safety Offences
Currently a range of insurers offer insurance products which purport to interact with a work health and safety event and provide coverage for costs associated with regulator investigations and prosecutions and also for any penalties which may be imposed upon companies and individual officers and directors. These insurance products are in the form of specialised work health and safety insurance products, statutory liability policies and directors and officer’s insurance.
The existence of these policies has been somewhat controversial since they became available in the insurance marketplace over the last 10 years. There has been a significant legal view that insurance for at least the payment of penalties, under the Act, for what are criminal offences, is against public policy and should be considered illegal.[3] Notwithstanding this view however insurers have written such policies of insurance and taken premiums from their insureds and indeed have made payments to insureds who have been prosecuted by regulators under the various state work health and safety legislation (model legislation).
To some extent it has been surprising that regulators have not drilled down into the insurance issue to a greater level when prosecuting matters as the existence of a policy would be a relevant factor in sentencing.[4]
Executive Contracts & Indemnities / Deeds of Indemnity & Shareholder Agreements
It has been a known practice particularly for executives and directors to negotiate terms in their executive contracts/ contracts of employment that provide for indemnities to be given to them for any offences/penalties which they may be found guilty of under the Act. Under the proposed amendments to the Act this practice will become illegal and unenforceable.
Further, it is also common practice for directors and shareholders to obtain deeds of indemnity or have provisions in shareholder agreements tied to directorships, to seek indemnities from the relevant corporate entity which may in certain circumstances extend to such liabilities under the Bill. These may now become illegal and unenforceable.
Of concern, is that persons who provide advice about such indemnities and deeds such as accountants, solicitors, insurance brokers and advisors, could potentially be knowingly concerned in or party to the commission of an offence and guilty, of an offence under the Bill.
New Category 1 Offence
The Bill also introduces a new offence in relation to Category 1 offences being that of gross negligence. This is in addition to the already existing Category 1 offence of recklessness to the risk to an individual of death or serious injury or illness.
The legal test for gross negligence is a lesser fault element than recklessness and will make it easier for prosecutors to successfully commence proceedings under the category 1 offence provisions. The penalties for such offences will be increased under the bill to 5 years gaol and $346,500 for individuals per offence and $3,463,000 for companies per offence.
Other Proposed Amendments
In addition, the bill seeks to make other amendments to the Act to clarify duty holders, making it clear that a person conducting a business and undertaking (PCBU) can have multiple duties and also be a worker under the Act.
The other key change is the introduction of indexation of penalty units under the Act to the Consumer Price Index (CPI) which will see further increases to penalties automatically and annually. For now, however the bill increases penalties for all 70 odd offences under the Act for the first time since its commencement in 2011. The increases are said by Government to be equal to all CPI increases since 2011 to date.
Recommendations Arising from Proposed Amendments
Overall the bill seeks to implement significant changes to the current Act. Roberts Legal strongly recommends that companies and their officers undertake a review of their current work health and safety systems and policies and given the distinct possibility that insurance for work health and safety offences will become obsolete it is now more important than ever that companies and Company Officers ensure compliance with the Act and Regulations.
Roberts Legal suggests that you undertake a review of your current insurance program/regime to identify any insurance products which may fall foul of the prohibitions of the new prohibition on policies of insurance for penalties arising from work health and safety offences.
Whilst policies that are in existence at the time that the bill is eventually passed will not lead to a breach of the provision, any renewal of such policy would be considered to be a new policy of insurance and as such in breach of the new provisions.
Accountants, insurance brokers and even legal advisors providing general advice on insurance director/shareholder agreements and indemnity issues must be cautious that they are not providing advice that may lead to them being knowingly concerned or party to the commission of the new offences under the Bill.
We would encourage you to seek advice in relation to such insurance products as there may be aspects of the policies which are now illegal, in particular, in relation coverage for legal costs and related expenses incurred during a regulator investigation into a serious work health and safety incident and the obtaining of legal advice and/or the legal costs associated with any prosecution or other proceedings arising from alleged breaches of the Act.
WHS Compliance Products & Training
Roberts Legal is able to assist companies and their officers and has a package of compliance products which can ensure your legal compliance and limit the risks to your business and to you personally as an officer. These compliance products are set out below;
1. Desktop Legal Compliance Review / Report
We will review your existing WHS documentation and systems and consider the risks and hazards based upon your industry sector. Roberts Legal will provide a compliance and systems gap analysis report in terms of legal compliance which will be undertaken under legal professional privilege and cannot be used as evidence of non-compliance by a regulator.
Price $5,500.00.
2. Director & Officer Training
We have a program of Director and Officer training on WHS and Officer due diligence requirements to ensure that Officers are aware of their obligations under the Work Health & Safety Act and the requirements to exercise due diligence together with practical and legal steps and advice to ensure protection of risks from individuals being prosecuted.
Price $2,500.00 plus negotiated travel time.
3. Incident Management Training
We are able to provide training in regard to management of a serious workplace incident and/or regulator investigations and assist in the development of a disaster management plan to ensure that in the event of a serious workplace incident and regulator investigation you are properly protected legally.
Price $2,500.00 plus negotiated travel time.
4. Insurance Review
We are able to undertake an independent review of your company’s insurance program of policies for interaction and protection from WHS risks and existing penalties for companies, directors, officers and employees and provide a gap analysis and recommendation in regard to changes to your insurance program. Roberts Legal is able to recommend appropriate insurance products from reputable brokers.
Price $2,500.00
5. Master Disaster Incident Management Guide & Response
Roberts Legal has developed a legal guide to dealing with a serious safety incident and disaster response management. This is a 100-page electronic document authored by Jeremy Kennedy and includes access to regular updated materials.
Price $1,000.00.
6. Combined Package
Roberts Legal is able to provide a combined package of all of the above products for the sum of $8,500.00.
By Jeremy Kennedy
Find out more about our WHS capability

[1] Officer as defined in section 4, Work Health & Safety Act 2011 (NSW)
[2] New section 272B to be insert in to Act
[3]‘Insuring Directors Against Criminal OHS Wrongdoing’ – Professor Neil Foster – University of Newcastle Law School February 2011.
[4] Hillman v Ferro Con (SA) Pty Limited (in liquidation) & Anor, SAIRC, 22 July 2013
The post No More Work Health & Safety Net appeared first on Roberts Legal.

