Interim orders and interim proceedings in Family Law

Interim orders and interim proceedings in Family Law

Court orders are the legally binding declarations made by judges which fulfil the purpose of resolving a dispute and outlining the obligations which each party must perform. Family Law proceedings are often quite lengthy, with most parties waiting at years for a final hearing, so interim orders ensure that the needs of all the parties are met in a timely manner. These delays make it essential that parties seek legal assistance when applying for interim orders so that the appropriate care and diligence can be taken in preparing and presenting their case.

What are Interim Orders?

Interim orders are temporary orders which are put into place until final orders are made by the Court, which brings the matter to an end. Judges determine interim applications based on the facts and circumstances of each case which is derived from the material filed by each party.

In Family Law matters, interim orders may relate to issues such as parenting or financial matters in separation. In relation to parenting orders, the court must consider the best interests of the child. An interim order may provide families with a sense of stability. In relation to financial orders, an interim order may provide the basis as to which of their properties they are permitted to use or sell while the matter is ongoing. Other common terms pertaining to interim orders in family law include:

  • Allocation of parental responsibility,
  • Living and communication arrangements for children,
  • Instructions to attend upon a family consultant to obtain a family report
  • Instructions for a party to undergo drug or alcohol testing, or
  • The appointment of an independent children’s lawyer (ICL), as necessary.

Interim orders differ from final orders which conclude the proceedings, as well as consent orders which arise out of an agreement between the parties. Final orders are not necessarily irrevocable, as both parties in family law proceedings may have the right to set aside those orders or apply for a change to the orders in the event of a substantial change in circumstances.

Applying for Interim Orders

Each Family Law proceeding commences with the filing of an initiating application. One party must file that initiating application and the other party files a response to that application. This will set out the interim and final orders you are asking the court to make. Generally you will be unable to file for interim orders until you have filed an application for final orders. These applications all need to make it clear to the court what orders you are seeking and the evidence to support them. Any person who is concerned with the care, welfare and development of children can apply for interim parenting orders.

For financial matters in a divorce, either party to the marriage can apply within 12 months of the divorce order taking effect and for financial matters when a de facto relationship breaks down, either party to the relationship may apply within 2 years of the breakdown of the relationship. There are various exceptions in filing out of time, and we strongly advise that you seek legal advice in the event you are faced with this issue.

Case Study: Relocation of Children

Many family law matters that appear in interim hearings involve the relocation of children by one parent before divorce or settlement proceedings are finalised. As reinforced in the recent case of Brant v Brant [2021] FamCA 91, interim orders can be made to undo a parent’s attempt to relocate children before a final hearing and enforce the best interests of the child and shared parental responsibility. In that case, the mother had relocated her two children and enrolled one child in a new school without consultation or consent from the father. The father then sought an interim order for the mother and children to return to the area, offering exclusive occupancy of the matrimonial home and payment of child support to facilitate this arrangement. The Court found that the relocation may have had an adverse impact on the meaningful relationship the children have with their father, and that the relocation should be temporarily reversed until final orders could be made. It is important to note however that where there is an interim hearing regarding children, the overriding consideration of the Family Court is determining what is in the best interests of the children.

Navigating a separation or divorce can be a highly stressful and emotional time for you and your family. At Etheringtons we provide a compassionate and skilled approach to family law matters. If you need further advice or assistance regarding interim orders or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Why Binding Financial Agreements are not DIY

Why Binding Financial Agreements are not DIY

The courts have reaffirmed the importance of seeking independent legal advice and assistance regarding the execution of Binding Financial Agreements (BFA) or other property arrangements when planning for you and your family. The Family Law Act 1975 (Cth) sets out very strict requirements for a BFA to be valid and enforceable, and it is often the case that informal agreements and one’s executed overseas will not be recognised by Australian courts.

A BFA when executed correctly, can allow for certainty, trust, and peace of mind in a relationship. If you are wanting to enter into a financial agreement with your partner, or to understand if your current agreement is valid, it is crucial that you take appropriate caution and seek suitable legal advice.

What is a Binding Financial Agreements (BFA)?

A BFA is a legally binding document which sets out what would happen to the couple’s finances and property, should the marriage or de facto relationship break down resulting in separation or divorce. It allows a couple to plan their future rights and responsibilities, before entering a marriage or even after, in the event of a substantial financial change. A BFA is not lodged with a court, but rather acts as a private contract between the parties.

Importantly, a BFA can protect assets including cash, property, superannuation or inheritances and are predominantly used for setting out the financial arrangements of the couple. However, a BFA does not cover child custody arrangements, nor child support payments. A more extensive discussion of which matters can be dealt with in a BFA can be found in our previous blog article about constructing, obtaining and setting aside Prenuptial Agreements.

BFAs can be set aside where:

  • There have been instances of non-disclosure of assets or financial resources.
  • The BFA does not make any provision for children or if there was an adverse change in the welfare of the children so the agreement would cause hardship.
  • The contents of the agreement are were not just and equitable.
  • Additionally, as discussed in a previous blog article, the High Court will not enforce any BFAs which have been entered into arising from unconscionable conduct, especially where this conduct is a consequence of a significant power imbalance between the parties.

