The Family Home Guarantee: Helping Single Parents Purchase Property

The Family Home Guarantee: Helping Single Parents Purchase Property

The Commonwealth Government introduced a scheme to support eligible single-parent families to enter the housing market that came into operation on 1 July 2021. Known as the Family Home Guarantee, this scheme is administered by the National Housing Finance and Investment Corporation (NHFIC), a corporate Commonwealth entity established under the National Housing Finance and Investment Corporation Act 2018 (Cth). By guaranteeing a participating lender up to 18% of the property’s value on behalf of the purchaser, the NHFIC allows a single parent to enter the housing market sooner.

What is the Family Home Guarantee?

The Family Home Guarantee (FHG) scheme supports eligible single parents with at least one dependent child to purchase a family home with as little as a 2% deposit as part of the purchaser’s home loan from a participating lender. The FHG is for a maximum of 18% of the property’s value (as assessed by the lender).

The guarantee itself is not a cash payment nor a home loan deposit, but it means that the eligible purchaser will not need to pay lenders mortgage insurance for having less than a 20% deposit. There are no costs or repayments associated with the FHG itself. However, scheduled repayments of the principal and interest of the associated home loan are required for the full loan agreement period, which must be no more than 30 years.

Eligibility for a property purchase with this scheme

From 1 July 2021 to 30 June 2025, 10,000 FHGs will be made available to eligible single parents. To be eligible for this scheme, at the time you are applying you must:

  1. Be an Australian resident who is at least 18 years of age and single – meaning without a spouse (separated but not divorced is not considered single) or de facto partner. This single parent must have a taxable income which does not exceed $125,000 per annum.
  2. Have a least one dependent child living with you – meaning you are the natural or adoptive parent of a child who is either under 18 years of age or 16-22 years of age and receiving a disability support pension, indicating that you are legally responsible for their care, welfare and development. 
  3. Not currently own a home in Australia – meaning you must not currently have a freehold interest in real property, a lease of land or a company title interest in land. It does not matter whether you are a first home buyer or have previously owned a home, as long as you do not currently own a home.
  4. Have the minimum 2% deposit available to pay for the residential property.
  1. Be looking to purchase a residential property – such as a house, townhouse or apartment. The type of home you purchase will determine the time frame of your eligibility. For example, if you are purchasing an existing dwelling, the contract of sale must be signed by you and dated on or after 1 July 2021 but other dates may apply if you are building the home.

Additional property price caps apply depending on your chosen location. In Sydney and regional centres within New South Wales, the property price threshold is $800,000. In the rest of the state, the property price threshold is $600,000. We have prepared another article on the hidden costs of purchasing property to ensure you do not encounter any unexpected costs in this process. Participating Lenders have additional property specific criteria which will affect your eligibility.

Applying for the Family Home Guarantee

All eligible purchasers need to consult with Participating Lenders as all applications for the scheme need to be made directly with them. Seeking legal advice from an experienced solicitor can help with this and also assist you to structure your loan agreement to best suit your personal circumstances.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant property law and its relation to your particular property purchase and individual circumstances. If you need further advice or assistance with property law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

How the New Family Court Structure Will Affect You

How the New Family Court Structure Will Affect You

In February of 2021, Parliament passed the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Arrangements) Act 2021 which essentially proposed to merge the Family Court and Federal Circuit Court into a single unified structure. As the official merger was on the 1st of September 2021, this article will provide an update on how these reforms will impact you.

Navigating the Family Law system can be incredibly challenging at the best of times so it is essential, if you are experiencing familial issues, that you seek experienced legal advice to assist you in navigating these challenges as the Family Law landscape undergoes significant change.

Review of the Changes

We have previously written an article which gave a detailed overview of the proposed changes. By way of summary, the new Federal Circuit and Family Court of Australia will consist of two divisions:

  • Division 1: will only deal with complex Family Law matters and appeals; and
  • Division 2: is the single entry point for all other Family Law matters. Judges will preside over a combination of Family Law and Federal Law matters such as employment and immigration.

The reforms have also resulted in a change to the rules of the family courts. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were recently finalised and also came into effect on the 1st of September. One of the important features of these reforms is the establishment of a nationally uniform case management pathway which will operate to make proceedings less complex and prioritise alternative methods of dispute resolution. From the 1st of September, family matters will be dealt with in the following manner:

new structure family law

The new Family Law Rules will also retain the need for parties to fulfil the required pre-action procedures. This means that parties should not file proceedings until they have engaged in dispute resolution, exchanged documents and made a genuine attempt to settle the dispute outside of litigation. Undertaking these pre-action procedures can be acrimonious, so it is best to seek out legal advice early to ensure your interests are well represented.

Dispute Resolution

As part of creating a consistent internal case management pathway, dispute resolution has been placed at the forefront to ensure just outcomes are achieved for parties in an efficient manner. It is an expectation of the court that both parties and their legal representatives make every effort to participate in dispute resolution. There are a number of different types of dispute resolution including mediation, negotiation and conciliation, and we have written previous articles explaining these processes.

