A recent decision in the Federal Court has broadened the definition of “workplace” under the Sexual Discrimination Act 1984 (Cth).
The case of Ewin v. Vergara involved co-workers in a Melbourne accounting firm. Ms Ewin and Mr Vergara initially struck up a friendship, working on joint matters and going jogging together at lunchtime.
The relationship deteriorated however when Mr Vergara attempted to take the friendship to the next level. Ms Ewin was married and rejected Mr Vergara’s attempts to establish a relationship.
The Sexual Discrimination Act prohibits sexual harassment in a workplace, which is defined as “a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant”.
Ms Ewin’s allegations of sexual harassment by Mr Vergara included conduct occurring in a pub after work; working back at the office after-hours; outside a hotel; in a taxi travelling to a work meeting; and at a work function where Ms Ewin became intoxicated and “blacked out”.
The conduct complained of included turning the lights off at the office and inappropriate touching; use of sexually explicit language; forced kissing; and sexual intercourse without consent in the corridor & lift of the office.
The Court held that Mr Vegara’s conduct in the office, in the taxi and at the work function amounted to a breach of the Sexual Discrimination Act. The sexual harassment in the office and taxi were related to Ms Ewin performing her work responsibilities, and so fell within the definition of “workplace”. The non-consensual intercourse was also found to have occurred in the workplace as the Court implied that the entrance, lift, corridor and other common areas of an office formed part of a “workplace”.
Mr Vergara was ordered to pay Ms Ewin over $470,000 in damages.
This case demonstrates that any place (including a vehicle) which is attended by an employee for the purpose of performing work duties will be classified as a “workplace”.
It is therefore important for employers to implement an anti-discrimination policy and have procedures in place for dealing with allegations of sexual harassment. To avoid becoming the subject of a case under the Sexual Discrimination Act, contact the HR team at Everingham Solomons where Helping You is Our Business.
Where parentage of a child is an issue, an applicant may apply to the Family Court for a “parentage testing order”. Family Court will then be able to make a declaration as to the parentage of a child born where there is some doubt in regard to whom their parent is.
The court can order the child, the mother and any other person the court believes may assist in determining the parentage of a child, to undergo a parentage testing procedure, which invariably will be “DNA testing” due to its reliability and accuracy.
Parentage testing must comply with particular procedures set by the Family Law Regulations, therefore any results of testing performed outside of the ambit of family law requirements, may not be admissible to the court and consequently the results will have no legal validity when determining parentage.
If a party or parent of the child refuses to comply with an order for testing, the court may draw inferences from their behavior as per section 69Y of the Family Law Act 1975. Therefore whilst a contravention of a parentage testing order will not penalise the person not wishing to participate, it can certainly affect the court’s decision making down the track as to the making of a parentage declaration.
For example, in the 2009 case of Tryon and Clutterbuck (no. 2), the applicant, Mr. Clutterbuck, challenged the paternity of two children born to a married couple, Mr. and Mrs. Tryon. The husband and wife had 5 children in total and the husband was named as the father on all of the children’s birth certificates. Mr. Clutterbuck challenged the legal presumption that children born to a woman of a marriage are children of the woman’s husband, found in section 69P of the Family Law Act. Accordingly, Mr. Tryon contended that he was the father of the two youngest children of Mrs. Tryon, due to a long standing sexual relationship with the wife and because he was told by her on both occasions when the woman became pregnant, that he was the father of the two youngest children.
The husband and wife failed to participate in DNA testing ordered by the court. They also failed to put forward sufficient evidence to rebut the claim by Mr. Clutterbuck. Secondly, due to the conduct of the husband and wife to avoid and refuse DNA testing (based on religious grounds), the court made an adverse inference toward them and declared that Mr. Tryon was the father of the two children.
It is also worth noting that should a party to a parentage testing order be found to be the father, they may also be liable for reasonable expenses associated with the mother’s pregnancy and birth of the child. The costs may be liable from up to 2 months before and for 3 months after the birth of the child.
This case highlights the various elements involved in parentage testing. If you have any questions or require advice in regard to parentage testing at Everingham Solomons we have the expertise and experience to assist you becauseHelping You is Our Business.
There are a few circumstances in which the Roads and Maritime Service (RMS), or Road Transport Authority as they used to be called, can decide to suspend your driver’s licence.
These are the types of suspensions in which you receive a letter from the RMS in the mail, not the type where your licence is confiscated by a police officer.