The Family Law Act 1975 (Cth)

The Family Law Act is the legislation which governs BFAs. It allows parties to enter into these agreements before or during a marriage, or after a divorce. Under this Act, a BFA must be in writing, have been signed by both parties, and make specific reference to the section of the Act it is made under.

Recent case: Akhtar & Gaber (No. 2) [2021] FamCAFC 28

An important recent case demonstrated that marriage agreements which do not comply with the Family Law Act’s requirements for a financial agreement are not binding. In the case of Akhtar & Gaber (No. 2), the Appeal Division of the Family Court of Australia dismissed the appeal which aimed to oust the jurisdiction of the court to make orders relating to property interests and to uphold the terms of the marriage agreement between the parties, made in another country (or jurisdiction).

The marriage agreement between Akhtar and Gaber was not a recognised BFA as it did not comply with the strict requirements of the Act. It was therefore not enforceable and did not oust the jurisdiction of the court for determining proprietary interests. This means that even if the marriage agreement was binding in another country, it does not effectively operate as a BFA in Australia. The division of property between the parties was therefore to be determined in accordance with s 79 of the Family Law Act.

Why obtain our legal assistance regarding your Binding Financial Agreement?

As demonstrated in Akhtar & Gaber (No. 2), it is very important that your BFA meets the requirements set out in the Family Law Act. BFAs which are incorrectly drafted may be deemed invalid or set aside, but engaging an experienced solicitor will assist in this process.

Additionally, for a financial agreement to be binding, before it can be signed by both parties:

  • Each party must have received independent legal advice regarding the effect of the agreement on the rights of that party and the advantages and disadvantages of the agreement, at the time that the advice was provided to the party,
  • Each party must have received a signed statement from a legal practitioner as authority that this advice has been provided, and
  • Each party must have received a copy of the equivalent signed statement of their spouse or intended spouse.

If you need further advice or assistance regarding BFAs or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Legal Considerations for Heritage-Listed Home Ownership

Legal Considerations for Heritage-Listed Home Ownership

Heritage-listed homes offer a unique glimpse into Australian history and are often filled with beauty and character. Despite the antiquity and romantic features of these homes being a point of value for some, it is important that current or potential owners are aware of the legal hurdles involved when owning or selling a heritage-listed property.

What is Heritage Protection?

If a home is listed on the State Heritage Register, it is recognized as being of historical significance to the state of NSW. Many council areas in Sydney such as Ku-ring-gai and Hunters Hill are abundant with heritage listed homes owing to their architectural or cultural value. To find out whether your home or homes near you are heritage listed, you can search the NSW Heritage database here.

A Heritage Conservation Area (HCA) protects an entire area, group of buildings or streetscape with values and characteristics that give it a distinct historical identity. These can include the original purpose or use of the buildings, integrity of the building materials or subdivision patterns. For example ‘The Spot’ in Randwick is a HCA due to its strong sense of identity dating back to its origins as “Irishtown” within the small commercial hub with buildings of character such as the Ritz Theatre.

The Benefits of Heritage Protection

The historical significance and notable architectural structure which includes unique details and craftsmanship, is what draws many buyers to heritage-listed homes. Depending on the type of home, people may also pay more for the particular, protected style. For example, devotees of modernist classics and Victorian architecture actively pursue these homes and are willing to pay a high price.

Heritage listed property owners can take assurance in the knowledge that a large apartment block or multi-story carpark will not be freely permitted to be built next door, as the neighbourhood and privacy of these property owners are protected. Further, to compensate for some of the maintenance costs involved with heritage properties, home owners may be eligible for reduced rates for council and land tax. This requires an application through Heritage NSW.

Renovating a Heritage-Listed Property

Despite their sound structural integrity and historical value, heritage protection and HCAs can be problematic if an owner wishes to renovate their property. Heritage protection can be restrictive and owners find themselves facing limitations that wouldn’t exist if their property wasn’t listed. Restrictions contained in the Heritage Act 1977 (NSW) include the following provisions:

  • You can make a heritage-listed property ‘liveable’ by making installations or repairs: You are allowed to make installations or similar adjustments to make the home suitable for modern living, provided that they do not detract from the property’s original appearance. Heritage property owners are obligated to ensure that the Minimum Standards of Maintenance and Repair are being met. Other changes will require in Integrated Development Application to be lodged with the local council or directly with the Heritage Council. Generally, upon lodging an application home owners may install contemporary kitchens or bathrooms but the structure of the home and the street façade must be preserved.
  • Emergency Fund: Older homes do come with the risk of hidden structural damages or other unpleasant discoveries. It is recommended that you keep an emergency maintenance fund in order to make necessary repairs. Home owners can apply for Emergency Works Grants through Heritage NSW for an amount up to $10 000 to address damage incurred during a natural disaster or emergency event, or for work directly related to a heritage benefit.

