16 July 2016

Is Equal Shared Parental Responsibility the same as “Equal Time”




Written by Rachael Vincent, Solicitor

The short answer is “No!” Although often confused, equal shared parental responsibility and equal time are separate and distinct.

What is Parental Responsibility?

Parental Responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.  Parental Responsibility can be exercised solely or jointly. In the absence of any court order, parental responsibility is deemed to be joint (or “equal shared”), meaning that parents have to consult the other and make joint decisions in relation to major long term issues affecting their children.  Such major long term decisions can include:

  • Where a child goes to school;
  • What religion a child practices;
  • What surname a child has;
  • In the event that a child has major health issues, what treatment that child should receive and where they should receive it; and
  • Changes to the child’s living arrangements, for example, a proposed relocation to a new location making it difficult for the child to spend time with one parent.

What is Equal time? 

Equal time refers to a parenting arrangement for separated parents whereby children spend the same (or close to the same) amount of time with each parent. This is often on a “week about” basis, meaning during school term time, the children spend one week with one parent and then the following week with the other parent. There can also be other ways to divide the time evenly, depending on the parents’ and the children’s circumstances.

How do you get Equal Shared Parental Responsibility?

If there are no court orders or parenting plans in place, parents automatically have equal parental responsibility.

If, after having consulted the other parent, parents continue to have difficulty in making decisions relating to parental responsibility, there are avenues that parents can take without having to approach the Court. Local agencies can assist and offer mediation services to separated parents to discuss parenting arrangements and parental responsibility. Such agencies can include:

  • Relationships Australia;
  • Local Family Relationship Centres;
  • Catholic Care; and
  • Private Mediators.

It is a requirement that parents attend mediation prior to commencing Court proceedings, other than in cases where there is urgency or family violence. If no agreement can be reached at the mediation process it is open to either parent to file an Application with the Court.

In Australia there are two Courts that have the jurisdiction to make a parenting order, the Family Court, and the Federal Circuit Court. When making any parenting order in relation to children both courts operate on the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.  In the case of Goode (No 2) [2007] FamCA 31, the presiding Judge stated:

“From the children’s perspective, I can only see good will come from their parents jointly exercising parental responsibility.”

Once a Court makes an order for equal shared parental responsibility the Family Law Act 1975 (“the Act”) then requires the Court to look at whether an equal time arrangement is “reasonably practicable” and “in the best interests of the children.”

Again, equal shared parental responsibility is not the same as equal time, rather it comes before an order for equal time is considered.

Parents who have equal shared parental responsibility for their children only have to consult the other in relation to major long term issues affecting the children, not simple day-to-day issues. Day-to-day issues include what the children have for meal time or whether they attend school excursions.

When might a Court not make an order for Equal Shared Parental Responsibility?

There are some circumstances where the Court may decline to make an order for equal shared parental responsibility, for example:

  1. Where there has been alleged violence that has continued since separation;
  2. Evidence of family violence or child abuse by the other parent where a parent or child reasonably fears for or is apprehensive about their personal wellbeing or safety.

Sometimes the Courts can decline to make an order for equal shared parental responsibility on the basis that communication between the parents is so bad that there can be no hope that they could effectively communicate to discuss major long term issues surrounding their children. The Full Court of the Family Court has said in relation to this:

“It appears to us that a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it inappropriate to make an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with section 65DAC by consulting and making a genuine effort to reach agreement about major long term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”

In the overwhelming majority of cases, however, the Court does make an Order for Equal Shared Parental Responsibility.

16 July 2016

Assessing the Scope of Detriment




Written by Youssef Maksisi, Associate

In Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 307 ALR 512 (Australian Financial Services v Hills), the High Court of Australia relied upon the concept of detriment as a unifying principle to justify the prevention of inequitable and unconscionable results. However, the Court left open the question of how detriment was to be assessed.

The Facts of the Case

The case of Australian Financial Services v Hills concerned an action to recover in unjust enrichment for moneys paid under mistake.