Sometimes the decision of the RMS may appear to you to be harsh however, there may be good grounds for you to apply to the court to overturn it and have your licence suspension lifted.
The relevant provisions differentiate between provisional drivers, or P-platers and full licence holders.
For full licence holders, the RMS will likely suspend your licence if you are driving faster than 30km/hour over the speed limit. This is one type of decision that can be appealed in the Local Court.
If you are a P-plater the RMS will also suspend your licence if you are travelling faster than 30km/hour above the speed limit, but they will also suspend your licence if you exceed your demerit points quota.
A P-plater has as few as four demerit points, which can easily be exceeded by a relatively minor offence during a double demerit point period.
In the country being able to drive is very important. Having your licence suspended can have a devastating effect on your employment and on your family. In certain circumstances it may be well worthwhile appealing the RMS’s decision to suspend your licence.
If you would like any further advice about licence appeals or any other court matter, please contact Everingham Solomons becauseHelping You is Our Business.
It is not uncommon for an employer to place a restraint upon a departing employee which typically prevents the departing employee from being involved in a similar enterprise, contacting the past employer’s customers, utilising the employer’s confidential information and not poaching the employer’s employees.
In brief the law is that an employer must have a “legitimate interest” to protect and the reach of the post employment restraint must go no further than is reasonably necessary to protect that interest.
The Courts start from the premise that restraints are void, due to public policy. That is because a person should have the right to practice in his/her chosen occupation trade or profession.
That is not to say that a restraint is not worth the paper it is written on. A carefully worded restraint which covers legitimate interests and is reasonable to protect that interest, is enforceable.
The employer has the onus of proving that the restraint is reasonable and the validity of the restraint is decided by reference to the circumstances that existed when the restraint was made.
What are “legitimate interests”. It is clear that a desire to simply restrict competition will be primarily void and contrary to public policy.
The recognised “legitimate interests” for employers include:
Protecting customer connections;
Protecting confidential information which is not in the public domain; and
Restraining interference with the employers existing staff.
Once the appropriate interests are identified, then the area and duration of the restraint must be considered. A restraint which seeks to impose an unreasonably wide geographic area and long restraint will in all likelihood result in the whole clause being declared unenforceable.
Drafting, interpreting and enforcing restraints of trade is a complex area.
At Everingham Solomons we have the expertise and skills to assist you because Helping You is Our Business.
Nobody wants to end up in a business dispute. They distract from your core purpose as a business person – running a viable business that gives you, your employees and your respective families their livelihoods. Business disputes are expensive and stressful for all involved. Sometimes though your business is under serious threat from your business partners, suppliers, customers or even your employees, and you just have to take decisive action.
Questions and statements then abound. What do I do next? I feel like a bunny in the headlights! What does the contract say about this mess? Where is the contract? It was just a handshake deal! Why aren’t they doing what they said they would do? It’s unfair! Where is that email that proves what I am saying? What is this going to cost me? How do I stop my customers from finding out about this? Do I need a lawyer? And so on…
For most businesses some kind of a dispute (whether big or small) is inevitable. Like all business issues, it is best to be prepared in advance. Some of our business dispute resolution tips are:
Manage your documents – find that key contract, purchase order, invoice, or email at the click of a mouse or the pull of a filing cabinet drawer
Compile your facts and evidence – put your documents in subject and date order – earliest to latest, highlight the parts that are most relevant, have your key witnesses write down their versions of events
Meet with your lawyer as soon as you can – he or she will put your mind at ease, explain processes and next steps, advise you on crucial deadlines and the like
Keep calm and remain objective – be in a good frame of mind to make decisions and try to see both sides
Avoid thinking that “It’s a matter of principle now…” that can only be resolved in one way
Embrace early dispute resolution methods like settlement conferences and mediation – often cheaper and less stressful than going to court
Think of creative solutions – look for a ‘win-win’ outcome or, even better, a restored business relationship
At Everingham Solomons, we have the expertise to assist you with all issues relating to business disputes because Helping You is Our Business.
Click here for more information on Keiran Breckenridge.
The rhetoric regarding the dangers of the “age of entitlement” recently espoused by politicians in relation to the Federal Budget has rung true in relation to a Family Provision Act case made in relation to a family farm.