Valuing Heritage-Listed Properties

Owing to the above restrictions/provisions, there is a concern that a heritage listing will result in lower land values, as potential buyers will not be able to extend or modify their home. Heritage listings can also prevent existing home owners from making alterations or renovations that may markedly increase the value of the property.

Heritage listed homes can often attract more expensive insurance premiums due to the higher risk and cost of restoration and repair. Specialist insurance policies may be required to insure your home is not underinsured.

It is also important to note that a heritage valuation is based on the existing use of the land rather than its zoned development potential. For example, a house would be valued as a dwelling house, even if that property is located in a commercial or residential flat zone. However, a Productivity Commission study recently found that a heritage listing in the North Shore of Sydney can add 12% to a home’s market value.

Contact Etheringtons Solicitors

It is crucial to properly assess the potential benefits and consequences of a heritage listed property before making a financial commitment. As a property owner it is important that you are well informed about factors that may affect the value or structure of your home. At Etheringtons, we can assist you with your property law needs to ensure the best outcome for you and your family. Should you have any further questions, please do not hesitate to call (02) 9963 9800 or via our contact form.

Correcting your credit history for victims of fraudulent activities

Correcting your credit history for victims of fraudulent activities

Fraudulent activities, including identity theft or credit card theft are some of Australia’s most common crimes. As a victim of fraud, you may experience an unexpected dip in credit score as a result of subsequent late payments and high credit utilisation. The repercussions to your financial welfare may be overwhelming. Thankfully, there are various steps which can be taken to both prevent fraudulent activities from occurring and to correct your credit history if you have been a victim.

Fraudulent activities to watch out for

The two most common fraudulent activities are:

  1. Identity theft: when someone illegally obtains and uses your personal information and account details to use existing credit, or to complete fraudulent applications to open new credit in your name. Scammers can do this through electronic viruses or malware which collect your name, birthday, Medicare number or bank details.
  2. Credit card fraud: when someone steals and/or uses your credit card to engage in unauthorised transactions. This can also be done when someone skims your account details to use in card-not-present transactions or to create a duplicate counterfeit credit card, or even when someone intercepts a mailed out card.

Regulations that apply

The relevant laws which regulate the handling of personal information for consumer credit reporting in Australia are the Privacy Act 1988 (Cth) Part IIIA, the Privacy (Credit Reporting) Code 2014 (Version 2.1) and the Privacy Regulation 2013. These form a regulatory framework which aims to create a comprehensive credit reporting system which protects individuals from fraudulent activities. We have discussed the Privacy Act 1988 (Cth) in another article in relation to business obligations.

Protecting your credit history from fraudulent activities

It is important that while it is not your responsibility to pay back any credit used in fraudulent activities, you should act quickly to resolve the issue of fraud with your bank or financier first. There are a number of ways you can actively protect your credit history and minimise the damage caused by fraudulent activities:

  • Monitor your accounts, bank statements and credit reports regularly. If you discover any errors or unauthorised charges, immediately contact your credit providers and engage a fraud alert on your credit report so that other credit agencies are warned about the activity.
  • Apply a security alert on all of your accounts so that you can be quickly notified.
  • Change your online passwords and PINs regularly to protect your personal information. These passwords and personal information should also be kept in a secure location.

Further, if you discover that your credit card has been lost or potentially stolen, immediately notify the credit card issuer so they can put a block on the card. You should also report the crime to the police and document any communications you make with relevant credit providers or authorities regarding the matter.

Responding to fraudulent activities to correct your credit history

Request a ban

Under the National Consumer Credit Protection Act 2009 and Regulations, if you believe you are a victim of fraudulent activities, you may request that each of your credit reporting bodies (Equifax, Illion (formerly Dun and Bradstreet) and Experian) does not disclose your information in your consumer credit report. Each of these bodies will then place a 21 day ban period on your credit report, which may be extended if further investigation is needed.

Requesting and implementing this ban period will incur no charges. During this period, your information will not be disclosed unless you offer written consent or an Australian law, court or tribunal requires it. Credit providers who contact the reporting body seeking your credit history and information, will be informed of the ban and alerted to the potential fraud.

Make a credit report complaint

If you have been the victim of fraud, you may file a complaint about the information in your credit report with the relevant credit provider or credit reporting body. They should respond to the complaint within 30 days but if they don’t respond, or you are not satisfied with their response, then you may take the complaint to the relevant external dispute resolution (EDR) scheme.

If you are still not satisfied, or if you would prefer to complain directly to the regulator, you can lodge a written complaint to the Office of Australian Information Commissioner (OAIC). Although, you should be made aware that the OAIC may refuse to investigate a complaint made more than 12 months after you became aware of the act or practice. Dispute mechanisms can be complex, and it is important to seek legal advice to fully understand your options when dealing with EDR schemes or formal complaints.

Contact Etheringtons Solicitors

With advancements in technology, identity theft and instances of fraud are becoming more sophisticated and are often difficult to trace. A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with contacting the relevant credit reporting bodies, your credit providers and assist with court preparations.

If you need further advice or assistance with an instance of fraud or other litigious matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.