Under the new case management pathway, dispute resolution must occur within 5-6 months of the date of filing. However, we should note that in circumstances where it is unsafe to conduct alternative dispute resolution, the parties will be given an opportunity to raise these concerns with the Registrar in formal court proceedings.

What the changes hope to achieve

The overarching purpose of these structural reforms is to ensure that the resolution of family disputes is achieved as quickly, inexpensively and efficiently as possible. In a Media Release from the office of the Attorney-General, Christian Porter stated that;

‘bringing the courts together under one amalgamated structure creates a single point of entry for families who will no longer be bounced around between different courts – an issue that occurs too often in the current system and can lead to lengthy delays for families because matters have to begin again.’

The unification of the family courts is hoped to resolve up to 90% of disputes within a 12 month timeframe by:

  • Improving risk identification and the safety of vulnerable parties;
  • Encouraging alternative methods of separation which are less burdensome on the parties;
  • Improving compliance with court orders; and
  • Enhancing access to justice for those from remote or vulnerable communities through the use of technology.

Additionally, as we noted in our previous article, judges hearing Family Law matters in the new amalgamated court will need to satisfy additional appointment criteria to guarantee they are suitable to dealing with more complex Family Law matters, including family violence.

How Etheringtons Solicitors can help?

Understanding the Family Law system can be a confusing and emotionally exhausting task. Our dedicated Family Law solicitors are ready and willing to assist you with your parenting or Family Law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or [email protected]. For more articles on family and other areas of law, see our blog here.

Medical Negligence Case Study

Medical Negligence Case Study

Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107

A former patient has recently succeeded in a medical negligence action against the Nepean District Hospital (“the Hospital”) for the improper diagnosis of a shoulder injury. Ms Makaroff (“the Plaintiff”) was awarded a sum of $276,319.95 in damages on appeal. This case highlights the importance of seeking legal advice if you or your loved ones have experienced unsatisfactory care or poor health outcomes as a result of receiving medical treatment.

Establishing medical negligence

A party (the defendant) can be found to be negligent if they fail to take reasonable care to avoid causing damage to another person (the plaintiff). In order to establish a claim for negligence, a plaintiff must address the following elements under the Civil Liability Act 2002 (NSW):

  1. That a duty of care (to exercise due care and skill) between the plaintiff and the defendant existed;
  2. That this duty of care was breached by the defendant;
  3. That this breach caused the plaintiff (causation) to suffer injury or loss (damage); and
  4. That this damage suffered was not too far-removed (remoteness) from the consequence of the breach.

Each of these factors has been considered in greater detail in our previous article. The law of negligence is not straightforward, and highly dependent on the specific circumstances of the case.

There are also numerous defences which a defendant may establish in order to defer liability. For example, we have considered the dangerous recreational activity defence in a previous article regarding a case where a jockey was injured during a horse race. The Court in Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 considered this defence in the context of assessing the standard of care expected of medical professionals.

Case Study: Makaroff v Nepean Blue Mountains Local Health District

The Plaintiff was injured on 19 September 2010, when one of her horses bit her on her right forearm, which led to the dislocation of her right shoulder. An X-ray conducted at the hospital indicated that she had “moderate reduction in the right humero-acromial distance, suggesting rotator cuff insufficiency”. No ultrasounds or MRIs were conducted, and she did not receive an orthopaedic review, prior to being discharged two days later. Neither the hospital or her GP advised the Plaintiff that she required an urgent radiological examination or orthopaedic review. Based on this advice, the Plaintiff did not obtain an ultrasound until 3 February 2011, by which time it was too late for surgery to be effective.

In this case, the Plaintiff claimed that had she been properly diagnosed in a timely fashion, she would have undergone surgery and would have properly recovered the function in her arm. She alleged that the hospital and her GP breached their duty of care by their negligent treatment and sought damages for her pain, further injury and loss.

Decision in this case – considering duty of care and causation

The Primary Judge at first instance rejected the claim that the Hospital and her GP had breached their duty of care, as the Civil Liability Act 2002 (NSW) s 5O precludes liability of both parties as they acted in a manner that was‘widely accepted in Australia by peer professional opinion as competent medical practice’ at the time it was provided. Additionally, the Primary Judge held that even if a breach could be established, there was no ‘causal link’ between the alleged breach and her subsequent injuries.

However, on appeal, the Court found that the hospital had in fact breached its duty of care to the Plaintiff. Experts claimed that a competent professional medical practice required the patient to be advised of the urgency of seeking an orthopaedic consultation within 2-3 weeks of the injury. Judge Simpson also found that the hospital breached its duty of care by failing to refer the Plaintiff for radiological investigations when she presented symptoms which suggested the need for further investigation. The Court held that, but for the hospital’s breach, the Plaintiff would have undergone surgery by mid-November 2010 and there would have been a “very high degree of probability that she would have had a better outcome”.

As such, the hospital was held liable on appeal, and ordered to award the Plaintiff with $276,319.95 in damages. The appeal against the Plaintiff’s GP, however, was dismissed as the Court found that there was no breach of duty.