The court proceedings involved the Will of Mr W, who had left three farming properties in western NSW to his daughter. The daughter had been a partner in the farming business with her father
One of the daughter’s sons, that is a grandson of Mr W, commenced a Family Provision Act claim challenging his grandfather’s Will and seeking an immediate inheritance from his grandfather.
The grandson argued that he was entitled to receive one of the farms now and should not have to wait for his mother to hand over the reins when she retired or passed away.
The court considered whether the grandson had a right to inherit from his grandfather’s estate.
As a general rule, grandparents have no responsibility to provide for a grandchild – unlike a parent who should make adequate provision for the proper maintenance, education or advancement in life of a child. There are obvious exceptions to this rule, such as the grandparents who raise a grandchild on the death of the child’s parents.
In this case, the court also investigated the practicality of the grandson’s request – that is, whether the family farms could be divided between the grandson and his mother, and still operate as an economically viable enterprise. A court appointed expert deemed that division of the various landholdings on which the farming business was conducted would not be financially feasible.
Accordingly, the court upheld the grandparent principle and ruled that Mr W’s Will would stand – the daughter would inherit the farms to the exclusion of her son.
Needless to say, the court case created bad blood between the mother and the grandson, and it seems the mother had the last laugh – at the conclusion of the case she informed her son that he would be disinherited and had no prospect of ever running the family farm.
To ensure your Will does not create a family feud, contact the experienced Estates Team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
It is a well-known principle in New South Wales conveyancing law that there is no binding agreement for the sale & purchase of real estate until formal written contracts are exchanged.
A recent case concerning sale of farmland between neighbours sought to challenge this principle.
The case involved the sale of approximately 200 acres of grazing land by Ms N, to her neighbour, Mr H. Ms N offered the land to Mr H in a letter by way of a private sale without involving a real estate agent.
Mr H wrote to Ms N by email indicating he was interested in purchasing the 200 acres adjoining his property. Emails back and forth between the parties saw the price and other details of the sale negotiated.
Ms N then instructed her solicitor to prepare a formal Contract for the Sale of Land to formalise the arrangement. Mr H retained a solicitor to review the Contract on his behalf.
After undertaking the necessary pre-purchase enquiries in relation to the rural land, Mr H instructed his solicitor to send the Contract to Ms N’s solicitor with a cheque for the deposit to initiate exchange of contracts.
Unbeknownst to Mr H, Ms N had been speaking to another party in relation to selling the whole of her property (including the 200 acres adjoining Mr H’s farm). At the “eleventh hour” Ms N decided to sell the whole farm to the other party and instructed her solicitor to return Mr H’s deposit cheque.
Mr H brought a case against Ms N claiming that a binding contract for the purchase of the 200 acres had been formed through the email communications with Ms N.
The court considered the emails and other correspondence between the parties, and ultimately decided that the wording in the emails & letters had not intended to bind the parties and both Ms N & Mr H were working towards a formal exchange of Contracts to “seal the deal”.
This case serves as a good reminder that vendors and purchasers are unlikely to be held to “handshake deal” when it comes to the sale & purchase of real estate – it is essential that formal Contracts for the Sale of Land are exchanged to lock all parties into the agreement.
To ensure you are not caught out in a conveyancing transaction, contact the experienced property team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Many people probably do not know that when parties separate who have been in a de facto relationship, they only have 2 years from the date of separation to lodge an application with the Court to claim for their entitlements.
If you do not file any documents with the Court prior to the expiration of the 2 year time frame, you have to seek the Court’s permission to proceed which can be a costly and time consuming process.
The Court had to consider this in a most recent Family Court appeal decision of McCoy and Chancellor [2014] FamCAFC 62.
The background to this case was the parties were in a relationship for 23 years and separated in December 2010. There were assets to the value of approximately $2 million and the parties attempted mediation in November 2012.
The parties reached an agreement at mediation however Ms McCoy did not sign the finalised Consent Orders which needed to be filed with the Court. Subsequently, Ms Chancellor filed an application with the Court to seek a division of the assets in March 2013, which was approximately 3 months after the 2 year time limit had expired.
At first instance, the Federal Circuit Court Judge gave Ms Chancellor permission to file her documents. Ms McCoy appealed this decision arguing that the Court must not allow a party to file out of time unless it is just and equitable to do so.
The Appeal Judges agreed with the Federal Circuit Court Judge as one of the factors the Court needed to determine when making decisions about giving a person permission to file documents out of time is whether the party would be caused undue hardship if leave was not given to file out of time.