Genuine Redundancy and the Importance of Consultation

Genuine Redundancy and the Importance of Consultation

The Fair Work Commission has reaffirmed the importance of employers complying with consultation requirements when making employees redundant, even during Covid-19. Failure to consult with an employee about the significant changes to their employment means employers cannot rely on the genuine redundancy exception to unfair dismissal enquiries.

Legislative Requirements of Genuine Redundancies

The requirements to establish a genuine redundancy are set out under s 389 of the Fair Work Act 2009 (NSW):

  1. The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
  2. The employer has complied with any consultation obligation in a modern award or enterprise agreement;
  3. It is not reasonable in the circumstances for the person to be redeployed within the employer’s enterprise of an associated entity.

Findings of the Fair Work Commission

The consultation requirement of genuine redundancies has been highlighted in two recent cases heard by the Fair Work Commission.

In Browne v MySharedServices [2020] FWC 4445, the employee (Browne) was dismissed over the phone without prior consultation by his employer (MySharedServices). The employer relied on genuine redundancy grounds for dismissal. The Fair Work Commission found that whilst operational changes to the business had occurred as a result of Covid-19, the consultation requirement had not been met. Under the relevant modern award (Clerks Award 2009), MySharedServices were required to consult employees on any change that may have significant effect on their employment, including termination. As the consultation did not occur and there were no issues with the employees’ performance, the Fair Work Commission found the termination was an unfair dismissal.

A similar situation arose in the case Freebairn v TLJ Advisors and Accountants (2020) FWC 3915, where the employer failed to consult the employee (Freebairn) about the termination of her employment as a result of firm restructuring post Covid-19. Freebairn filed for unfair dismissal on grounds that no consultation had taken place and that if consultation had occurred she could have arranged to work reduced hours until the JobKeeper scheme kicked in shortly after. As a result, the Fair Work Commission agreed the dismissal was not a genuine redundancy because of the failure to comply with consultation requirement.

Employers must comply with the consultation requirements

Employers must remain vigilant in upholding consultation requirements when implementing redundancies, even in the wake of mass organisational shifts as a result of the Covid-19 pandemic. Consultations must be genuine discussions about the changes to employment and explain how the employer intends to mitigate such changes. In particular, consideration must also be given to how JobKeeper and other Covid-19 relief schemes impact relationships between employers and employees in relation to organizational restructuring.

We represent both employers and employees, so if you or your organisation needs further advice or assistance in relation to redundancies or dismissals, please call Etheringtons Solicitors on (02) 9963 9800 or via our contact form.

I am My Ex-Partner’s Employer. Can I Terminate Their Employment?

I am My Ex-Partner’s Employer. Can I Terminate Their Employment?

It is not uncommon for people to meet their partner in the workplace or employ their spouse or partner in their small business to provide additional support and reduce labour costs. What would happen to their employment if your relationship were to break down? Disputes may arise if your ex-partner starts causing problems in the workplace through improper behavior or dishonesty. In this blog, we review whether you can terminate your ex-partner’s employment and some considerations for the future.

Can I terminate my ex-partner’s employment?

You can terminate your ex-partner’s employment on the condition that the termination is lawful and would be for the same reasons as any other employee in your workplace, regardless of their relationship to you. There must a valid reason for their dismissal and this will vary depending on your individual circumstances.

If you wish to avoid having an unfair dismissal claim lodged with the Fair Work Commission against you, it is vitally important that the employment termination is:

  1. For a valid purpose
  2. Was not harsh, unjust or unreasonable; and
  3. Was not made for an unlawful reason.

Meaning of Unlawful Termination

The Fair Work Act 2009 states that an employer must not terminate an employee’s employment for an unlawful reason. Simply disliking your ex-partner and no longer wishing to see them in the workplace is not a valid reason to dismiss them. Examples of ‘unlawful reasons’ include dismissals based on:

  • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • temporary absence from work because of illness or injury;
  • trade union membership or participation in trade union activities outside working hours;
  • the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; and
  • absence from work during maternity leave or other parental leave.

Valid Reasons for Dismissal

A lawful and valid reason for dismissal will vary and it is advised that you seek legal advice before terminating an employee. In most cases, you may have a valid reason to terminate employment if your ex displays some of the following behavior:

  • Inappropriate conduct such as harassment
  • Creating conflict for clients or other employees
  • Improper use of the company’s monies
  • Not abiding by workplace policies

Other considerations

If you are satisfied that a valid reason for dismissal exists, you must ensure that you provide adequate notice, an opportunity to respond, and the reasons for dismissal. You should consider providing ‘warnings’ or offer mediation conferences to your ex before considering dismissal, as often their behaviour or performance may improve and you may be less likely to face an unfair dismissal claim.

You should also consider whether terminating your ex-partner’s employment may leave you vulnerable to a spousal maintenance claim. Spousal maintenance is where one partner provides financial support to the other partner upon the relationship breaking down. To learn more about spousal maintenance, see our blog here.

Contact Etheringtons Solicitors

Various employment and family law problems that stem from workplace relationships can lead to complicated legal repercussions. The team at Etheringtons solicitors are highly skilled in navigating both employment law and family law matters and are able to assist you every step of the way during your legal proceedings.

