COVID-19 and the Family Court system: What changes are being made?

COVID-19 and the Family Court system: What changes are being made?

COVID-19 is impacting the operation of every facet of life and work around the world. There is no exception for the courts in Australia which have seen major changes to the procedure and operation of the court system. In this article, we explore how the Family Court in particular is dealing with the COVID-19 pandemic.

The Changes

The Court has altered its operation in a variety of ways to ensure the health and safety of litigants and court staff and members.

Hearings:
The majority of court hearings and events will now be done remotely via a telephone or video conference. The Court has said that telephone appearance procedures will generally be most appropriate for the following:

  • First Return Duty Lists;
  • Abridgements;
  • Mentions;
  • Directions; and
  • Interim Hearings

The Court will notify the parties as to whether their matter is able to be dealt with remotely. If it is possible, the judge and court staff will be in the courtroom during the time of the listings. Interpreters may also appear by telephone, if required. The parties can attend by telephone or video conference in the comfort of their homes or office.

Once the Court has notified the parties of the requirement to attend court via telephone, a party may ask that the matter not be heard by telephone, due to it being impractical. They may also say that their matter is urgent and requires the parties to attend in person. In this circumstance, the matter may be adjourned or remain listed for a face-to-face hearing. However, the Court has strictly imposed a limit on the number of matters which will be dealt with in open court.

Changes to Everyday Operations:
There are a number of changes the Court has imposed as a result of the Covid-19 pandemic:

  • Non-urgent matters may be adjourned to a future date (meaning postponed). This is at the discretion of the judicial officer.
  • The registry services of the Court will be provided remotely via telephone or online services.
  • In urgent circumstances, face-to-face interaction in a registry may be allowed, but only after an initial assessment.
  • All documentation will need to be filed electronically through the online Commonwealth Courts Portal.
  • For urgent matters (such as those involving domestic violence) which are held in court, matters will not be listed for more than 1.5 hours, and with sufficient time in between to allow cleaning of the court to occur.
  • To reduce the length of any face-to-face hearing, where possible, hearings are to be complemented with written submissions or conducted via telephone, if necessary

Impact for Future Proceedings

If you are involved in current proceedings before the Court, there may be changes in the way your matter is dealt with. It is important to be prepared for changes in the way your matter runs and what form of communication will be utilised. If your matter is classified as ‘non-urgent’ you should be prepared for your matter to be potentially postponed for a period of time.

Further information relating to court operations and COVID-19 can be accessed from the COVID-19 updates and information page on the Family Court’s website.

Where Can I Find More Information?

It is important to be fully aware of the impact COVID-19 may have on your legal matter. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via email at law@etheringtons.com.au.

Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 can be found at: www.health.gov.au.

Will my Facebook post affect my employment?

Can an employer intervene in an employee’s use of social media outside work?

A recent decision by the Fair Work Commission has shed some light on this question showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment online.

The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.

Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.

Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.

Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.

The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.

The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.

If you would like to speak with one of our solicitors regarding social media and the work place, please contact us on 9963 9800 or at law@etheringtons.com.au

Debt collection basics for business

If you are owed money for goods or services, the first step in attempting to recover it is generally to send a Letter of Demand to the other party setting out the amount of money outstanding and giving them a defined period of time within which to settle the matter by paying you the money owed or face legal action.

Letter of Demand

The Letter of Demand is sent by you (or your lawyer) if you are owed the money (the creditor) and it warns the person owing the money (the debtor) that if they don’t pay the debt within a certain time period (often seven days) they will be sued in court to recover the debt.

A Letter of Demand should be the last letter a creditor sends before issuing court proceedings. While Letters of Demand are not court documents they are often an effective means of forcing the debtor to take action.

It is a good idea to contact us first to ascertain whether it is prudent to proceed with court proceedings and this will usually depend on the size of the debt. Naturally, if the sum owed is small it maybe uneconomic to pursue the debt by engaging a lawyer or even pursuing the debt at all. You must ensure however that, in enforcing your rights to recover the debt, you act within the law.

Principles of Debt Collection Fairness

When sending a Letter of Demand, you should be careful not to harass the debtor or send a letter which is designed to look like a court document.

You must not pursue a person for a debt unless you have reasonable grounds for believing the person is liable for the debt.