Hills and Bosch, were trade creditors of a collection of companies controlled by a person known to the parties (referred to collectively as TCP). The finance company, Australian Financial Services and Leasing Pty Ltd (Australian Financial), claimed that it had been induced by way of a fraud perpetuated by TCP to make payments to Hills and Bosch. It was also alleged that, in turn, TCP further induced Hills and Bosch to apply the payments that they had received from Australian Financial towards trade debts which were owed by TCP to Hills and Bosch. In part due to those payments, Hills refrained from taking any recovery action against TCP. While, in the case of Bosch, there was a discontinuance of recovery proceedings that Bosch had already commenced. Subsequent to this, Bosch and Hills resumed their trading relationship with TCP.

Subsequent to all of these arrangements, TCP ceased trading and became insolvent. Australian Financial, after discovering the fraud, commenced proceedings against Hills and Bosch for restitution of the money Australian Financial had paid to them (as explained above).

The Decision at First Instance and on Appeal

The Supreme Court of New South Wales upheld part of Australian Financial’s claim against Hills and Bosch. While, when the matter was before the NSW Court of Appeal, that Court rejected Australian Financial’s claim to restitution from Hills and Bosch on the basis that those parties had ‘changed their position’ upon receiving payment from Australian Financial.

The NSW Court of Appeal overturned the judgment at first instance and found that both Hills and Bosch had acted on the receipt of the funds from Australian Financial, and that their action(s) had caused them, respectively, sufficient detriment to enable them to rely on the defence of change of position [see paragraph 166 of the judgment].

The High Court’s Decision

The main questions posed by this case are: How much detriment must be established before the person making the representation will be ordered to make good the representation? How much detriment must be established before court will intervene to protect the innocent recipient of a mistaken payment?

The High Court considered, on 7 May 2014, in Australian Financial Services v Hills the defence of ‘change of position’ to a claim in restitution based upon a claim of mistake of payment. The court determined that the appeal by Australian Financial should be dismissed, holding that in cases where a party seeks relief by way of restitution on the basis of money paid by mistake the equitable notions of unconscionability should be the guiding principles. The High Court also held that, in considering the relief sought by such a party, it was imperative that the court undertake an assessment in relation to who should bear the loss and why [see paragraph 78 of the judgment].

The High Court, in dismissing the appeal, found that where a party established to the court’s satisfaction that the detriment suffered by that party was/is ‘substantial’, then the recipient of the money mistakenly paid is not required to establish a ‘quantifiable financial detriment’ in order to succeed [see paragraph 88 of the judgment]. A further issue which was significant (both on the particular facts of this case, as well as in the court’s reasoning), was that forbearance by a party in relation to its right is relevant to the issue of detriment.

In considering the issue of what degree of detriment must be established before the court will intervene, it is important to consider that the High Court upheld the decision of the Court of Appeal (see above for a summary of that decision).

What Degree of Detriment Must Be Established?

In order to understand what degree of detriment a party is required to establish, it is instructive to consider the argument raised by the appellant, Australian Financial, in order to understand the reasons for the High Court ultimately rejecting this argument.

Australian Financial argued that a Court should consider the extent to which the recipient was ‘disenriched’ after the mistaken payment had been received by that party. The Court, in rejecting this argument, held that the preliminary principle of the doctrine of restitution is that a mistaken payment gives rise, prima facie, to an entitlement to the repayment of that amount.

Whereas, the second enquiry the Court should undertake is to determine whether it is inequitable for the recipient to retain the benefit, in all of the circumstances. The Court rejected any suggestion that the principle of ‘unjust enrichment’ is the overriding principle which governs the law of restitution in Australia, holding instead that that the law of restitution as it is in Australia is governed by equitable principles [see paragraphs 15 and 16 of the judgment].