If you or someone you know needs help and would like to have a confidential no-obligation discussion, please call Etheringtons Solicitors on (02) 9963 9800 or send us a message via our contact form.

Deceptive Similarity in a Craft Beer Trade Mark Dispute

Deceptive Similarity in a Craft Beer Trade Mark Dispute

A trade mark that distinguishes one trader’s goods from another is a valuable asset, however a recent Federal Court case concerning craft beer has demonstrated that registered trade marks are not always protected from cancellation in a trade mark dispute.

In the case of Urban Alley Brewery Pty Ltd v La Siréne Pty Ltd [2020] FCAFC 186, Urban Alley Brewery Pty Ltd’s (Urban Alley) appeal was dismissed and their trade mark “Urban Ale” was cancelled under section 88(1)(a) of the Trade Marks Act 1995 (Cth). This was an important case which determined that a trade mark registration must be cancelled or rejected if it is deceptively similar to another registered trade mark.

Facts

  • Urban Alley was a craft brewery in Melbourne which produced a beer product called “Urban Ale”.
  • La Siréne also operated as a craft brewery in Melbourne and produced a beer product under a similar name “Urban Pale”.
  • La Siréne first sought orders to cancel the Urban Alley’s registered trade mark under the Trade Marks Act 1995 (Cth) s 88(1)(a).

Significance of the Case

This case demonstrated the importance of adopting a trade mark which is sufficiently distinctive from other existing trade marks and ahead of prevailing trends. Further, difficulties may arise when descriptive words are used. It was concluded that the terms “urban” and “ale” were too descriptive of beer to be distinctive from other goods or services. Therefore, the key terms of Urban Alley’s trade mark had become descriptive as a result of prevailing trends, causing Urban Alley’s trade mark to be deemed invalid for lack of distinctiveness and deceptive similarity.

As there was no factual distinctiveness, they upheld the primary judge’s finding that Urban Alley’s trademark should not have been registered, and thus it was cancelled.

Trade Marks Distinguishing Goods or Services

The key point is that a trade mark must be capable of distinguishing an applicant’s goods or services. It was found that Urban Ale was not “inherently adapted” to be capable of distinguishing its beers from those of other producers. This decision was based on evidence that the term “urban” was commonly associated within the industry with beer products and breweries.

The court considered the following factors:

  • The term “urban” is not significant regarding the beer style or flavour, and has been used by numerous Australian businesses, including in La Siréne’s “urban pale” without improper motive. Instead it is used to describe the location of the brewery, as used by many other traders and journalists.
  • On Appeal, it was found that the terms “urban” and “ale” were descriptive of the goods (beer) and should be interpreted with their common meaning.
  • Urban Alley could not produce sufficient evidence that they had established a reputation based on the “urban ale” trade mark.

The Test for Deceptive Similarity

The relevant test for deceptive similarity is to compare between a trade mark and the recollected impression retained of another previously registered trade mark. A side by side comparison of trade marks may not convey the same meaning or idea, however, they may when imperfectly recalled under this test. Furthermore, the trademark must be viewed in its entirety, unlike the substantially identical which requires the examination of individual trade mark elements.

Etheringtons Solicitors can assist you with enforcing your trade mark

Etheringtons Solicitors can advise you throughout the development and adoption of your trade mark to ensure that it is distinguishable from other goods and services and to avoid future trade mark disputes.

We can assist you with registering a trade mark in Australia and advise on whether your trade mark includes any descriptive qualities which could affect its validity. We may advise you to consider securing other versions of trade marks which have the potential to cause a challenge risk.

If you need further advice or assistance regarding trademarks or other intellectual property matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Pet Custody Disputes Arising from Divorce or Separation

Pet Custody Disputes Arising from Divorce or Separation

Divorce or separation has a significant impact on all members of the family, including our beloved pets. Approximately 61% of Australian households have at least one pet, and in the event of a divorce or separation, pet custody can be a significant issue in the dispute due to the considerable emotional attachment we have to our furry friends.

How are pets classified in custody disputes after a separation?

Despite being a beloved member of one’s family, pets are considered a personal property asset under NSW law. The Family Law Act 1975 (Cth) provides no specific provisions on how pet custody or ownership should be determined in the event of separation. Property settlement principles are applied instead, which means that in the event of a separation, our pets are included in the broader asset pool.

While we all attribute incomprehensible emotional value to our pets, they are typically not considered to be significant assets in a property settlement. This is unless they have significant monetary value, such as pedigree pets, or are income generating, such as livestock. Pets that do not fit into these categories are attributed their nominal market value within a property settlement.

Keep in mind that property settlement proceedings in the Federal Circuit Court or Family Court must be commenced within two years from the date of separation for de facto relationships, or one year from the date of divorce for married couples. However, parties can still settle matters by entering into Binding Financial Agreements out of that time frame.

How would a court handle a pet custody dispute?

