Under the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.
In the recent decision of Withall, Richardson and Powles [2013] which was before the Family Court in Western Australia, the judge was required to decide whether the children should reside with a parent or a person who was not a biological member of the children’s family. The mother, the father and another significant person in the children’s lives whom I will refer to as ” the intervernor ” presented their individual cases that “it was in the best interest of the children” that they live with only one of them. However, during the course of the proceedings the natural father did not press his application.
It is not practical to outline the facts of this matter, other than to say the parents were separated, each of the parents had suffered ill health, the parents had overindulged in drugs and alcohol and there was reference to child pornography being found
in one of the parents home. The mother sought an order that the children live with her, but the court declined to make such an order. The Court made an order that children live with “the intervernor.” Included in the judge’s findings “the intervernor ” was a person who was likely to promote the relationship of the children with both their mother and there father.
The Court found “the intervernor“ had the capacity to promote the emotional and intellectual needs of the children and was a person who had previously been responsible for parenting the children.
It is noteworthy that it was held that the children were 13, 12 and 11. These children wished to live with “the intervernor” The Court found significant weight should be given to the children’s wishes.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law, because Helping You is Our Business.
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Some of the changes to the Fair Work Act which came into effect on 1 July 2013 include ‘family friendly’ amendments, such as unpaid parental leave, special maternity leave, and the right to request flexible work.
Parental leave
The following changes have been made to the Fair Work Act:
The existing right to request flexible working arrangements has been extended to include employees who are parents of school age children, are carers, have a disability or are over 55 years old. There are also extended provisions in connection with violence from family members.
The inclusion of a non-exhaustive list of what constitutes ‘reasonable business grounds’ for refusing requests for part-time work on return from parental leave or a request for flexible working arrangements.
The amount of concurrent unpaid parental leave that a couple can take has been increased from 3 weeks to 8 weeks and can now be taken at any time within the first 12 months of the birth or adoption of a child.
Transfer to a safe job
The Fair Work Act is also amended to expand the right for pregnant women to transfer to a safe job to all pregnant employees, even if they have been employed for less than 12 months.
Information Statement
The Fair Work Information Statement — which must be provided to all new employees — is also amended with effect from 1 July 2013, so that it must now include details of the range of circumstances in which an employee may request a change in working arrangements.
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.
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During a family separation, there may be difficulties associated with a parent spending time with their child who lives with the estranged partner. Clearly, this can be a very frustrating and stressful experience. An interim parenting order may be necessary to ensure time spent with the child is maintained, only after such time that compulsory family dispute resolution (such as mediation), has taken place between the parties.
Whilst it is hoped that parenting disputes can be resolved at mediation, if this is not the case, in certain circumstances you must obtain a Family Dispute Resolution certificate (also known as a Section 60I certificate) prior to applying for an interim parenting order.
However, you will be exempt from providing a certificate in particular circumstances. For example if the matter is urgent, or if there are reasonable grounds to believe there has been, or there is a risk of abuse or of family violence, and if you live in an isolated area and/or are unable to participate in mediation.
Any decision made by the Court in regard to an initiating application for an interim parenting order, is governed by the Family Law Act (1975). The Act imbues a fundamental principle – that a court must regard the best interests of the child as the paramount consideration. This principle also extends to a presumption within the Act, that unless rebutted, it is in the best interests of the child to have equal shared responsibility with both parents.
Section 60CC of the Family Law Act sets out the relevant primary and secondary factors which the court must examine when making any parenting order. The primary consideration regarding interim proceedings is the benefit of the child of having a meaningful relationship with both parents.
Secondary considerations include the practical reality and expense of a child spending time with, and communicating with a parent and whether those financial or practical difficulties will substantially affect a child’s right to maintain a relationship and direct contact with both parents on a regular basis.
Clearly, preparing any interim or final parenting order is a complex process which must be approached with an
understanding of the underlying intent of the family law legislation. At Everingham Solomons we have the expertise and experience to assist you with parenting orders because Helping You is Our Business.
The Retail Leases Act 1994 attempts to correct the power imbalance traditionally existing between landlords and tenants. This is seen in relation to market rent reviews.
When rent is to be reviewed by reference to current market rent in a retail lease, either the landlord or tenant must suggest a new rental to the other party in writing at least 60 days before the rent review date.
If parties are unable to reach an agreement at least 30 days before the new lease is due to commence, the Retail Leases Act states that current market rent will be determined by a specialist retail valuer. The valuer can either be agreed to by the parties or appointed by the Tribunal.
Parties have 14 days from the date that they receive notice of appointment of the valuer to make written submissions about what they believe the current market rent is and why.