The Court further held that the primary consideration, where such equitable principles are concerned, is a consideration of who is to bear the loss that has been occasioned by the mistaken principal and why. Essentially, the relevant consideration is whether or not an inequitable outcome occurs as a result.

What if there is an Inequitable Outcomes?

The Court considered that an order for restitution may result in an inequitable outcome in circumstances where the recipient relies on the receipt of the money to such an extent that should that party be forced to repay the amount it would suffer detriment [see paragraph 17 of the judgment]. Consistent with the approach of determining whether it is inequitable for the recipient to retain the benefit in all of the circumstances, the Court then assessed the circumstances surrounding the parties’ reliance on the payments made, and what actions (or omissions) those parties took which gave the basis for a claim that they would be exposed to a substantial detriment were they forced to repay the amounts (mistakenly paid to them) back. Clearly, the Court refused to engage in a complete assessment or determination of the scope of the ‘change of position’ defence.

In their joint reasons, their Honours concluded that were they to engage in such an assessment or determination it would “mislead by distracting attention from the content of the principle to the manner of its expression” [see paragraph 98 of the judgment]. Given this approach, the Court’s decision has given credence to the argument that relief by way of restitution can be considered in a wide range of circumstances.

The Court, effectively, determined that such relief would be considered with reference to the particular circumstances of the case, and with particular reference to the practical effect of that relief, were it to be granted. The Court, therefore, rejected the argument that a rigid test or mathematical calculation of loss or detriment is necessary in such cases.

16 July 2016

The Question of Costs in AVO Applications




Written by Youssef Maksisi, Associate

There has been a marked increase in the use of AVO’s in order to protect victims of domestic violence and/or other non-domestic related personal violence.

AVO Applications are generally divided into the following two categories:

  •  ADVO — an apprehended domestic violence order
  • APVO — an apprehended personal violence order

With the increased use of APVOs and ADVOs, there is also the possibility that some applications made be made in circumstances where there is no proper basis for them. The law recognises that this may be the case, and has accordingly set out rules relating to when costs may be awarded against the applicant of an ADVO or APVO.

The Relevant Legislation: AVO Costs

The relevant section setting out the basis for a costs order in relation to AVO proceedings is found in section 99 of the Crimes (Domestic And Personal Violence) Act 2007 (extracted below)

Section 99 – Costs

A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.

Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .

A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.

A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.

Subsections (3) and (4) have effect despite any other Act or law.

Explanation of the Relevant Legislation: AVO Costs

The following is a summary of the relevant section:

  • Section 99 creates a number of different considerations regarding applications for costs that are dependent on whether the application was for an ADVO or APVO and/or issued by a police officer;
  • Section 99(1) provides power to award costs against either the applicant or defendant;
  • Section 99(2) states that costs are to be determined in accordance with Div 4 Pt 2 Ch 4 (ss 211–219) Criminal Procedure Act (this is explained further below); and
  • Importantly, section 99(4) prohibits a costs award against an applicant police officer, unless the police officer made the application “knowing it contained matter that was false or misleading in a material particular.

What does Div 4 Pt 2 Ch 4 (ss 211–219) Criminal Procedure Act say?

Section 99 sets out an explanation of the procedure of costs applications in AVO matter, but it leaves the real explanation of how and when costs are to be awarded to another piece of legislation. That legislation is the Criminal Procedure Act, in particular Div 4 Pt 2 Ch 4 (ss 211–219) of that Act.

There are three main bases under Div 4 Pt 2 Ch 4 (ss 211–219) that are generally relied upon in costs applications. They are:-

  1. That the investigation of the matter was conducted in an unreasonable manner (s 214 (1)(a)); and/or
  2. That the proceedings were initiated without reasonable cause (s214 (1)(b)); and/ or
  3. That the prosecution unreasonably failed to investigate (or to investigate properly) relevant matters of which it was aware or ought reasonably to have been aware and which suggested that the accused person might not be guilty or that the proceedings should not have been brought (s214 (1)(c)).