Christmas is stressful enough without having to second-guess what your ex partner’s plan is.  Take a look at our Top 7 must-do’s below to make sure you’re on the front foot with parenting arrangements.
Make arrangements early
Christmas is a busy and expensive time of year for everyone.  The extra stress of the holiday season can lead to the most amicable of co-parenting’s ending up in conflict trying to sort our parenting arrangements. Be organised and have a plan in place well before the Christmas chaos.
Confirm arrangements in writing well in advance
The last thing you need on Christmas Day is a miscommunication about who is picking up the children from where.  Confirm the time and location of changeover in writing in advance and confirm once again the day before.
Be practical
Whilst changeover taking place at 12 noon on Christmas Day seems “fair”, it’s not always practical.  Before confirming the changeover, think about what will be happening at that time.  It’s not practical for anyone if everyone misses out on Christmas lunch!
Stay child-focused
Christmas should be about the children. Consider whether it’s really best for the children to make long trips on Christmas Day just to ensure they see both parents.  The presents left by Santa will last under the tree for a couple of days if need be.
Think of the (other) children
In a blended family you may need to consider multiple sets of children.  Children will probably have the most fun spending the day with other kids, especially their step and half siblings.  Sit down and map out the arrangements – it can be easy for children to “miss” each other if you’re not well organised.
Make sure the children know the plan
People like knowing what’s going to happen and this includes children.  If the children know the plan well in advance, they are less likely to experience anxiety, making the day more enjoyable for everyone.
Get a second opinion
If you can’t sort it out between yourselves, don’t be afraid to get some outside help.  This can be from a mutual friend, a Family Dispute Resolution Practitioner (Family Law Mediator) or a Family Lawyer.  Don’t leave it too late though.  In some cases, you might need a Judge to make a decision; Court lists fill up quickly in the lead up to Christmas.
How Can We Help?
If you need help with your parenting arrangements for the Christmas period, arrange an initial appointment with one of our specialist Family Lawyers.
Our Family Law solicitors have urgent appointments available to assist you if you need help.  We can also have next day Court availability.
 
Smart Start Fixed Fee Initial Appointment
60 Minutes with a Specialist Family Lawyer
$275.00
Book a Smart Start Consultation
 
 
By Jade Coshaw
 
The post Our Top 7 must-do’s for co-parenting with an ex over Christmas appeared first on Roberts Legal.

Recent high profile investigations, significant media coverage and union/ACTU campaigns on what has been labelled as “wage theft” and a business “orgy of greed”[1] have certainly highlighted for Australian employers their ongoing need to comply with the Fair Work Act, National Employment Standard and industry modern awards, but is the problem as large as proponents say?
Unions argue that recalcitrant Australian employers are engaged in “systematic and deliberate underpayment of wages and entitlements to Australian workers”[2]. In my view there is limited evidence supporting this fact. From my own experience in acting both as a prosecutor on behalf of the former Workplace Ombudsman and directly for employers in investigations and litigation commenced by the regulator, the vast majority of underpayment issues stem from a lack of employer knowledge, lack of access to appropriate information and resources and a misunderstanding of our very complex industrial relations and wages system in Australia. For example, in the highly reported Sunglasses Hut retail chain underpayment claim covered in recent media, the $2.3 million dollar underpayment to 620 of its employees was actually identified by the company itself. The owner company of the retail business conducted its own audit and realised that they had failed under the retail industry award to agree in writing with its part time workers on a regular pattern of working hours and days resulting in consequentially a significant underpayment of overtime.
The employer in this case identified the pay error and reported itself to the Fair Work Ombudsman (‘FWO’) stating it had a poor understanding of the application of the modern award and relied on practices prior to the modern award system being commenced. In my experience this misunderstanding of our complex system is a significant factor in what is now being called wage theft.
Whilst the use of the word “theft” by the union movement and left facing legal/industrial relation academics provides a suggestion of criminal conduct associated with wage underpayment however there are currently no criminal offences on the legislative books which make underpayment of wages a criminal offence. This however looks likely to change given the Morrison government’s unveiling of proposed changes to the Fair Work Act including the introduction of criminal penalties for the worst and most deliberate cases of wages underpayment. A discussion paper dealing with proposed criminal sanctions suggests that these should be similar to the “corrupting benefits” provisions of the Fair Work Act with criminal penalties of 10 years imprisonment and $1 million dollar fines for individuals and $5.25 million dollar fines for companies.
In addition to the push for criminal sanctions, unions and industrial academics are seeking increases to current penalties that already exist both federally and in the various states as well as an increase in resources for the regulators, both state and federal which appear to have been adopted by government. The FWO has a not insignificant office and presence in our own Hunter Valley and which no doubt will see a push for many of our Hunter businesses to fall under the microscope of the regulator.
The FWO is responsible for monitoring compliance with the Fair Work Act, fair work instruments and safety net contractual entitlements[3]. The FWO when investigating potential breaches and non-compliance has coercive powers in undertaking investigations including entering a business’ premises[4], conducting interviews and requiring production of records and documents[5] and issuing of formal notices to produce[6]. Failures to comply with or to hamper a FWO inspector when exercising these powers can result in penalties of up to $63,000.00[7].
The FWO, following an investigation, has a number of options in terms of enforcement. These include the issuing of compliance notices which are non-punitive measures instead of Court proceedings[8], agreeing to enforceable undertakings[9], issuing of a contravention letter[10], issuing of an infringement notice[11] and litigation for the most serious cases of non-compliance seeking penalties currently up to $630,000.00 for a major offence and $63,000.00 for minor offences against corporations. The FWO can also act on behalf of employees seeking payment of outstanding monies[12].
In terms of outcomes of any litigation the FWO can seek and the Courts order that underpayments be rectified and interest paid, that compensation be paid to the workers effected, that civil penalties be paid to the Commonwealth or where appropriate to the impacted party together with injunctions to stop or prevent further contraventions and that companies undertake specific steps including training and wage audits.
So, are things as bad as being suggested by all the hype in terms of non-compliance? The FWO released its Annual Report for 2018/19 to the public on 22 October 2019[13]. The report states that they have recovered just over $40 million in underpayments for 18,000 workers in that year. But what is this as a percentage of total wages and salaries paid to Australia’s 15 million workers with an average income of $55,000 per annum. A paltry 0.0048 %. of our total wages has been recovered due to the underpayment and wages theft crisis! If the regulator is doing its job which we assume to be the case, then things are really not as bad as is being suggested.
Nevertheless given the high level of attention by the FWO, the union movement and the media in relation to alleged “wages theft” by Australian businesses I strongly suggest that employers undertake a review of their own wage system and payments as against the Fair Work Act and modern awards or other industrial instruments relevant to ensure that they are paying the correct amounts to their employees.
How Can We Help?
For further information please contact Roberts Legal on (02) 4926 2236, email [email protected]
By Jeremy Kennedy

 
[1] Tony Sheldon – Transport Workers Union (10 May 2019)
[2] Beech Wage Theft Inquiry – Western Australia (April 2019)
[3] Fair Work Act Section 706(1)(a) and (b) and Section 706(2)
[4] Fair Work Act Section 708(1)
[5] Fair Work Act Section 709 and Fair Work Regulation 5.06
[6] Fair Work Act Section 712
[7] Fair Work Act Section 539
[8] Fair Work Act Section 716(2)
[9] Fair Work Act Section 715
[10] Fair Work Regulation 5.05
[11] Fair Work Regulation 4.03 and 4.04
[12] Fair Work Act Section 682(1)(f)
[13] The Fair Work Ombudsman and Registered Organisations Commission Entity Annual Report 2018-19

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Amendments to the Building and Construction Industry Security of Payment Act 1999 (the Act) passed on 21 November 2018 will be commencing on 21 October 2019. The amendments will apply to all Construction Contracts entered into from 21 October 2019 with the existing regime to continue to apply to all previous contracts.
The amendments bring about two important changes for contractors claiming progress payments.
Payment Claims
Importantly, all rights under the Act flow from the service of a valid Payment Claim. Under the current regime a Payment Claim will be invalid if it is not issued on or after an available Reference Date. This oversight is by far the most common factor affecting the validity of a Payment Claim and is unlikely to change despite the change in terminology affected by the amendments.
Reference Dates may seem boring but when a head contractor is holding back money that should be in your bank account and your employees and subcontractors are demanding payment, they can suddenly become very important.
Reference Dates
One of the most talked about amendments to the Act is the abolition of the concept of a Reference Date. However, Reference Dates will continue to be relevant to progress claims under pre-21 October 2019 contracts.