The Appeal Judges stated that in this case “all matters … relevant to the just and equitable requirements were present such that to deny the application for an extension of time would inevitably cause hardship to the applicant.”
Whilst successful in this instance, you must be aware that there are occasions when the Court may not make a determination that any hardship to a party exists and therefore, not grant permission to alter the property interests.
If you have any concerns about the time frames in which you have to finalise a property settlement between you and your former de facto partner, you should contact Everingham Solomons because Helping You is Our Business.
Often, when parties decide to separate, one spouse decides to relocate in order to restart their life or to move to be with a new partner. When children move with the relocating spouse, be it interstate, overseas, or even to a new town or city down the road, recent case law suggests that judges are highly critical of parents who move their children without the other parent’s knowledge or consent.
The Family Law Act (1975) and accompanying regulations and rules, which govern family law practice in Australian society, does not explicitly state how the courts must deal with relocation issues. Consequently, there is no rule against the relocation of children, yet the court applies the same principles as it would in determining parenting cases. In other words, the court regards the best interests of the child as the paramount consideration when deciding where children should live, along with the presumption (unless rebutted) that parents are to have equal shared parental responsibility for the child concerned.
Recently the case of Sora & Mikan and Anor [2013] highlighted the Court’s position on the relocation of children without the consent of the non-relocating parent.
The case concerned an unmarried couple who had a child in Japan. The mother was Japanese national and the father a New Zealand national. Whilst in Japan, the parties separated after the birth of their child but later reconciled and planned to move as a family to Australia to start anew after the tsunami. Initially, the parties visited Australia with the child, yet after a short period, the father returned to Japan for work whilst waiting on his job transfer to Australia. The mother and child followed a short time thereafter.
The father upon his return to Japan commenced a new relationship with another lady. Consequently, he told the mother he was planning to raise their child with his new girlfriend in either New Zealand or Australia. By this stage the mother, father and child were all located in Japan.
Without consent or notice given to the mother, the father obtained travel documents and moved with the child and his new girlfriend to Australia where he sought for the child to live permanently.
In covertly relocating the child, the Court took a contemptuous view of the father. The judge said the father’s conduct was both “premeditated and deceptive”, and that the father had placed a low priority on the “maintenance of a continuing relationship” between the child and the mother.
Significantly, the judge said:
“The father’s view of his relationship with his son appears to be born of a misconception that somehow parents have proprietary rights in children.”
As a result, the court determined it was in the best interests of the child that the mother be granted full parental responsibility and she was allowed to return to Japan with the child on a permanent basis. Overwhelmingly, the father had demonstrated a lack of insight into his parenting responsibilities and of the child’s needs.
You should seek our advice if you are thinking about relocating or if your estranged partner is thinking about relocating with your children because at Everingham Solomons we have the expertise and experience to assist you becauseHelping You is Our Business.
Keiran Breckenridge, our Special Counsel,reports on a recent case industrial/employment law case.
Two unrelated companies gave certain employees $300 gift cards for working through a union strike. But their gifts came back to bite.
The union took the companies to the Federal Court and argued that the failure to give gift cards to the striking employees amounted to the companies injuring the employees who went on strike and/or discriminating between employees based on who went on strike or not, all for simply exercising their workplace rights. The union claimed that the companies breached s.340 of the Fair Work Act 2009, which prohibits the taking of ‘adverse action’ against an employee because he or she has exercised a workplace right.
The companies then had the burden of proving that they did not take adverse action. They were able to satisfy the Judge that the reason for the gifts was to show gratitude to the employees who did not go on strike for their extra effort in assisting the companies continue business and meet their commercial obligations at a difficult time. The employees did not miss out on a gift because they had gone on strike.
The Federal Court also concluded that, by not giving the striking employees a gift, the companies had not injured those employees. Also, there was no discrimination between employees because they were not treated differently while in the same position. They were in different positions; some were striking and some were not.
The companies were successful against the union but at a price in terms of legal costs and distraction from their core businesses. No less than seven senior managers had to prepare and give evidence in the case! Costs are rarely recoverable in Fair Work Act matters.
Employers can still reward extra effort and high performance but they should seek advice for other situations, especially at times of union industrial activity.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Keiran Breckenridge.
A recent decision in the Federal Court has broadened the definition of “workplace” under the Sexual Discrimination Act 1984 (Cth).