The following is a summary of the operation of Div 4 Pt 2 Ch 4 (ss 211–219) of the Criminal Procedure Act:

  • Costs do not follow the event. This means that there is no automatic right to costs and there is no onus on the informant to justify the refusal of costs: Barton v Berman [1980] 1 NSWLR 63;
  • A magistrate must be of the opinion that costs are “just and reasonable”. This “requires that it be just in the outcome and reasonable in its terms”: per Kiefel J in Ly v Jenkins (2001) 114 FCR 237 at 281 [161]; Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 561;
  • “Professional costs” are defined in s 211. This reflects the meaning of “costs” at common law, that is, “confined to moneys paid or liabilities incurred for professional legal services”: Cachia v Hanes (1994) 179 CLR 403. It includes amounts for disbursements and expenses reasonably incurred in the preparation of the case: Ly v Jenkins per Moore J at [13], [27]; and
  • A Magistrate is both entitled and bound to receive any relevant evidence presented in admissible form as to any party wishing to be heard as to the terms of the final costs order.

Basis of Dismissal of Proceedings

There is nothing in the scope or purpose of the legislation that suggests that there needs to be a relationship between the basis for discharge/dismissal and the basis for an order for costs.

Therefore, the manner in which the proceedings are withdrawn and/or dismissed (namely, if that occurs after representations were successfully made to the Local Area Commander or after a full hearing) is not, in and of itself, determinative of whether or not a costs order ought to be made.

The Conflict Between Section 99 and the Criminal Procedure Act

A careful reading of the sections of the legislation referred to above reveals that there exists a real conflict between ss 99(2), (4) and the Criminal Procedure Act. The conflict exists because of the operation of section 99(4), which prohibits a costs award against an applicant police officer, unless the police officer made the application “knowing it contained matter that was false or misleading in a material particular. Whereas, there is no such restriction placed on the awarding of costs under Div 4 Pt 2 Ch 4 (ss 211–219).

Resolving the Conflict

The conflict between the two sections of the two differed legislation was considered (indirectly) in the case of Constable Redman v Willcocks (2010) 79 NSWLR 226.

The below is a summary of the findings of His Honour Justice Davies in that case.

His Honour stated at [21]–[22]:  “In my opinion, the proper operation of s 99 in harmony with Division 4 is as follows:

  1. The Court may not award costs against a police officer making an application in relation to the application generally and its determination unless the Court is satisfied that the police officer made the application knowing that it contained matter that was false and misleading in a material particular;
  2. That restriction does not prevent the Court being able to make a costs order against a police officer in relation to procedural misconduct such as occurred in the present case, such power being found in s 214(3)(b) and s 214(1)(d); and
  3. Section 213 and its predecessor s41A confer an absolute and unfettered but judicial discretion on a magistrate to award costs such as are just and reasonable: Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472; Barton v Berman [1980] 1 NSWLR 63. The discretion must be exercised for “reasons connected with the case” and not reasons extraneous or foreign to the case: Acuthan and Ors v Coates and Ors Barton v Berman [1980] 1 NSWLR 63.

The Practical Side of Things

In order to be successful in an application for costs in an AVO matter, it is vital to put before the court some evidence (or other material that can give rise to an inference) that the applicant police office:-

  1. Made the application knowing it contained information that was false;
  2. Made the application knowing it contained information that was misleading;
  3. The information that was false or misleading, must also have been false; or misleading in a material way to have an impact on the application.

This evidence may be contained in the statements that you were served with in the mini-brief, or in any statement of the police officers in support of the application.

However, this information may only come to light if, and when, the police officer (being the applicant in the AVO) is cross examined.

Cross examination of the applicant police officer is usually part of the actual hearing that takes place. However, even if the applicant police officer is not cross examined during the hearing, he can be called or subpoenaed to give evidence on the costs application. If the applicant police officer has already given evidence,

Before making any application, you may wish to obtain some advice from the court registry and/or a lawyer.