For pre-21 October 2019 contracts a Payment Claim can only be served on or after a Reference Date, namely:
The date determined in accordance with the contract as the date upon which a claim for a progress payment may be made, or
If the contract makes no express provision in relation to the matter, the last day of the month in which construction work was first
carried out and the last day of each subsequent named month.

Abolition of Reference Dates: Reference Dates by another Name
For contracts entered into from 21 October 2019 the concept of a Reference Date will cease to exist. Instead, a contractor who has carried
out work under a Construction Contract will be entitled to serve a Payment Claim:

On and from the last day of the month in which the construction work was first carried out and on and from the last day of each subsequent named month,
If the relevant contract makes provision for claiming a progress payment on one or more earlier dates, the contractor will also be entitled to serve a Payment Claim on or after those earlier dates, and,
On or after the date of termination of the contract. Despite the abolition of Reference Dates, the validity of a Payment Claim will still depend on there being an available date by reference to which the Payment Claim was entitled to be served.

It will also remain the case that only one Payment Claim can be served in relation to any date by reference to which the contractor was entitled to claim a progress payment.
Statement under the Act
The second relevant amendment for claiming progress payments is the reinstatement of the requirement that a Payment Claim must state that it is made under the Act. A statement to the following effect should, therefore, now be included in any document intended to constitute a Payment Claim under the Act: “This is a Payment Claim made under the Building and Construction Industry Security of Payment Act 1999.”
A Payment Claim under a pre-21 October 2019 contract may still, however, be valid despite the absence of such a statement.
Conclusion
Despite the abolition of Reference Dates, contractors need to remain vigilant of when they are entitled to claim a progress payment under a contract (and/or the Act) as a document purporting to be a Payment Claim that does not relate to such a date will not be valid and will not enliven the unique rights that would otherwise flow under the Act.
Contractors should also ensure that all progress claim templates and forms are updated and include a statement that the claim is made under the Act where the claim is intended to be a Payment Claim.
Finally, contractors would be wise to review their contracting procedures and standard form documentation to make Construction Contracts that also create an entitlement to claim a progress payment on one or more earlier dates during a month, where more frequent progress payments are
relied upon to maintain cash flow or where the contractor has a practice of claiming payment for variations separately.
For further information please contact Roberts Legal on (02) 4926 2236, email [email protected]

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This is a very common question asked by parties following a separation.  It can be incredibly unpleasant to have to continue to live with an ex-partner until financial settlement is achieved.  Unfortunately, it is also incredibly difficult to force an ex-partner to leave the family home.
The court is of the opinion that it is a very serious step to order someone to leave their home and the circumstances of the case must be very compelling to convince the court to do so.  Obviously the existence of family violence or a risk of harm to children would be compelling justifications however where neither of these two factors exist it is a very difficult case to make.
One recent case where it was successfully argued that the wife (in this case) should be ordered to leave the home was the case of Tailor [2019] FamCA 383 (2 July 2019).  This case involved a very elderly couple and the husband successfully argued that the wife’s presence and harassment of him in his frail state was significantly harming his health.  One factor which I do not believe should be overlooked was that the wife had alternative accommodation available to her and the husband had agreed to continue to provide financial support to her.
How Can We Help?
If you have questions about a separation, please contact us today on 1300 553 343 or email [email protected] to schedule one of our ‘Smart Start’ fixed fee appointments.
Book a Smart Start Consultation
By Samantha Miller

 
The post Can I make my husband/wife leave the family home now that we’re separated? appeared first on Roberts Legal.

A Recent Case Looking at Secret Recordings Made in Parenting Matters
Coulter & Coulter (No. 2) [2019] FCCA

There are numerous circumstances in which parents may be tempted to record meetings or my find they are in possession of recordings.  Whether or not these recordings will be able to be used as evidence in court proceedings always turns on the particular circumstances of a matter and thus it is difficult to provide definitive advice.  Essentially the test is weighing up the desirability of including the evidence against the undesirability of excluding it.
The case of Coulter dealt with two types of recordings:

Video recordings made by the mother during meetings with the father to hand over the children; and
Audio recordings of conversations between the father and the children which the mother was not a party to.

The case considered the courts discretion to admit evidence even if it was improperly or illegally obtained and the importance of privacy for the children in order to enjoy a meaningful relationship with their father.
The court found that it was not improper for the mother to have taken recordings of the handovers in circumstances where she had suffered family violence at the hands of the father and had a legitimate interest in ensuring both her own safety and that of the children and further where it was in the best interests of the children to ensure they were not exposed to conflict.
Thus, the video recordings were found to be admissible.
On the other hand the existence of the audio recordings was found to evidence a significant breach of the children’s trust by the mother.  This breach of trust could not be in the best interests of the children as it risked undermining their relationship with the father.  Despite this finding the court could still have used it’s discretion to admit the audio evidence if it could be shown that the desirability of so doing outweighs the undesirability of excluding them.
The court did not find that the audio recordings should be admissible.
How Can We Help?
If you have questions about a parenting matter, please contact us today on 1300 553 343 or email [email protected] to schedule one of our ‘Smart Start’ fixed fee appointments.
Book a Smart Start Consultation
By Samantha Miller

 
The post Are Secret Recordings Admissible as Evidence? appeared first on Roberts Legal.