How Etheringtons Solicitors Can Help

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 a variety of negligence matters, whether you are the injured party or a professional.

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

Dishonesty: a valid reason for termination or unfair dismissal?

Dishonesty: a valid reason for termination or unfair dismissal?

The Fair Work Commission recently handed down an interesting finding on the issue of dishonesty in the workplace as grounds for dismissal. Whilst the Commission had previously held that dishonest conduct was grounds for dismissal, the recent case discussed in this article exemplifies the need for a nexus between dishonest conduct and dismissal.

Valid reasons and unfair dismissal

Unfair dismissal claims lodged with the Fair Work Commission (FWC), including those involving genuine redundancies, can often be complex. To avoid a claim for unfair dismissal under the Fair Work Act 2009 (Cth), the termination must be made for a valid purpose and it must not be “harsh, unjust or unreasonable” or made for an unlawful reason.

Therefore, an important consideration for determining whether an employee’s termination constitutes unfair dismissal because it was harsh, unjust or unreasonable is whether there was a valid reason for that termination. We have provided examples of unlawful reasons and valid reasons for dismissal in another article concerning terminating an ex-partner’s employment.

Where the employee’s conduct is being used as a reason to justify the dismissal, it must be sufficiently connected to the employee’s employment and of sufficient gravity or seriousness to justify the dismissal as a “sound, defensible or well-founded” response. Applications to the FWC claiming unfair dismissal must be lodged within 21 days from the date the dismissal takes effect.

Previously, the Fair Work Commission has upheld that dishonest conduct in the recruitment process was grounds for dismissing an employee: see Garth Duggan v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945 (23 August 2018). In this case, the employee failed to disclose that he was subject to legal proceedings which would impact his ability to conduct work and was generally misleading during the formal interview process. The Fair Work Commission held that this dishonesty was a valid reason for dismissal, and is a timely reminder for all prospective employees to ensure they are accurately representing themselves to recruiters and employers.

Dishonesty and unfair dismissal claims

In the most recent case of Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, Mr Newton was dismissed by Toll Transport Pty Ltd from his employment as a truck driver after he was involved in a physical altercation outside of work. Mr Newton sought remedies for unfair dismissal with the FWC. In the initial proceedings, Deputy President Boyce found that Mr Newton had been dishonest to both Toll and the FWC, and that this, not the physical altercation outside of work, constituted a valid reason for dismissal. The Full Bench granted permission for Mr Newton to appeal this decision which was subsequently upheld.

The Full Bench held that Mr Newton’s dishonesty to the FWC could not constitute a valid reason for dismissal as this dishonesty did not occur at the time of the dismissal. Furthermore, it held that Mr Newton was not required to be honest in Toll’s investigation of his private conduct (the physical altercation), nor answer their questions, merely because these questions were asked at work. The fight had occurred outside of work and lacked a sufficient connection to his employment. However, the full bench held that an employee does have an obligation to answer their employee’s questions about private conduct honestly in some circumstances, such as if that conduct damaged the employer’s interests. In those circumstances, dishonesty would constitute a valid reason for dismissal. As the appeal was upheld, Mr Newton’s specific unfair dismissal matter is to be reheard.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with unfair dismissal claims or employment terminations. If you need further advice or assistance with employment matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Should You Be Keeping Your Pay a Secret?

Should You Be Keeping Your Pay a Secret?

Discussing salaries and remuneration is often a controversial and clandestine topic in the office. However, there has been a recent push towards greater pay transparency to allow for a more equal workplace in light of social and political changes concerning issues, such as the gender pay gap. This article will discuss whether an employer can enforce pay secrecy onto their employees, and what the potential advantages and disadvantages that having pay transparency can have.

The Legality of Pay Secrecy

The simple answer is: it is not illegal to discuss your pay. However, employers can restrict your ability to discuss your pay or remuneration within your employment contract. These clauses can be particularly common in industries where discretionary incentives are offered or where pay differentiates between employees based on performance.

Pay secrecy clauses have been banned in other jurisdictions, such as the United States and the UK, in order to reduce workplace discrimination. In 2015, Australia’s Gender Pay Gap Bill attempted to ban pay secrecy clauses, but it was unsuccessful. So whilst pay secrecy is still legal in Australia, it is important for businesses to make considerations based on their industry and business specifically, so it is important to seek personalised and experienced advice when making these decisions.

Advantages of Pay Transparency

As mentioned above, pay secrecy has been linked with actual or perceived workplace inequality. Actual inequality arises when businesses use pay secrecy clauses to unfairly differentiate the remuneration of employees based on discriminatory or unfair factors such as gender, ethnicity or age. Whereas perceived inequality occurs when employees assume that, due to the mere presence of a pay secrecy clause, that remuneration is unequal. Therefore, facilitating greater transparency can operate to quash any negative perceptions and demonstrate your business to treat all employees fairly.

Other advantages of pay transparency include:

  • Increasing employee motivation and job satisfaction;
  • Improve workplace culture;
  • Promoting flatter management structures; and
  • Improving the business’ reputation.