Considerations the valuer should consider include:
the rent that the landlord could expect to receive if the premises was unoccupied and put onto the open market;
the advantages and disadvantages of the property as a whole; and
the tenants use of the premises.
The valuer has one month from the date of acceptance of the role to decide what the current market rent is. The decision made is final and binding.
Obtaining an independent valuation is a time consuming and expensive process, (the cost of which is born by the parties equally) and should be used as a measure of last resort.
It is particularly important to be proactive in a market review situation from a Landlord’s perspective, as if negations fail and neither party seeks a valuer to be nominated before the next rent review date passing, the rent will not change.
At Everingham Solomons we have the expertise to assist both landlords and tenants when carrying out a rent review, as well as with any other retail lease concerns.
If you have any questions regarding retail leases, please do not hesitate to contact the experienced team at Everingham Solomons because Helping You is Our Business.
When determining the live with and spend time with arrangements for children, one area that the Courts must look at is whether it is “reasonably practicable” for Orders to be made.
Reasonable practicality is outlined in Section 65DAA(5) of the Family Law Act and takes into account issues such as how far apart the parents live from each other, whether the parents can afford to undertake what is being Ordered, the capacity for the parents to communicate, the impact Orders may have on the children and any other matter the Court deems necessary.
This issue was raised in the Family Court appeal decision of Ember & Assadi [2013] FamCAFC 107. Orders were originally made in this case for the children (then aged 3 and 2 years) to live with the mother but to return from Melbourne to Sydney so that the father could spend time with them.
The mother did not agree with the Orders for her and the children to move back to Sydney and she argued on appeal that the Federal Magistrate failed to consider the “reasonable practicability” of her returning to live in Sydney and that there was insufficient evidence to determine what her financial situation would be.
The evidence before the court on this occasion concerning the financial situation of the mother was that she was living in a Department of Housing house in Melbourne and was working only three hours per week.
Further, whilst there were comments that the father would pay to the mother $110 per week, there was no order to that effect nor was there any consideration as to whether the father could actually afford to give the mother that amount of money as he was only working 2 days per week and living with his parents. Again, the mother’s financial position was not fully determined.
The Full Court concluded that there was merit in the appeal because they did not find that there was enough evidence for the Federal Magistrate to determine whether it was reasonably practicable in the circumstances for the mother to be required to move back to Sydney and financially what that impact would be.
If you have any issues in relation to the reasonable practicality of the spending time with your children, you should seek legal advice from Everingham Solomons as we have the experience and expertise to assist you because Helping You is Our Business.
Where a person leases a house on a farm, it can sometimes be unclear whether they are a residential tenant or an agricultural tenant.
A residential tenant has rights and responsibilities under the Residential Tenancies Act 2010. This legislation governs the landlord’s requirements to provide a safe and secure residence, matters that are to be included in a lease, what constitutes a breach of the lease, and the tenant’s right to privacy.
An agricultural tenancy is governed by the Agricultural Tenancies Act 1990. This Act sets out the rights of tenants to receive compensation for improvements undertaken on the property, and the capacity of landlords to require maintenance of land and infrastructure. The Act also provides a framework for resolution of disputes.
The Agricultural Tenancies Act only applies to farms that are larger than 1 hectare.
Where the principal use of a property is for agricultural purposes (which includes grazing, cropping, poultry & pig farming, bee-keeping, dairying and viticulture), the tenancy will be deemed agricultural. Even if the tenant leases the farm as well as a house, the tenant will not have the protection of the Residential Tenancies Act.
This means that a tenant will need to be aware of their responsibilities under the Agricultural Tenancies Act to ensure that they do not carry out work that is not authorised – doing so could mean that the tenant is not entitled to be compensated and the landlord will be deemed to own any new infrastructure but will not have to pay the tenant for the materials or labour.
It is therefore important that the landlord and tenant agree on what is required of each party at the beginning of the tenancy, and that the agreement is formalised by entering into a lease. The lease should also include a condition report, so that there is a reference point for any matters that become contested in the future. Photographs are a good way to document the condition of houses, sheds and fencing as well as pasture & weeds.
Whether you are a landlord or tenant, if you are considering entering into an agricultural lease contact the experienced conveyancing team at Everingham Solomons where Helping You is Our Business.
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History has shown that disputes often arise over fences that divide separately owned properties.
A fence can be an asset that you share with people that you don’t know, don’t want to know, or didn’t know would be so unreasonable.
In a rural setting the cost of repairing fences is often significant. The cost of not repairing fences can sometimes be even greater.
Who owns the fence, who wrecked it, who should fix it, to what standard and at what cost are all common dispute issues.