The article below was published in the Hunter Business Review October 2015 Issue.
The Building & Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) is unlike any other law in the country (apart from its interstate equivalents). The purpose of the Act is to improve cash flow for contractors, suppliers and professionals in the building industry (“contractors”). It applies to contracts for the carrying out of construction work (or supply of related goods or services) in NSW with only a few exceptions.
The purpose of the Act is achieved by creating a statutory right to payment of a Payment Claim that is not disputed within the allowed time, and establishing a regime for the swift and independent Adjudication of a disputed Payment Claim. The Act, therefore, enables contractors to recover payment without becoming involved in expensive and prolonged Court proceedings.
Reference Dates
All rights under the Act flow from the service of a valid Payment Claim. A Progress Claim or a Tax Invoice will be a valid Payment Claim provided that it sufficiently identifies the construction work (or related goods or services) to which it relates and is issued in relation to an available Reference Date[1]. A Reference Date is a date from which a claim for a progress payment may be made under a contract. If the contract makes no express provision in relation to the matter, the Reference Date is the last day of each month in which construction work is carried out.
Payment Schedules
If a party to a contract receives a Payment Claim (“the respondent”) claiming an amount that is disputed, unless they provide a Payment Schedule in response to the Payment Claim strictly within the allowed time they will become liable to pay the amount claimed, and be prohibited from raising any Cross Claim or Defence under the contract if action is taken to enforce a statutory right to payment regardless of the merits of the dispute. Essentially, where a respondent fails to provide a Payment Schedule the contractor will have an indisputable statutory right to payment of the amount claimed in the Payment Claim and will be entitled to suspend work under the contract if payment is not received by the due date[2].  A Payment Schedule may only be provided by the earlier of the period specified in the contract (if any) and 10 business days after the Payment Claim was served. Tracking the date of service of a Payment Claim is, therefore, also essential practice[3]. As there is no prescribed form for a Payment Schedule, you should assume that any written response to a Payment Claim (including emails and SMS messages) that either specifies a lesser amount payable or indicates that no amount will be paid, will be a Payment Schedule for the purposes of the Act.
Adjudication
If a Payment Schedule is provided within the allowed time specifying an amount that the contractor rejects the contractor may apply for the independent Adjudication of the amount payable. Strict time frames exist in relation to the lodging of Adjudication Applications[4] and there is usually only one chance to present your case and supporting submissions to the Adjudicator. To be safe, you should assume that there is only 10 business days to lodge an Adjudication Application after receiving a Payment Schedule. If you receive a Payment Schedule, or a document that you think might be a Payment Schedule, it is usually best to speak to a Lawyer experienced in Security of Payment Adjudications the same day. The Adjudication of disputed Payment Claims is an invaluable Regime for contractors to use to avoid expensive and prolonged litigation through the Courts. Adjudication is by far the quickest and cheapest way of obtaining an enforceable Judgment and ultimately getting paid.
Amendment trap
As there is no longer any requirement for a Payment Claim to indicate that it is a claim made under the Act[5], contractors who do not keep track of Reference Dates and unknowingly issue a valid Payment Claim may lose the chance to apply for Adjudication of a disputed Payment Claim without even knowing that the time for lodging an Adjudication Application had begun to run. In summary, if you are a contractor that carries out work or supplies goods or services to which the Act applies you should:

Apply your mind at the outset of a project to the Reference Dates that will arise under the contract.
Track closely the dates of service of a Payment Claim and the final dates for provision of a Payment Schedule.
Seek legal advice promptly should a statutory right to payment arise or if you consider that you may need to apply for Adjudication of a disputed Payment Claim.

Quite literally, tracking these dates and taking action promptly when necessary could be the difference between the success and failure of a business.
[1] For contracts entered into on or after 21 April 2014 for residential building works by a subcontractor there is also a requirement that the Payment Claim indicate that it is made under the  Building & Construction Industry Security of Payment Act. A Payment Claim served by a Head Contractor on a Principal must be accompanied by a Supporting Declaration.
[2] The due date for payment is the earlier of the date specified in the contract and the dates specified in Section 11 of the Act. Work my only be suspended if the contractor has first served Notice of Intention to Suspend under Section 15(2)(b) of the Act.
[3] To best avoid disputes in relation to the dates of service, Payment Claims should be served by facsimile transmission wherever possible with a copy of the successful transmission confirmation kept in the job file.
[4] See Section 17(3) of the Act for the different time frames that an Adjudication Application can be made. An Adjudication Application can also be made where a Payment Schedule was not provided subject to Section 17(2) of the Act.
[5] Unless the work relates to a subcontract in respect of residential building work under the Home Building Act.
The post Hunter Business Review Article: Security of payments: dates, deadlines & traps appeared first on Roberts Legal.

Since 1 October 2018, most casual employees have been entitled to request their employment status be converted to full time or part time status where certain requirements are met and an employer cannot refuse the request unless it has reasonable grounds to do so.
With over 84 Modern Awards being amended from 1 October 2018 to include an entitlement for casual employees to request conversion of their employment status, it is crucial that employers are aware of this new entitlement and in particular their obligation to make their casual employees aware of their right to request conversion of their employment status.
The below is an example of a clause that has been introduced into Modern Awards from 1 October 2018. You should consult the individual award that covers your business to determine your exact obligations in relation to casual conversion.
Sample Clause
(1)      A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.
(2)      A regular casual employee is a casual employee who has, in the preceding period of 12 months, worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.
(3)      A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.
(4)      A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.
(5)      Any request under this subclause must be in writing and provided to the employer.
(6)      Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.
(7)      Reasonable grounds for refusal include that:
(a)      it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award –that is, the casual employee is not truly a regular casual employee as defined in paragraph (b).
(b)      it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(c)      it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
(d)     it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(8)      For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
(9)      Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in the Modern Award. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(10)    Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:
(a)      the form of employment to which the employee will convert –that is, full-time or part-time employment; and
(b)     if it is agreed that the employee will become a part-time employee, the matters referred to in the clause titled “Part- time Employment”.
(11)    The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(12)    Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(13)    A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied in order to avoid any right or obligation under this clause.
(14)    Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.
(15)    Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.
(16)    An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work.
(17)    A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).
Your Obligations
As an employer of casual staff who are covered under a Modern Award you must give a copy of the relevant casual conversion clause to all of your casual staff within the first 12 months of the employee commencing work. Once the employer has provided the casual employee with the casual conversion clause the employer is not required to do anything further unless they receive a request in writing from a casual employee for conversion of their employment. In order to request a right to conversion the casual employee must:

Have worked for the employer for a period of 12 months or more, and
have over the 12 months prior worked a number of hours that have across an ongoing basis formed a pattern that could continue to be performed by a full time or part time employee without the need for any significant adjustment.

An employer does have grounds to refuse the request of a casual employee to be converted to full time and/or part time status. Reasonable grounds of refusal are listed at paragraph (7) of the above sample clause.
Takeaway Message
The distinction between a casual employee and a full time and/or part-time employee has significant implications for employers in relation to correct rates of pay and an employers’ obligations in relation to accrued entitlements for full time and/or part-time employees such as annual leave, sick leave and long service leave.
Failing to uphold your obligations as an employer under a Modern Award can have serious and significant implications. If the Fair Work Ombudsman conducts an audit of your business and finds noncompliance the consequences can include:

An infringement notice that includes incurring a monetary penalty under the Fair Work Act 2009,
Legal proceedings being commenced against you by the Fair Work Ombudsman,
Negative reviews by employees with the potential to lower the reputation and goodwill of your business, and
A decrease in the morale and productivity of staff members who have been impacted by your noncompliance of the Modern Award.

How Can We Help?
Our Employment Lawyers assist both employers and employees in a broad range of workplace issues. We understand and value the importance our clients place on establishing and maintaining cohesive, constructive employment relationships.
As an employer, should you require any assistance in interpreting the Modern Award, please do not hesitate to contact us on 1300 553 343.
By Haydon Potter

The post When are Casual Employees Entitled to Become Full Time Employees? appeared first on Roberts Legal.

What is Gender Dysphoria?
The Gender Dysphoria symptoms are as follows:

Noticeable incongruence between the gender the child experiences and their classified gender assignment;
An intense need to do away with their primary or secondary sex features (or avoid their development);
An intense desire to have the primary or secondary sex features of the other gender;
A deep desire to transform into another gender;
A profound need for society to treat them as another gender; and
A powerful conviction of having the characteristic feelings and responses of the other gender.

In addition the symptoms are connected to clinically significant distress affecting them socially or psychologically.
Treatment for Gender Dysphoria
Treatment for gender dysphoria involves two stages of hormonal therapy, accompanied by psychological treatment.