Disadvantages of Pay Transparency

Whilst there are clearly some advantages to abandoning pay secrecy clauses, these must be balanced with benefits that can come from enforcing pay secrecy in certain workplaces. These include:

  • Greater organisational control;
  • Less workplace conflict;
  • Protection of employee privacy; and
  • Maintaining greater employer bargaining power.

It is worth noting that pay secrecy will become more disadvantageous if competitors or the industry as a whole begin moving towards pay transparency, despite the advantages mentioned above.

How Etheringtons Solicitors can help

With over 30 years’ experience, Etheringtons Solicitors have a proven track record in providing tactical advice and representation in various contentious and non-contentious employment matters. Whether you are a business owner or an employee, our team are well placed to provide advice across a wide range of matters. If you or your business require further information in relation to pay secrecy, please contact us on (02) 9963 9800 or via our contact form here.

Sydney Lawyer Successful in Defamation Action

Sydney Lawyer Successful in Defamation Action

Defamation cases in Australia are notoriously hard to run. The main consideration in assessing a claim for defamation is whether there is a monetary loss suffered by the defamed party.  Recently, a Sydney lawyer, Chris Murphy, was successful in recovering over $100 000 for defamation against the Daily Telegraph who described him as ‘continuing to battle with the ravages of age and with associated deafness that keep him from representing clients’; which he described as affecting him ‘like cockroaches in (his) brain’.

These matters exemplify the importance of understanding what constitutes defamation and how it balances with the doctrine of freedom of speech in order to protect yourself or your business.

What is Defamation?

In essence, defamation involves the publication of material that adversely impacts another person’s reputation. Defamatory material can come in the form of a photograph or newspaper article but can also commonly involve content published and distributed online or on social media. Therefore, it is important to carefully consider what you post online in order to protect yourself against defamation actions. For example, one social media defamation case of Mickle v Farley [2013] NSWDC 295, a school teacher was awarded over $100,000 after a former colleague posted abusive tweets in response to her promotion.

Defamation in NSW is governed under the Defamation Act 2005 (NSW) and similar instruments exist in other states and territories. To be successful in establishing an action for defamation, the plaintiff generally needs to establish the following:

  • The material was communicated to or spread to third parties;
  • It identifies the plaintiff or their business; and
  • The material contains one or more negative imputations which causes serious harm to the plaintiff’s reputation.

In addition, defamation actions are subject to a one year limitation period from the initial publication of defamatory material.

Defences to Defamation

There are a number of defences available to a defendant in a defamation action. These include:

  • Truth: where the statements make are ‘substantially true’;
  • Honest opinion: communications which are opinions rather than statements of fact and are based on proper material;
  • Absolute privilege: statements that are made in circumstances covered by absolute privilege, such as communications made in court proceedings; and
  • Free speech: relating to political communication.

Defending a defamation action can be complex and time consuming, so it is essential to seek legal advice before you commence proceedings.

Case Study of Chris Murphy v Daily Telegraph

The reputational damage at the centre of this case was caused by an article published by the Daily Telegraph, which inferred that Mr Murphy was too old or disabled to practice law competently. In his decision, His Honour Michael Lee held that the phrase in contention conveyed that Mr Murphy was incapable of representing his client’s interests in court due to his age and deafness, which inaccurately reflected on Mr Murphy’s professional life with serious consequences. The Daily Telegraph sought to rely on the defence of truth as Mr Murphy’s did indeed have a hearing disability. This argument was further rejected by the court which found that Mr Murphy’s disability had nothing to do with his purported inability to appear in court.

In addition to the compensation awarded by the Court, the article in question was later rectified to read as: “Murphy… continues to manage matters for his firm’s clients but hasn’t been seen to represent them in court as much in recent times”.

How Etheringtons Solicitors can help

If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.

Retail and commercial lease relief provided in new COVID-19 regulations

Retail and commercial lease relief provided in new COVID-19 regulations

The New South Wales government has introduced new commercial and retail leasing laws that affect tenancies during the current lockdown. The Retail and Other Leases Commercial (COVID-19) Regulation 2021 and amendments to schedule 5 of the Conveyancing (General) Regulation 2018 aim to support retail and commercial landlords and tenants throughout this difficult time. These new COVID-19 regulations recognise that the existing health orders have significantly impacted businesses and their ability to meet financial obligations. The changes apply to leases entered into prior to 26 June 2021, unless the new lease is a renewal or extension of an existing lease (provided it is not an agricultural lease).

Protection provided by the new COVID-19 regulations

The new lease regulations impose a prescribed period in which impacted lessees (or tenants) are granted some protection from their landlord taking action for some typical breaches of their lease agreement. The protection granted requires the parties to mediate with the Small Business Commissioner before a landlord can pursue a prescribed action for a prescribed breach during the prescribed period against an impacted lessee.