Time Limits

A creditor has a limited period of time to sue for a debt. In most instances, for debts owed, this will be 6 years.

If the debtor has made no payments towards the debt or has not acknowledged in writing that they owe the debt for a period of 6 years from when the debt arose, then the debt may no longer be recoverable.

Disputed Debts

The debtor has the right to dispute a debt and may do so on the grounds that:

  • it is not their debt;
  • they have already paid the money;
  • they disagree with the amount of the debt; or
  • it is an old debt and they haven’t made a payment for at least 6 years, no court judgment has been entered against them and they haven’t admitted in writing that they owe the debt in that time.

If the debt is disputed, then you, as the creditor, may have no alternative but to commence legal proceedings or to seek to negotiate a compromise with the debtor.

When Your Lawyer Becomes Involved

If you, as the creditor, are not willing to negotiate or wait for payment, you may wish to contact us to assist with pursuing the debt.

If you know the debt is due and payable, and you want to commence legal proceedings, it is prudent to have a legal professional assist you and represent you in court to recover the debt. If the size of the debt does not warrant that, then we may still be able to help you to negotiate a payment plan that is manageable to the debtor and acceptable to you.

It is not in the debtor’s interest to ignore your claim and risk the additional costs of the legal fees and interest on top of the original debt. By following the correct process we can help bring the matter to a conclusion satisfactory to you.

New Customer – Credit Application Process

Before you take on a new customer, you should have the correct systems in place to ensure that you are able to assess the customer’s credit position.

Do you have a credit application process for your new customers?

Your Credit Application and Terms of Trade should provide you with security over the goods which you have sold to the customer and, if the customer is a corporate entity, ensure that the directors of the company provide you with their personal guarantees. You must, however, ensure that you register any security over goods on the Personal Property Securities Register and we recommend that you speak with a legal professional to assist you with this process to ensure that the registration is not void.

If you do not have a system in place, contact us and we will help you put a system in place to protect you and provide you with security for monies owed to you. It is important that you have the correct system and documentation in place before you do business with a new customer and before you provide the customer with any credit.

Conclusion

You should contact us to discuss your legal rights and obligations if you are owed money or if you owe money to someone else who is threatening court action.

If you would like more information or require assistance or advice on how to proceed in debt recovery matters please contact us on (02) 9963 9800 or email law@etheringtons.com.au

What is Litigation?

Litigation is a way of resolving disputes that uses courts and solicitorsDisputes usually fall into the following classifications: civil or criminal.

Civil Litigation

In civil cases, your  lawyer will represent your interests and fight for an outcome that is most favourable for you. This is regardless of whether you are:

  •  the Plaintiff – you have brought the claim
  • the Defendant” – you are defending the claim

Methods of resolving a dispute between parties include adversarial methods, such as court proceedings, and non-adversarial methods such as negotiations and mediations.

Note: Civil litigation is often referred to as commercial litigation. Commercial litigation encompasses a wide area of law including breaches of contract, employment disputes, debt collection shareholder disputes and disagreements about neighbourhood fences among other issues.

Criminal Litigation

In criminal litigation, a charge is brought against you by the Police, the State or the Commonwealth. If the Prosecution (representing the Crown) is able to prove you are guilty of committing a crime, punishment may include a fine, imprisonment and/or various other penalties. In these matters, you are always the Defendant and it becomes the responsibility of your litigation lawyer to defend your innocence.

Who is a Litigation Lawyer?

Being involved in litigious proceedings can be stressful and uncertain. However, the right lawyer will make this process as smooth as possible, whilst also fighting for an outcome that is in your interests. A litigation lawyer (also called a solicitor) is the individual who will represent, protect and assert your interests in a dispute.

What is the Purpose of a Litigation Lawyer?

The primary role of your litigation lawyer in both civil and criminal matters is to assist you in all facets of your dispute. From filing documents in Court to explaining rules of law, your lawyer is your first point of contact with the legal world. They are also your biggest ally in the resolution of your dispute.

Another key role for your lawyer is to communicate with others involved in your case. This includes to communicate with the other party’s solicitors/the police, arrange for barristers to appear on your behalf in Court and attend mediations and negotiations with intent to pursue a favourable outcome for you.