Stage 1 treatment involves the provision of medication to prevent the onset of puberty in the child’s biological sex. Stage 1 treatment is reversible.
Stage 2 treatment comprises hormone treatment to encourage the development of physical characteristics in the sex with which the child identifies. Stage 2 treatment is considered to be irreversible.
In conjunction with stage 1 and stage 2 treatment, some adolescents with gender dysphoria may undergo a mastectomy (also referred to as ‘top surgery’). A person may undergo gender reassignment. Top surgery and gender reassignment surgery are sometimes referred to as stage 3 treatment.

There is evidence that early treatment for gender dysphoria optimises psychological and social development.
How have the courts in the past dealt with treatment for Gender Dysphoria?
 

Re Alex [2004] Fam CA 297 determined that treatment for gender identity disorder (as it was known then) was non-therapeutic and fell outside the boundaries of parental consent. This decision referred to Stage 1 and Stage 2 treatment which was approved by the court. This matter returned to the court in 2009 when the Court found that it was in Alex’s best interests to have a double mastectomy and approved the surgery.
Re Lucy [2013] FamCA 518 the Family Court of Australia held that ‘treatment for gender dysphoria is therapeutic treatment because it is administered primarily to ameliorate a psychiatric disorder. The Court held that its approval was not required for stage 1 treatment. This case was supported by
Re Sam and Terry [2013] FamCA 563 confirmed the decision in Re Lucy and further made it clear that court approval was still required for stage 2 treatment.
Re Jamie [2013] FamCACF 110 the Full Family Court of Australia affirmed the position adopted in Re Lucy and Re Sam and Terry that parents are permitted to consent to stage 1 treatment for gender dysphoria, while court approval is required for stage 2 treatment. While the Full Court appeared to accept that both stage 1 and stage 2 treatment could be characterised as ‘therapeutic’ the key difference was that stage 2 is not considered reversible. It is notable that stage 2 treatment can be consented to by a ‘Gillick competent’ minor

Gillick v West Norfold and Wisbeck Area Health Authority [1986] AC 112 – a child is deemed to have the capacity to give informed consent when he/she ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.
An application to the court was still required after Re Jamie in order to determine if the child was ‘Gillick competent’.

Recent Developments Re Kelvin [2017] FamCAFC 258
The Facts:

The child, Kelvin, was registered female at birth however by the age of nine identified as transgender or male. Kelvin’s medical team consisted of a psychologist, psychiatrist and an endocrinologist.  The medical team agreed that Kelvin had gender dysphoria and recommend stage 2 treatment.
Kelvin, his medical team and parents all agreed that treatment was in Kelvin’s best interests and a necessary treatment.
An application was made to the court by Kelvin’s father for an order that Kelvin was ‘Gillick competent’ and capable of consenting to the treatment.
The court looked at Marion’s case (Secretary of the Department of Health and community Services v JWB and SMB (1992) 175 CLR 218) regarding the distinction between therapeutic and non-therapeutic treatment which essentially requires a weighing of the benefits of treatment against the risks.
The court considered the advancements in medical knowledge since Re Jamie and determined that there was no need to overrule that case.
The court found that a Gillick competent child, as determined by their medical team, may consent to treatment without court authorisation.

The decision in Re: Kelvin has obvious benefits for children with gender dysphoria and their families. There are no longer delays due to legal proceedings which can be quite intrusive and cause more harm. Treatment can start more quickly thus reducing the risks associated with the psychological impacts such as suicide of gender dysphoria.
There is still a way to go in this area and problems foreseen include the following:

Where the parents are not both in agreement;
Where the child is a ward of the state or under the care of a guardian or relative; and
The question of consent/authorisation for stage 3 still remains.

How Can We Help?
If you have questions about a parenting matter, please contact us today on 1300 553 343 or email [email protected] to schedule one of our ‘Smart Start’ fixed fee appointments.
Book a Smart Start Consultation
By Samantha Miller

The post Gender Dysphoria – Is court approval required for medical treatment of minors? appeared first on Roberts Legal.

Farah Custodians Pty Limited v Commissioner of Taxation (No 2) [2019] FCA 1076

In this matter, Farah Custodians Pty Limited sought leave to amend its pleadings in its claim against the Commissioner of Taxation to include claims in negligence arising from the Commissioner’s payment of tax refunds owed to Farah into a fraudulent account.
The Commissioner’s own investigations identified the possibility that the account was fraudulent, and allegedly did not inform Farah and continued to pay the refunds into the fraudulent account.
The Commissioner’s primary contention in relation to the futility of Farah’s negligence claim was that there was or could be no demonstrable basis for finding that the Commissioner owes a duty of care to taxpayers or anyone else in relation to the administration of tax refunds. The Commissioner submitted that he owes an enforceable statutory duty to pay refunds when the requisite conditions are satisfied, but beyond that, the Commissioner’s duty is to the Crown and to the Crown alone.
The question was whether it was reasonably arguable that the Commissioner might owe a duty to a particular taxpayer to exercise care in paying tax in circumstances where the Commissioner had reason to suspect or believe that the account that the refunds were being paid into was fraudulent.
On Friday, 12 July 2019, Justice Wigney held that it was reasonably arguable that the Commissioner owed Farah a duty of care at common law. This is a key decision, as no other superior Australian court has ever accepted that such a duty could exist against the Commissioner of Taxation.
This will be an interesting case to follow.
How We Help
Our Commercial Dispute Lawyers have extensive experience representing clients in a wide variety of disputes and have an excellent reputation for obtaining successful and quick resolutions.
Call 1300 553 343 for a no obligation phone evaluation by an Accredited Specialist in Commercial Litigation or click here to find out more about our Commercial Litigation experience.
By Tasha Wolodko-Kouril

 
The post Federal Court says it is Reasonably Arguable that the ATO Owes Taxpayers a Duty of Care at Common Law appeared first on Roberts Legal.

The Bankruptcy Amendment (Enterprise Incentives) Bill 2017
has now lapsed
The controversial Bankruptcy Amendment (Enterprise Incentives) Bill 2017 officially lapsed on 1 July 2019 and as such will no longer be proceeding. If the Bill was passed, it would have had the effect of amending the Bankruptcy Act 1966 so that the default period of bankruptcy was reduced from 3 years to 1 year. Considering the significant impact of declaring bankruptcy or otherwise becoming bankrupt on a bankrupt’s creditors, and the larger flow on effect to the economy, some may be pleased to see that this Bill has lapsed.
How can we help?
Our Insolvency Lawyers can provide you with practical advice and assistance to help you overcome the stress and implications of personal insolvency.
Call 1300 553 343 to speak to an experienced Insolvency Lawyer or click here for more information.
By Tasha Wolodko-Kouril

 
The post Legislation Update: The Bankruptcy Amendment Bill 2017 appeared first on Roberts Legal.