Courts prefer separating couples to make their own arrangements concerning pet custody. When they are asked to make this discretionary decision, the court will take into account any of the following factual considerations:

  • Who purchased the pet and the purpose of that purchase;
  • Whose name the pet is registered under;
  • Who has current possession of the pet, including who it resided with before, during and following the separation;
  • Whether one party has a more suitable residence for the pet – we have discussed keeping pets in strata schemes in a previous article;
  • Whether the pet is a service animal which one party relies on or will rely on in the future;
  • Who made financial contributions towards the pet – including food or veterinary payments, pet insurance and grooming fees; and
  • Who made non-financial contributions towards the pet – including who provided exercise, fed or cleaned up after the pet.

If your child or children have an attachment to the pet, a court may prefer to assign the pet to the primary residence with those children or to move between residences with the children, as it is in their best interest.

The courts recently held that the Family Law Act 1975 (Cth) provides no provisions for shared custody of property, including pets, after separation. The court aims to resolve disputes in a manner that will avoid further proceedings. A court may make any appropriate orders, which could include selling the pet to distribute its nominal value in the same manner as any other asset, such as a house or furniture.

What options can Etheringtons Solicitors provide?

Etheringtons Solicitors can assist you with negotiations or mediation regarding the ownership or living arrangements (including time allocations, residence and expense payments) of a pet with your separated partner.

We understand that your pets represent more than the asset-based approach the Court has to adopt. We suggest negotiation and mediation whenever possible, as both options are more time- and cost-efficient than court proceedings and allow for greater flexibility in the solution developed for your particular circumstances. These negotiations would need to cover who will care for the pet on which days, how handovers will be dealt with, who will meet ongoing and future expenses, who will be responsible for vet checks and who will make major health decisions – these are considerations not dissimilar to parenting orders.

Once parties reach agreement, they can be formalised by way of Consent Orders with the court, along with any parenting or property orders as needed.

If you need further advice or assistance with a pet custody dispute or other family law matters please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Building defects claims – your building certifier may be liable

Building defects claims – your building certifier may be liable

When you discover a building defect on your property, your first reaction may be to pursue an action against the builder contracted to complete the work. But what if your builder goes into liquidation and you can no longer bring an action? When your builder goes into liquidation, you become eligible to access the Home Building Compensation Fund (HBCF). However, compensation provided from the HCBF is capped at $340,000. What if your loss is double that?

A decision by the Court of Appeal in the ACT reaffirmed that certifiers may also be liable for building defects. They have a duty of care to ensure that building works, at the completion of each stage, meet the required standard.

A successful case against a certifier is rare

In the case of Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTA 21, the Court held that the appellant who was the certifier of the building was responsible for building defects which he failed to recognise during inspections.

Construction started on the block of land purchased by the respondent in 2012. On 9 November 2012, the appellant issued a certificate at the “pre-slab” stage inspection and a second at the “pre-sheet” stage in February 2013. However, at both stages of construction, the works were defective.

Once the building was complete, a dispute arose over various defects resulting in the owner suing the certifier in the Supreme Court of the ACT.

The Court held that there was an implied term in the contract between the owner and the certifier which required the certifier to carry out the work with due care and skill. The Court found that the certifier had breached this obligation by issuing the certificates and failing to identify the various defects.

The key is to identify a causal connection

The key issue that arose in the Hyblewski case was whether there was a causal connection between the certifier’s breach and the owner’s loss. This meant that the actions of the certifier in failing to recognise the defects during the course of construction must have caused the owner’s loss.

The certifier argued that there was no causal link, as the builder’s defective work already existed at the time the certificates were issued. This argument was unsuccessful as the Court found that had the certifier issued a written notice to the builder rather than issue certificates, the builder most likely would have fixed the defects. Therefore, the Court found that the defects were caused by the certifier’s breach of duty.

When assessing the causal link between an action and the damages, the Court will consider what the various parties (such as the certifier, the owner and the builder) would have done had the certifier exercised reasonable care and skill. The Court will also look at whether the owner would have suffered the loss and damage as a result.

In some circumstances, certifiers can be found liable for defective building work (in addition to the builder). In this instance, the Court found that there was a causal link, as the certifier is responsible for assessing a builder’s work for compliance and allowing work to either continue or stop.

The owner’s vulnerability may determine the existence of a duty

There have been cases in NSW where the courts have been reluctant to find that principal certifying authorities owe a duty to take reasonable care when issuing occupation certificates. In Chan v Acres [2015] NSWSC 1885. the Supreme Court of NSW placed significant weight on the need to establish actual reliance and the owner’s vulnerability, to the extent that an absence of vulnerability may be determinative against the existence of a duty.

In Chan v Acres, an owner builder renovated his property and obtained an occupation certificate. The renovation contained structural defects. The property was sold to the plaintiffs who sued the certifying authority, the vendor and the structural engineer. At the first instance, the Supreme Court held that the plaintiffs were vulnerable because it was reasonably foreseeable to the certifying authority that a purchaser would suffer loss if defects were not identified and rectified before sale.

The certifying authority appealed and the appeal was allowed because the Court of Appeal found that the plaintiffs failed to establish the relationship of “vulnerability” and “reliance” between themselves and the certifying authority. The Court held that the plaintiffs could have protected themselves by negotiating the terms in the contract of sale with the vendor.