  • A prescribed action includes evicting the tenant, exercising a right of re-entry, requiring interest payments on unpaid rent, calling on security or terminating the lease.
  • A prescribed breach is a tenant not paying rent or outgoings, or failing to trade as required under a lease, during the prescribed period.
  • The prescribed period is from the commencement of the regulations (July 14, 2021) until August 20, 2021.
  • An impacted lessee is a tenant who qualifies for the new government protection measures (including the Micro-business COVID-19 Support Grant, COVID-19 NSW Business Grant and the Job Saver Grant) and had a turnover of less than $50 million in the 20/21 financial year.

Any act or omission required by the impacted lessee to comply with other COVID-19 laws and regulations will not be considered a breach of the lease, or constitute grounds for taking a prescribed action against the impacted lessee. However, these regulations do not provide a blanket protection for tenants. The landlord may still take a prescribed action for a breach of a lease agreement which is unrelated to the economic impacts of the COVID-19 pandemic, such as damaging property or subleasing without consent.

Impacted lessee’s obligations

The new regulations place greater responsibility on tenants to provide their landlords with information showing they are an impacted lessee by giving their landlord a statement to that effect and evidence supportive of this. Evidence may include Business Activity Statements or Tax Returns confirming that the tenant meets the requirements of being an impacted lessee. This statement must be given before a prescribed breach occurs or as soon as practicable after, or within a reasonable time if it is requested by the lessor.

Implications for parties in retail and commercial leases

The new regulations are intended to prevent a landlord from terminating a lease for a tenant’s failure to pay rent or failure to trade during core trading hours. This is encouraged as landlords and tenants are allowed to form an agreement on how the tenancy will operate during the prescribed period. This agreement may be formed with the assistance of or prior to the mediation involving the Small Business Commissioner. It may take approximately 5 weeks for the Small Business Commission to allocate a mediation date following an application. The aim of this mediation requirement is to encourage full and frank disclosure between landlords and tenants, allowing appropriate variations to the lease as necessary.

These regulations encourage tenants to access the government’s economic relief package, while not forcing landlords to waive rent or trading obligations. As part of this economic relief package, the NSW government has offered an incentive to landlords who offer rent waivers to eligible impacted lessees in the period between 1 July 2021 and 31 December 2021. The landlord can apply for a reduction in land tax which is equivalent to the amount of rent waived for those premises. Landlords may take advantage of the land tax concession, while tenants may take advantage of potential rent reductions or a release from trading obligations, aiding both parties in these difficult times.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. If you need further advice or assistance with commercial and property law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Strategic Satire and Copyright Infringement

Strategic Satire and Copyright Infringement

Intellectual property refers to the intangible assets which constitute proprietary knowledge in the form of patents, trade marks, designs, confidential information and more. Intellectual property is a valuable asset in this digital age, bearing numerous exclusive rights which are protected from infringement by the various federal laws such as the Trade Marks Act 1995 (Cth) and Copyright Act 1968 (Cth). This article focuses on examining the numerous defences to copyright infringement, in particular, when the use of a work is a fair dealing, or for the purpose of parody or satire.

Copyright Infringement

Copyright describes the collection of exclusive rights that vest in the owner of certain creative works of intellectual property. The specific exclusive rights granted by copyright depend on the particular creative work, but generally include the rights to reproduce, publish, communicate or make other various uses of the material as well as non-transferable moral rights attributed to the author. The owner of the copyright, and therefore the bearer of these exclusive rights, is usually the person who created the work, but there are some exceptions to this.

Copyright infringement under the Copyright Act 1968 (Cth) occurs when a person, directly or indirectly, does something with the copyrighted work which constitutes an action that is usually protected exclusively for the copyright owner, without the owner’s permission or a relevant defence. The duration of protection granted to copyright depends on the creative work, but is generally 70 years from the date of publication or is the life of the creator plus 70 years. For infringement to occur, the person only needs to have used a “substantial part” of the work during the period where the work is protected by copyright, meaning a qualitatively important or essential part of it, but not necessarily the whole work itself.

Fair Dealing Defences – including Parody and Satire

A defence to copyright infringement arises when the use is a fair dealing, for the purposes of:

  • Research and study,
  • Providing access by a person with a disability,
  • Criticism and review,
  • Parody and satire,
  • Reporting the news, and
  • Judicial proceedings or legal advice.

Of particular relevance to this article is the defence of fair dealing of a literary, dramatic, musical or artistic work for the purpose of parody and satire, which can only be relied on if this is the legitimate purpose of the author. As such, this defence requires some express or implied commentary on the copyrighted material being used on some broader aspect of society. The fairness of the dealing is determined objectively in relation to the relevant purpose, as judged by a fair minded and honest person. Relevant factors for determining if a dealing for this purpose is fair include:

  • How much of the copyrighted material was used,
  • The context in which the parody or satire was used,
  • The necessity of the copyright material’s use in the work, and
  • Whether there was a significant adverse effect on the original work or artist.