In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 the High Court affirmed the decision of the NSW Court of Appeal that the availability of judicial review to quash an Adjudication Determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) was limited to cases of jurisdictional error.
In doing so the High Court held that Courts do not have do not have a power to review an Adjudication Determination for non-jurisdictional errors of law on the face of the record.
Facts
On 14 October 2014 the parties entered into a contract pursuant to which Shade Systems Pty Ltd (“Shade Systems”) agreed to supply and install external louvres to the façade of a property at Chatswood as a subcontractor to Probuild Constructions (Aust) Pty Ltd (“Probuild“).
On 23 December 2015, Shade Systems served a Payment Claim on Probuild in the amount of $289,849.33 plus GST pursuant to the provisions of the Security of Payment Act. On 11 January 2016 Probuild served a Payment Schedule alleging that no money was owing to Shade Systems, primarily on the basis that an amount of $1,089,900 was payable by it to Probuild as liquidated damages under the contract.
The dispute was referred to an adjudicator under the Act on 25 January 2016, with the Adjudicator rejecting Probuild’s claim for liquidated damages “on the basis that liquidated damages could not be calculated until either “practical completion” (being actual completion of the works) or termination of the subcontract” [at 22].
Supreme Court Application for Review
Probuild applied to the Supreme Court for a review of the Adjudicator’s Determination, alleging both a denial of procedural fairness in the adjudication process (which constituted a jurisdictional error) and errors of law which appeared in the Adjudicator’s written reasons (which constituted non-jurisdictional errors of law).
The claim of procedural unfairness was rejected, however, the trial Judge held that:

The supervisory jurisdiction of the Supreme Court was available to review non-jurisdictional errors of law on the face of the record, and
Because such an error had been established by Probuild in connection with the Adjudicator’s findings with respect to the payment of liquidated damages, the Adjudicator’s Determination should be quashed.

Court of Appeal
Shade Systems appealed to the Court of Appeal, with the only question on appeal being, “whether the Security of Payment Act excluded the jurisdiction of the Supreme Court to make an order in the nature of certiorari for error of law on the face of the record“.  The Court of Appeal of the Supreme Court of New South Wales found that the jurisdiction was ousted, and overturned the primary Judge’s decision.
High Court Decision
The High Court ultimately agreed with the Court of Appeal, with the majority finding that:
“The Security of Payment Act evinces a clear legislative intention to exclude the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash an adjudicator’s determination for non-jurisdictional error of law on the face of the record.”
In reaching its decision and rejecting Probuild’s argument that allowing the Adjudicator’s decision to stand, given that it was erroneous, was “manifestly absurd”, the High Court identified that the Act:

was “enacted to reform payment behaviour in the construction industry” and provide Claimants with the ability to recover progress payments promptly;
is “not concerned with finally and conclusively determining the entitlements of parties to a construction contract“;
provides very short timeframes which are “not conducive to lengthy consideration by an adjudicator of detailed submissions on all questions of law“;
permits informal procedures in the conduct of an Adjudication, such as a conference of the parties; and
deliberately omits any right of appeal from an Adjudicator’s Determination.

Relevantly, the Court observed that:
“A non-jurisdictional error of law may have serious consequences. But those consequences are dealt with by s 32 of the Security of Payment Act. The limited exclusion of review does not irrevocably entrench the consequences of an erroneous determination. Where it is contended that an adjudicator has made an error of law within jurisdiction, resulting in a progress payment that is inadequate or excessive, the dispute may be resolved through civil proceedings under the construction contract. If necessary, a restitutionary order can be sought.”
Summary
In essence the High Court has held that the Act empowers Adjudicators to make valid Determinations despite the Determination being based on an incorrect legal interpretation of the relevant Construction Contract.
Therefore, non-jurisdictional errors committed by Adjudicators when making Determinations may not be subject to judicial review and instead would need to be addressed in separate Court proceedings as anticipated by Section 32 of the Act.
However, the Supreme Court may still quash an Adjudicator’s Determination for jurisdictional error.
By Sam Roberts

Call Now to speak to an Expert Security of Payments Lawyer.
The post High Court Confirms Limited Scope of Potential Challenges to Security of Payment Adjudications appeared first on Roberts Legal.

Ensuring that you can rely on a Payment Claim or a Payment Schedule to invoke or resist the considerable force of the Building and Construction Industry Security of Payment Act 1999 (NSW) to recover payment or resist the obligation to pay is critical for any business in the building and construction industry. In this article we consider how the Courts consider the adequacy of describing works or reasons for withholding payment in assessing the validity and reliability of Payment Claims and Payment Schedules
Payment Claims
Section 13 of the Act sets out the requirements for a valid Payment Claim and relevantly provides that:

a Payment Claim must identify the construction work or related goods and services to which the progress payment relates;
must indicate the amount of the progress payment that the claimant claims to be due (“the Claimed Amount”); and
if the Construction Contract is connected with an Exempt Residential Construction Contract, must state that it is made under the Act.

When considering the level of detail required by the Act for identifying construction work (or related goods or services) to which a Payment Claim relates the Courts have held that:

This is an objective test. It must be asked whether a reasonable person having consideration of the Payment Claim as a whole would be left with any doubt as to its meaning[1];
It is sufficient if the Payment Claim identifies the work in terms of the contract and location with respect to which it was undertaken[2]; and
While it is not necessary for a Payment Claim to be as precise and as particularised as a Court pleading, there is a need for “precision and particularity… to a degree reasonably sufficient to apprise the parties of the real issues in the dispute”.[3]

Essentially, a Payment Claim must sufficiently identify the construction work (or related goods or services) to which the claim relates to enable the Respondent to understand its basis[4].
Payment Schedules
A party receiving a Payment Claim who wishes to dispute the Claimed Amount and avoid a statutory debt arising must provide a Payment Schedule within the allowed time.
Section 14 of the Act relevantly provides that a Payment Schedule:

must identify the Payment Claim to which it relates;
must indicate the amount of the payment (if any) that the recipient of the claim proposes to make (“the Scheduled Amount”); and
if the Scheduled Amount is less than the Claimed Amount, the schedule must indicate why the Scheduled Amount is less, and must provide the Respondent’s reasons for withholding payment.

In the case of a Respondent withholding payment, the Courts have held that:

The issues in dispute need to be apparent.[5]
The Respondent needs to make it clear to the Claimant their reasons for withholding payment.[6]
The reasons given for withholding payment should enable the Claimant to make a decision whether or not to accept the Scheduled Amount, and to understand the nature of the case the Claimant will have to meet in an Adjudication.[7]

The provision of adequate reasons for withholding payment in a Payment Schedule is critical, as Section 20(2B) of the Act precludes a Respondent from including in an Adjudication Response any reasons for withholding payment unless those reasons have already been included in the Payment Schedule provided to the Claimant.
By way of example, if, in an Adjudication, a Respondent wants to challenge jurisdiction to invalidate a Payment Claim, the Respondent would have had to have included this challenge in the Payment Schedule originally provided in response to the Payment Claim.
Conclusion
Parties seeking to rely on the Act to recover payment or resist a Payment Claim should be careful to ensure that the works are adequately described or reasons for withholding payment sufficient articulated in their Payment Claims and Payment Schedules, as the case may be, to enable the other party to understand and evaluate the clams and defences that are being made.
Where a dispute is anticipated such that a subsequent Adjudication Application and Determination is likely to follow, parties should, noting that strict time limits apply, immediately seek the assistance of an experienced Building & Construction Lawyer before serving their Payment Claim or Payment Schedule to ensure that they will be able to most effectively press their claims/defences in a subsequent Adjudication Application.
Author: Tasha Woldko-Kouril

Call Now to speak to an Expert Security of Payments Lawyer.
 