It was also noted that the role of a certificate is to show suitability of a building for occupation and this “does not require that all of the building work… has been carried out in accordance with approved plans and specifications, and in a proper and workmanlike manner.”

Pursuing an action for building defects

A defect in construction law refers to work that has not been performed in accordance with the standards and requirements of the particular contract.

Matters that will be taken into consideration in determining if there is a defect may include:

  • the quality of any work and the standard of workmanship;
  • whether design directives have been followed and correct materials have been used; and
  • whether the works have been performed in accordance with contractual specifications and drawings.

If you believe that defective building work has occurred on your property, you should act quickly. Knowing your rights and the relevant time limitations in pursuing a claim for defective work will empower you to take the appropriate steps to have the work rectified.

If you need more information, assistance, or advice on how to proceed please call us on (02) 9963 9800 or via our contact form. To learn more about how Etheringtons Solicitors can assist you, please visit our blog here.

Australian Consumer Law Update: Extending Protection to More Consumers

Australian Consumer Law Update: Extending Protection to More Consumers

The term ‘consumer’ carries with it broad connotation of individuals who purchase goods and services, usually for a relatively low sum. However, with the new Australian Consumer Laws (‘ACL’) set to take effect from 1 July 2021, the definition of a ‘consumer’ could affect a greater number of transactions as they will be covered by the ACL consumer guarantees. In this blog, we provide an overview of the Australian Consumer Law (‘ACL’) and the changes set to take place this year.

What is the Australian Consumer Law?

The ACL is the primary area of law that regulate the sale of goods and services. The ACL applies nationally and in all States and Territories, and to all Australian businesses. The ACL is administered by the ACCC and state and territory consumer protection agencies and is enforced by all Australian courts and tribunals.

Under the ACL, products and services must meet strict requirements. For example, products must be safe, long lasting, lack faults, look acceptable, carry full ownership, be fit for purpose, match descriptions, have spare parts and repair facilities available and do everything someone would normally expect them to do. Likewise, services must be provided with acceptable skill and care or technical knowledge and taking all necessary steps to avoid loss and damage, be fit for purpose and be delivered within a reasonable time when there is no agreed end date.

The ACL provides consumers protection in the areas of:

  • Unfair contract terms
  • Consumer rights when buying goods and services
  • Product safety
  • Unsolicited consumer agreements covering door-to-door sales and telephone sales
  • lay-by agreements

What’s changing?

The ACL has previously defined a ‘consumer’ as someone who purchases goods or services for under $40,000 or the purchase of goods and services greater than $40,000 if they are acquired for personal, domestic or household use or consumption. However, the recent changes to the law will increase this threshold to capture all goods and services under $100,000.

The changes will also see the amendment of the definition of “consumer” under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

These changes come in response to a review conducted by Consumer Affairs Australia and New Zealand into the effectiveness of the ACL in protected the modern consumer. It found that inflation and the rising cost of goods and services meant that purchases that were previously covered by the ACL are no longer, leaving consumers unprotected.

In essence, this change in definition will operate to expand consumer protections afforded by the ACL to a greater number of consumers. Whilst this gives purchasers more rights and bargaining power, it increases the need of businesses to ensure that they are compliant with the new ACL requirements as more customers may be covered by its protections.

How do I prepare for these changes as a business?

These changes provide a good opportunity to assess your current goods or services and whether they are subject to the ACL. You should also conduct a thorough review of your current contracts, policies, terms and conditions and existing (and now new) obligations.

You should seek legal advice if you wish to find out more information about the changes, how they affect your business and to ensure your business is complying with its obligations under the ACL. The team at Etheringtons Solicitors are highly skilled in business law and are ready and willing to assist you with your enquiry.  If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.

What is Compulsory Acquisition?

What is Compulsory Acquisition?

New infrastructure in Sydney is continuously being developed to keep up with the demands of a growing population. To build such infrastructure, a public authority – such as the New South Wales government or a local council – may compulsorily acquire some or all of your property to create the space necessary for new construction. Some recent examples include the WestConnex project and the Victoria Cross Metro Station in North Sydney.

Why should I get legal representation?

Compulsory acquisitions can leave property owners feeling frustrated and helpless, and it can be an upsetting and confusing time. However, it is important to know you may have more power than you may think. An experienced solicitor can work with you to ensure you obtain the best compensation for your loss of property. A solicitor’s reasonable legal fees for assisting you in the acquisition process will be covered by the acquiring authority so you will have peace of mind knowing that you will not have to pay for the work performed in receiving advice.

A solicitor can help you through:

1. Finding out what your property is really worth

A solicitor will help you engage experts who can accurately calculate your property’s financial value. The public authority acquiring your land will retain a valuer to estimate what they believe your property is worth, but is often skewed towards the acquiring authority, which may not reflect your property’s true worth. It is important that you engage a solicitor who can help you ascertain a value that is more favourable to you.