Case Study: AGL Energy Ltd v Greenpeace Australia Pacific Ltd [2021] FCA 625

This recent case brought attention to the fair dealing defence for copyright infringement for the purpose of parody and satire. Greenpeace launched an advertising campaign about AGL’s environmental practices, using their trademarked AGL logo, modifying the AGL acronym to stand for “Australia’s Greatest Liability” and unsuitable taglines including “Still Australia’s Biggest Climate Polluter” and “Generating Pollution for Generations”. AGL argued that its copyrighted company logo was infringed by the substantial reproduction of it in the Greenpeace advertisements. Greenpeace relied on the statutory defence of it being a fair dealing with the purpose of parody and satire.

The Federal Court held that Greenpeace had not infringed AGL’s intellectual property through the use of the AGL’s corporate logo. The satirical purpose of the logo in conjunction with the disadvantageous messages was held as likely to be immediately perceived as coming from Greenpeace, particularly with the inclusion of “Presented by Greenpeace” on the advertisements. Therefore, the court held that Greenpeace had not infringed AGL’s copyright as they did not use the logo “as a trade mark” in the course of trade with any Greenpeace goods or services.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. If you need further advice or assistance with copyright infringement or intellectual property matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Protect Your Business From Domain Hijacking

Protect Your Business From Domain Hijacking

The internet remains as one of the most indispensable marketing tools for businesses, and a domain name is a valuable intellectual property. However, its convenience can often cause it to be susceptible to being altered by malicious intent. Domain hijacking is one of the most relevant examples for this in our digital world. This article will help you understand what domain hijacking is and will take you through the different steps that should be taken to help you to protect yourself from the crime.

What is a ‘domain name’?

A domain name refers to a website address purchased from a Domain Registrar or from a hosting provider which provides the purchaser access to settings that control the domain usually for a fee. It allows websites to uniquely distinguish itself from other website sources. For example, ‘etheringtons.com.au’ is the domain name of Etheringtons Solicitors and allows our clients and broader community to easily identify our website and our services.

Domain names in Australia can be registered through the .au Domain Administration Registry. Before you can register the domain name that will appear on your website, you have to ensure that:

  • Your domain name is available (meaning it is unique); and
  • You have a valid Australian Company Number (ACN) or valid Australian Business Number (ABN).

What is domain hijacking?

Domain hijacking, also known as domain theft, is the act of changing the registration of a domain name without the permission of its rightful owner. This unauthorised type of cyber-attack causes web-addresses of organisations to be stolen without that organisation’s consent, predominantly through identity theft measures or phishing emails. This allows the hijacker to alter account information and redirect online traffic to their own websites, which often are linked with the sale of counterfeit goods or black market operations. Therefore, losing access to your domain can be extremely detrimental to a business, especially those that run predominately e-commerce operations, as a domain name forms an important aspect of intangible property.

Recovering a hijacked domain name

If you are concerned that your domain name has been illegally hijacked, there are a number of actions you can take. These include:

  • Confirming if the domain name was hijacked: if your domain name does not open to your website, it is easy to assume that somebody has hijacked the domain name. However, there are a number of reasons why a website may not appear, such as the domain owner failing to renew the domain name before expiry, or technical issues with the website hosting.
  • Check your computer for malware, viruses and update security credentials.
  • Getting in touch with your domain registrar: For example, the .au Domain Administration Registry can be contacted online through a general inquiry form.
  • Checking the WHOIS records on the domain to determine who owns the domain name and if ownership has changed.
  • Seeking legal advice and contacting a dispute resolution provider: Solicitors can launch a complaint on your behalf with the AU Dispute Resolution Policy (AUDRP) or Uniform Dispute Resolution Policy. These are specialised bodies which are tailored to handle domain disputes and complaints in a cheaper and more efficient way than litigation.

What steps can you take to protect yourself and your business?

There are a few precautionary steps that you can take to prevent your domain name from being susceptible to hijacking or other illegal activity. These include:

  • Registering the domain name for an extended period and setting renewal reminders;
  • Increase the security by locking the domain name so it cannot be transferred without a password. For example, the AusRegistry or database for domains ending in .com.au, has a security measure called .auLOCKDOWN which allows owners to lock their domain name records and prevent unauthorised changes; and
  • Always using multi factor authentication to protect your accounts.

How Etherington Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. If you need further advice or assistance with domain hijacking or other business law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Determining Family Law Disputes Through Arbitration

Determining Family Law Disputes Through Arbitration

Family Law disputes can often be incredibly time consuming and place significant financial and emotional burdens on all the parties who are involved. These burden are exacerbated by the delays and under-resourcing that is prevalent in the broader Family Court system. As such, there has been a push towards resolving disputes and finalising matters through Alternative Dispute Resolution (ADR) methods including Family Arbitration. This article will explain what Family Arbitration is and how it may be advantageous to you if you are experiencing a marriage or family breakdown.

What is Family Arbitration?

Family Arbitration is a dispute resolution process by which parties’ present arguments and evidence to a Family Arbitrator who then makes a determination in order to resolve the dispute, in a similar manner to court proceedings, but with a few key distinctions. Arbitrators are generally legal practitioners with extensive family law experience and training, who are selected by the parties. This ensures they can facilitate proceedings in the fairest way possible.