[1] Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365 at [28].
[2] Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 at [63] – [66].
[3] Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 at [76].
[4] Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [25].
[5] Above n 3.
[6] Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103 at [77] – [78].
[7] Above n 3 at [78].
The post How Courts Consider Descriptions of Work in Payment Claims & Reasons for Withholding Payment in Payment Schedules appeared first on Roberts Legal.

A question that commonly arises when we are assisting clients with preparation of an Adjudication Application or Response, is: “How is the Adjudicator going to value the construction works (or related goods and services)?”
Knowing how an Adjudicator will value the works is particularly important given the very short timeframes provided for parties to an Adjudication Application to prepare their submissions and supporting documents.
Section 22(2) Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) provides that when determining an Adjudication Application an Adjudicator is required to consider the provisions of the Act, the provisions of the relevant Construction Contract, the Payment Claim, the Payment Schedule and the submissions (including relevant documentation) duly made by the parties.
In valuing construction work (or related goods or services) the Adjudicator is, therefore, bound to consider Section 10 of the Act which provides that construction work is to be valued:

in accordance with the terms of the contract, or
if the contract makes no express provision with respect to the matter, having regard to:

the contract price for the work,
any other rates or prices set out in the contract,
any variation agreed to by the parties to the contract by which the contract price, or any other rate or price set out in the contract, is to be adjusted by a specific amount, and
if any of the work is defective, the estimated cost of rectifying the defect.

Related goods and services are valued in the same way as construction works, except that, in the case of materials and components that are to form part of any building, structure or work arising from construction work, the only materials and components to be included in the valuation are those that have become (or, on payment, will become) the property of the party for whom construction work is being carried out.
Therefore, if the Construction Contract sets out a clear a method or basis for valuing the works, the Adjudicator should value the works based on that method or basis.  For example, a contract may state that the works are to be valued by reference to a percentage of the contract price based on staged completion or by the hours worked and a schedule of rates.
If the Construction Contract does not expressly provide for how the works are to be valued, however, then the Adjudicator will look at the remaining matters set out in Section 10 of the Act, being the contract price, any other rates or prices set out in the contract, any agreed variations to adjust the contract price or rates, any agreed variations and the estimated cost of rectifying any defects.
Other important points to note in relation to how the Adjudicator will value the construction works (or related goods or services) are that:

The Adjudicator will value the works as at the applicable Reference Date.
The Adjudicator must only value works which are included in the Payment Claim to which the Adjudication Application relates, and not, for example, any other work which may have subsequently been carried out and claimed in the Application.
If there has been a previous Adjudication Application in which an Adjudicator made a Determination in relation to the value works, in any subsequent Adjudication Application the Adjudicator is required to give the same value as that previously determined unless one of the parties satisfies the Adjudicator that the value has changed since the previous Determination. This only applies, however, where the previous Adjudicator has valued the works, and not for example, where an Adjudicator has determined that there is no entitlement or that the works cannot be valued.
If one party has placed a value for an item that is not challenged or disputed, it is not necessary for the Adjudicator to independently value that item or claim. The Adjudicator may accept that value and apply the claimed amount.

As such, when preparing submissions, it is very important to ensure that all disputed items of work are in fact disputed and challenged in that party’s submissions and supported by relevant documents.

Another common issue arises when the Construction Contract provides for works to be valued by way of an Architect or Superintendent issuing a Superintendent’s Certificate or the like. This type of provision is often included in larger Construction Contracts.

In the past the Courts have taken varying approaches to the question of whether an Adjudicator is required to follow a Superintendent’s Certificate rather than valuing the works independently.
The current approach taken by the NSW Court of Appeal is that if an Adjudicator fails to follow a Superintendent’s Certificate this may amount to an error of law, but even so it does not render the Adjudicator’s Determination invalid  (see Abacus v Davenport [2003] NSWSC 1027 and Transgrid v Walter Construction Group [2004] NSWSC 21).
On the present law, an Adjudicator can, therefore, effectively step into the shoes of an Architect or Superintendent when valuing the works, and does not have to simply accept the Superintendent’s Certificate.
There is still much debate about whether the failure by an Adjudicator to follow a contractual provision for the Superintendent to fix value is an error of law or is a more fundamental failure to follow the basic requirements of the Act.

An Adjudicator is not required to follow a particular mechanism in a contract for the valuing of the works, but only criteria by which the works are to be valued.
Likewise, any clause in the contract which caps the maximum value of the contract in order to deny a claim and the right to value work in accordance with the contract, may be viewed as contracting out of the Act and therefore invalid.

The Courts have acknowledged that valuing the works can sometimes be a difficult task for an Adjudicator, but the Adjudicator must undertake this task in accordance with the Act and provide sufficient reasons for the Determination.
Given the significant rights that accrue in utilising the Act to claim payment or dispute liability for a payment, you should always seek specialist advice from an experienced Building & Construction Lawyer when negotiating and entering into a Construction Contract and, in particular, when preparing or responding to an Adjudication Application, to ensure your rights are protected.
By Felicity Donald

Call Now to speak to an Expert Security of Payments Lawyer.
The post How an Adjudicator is Required to Value Construction Work appeared first on Roberts Legal.

Whether you have been planning a separation for some time, or you have been taken completely by surprise, separation can involve harsh realities and unwelcome changes for all involved.    In the early stages you may feel isolated, grief-stricken and unable to make plans, however, it is essential to get organised and take control to protect yourself, your children and your money.
Get legal advice from an experienced Family Lawyer
Each individual that goes through a separation has a unique set of circumstances arising from their background, the arrangements during the relationship, their age, health, earning capacity, ages and number of children and so on.  Once their former partner’s individual circumstances are added to the mix, what’s left to sort is a truly one-of-a-kind web of interrelated interests. Generic advice is often unhelpful, if not damaging.
Timing is crucial in many respects in a separation action plan and where there are delays, or where someone has taken the wrong action post-separation, it is often very difficult to undo what is already done.  This can make the legal resolution of your separation much more complicated and expensive that it needed to be.  If possible, you should get specialist Family Law advice before or as soon as possible after separation.
Most experienced Family Lawyers offer a one-off, no obligation, initial consultation for a low fixed fee.   During this consultation, a Family Lawyer should provide you with all the information you need about your rights and obligations, the next steps you should take and offer some handy pointers about services that are available to you.  This meeting is essential to creating your post-separation action plan.
Take care of the essential must-do tasks straight away
Your Family Lawyer will have given you lots of work to do.  Make a list and start checking it off. These tasks might include:

Making parenting arrangements
Attending Mediation
Protecting your safety, privacy and financial position
Accessing property and/or spousal maintenance payments
Accessing Child Support payments and/or Centrelink benefits
Which debts to pay and which debts not to pay
Accessing documentation
Updating your Will and other important documents
Keeping file notes and records

If in doubt about what to do, contact your Family Lawyer.  I provide my email address to all of my clients with an invitation to contact me at any time for assistance at this stage.  The separation process is dynamic and confusing; it can help to know you have individualised legal advice on hand.
Take care of yourself
Once you have done the hard work, go easy on yourself.  Give consideration to what you need to cope with the separation so you can look after yourself and your children. Give yourself time to adjust, access online resources about separation, reach out for support from friends, family or counselling services, maintain a routine, look after yourself physically and stay connected with your social network.  With your action plan in place, you are likely to feel better equipped to deal with separation issues or at least know where to find help, leaving you ready to make a fresh start.
Anna Roberts is an experienced Family Lawyer, an accredited Family Law Mediator and Director of Roberts Legal.  She has over 15 years’ experience assisting clients to get things sorted and to make a fresh start following a relationship breakdown.  Anna and her Family Law team offer an initial 90-minute appointment to new clients for a fixed fee of $275.00 (GST incl) with immediate availability at their Adamstown, Newcastle or Central Coast offices.
By Anna Roberts

The post Separating? The best way to protect yourself, your children and your money. appeared first on Roberts Legal.