Thankfully, there is a piece of legislation which answers most of the above questions and provides a mechanism to resolve fencing disputes.
It is called the Dividing Fences Act and it applies to both rural and residential areas. It’s pretty straightforward to understand and easy to apply. However, most applications will require some time inside a court room and the production of evidence tailored to address specific issues raised by the act.
In some cases a dividing fence will simply be dilapidated by the rigors of time, weather and normal use. Sometimes however, it might be the case that one party in particular has caused all or most of the damage to the fence.
Under the act a party can request another person to pay an equal amount for the fence to be fixed, or any other amount which reflects the parties’ proportionate liability for the fence’s damage. The request must be set out in a particular manner and form.
If the requested party either does not respond to the request, or disputes some element of the request, an application can be made to the local court to have the dispute determined. The proceedings are usually fairly quick and fairly cheap.
If, at court, you are the successful party, you can apply to have your costs paid by the other party. However, you need to be careful when you commence the proceedings because if what you request is unreasonable or untenable and the court decides against you, you can be ordered to pay the other party’s costs.
If you, like many people, have a problem with a dividing fence, contact Everingham Solomons, because Helping You is Our Business.
When a new owner takes over a business, at what point is he considered to have ’employed’ the existing staff?
In a recent case before the Fair Work Commission, a café in Melbourne was taken over by a new owner, SK, on 10 September 2012. No information was given about future employment conditions but the manager encouraged staff to be patient and understanding with the new owners. There was no new paperwork in respect to employment, no change to shifts, no change to wages, and no request for taxation declarations.
Annual leave entitlements were paid out at the time of the transfer of business.
At that time, one of the workers, B, had been employed on a permanent part-time basis for more than 12 months. He continued working on the usual basis until 22 September, when he received a text message from SK which read: ‘Hi B, it is S, I just want to tell u that I’m not happy to have u with our staff members anymore, I will contact u very soon for ur wages.’
Unfair dismissal proceedings were commenced by B against SK even though B had only been employed by SK for about two weeks.
During the proceedings, SK submitted that he felt a need to reduce the number of employees and observed their performance over a two-week period to choose who should stay and who should go. He said that after watching the workers he ‘didn’t select B for my staff’.
SK added: ‘I didn’t dismiss him, for he was not my employee, I simply chose not to select him for my business.’
Employed ‘before and after’
The Fair Work Commission found that B was employed in the business before the transfer and after the transfer.
The Commission determined that because B had not been informed in writing that the period of service with the old employer would not be recognised, the period of service with the first employer counts towards the period of continuous service.
Accordingly, the Commission found that B did in fact have more than 12 months of continuous service and was protected from unfair dismissal.
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.
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Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary provides financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.
All Principals of local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2014.
If you require any further information Everingham Solomons are holding a information night on Tuesday 27th August at our Marius Street office from 6pm – 7pm. If you would like to come along please follow the below link to register.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until 20 September 2013.
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When parties enter into a relationship it is not uncommon for one party to earn a higher income than the other. In family law proceedings the court will consider any income earned by either party as a “contribution”, in addition to the real property held by the parties such as real estate and cars, when weighing up the asset pool.
It is section 79(4) of the Family Law Act (1975) which deals with contribution issues in regard to property settlements. The contributions can be either financial (such as income) or non financial (performing unpaid duties and making home improvements), and can relate to the welfare of the family (such as caring for children and home making).
The recent appeal case of Petruski & Balewa [2013], considered whether there should be more “loading” given to a wife’s contributions because she was the higher income earner at the commencement of, and during the short five year marriage. The wife argued that her greater financial contributions to the marriage should in turn diminish the husband’s entitlement to the asset pool.
The court agreed with the trial judge that the marriage was “a merging of effort, finance, risk and support…”. For example, throughout the marriage, the wife allowed for the intermingling of finances, the establishment of joint bank accounts and for her husband to receive distributions from her family trust. There was joint effort and joint responsibility toward the finances by both parties.
Furthermore, the husband, who along with the wife had worked to his full capacity and potential, was also held to have made significant non-financial contributions throughout the marriage including running the household for instance. This non-financial contribution could not entirely be overridden by the wife’s financial supremacy.
The court held that the wife could not simply treat the marriage as “an event without consequence, to be wound up at its conclusion by a distribution based on an audit of earnings”.
This case clearly illustrates that where one party makes a significantly higher income as opposed to the other, the court will not adopt a simple mathematical approach when assessing the asset pool. A decision will be made in light of the joint nature of the relationship taking into account both financial and non financial contributions made by the parties in order to achieve a just and equitable settlement.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Under the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.