Matters that can be referred for Family Arbitration include:

  • Property matters;
  • Spousal maintenance;
  • Financial agreements; and
  • Execution and compliance with court orders.

Advantages and Disadvantages of Arbitration

The primary advantages associated with Family Arbitration include how efficient and relatively inexpensive the process is. Decisions (or ‘awards’) are given within 28 days, which is significantly faster than the formal court system. Not only do parties save on costs associated with preparing a matter for court, but they are not tied up in lengthy litigation preventing them from working and moving forward with their lives. In addition, the Family Arbitration process is more flexible than traditional court proceedings, offering the parties greater autonomy over issues such as the time and date of the arbitration and procedures of how evidence is to be presented. Arbitration is also completely voluntary and confidential, which means the outcome and the issues discussed between the parties and the arbitrator cannot be discussed externally or published.

However, whilst there are numerous benefits associated with Family Arbitration, it is important to note that where family matters are more complex or potentially involve a power imbalance between the parties (such as instances of family violence), it may be more appropriate to engage in the formal court process. In some instances, it may also be more difficult to seek relief if you are unhappy with the Arbitrator’s decision, compared to doing so in court proceedings.

What if I am unhappy with the outcome of Arbitration?

Arbitrators are protected with the same immunities that the courts have. Therefore, the decisions made during Family Arbitration are final and binding on the parties once they have been registered.

However, if an error of law has been made, the decision can be reviewed by a court who can make determinations of issues of law and choose to either uphold or alter the decision made by the Arbitrator. Generally, only an error of law will justify the review of an arbitrator’s decision.

However, in exceptional circumstances of unreasonable or prejudiced decisions, the court can also intervene. In doing so, the court will consider factors including:

  • Whether there as fraud or misrepresentations involved in the decision;
  • Whether the decision is void, voidable or unenforceable;
  • Whether circumstance have arisen that make the decision impractical;
  • Whether there was any bias on behalf of the Arbitrator; or
  • Whether there was a lack of procedural fairness in the arbitration process.

How Etheringtons Solicitors can help with your family law matter

At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in your family law matters. If you are concerned about your property, divorce or parenting disputes, or want to consider Family Arbitration, please do not hesitate to contact our office by calling 02 9963 9800 or via our contact page.

How Long Will I Have to Pay Spousal Maintenance After Separation?

How Long Will I Have to Pay Spousal Maintenance After Separation?

Under the Family Law Act 1975 (Cth), when a relationship ends, a party has an obligation to financially assist their former partner if that person is unable to adequately support themselves. This financial assistance is called spousal maintenance.

Generally, spousal maintenance will only be ordered where there is a significant disparity in the incomes of the parties and such order will ordinarily provide for a payment expiry. However, in the recent case of Bodilly v Hand [2019] FamCA 210, the court held that spousal maintenance could be owed to a party even 17 years after their separation in circumstances where the payer had a new family and was headed towards retirement. This case has re-emphasised the need for parties who are experiencing a relationship breakdown to understand spousal maintenance and be aware of any future responsibilities which they may incur.

What does the court consider when deciding on an order of spousal maintenance?

Spousal maintenance is not an automatic right. In deciding a spousal maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay. This involves considering the parties’:

  • Age and health,
  • Income, property, and financial resources,
  • Ability to work,
  • Ability to earn an income as a result of the marriage, and
  • Standard of living.

An example of when a court will most likely make an order for spousal maintenance is in cases where one party is unable to work due to disability or illness. This liability to maintain a former partner can continue until their death or until they are able to support themselves financially. However, as noted above, usually when making orders for spousal maintenance the court will specify a date or event that will release the payer from their liability. Such events could include re-skilling, securing employment or commencing in a new relationship.

Applications for spousal maintenance for married couples must be made within 12 months of their divorce being finalised, whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship. While it is possible to apply outside the time limits, the court does not always grant these late applications so these limitation periods should be noted.

Case Study: Bodilly v Hand [2019]

The parties involved in this case had separated in 1998 and subsequently reached an agreement that the Husband would pay to the Wife spousal maintenance of $500 per week in 2000. In the 17 years that followed, the parties had little contact and the Husband continued to pay spousal maintenance. By November 2009, the Wife was housebound with a diagnosis of multiple sclerosis and begun receiving benefits from the NDIS.

The Wife made an application to the court seeking further spousal maintenance orders, such that the Husband pay to the Wife $3,000 per week. The Husband sought a discharge of the previous spousal maintenance orders and a fresh consideration of the necessity of any order being made in favour of the Wife.

In determining the application, the Court considered whether there exists a point in time where it is no longer appropriate for an order for spousal maintenance to continue, such as retirement or anticipation of retirement. The Court held that the Wife still had a need for spousal maintenance as she was unable to support herself adequately from her own income. The Husband was thereby ordered to continue paying spousal maintenance of $500 per week with no date upon which the order would cease.