When is a sperm donor considered the legal father? High Court decides.
Masson v Parsons [HCA] 21

The Facts
In 2006 Mr Masson, donated his semen to a friend and a baby was born as result of artificial insemination. At the time of the donation Mr Masson’s intention was that he would be involved in the child’s life and in fact he was.
Whilst this could have been a ‘happily ever after’ story of the modern Australian family, in 2015 the birth mother and her new partner indicated that they intended on moving to New Zealand with the child.
Mr Masson filed an application in the Family Court seeking to restrain the biological mother from relocating the residence of the child and for him to share parental responsibility.  This ultimately resulted in contentious debate about the legal parentage of the child; the case of the biological mother and her partner being that Mr Masson was not a parent he was simply a sperm donor.
The Judgment
Yesterday in a highly anticipated judgment, the High Court of Australia disagreed with the biological Mother and her partner, affirming that Mr Masson is in fact a legal parent of the child.
Contrary to what sensational headlines would have you believe, this judgment does not swing open the flood gates for sperm donors to rush in and lay claim to the children who result from their donation and it certainly does not decree that each and every sperm donor is a legal parent of those children.
Sensibly, the implication of the High Court judgment seems to be that in order for the donor of genetic material to assert that they should be recognised as the legal parent of the resulting child, they must be able to demonstrate a ‘parent like’ involvement in the child’s life. In this case Mr Masson supported the child financially, had a close relationship with her, was listed as the father on the birth certificate and was even called ‘Daddy’.
Why does it matter?
Whilst this decision has significant implications for donors involved in the lives of their biological children, irrespective of Masson v Parsons it has long been the case that any person concerned with the care, welfare and development of a child is able to seek parenting Orders with respect to the child.
However legal parenthood is important because the Family Law Act treats parents and non-parents differently. For example, the Court must apply a rebuttable presumption that it is in the best interests of a child for his/her parents to have equal shared parental responsibility for the child. Likewise, when determining what is in a child’s best interest, the Court must consider the benefit to the child of having a meaningful relationship with both parents. Finding that Mr Masson is a parent meant that the Court had to give consideration to these factors.
How can we help?
If you have questions about a parenting matter, the process or even how to avoid a situation such as the one Ms Parson found herself in, please contact us today on 1300 553 343 or email [email protected] to schedule one of our ‘Smart Start’ fixed fee appointments.
By Linsey Wilson
 
The post From Donor to Daddy appeared first on Roberts Legal.

On 21 November the NSW Government passed the Building and Construction Industry Security of Payment Bill 2018 (“the Amendment Act”).
A commencement date for the Amendment Act as not yet been declared although it has since been indicated that the amendments will be introduced progressively based on the need for subordinate legislation and the preparation time required by industry stakeholders.
A summary of the key proposed amendments is below.
1. Changes to Reference Dates
The concept of a Reference Date is to be abolished. Therefore, the availability of a Reference Date will not longer be a precondition for a valid Payment Claim.
Instead, a party who has carried out construction work or supplied related good or services will be able to serve a Payment Claim monthly on the last day of the named month in which construction work was first carried, and thereafter on and from the last day of each subsequent month.
Parties will be free to agree to that a right to serve a Payment Claim will accrue on one or more earlier dates in any particular month.
Therefore, whilst the concept of a Reference Date will no longer exist, for a Payment Claim to be valid it must be issued after an available date on which a Claimant was entitled to may a progress claim. This will, however, arise at least monthly.
In addition, irrespective of the terms of a Construction Contract, a Claimant will be entitled to serve Payment Claim on or after the date of termination of the contract.
2. Changes to Payment Claims
A Payment Claim will again need to state that is it made under the Security of Payment Act, this being the position prior to amendments in 2014.
In preparation for these changes, it is recommended that Claimants resume the practice of including words to the following effect on every Payment Claim:
“This is a Payment Claim made under the Building and Construction Industry Security of Payment Act 1999”
3. Due Dates for Payment
The Due Date for payment of a Payment Claim to a Subcontractor (not a Head Contractor) will be reduced from 30 Business Days to 20 Business Days after a Payment Claim is served.
4. Corporations in Liquidation
The Amendment Act make clear that a company in liquidation will not be able to serve a Payment Claim.
In addition, any Adjudication Application on foot when a liquidator is appointed will be deemed to be withdrawn.
5. Withdrawal of Adjudication Applications
A Claimant to an Adjudication Application will be able to withdraw the application at any time before the appointment of an Adjudicator.
A Claimant will also be able to withdraw an Adjudication Application after an Adjudicator has been appointed (but before the application has been determined) unless the Respondent objects to the withdrawal and the Adjudicator considers that it is in the interests of justice to uphold the objection.
6. Challenges to Adjudication Applications
In addition to quashing an Adjudication Determination wholly, the Supreme Court of NSW will be empowered to sever a particular part of an Adjudication Determination that is subject to a jurisdictional error. 
7. New investigatory and enforcement powers of Authorised Officers
A new Part 3A is to be established, conferring investigatory and enforcement powers on Authorised Officers under the Security of Payment Act for the purpose of:

Investigating, monitoring and enforcing compliance with the requirements of the Act,
Obtaining information and records connected with the administration of the Act, and
Administering or executing the Act.

8. Code of Practice for Authorised Nominating Authorities
NSW Fair Trading’s ability to oversee Authorised Nominating Authorities will be enhanced by an ability for the Minister to introduce a Code of Practice addressing matters including the conduct, assessment and selection, training and monitoring of Adjudicator, as well as complaint-handling procedures.
9. More stringent penalties for offices committed under the Act
Pecuniary penalties for contraventions of the Security of Payment Act in relation to Supporting Statements will be increased from 200 penalty units to 1,000 penalty units in the case of corporations and 200 penalty units for individuals.
The post Upcoming Amendments to Security of Payment Laws in NSW appeared first on Roberts Legal.

The appointment of a Liquidator to wind up a Company that is unable to pay its debts is a significant enforcement option and equivalent with Bankruptcy for individuals. The appointment of a Liquidator means that all assets of the Company come under the control of the Liquidator including any loans owing from Directors or Shareholders […]

The post Statutory Demands and Proving Insolvency when Winding Up a Company appeared first on Roberts Legal.