2. Ensuring you receive the maximum payment

There are a number of costs associated with the compulsory acquisition of your property including conveyancing fees and real estate agents’ commission (for the purchase of a new property) and removalist costs as well as legal fees (for the acquisition of your property). The purpose of the compensation provided by the acquiring authority is to leave you in the same financial position you would have been in but for the acquisition. A solicitor will ensure that compensation includes the hidden costs of acquisition that are often unrecovered.

3. Negotiating on your behalf

A solicitor can help you to prepare for negotiations with the acquiring authority. Even though the acquiring authority will send you an initial offer, your solicitor can assist you with your negotiations to ensure that you receive a fair dollar amount for the acquisition of your property. Your solicitor will act on your behalf throughout the discussions and negotiations with the acquiring authority to ensure you achieve the best result.

4. Putting together your claim

Your solicitor can assist you with putting together all aspects of your claim to present to the acquiring authority. They can also ensure that you will present a counter offer which is well-supported and well-documented so that you have the best chance of achieving a fair result.

5. Guiding you through the process

One of the many benefits of engaging a solicitor through this process is that they will support you every step of the way and you can feel assured that you are in capable hands.

Etheringtons Solicitors has acted in numerous compulsory acquisitions cases for our clients, including for properties acquired for the Victoria Cross Metro Station in North Sydney, Martin Place and Pitt Street Metro Stations in Sydney CBD and Waterloo Metro Station in Waterloo. If you have been or think you will be affected by a compulsory acquisition and would like assistance in ensuring you are provided fair compensation, please contact us on 9963 9800 or via our contact page here.

Registering a Trade Mark in Australia

Registering a Trade Mark in Australia

The advantage of registering a trade mark is that it confers far more benefits than registering a business name, company name or domain name. Marketing is an important business tool, and a registered trade mark is crucial in allowing you to protect any value or credibility which you have built on your brand. 

What is a trade mark?

A trade mark identifies a product or service, distinguishing it from the goods or services of other entities in the same sphere. A registered trade mark protects any branding element within a business including letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures and aspects of packaging. Registration alone of a business name, company name or domain name does not give you that kind of protection.

Registering a trade mark allows the owner of the trade mark to commence legal action to stop others using it. Trade marks can be used to help build market position and stop others from imitating your brand. The registration of a trade mark is effective for 10 years and can be renewed for further 10 year periods thereafter.

Registration of a trade mark covers the entire Commonwealth of Australia. For worldwide protection, an application can be filed with each country in which the trade mark will be used, or a single international application can be filed through IP Australia nominating the countries in which protection is required.

Applying for a trade mark 

Trade marks are registered in specific classes relevant to the description of the goods or services for which the mark will protect. The application for registration must nominate one or more classes of goods or services for which the mark is intended to be used and associated. If the mark applies to more than one class, the wider the protection that mark has once the trade mark is registered.

Before making an application to register your trade mark, the following should be considered:

  • Identify the relevant class of goods or services for which the mark will apply. Schedule 1 of the Trade Marks Regulations 1995 prescribes the available classes and describes the types of goods of services specific to each class. A search should be carried out before applying to register a trade mark to check that a similar trade mark is not already registered in that class.  An application to register your trade mark could be rejected if there is an identical or similar trade mark already registered which covers similar goods or services. 
  • Only minor changes can be made to a trade mark once an application has been filed and published.
  • A trade mark registration is for the goods and services you actually trade in or intend to trade in in the near future. Once an application is filed and registered, goods and services cannot be added. Therefore, you should clearly define the marketplace you trade in to ensure the best possible protection.
  • Your trade mark must be something that is capable of distinguishing your goods and services. Exclusive rights are difficult to register over everyday language, names and descriptions of products and services 

Once you are happy with your trade mark, you can apply to register it through the IP Australia website. You can also request an assessment of the likelihood of your trade mark achieving registration through TM Headstart.

The cost of applying for a trade mark will vary depending on the scope of the application. Generally, the minimum cost to apply is $120 for each class of goods and services. In Australia there are 45 different classes of goods and services and each additional class costs an extra $300. 

The application process

Once your trade mark is accepted, it will be advertised in the Australian Official Journal of Trade Marks and the application is open to opposition for a period of 3 months (which can be extended by an opponent for a further 3 month period where there has been an error or omission).

If your application is not challenged, your trade mark will be registered once the registration fee is paid (payment must be made within 6 months from the date acceptance is advertised or your application will lapse).The registration of a trade mark in Australia takes at least 7 months after an application is filed.

Seek legal advice

When applying for an Australian trade mark it is important to ensure your trade mark description and classes accurately reflects of the goods or services you intend to use your trade mark on. By investing in protecting your brand today, you can avoid the costly and uncertain exercise of preventing unauthorised use of your unregistered trade mark in the future. We are experienced in intellectual property matters and can work with you to ensure your trade mark is registered in the appropriate class or classes, and to respond to any opposition to the proposed registration. We are also able to assist with trade mark and copyright disputes.   

If you or someone you know wants more information or needs help or advice regarding trade marks, please contact us on (02) 9963 9800 or via our contact form.