The Court also considered whether the receipt of NDIS payments had an impact on spousal maintenance payments. Justice Cronin held that the Wife is not entitled to argue that any shortfall in the budget from her NDIS payments should be met by the Husband as part of her maintenance claim, as this would go beyond the intention of the scheme.

How Etheringtons Solicitors can help with your family law matter

A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time. The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and the time limits which apply. If you know someone who needs help and would like to have a confidential discussion, please arrange for them to call Etheringtons Solicitors on (02) 9963 9800 or contact us via our contact form.

Employment Law Update: Casual Conversion and CEIS

Employment Law Update: Casual Conversion and CEIS

In March of this year, the government passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill which made significant changes to the Fair Work Act 2009 (Cth) regarding casual workers. Under the new laws, employers were given a 6-month grace period to make any adjustments to implement new rights for casual employees, and provide them with a Casual Employment Information Statement (CEIS). The deadline for this conversion is 27 September 2021, and this article will provide you with a brief guide on the legislative changes and what they mean for both employees and employers.

Changes to the Definition of Casual Employee

An employee will now be considered casual if:

  1. The employer makes no firm advance commitment to a continuing and indefinite pattern of work when offering employment; and
  2. The employee accepts the offer of employment on the basis that there is no firm advance commitment to a continuing and indefinite pattern of work.

Things to consider when determining if you have made a firm advance commitment to a continuing and indefinite pattern of work include the following:

  • Whether the employee can accept or reject work;
  • Whether the employee is entitled to casual loadings or specific rates of pay;
  • Whether the employee will work according to the needs of the employer; and
  • Whether the employment was described as casual employment.

Regular patterns of work will not in and of itself be indicative of a firm advance commitment to a continuing and indefinite pattern of work, however this may be the case in some circumstances. For example, if an employee is engaged on the basis that they will work a fixed amount of shifts on the same days each week for an indefinite period, this is unlikely to constitute casual employment under the new changes to the Fair Work Act.

Casual Conversion

Another key change relates to regular casual employees’ right to casual conversion. Essentially, a casual employee who has been employed for at least 12 months, or who has worked a regular pattern of hours in the past 6 months, has the right to be offered permanent part-time or full-time employment. Offers from employers for conversion must be in writing and given within 21 days from when the employee reaches 12 months of employment.

There are limited circumstances in which an employer is not required to make an offer for casual conversion. This will occur when there are reasonable grounds to not accept the offer based on facts that are known or foreseeable at the time of the decision. These include:

  • That the employee’s position will cease to exist within 12 months from when an offer should be made (i.e., once an employee is employed for 1 year) ;
  • The hours of work that the employee performs will significantly reduce within the next 12 months;
  • There will be a significant change to the days and times that the employee works; and
  • Making the offer would not comply with a recruitment or selection process required by law.

If an employer has reasonable grounds to not make an offer, they must provide written notice with detailed reasoning of why the offer is not being made within 21 days from which the employee reaches the 1 year mark.

In the instance an employer does not make an offer or provide notice detailing that they will not offer casual conversion, a casual employee has the right to request an offer for conversion if they meet the above eligibility requirements and:

  • The employee has not refused a previous offer of casual conversion in the past 6 months; and
  • The employer has not refused a previous request for casual conversion.

This request must be in writing and should appropriately coincide with the regular pattern of hours they have been working. Under the new legislative provisions, employers must provide a written response to a request for conversion within 21 days. If an employer chooses to grant a request, their response must detail in writing:

  • The type of employment (full-time or part-time) that the employee will be converting to;
  • The employee’s work hours after the conversion takes place; and
  • The date when the conversion will take place.

An employer can only refuse a request upon consultation with the employee and if there are reasonable grounds to refuse the request based on the circumstances known or foreseeable at the time of refusal.

Given the complexity of these new provisions, it is crucial that small business owners and employers begin assessing the eligibility of existing casual employees for conversion before 27 September 2021 to better manage their obligations to make offers or receive requests for conversion.

Casual Employees Information Statement

The Fair Work Ombudsman has introduced the Casual Employees Information Statement (CEIS) which must be given to all casual employees. The CEIS covers information about the rights of casual employees including:

  • the definition of a casual employee
  • when an employer has to offer casual conversion
  • when an employer doesn’t have to offer casual conversion
  • when a casual employee can request casual conversion
  • casual conversion entitlements of casual employees employed by small business employers
  • how the Fair Work Commission can act in dealing with disputes about casual conversion

These statements should be provided to all existing casual employees as soon as possible before 27 September and to all new casual employees moving forward. An employer can provide a copy of the CEIS to staff via:

  • mail;
  • email;
  • in person;
  • by fax; or
  • by emailing a link to a copy of the CEIS available on the employer’s intranet.

How Etheringtons Solicitors can help

Given the various legislative changes in recent times concerning casual employment, it is important to seek legal advice if you are unsure about your employment contract or concerned about your potential liability as an employer. You can contact the highly skilled employment law team at Etheringtons solicitors via our contact form or call 02 9963 9800 for a no-obligation discussion.