Documents in Litigation

The preparation of documents is a necessary part of every legal dispute. An essential task for your lawyer is to help you understand both:

  • the purpose of these documents; and
  • the time in which they must be filed in court and served on the other side

Some of these documents include:

  • Statements of Claim
  • Affidavits
  • Defences
  • Further and Better Particulars
  • Discovery
  • Interrogatories

Finding your Litigation Lawyer

When finding the right lawyer for you, the ideal solicitor will have relevant experience and a personality that allows you to work together in fighting for your interests.

Experience

We recommend that you research the amount of relevant experience a lawyer has before you engage them, as this will improve your quality of representation.

Costs

Litigation costs can include filing fees, application fees, valuations and reports by experts and potentially barristers’ fees. These costs are known as ‘disbursements’, and are charged in addition to the ‘fees’ you pay your lawyer to prepare and argue your case.

Etheringtons Solicitors are experienced in all facets of litigation. We can help you manage the uncertainty and stress of your legal matter. Additionally, we understand that strategy and dynamism are vital parts of responding to the challenges faced by clients involved in litigation proceedings.

To discuss your matter with one of our lawyers, please contact us on (02) 9963 9800 or at law@etheringtons.com.au.

Case Study: When Binding Financial Agreements Aren’t Enforceable

Binding financial agreements can allow for certainty, trust, and peace of mind in a relationship.

However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements made in unconscionable circumstances, particularly when there is a significant power imbalance between the parties.

What Are Binding Financial Agreements?

Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.

The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. The binding financial agreement can protect assets including cash, property, superannuation and inheritances.

Each party must seek independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner. The statement is regarding the effect of the prenuptial on the rights of the party, the advantages and disadvantages to each party and whether the agreement is just and equitable.

Recent Case: Thorne v Kennedy

A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.

Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.

The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets worth between $18 million – $24 million.

Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of the binding financial agreement. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘significant concerns’, Ms Thorne signed the agreement anyway.

The couple separated in 2011 and Ms Thorne was allocated what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct.

The Federal Circuit Court will now consider Ms Thorne’s application a property settlement matter.

Impact on Binding Financial Agreements in Australia

This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia.

It is likely to make binding financial agreements harder to enforce if there is an imbalance in power. The case also distinguishes the commercial principles of contract law in comparison to the regulation of financial matters in an intimate relationship.

Binding financial agreements are not cheap documents and must be drawn up and entered into carefully with the appropriate advice.

If you would like to discuss binding financial agreements with one of our experienced family lawyers, please contact us on 9963 9800 or at law@etheringtons.com.au.

What is the Tort of Negligence?

What is the Tort of Negligence?

What is Negligence?

Negligence is about taking reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to exist for an individual or company to be able to sue for negligence: duty of care, breach of duty, damage, and causation.

Duty of Care

A duty of care makes a person responsible for taking reasonable care to avoid harm being caused to another. The duty of care exists as a result of the relationship between parties. Key examples of a duty to care are found in relationships such as teacher and student, employer and employee, doctor and patient, as well as lawyer and client.

These duties are commonly derived from legislation. However, they can arise due to the nature of the parties’ relationship. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.

Standard of Care and Breach of Duty

If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002, a professional is held to the standard of their fellow professionals. For example, a doctor or accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.

In other instances, the standard of care is what a reasonable person would do in the circumstances to ensure the possibility of harm is minimised. The standard of care helps balance the rights of the parties by considering what care is appropriate between the parties. If the standard of care is not met, then the person has breached their duty to the other person.

Damages and Causation

For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm under negligence extends to both physical and mental harm. A court will consider a range of factors and evidence when assessing whether a person suing has suffered harm.

It is important to be aware that the harm suffered must be as a result of the actions of the other person. This is generally determined by applying a ‘but for’ test where the Court will ask: would the person have suffered harm ‘but for’ the actions of the other person.

Recent Case

In a recent case, the NSW Court of Appeal considered who would be to blame for a collapsed balcony.

In this case Bhides owned residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. The tenant sued the owner and the manager. The agent and owner then issued cross claims against each other seeking an indemnity and on the defendant for not locking access to the balcony given previous complaints and issues.

The decision confirmed the following:

  1. That delegating to a managing agent will not form a defence to a claim for personal injury damages;
  2. That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and,
  3. That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
Summary of the Tort of Negligence

The law of negligence can be complicated. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, contact Etheringtons Solicitors to discuss.