16 July 2016

Managing Employee Dismissals Effectively




Written by Nicole Evans, Senior Associate

Everyone knows a happy workplace is a productive workplace. This is a mutually beneficial arrangement for both employers and employees. Employees who are performing well produce better results, which in turn, results in more revenue. If your employees are underperforming, you may have unhappy clients and customers, high staff turnover and decreased revenue.

If your employees are not doing their work properly, are not following your rules or are speaking negatively about your business then this type of poor performance can have a disastrous effect on your business. Similarly, if your employees are causing a risk to the safety of your clients, or are stealing from you, or worse still, they are drinking or taking drugs at work, then they may be guilty of serious misconduct.

So what do you do with employees who are not performing?

You need to know what steps you need to take to manage your employee’s underperformance or misconduct, whilst protecting your business from an unfair dismissal claim. Here are some tips to help you achieve this:

  • The first step to dealing with an underperforming employee is to communicate with them your concerns. You can arrange a meeting with them and put your concerns in writing, including clear expectations of their role.
  • You should tell the employee what the meeting is about, so they have the option to bring a support person to the meeting.
  • In the meeting, you can address any issues that you or your employee have, and come to an agreement on how to resolve these issues and set KPIs to track their progress.
  • You may be able to provide them with strategies to help them improve their performance. Perhaps you can provide them with more training or change their role?
  • Organise to hold regular meetings with your employee to show your support and monitor their progress. At the end of the meeting, ensure you have a document which you and your employee agree on, which outlines what you have discussed during the meeting and your clear expectations moving forward.
  • If you find that you have several employees underperforming, then it might be a good idea to write a performance management policy, which sets out the process and possible consequences for underperformance. This may also ensure that if you only have one employee underperforming, they don’t feel victimised.

What should you do if they continue to underperform?

After providing your employee with ongoing support you still find that their performance hasn’t improved then you may decide to have another meeting to discuss the ongoing issues and issue a first or additional warning. You should clearly explain to your employee the possible consequences of their continual underperformance – including a termination of their employment.

Termination of an employee is a serious step and should only be considered if you think you have no alternative. Before you terminate an employee, you may give them warnings in writing. You don’t have to give three warnings, or even one warning, but you should give the employee the opportunity to correct any performance issues before ceasing their employment. Whether this occurred, is often taken into consideration by the Fair Work Commission, when determining if an employee has been unfairly dismissed.

If you think you have no other option but to terminate the employment of your employee, then you should make sure you are clear about the reason for their termination. Upon termination, you will be required to give your employee written notice of their last day of employment. You may terminate an employee during their leave, but the correct amount of notice still needs to be given.

Notice can be paid out to an employee instead of being worked. As an employer you can either have your employee work out their notice period or pay it out to them to leave immediately (pay in lieu of notice). If you pay out the notice, then you must pay your employee the full amount as if they had worked until the end of their notice period. This also includes bonus and commissions, loadings, overtime and penalty rates.

Termination in a misconduct situation

In the case of serious misconduct, you can dismiss any employee without notice or warning if you believe that your employee has engaged in serious misconduct. Serious misconduct includes things such as theft, fraud, violence and serious breaches of occupational health and safety procedures. You are still required to pay the employee all outstanding entitlements such as payment for time worked or annual leave.

Redundancy

Sometimes an employee’s role is no longer required in a business and you make that role redundant. To be a genuine redundancy, the employer no longer requires the employee’s job to be performed by anyone because of changes in the business’s operational requirements. If you can move the employee within the business, then this may not be a genuine redundancy.

Exemptions From Unfair Dismissal Laws

There are some types of employees who are excluded from unfair dismissal laws; for example, contractors, people employed under a contract of employment for a specified period of time or task, and trainees who are dismissed at the end of a training arrangement.

The Process of an Unfair Dismissal Claim

If your former employee makes an unfair dismissal application in the Fair Work Commission, what will become relevant is whether the dismissal was harsh, unjust or unreasonable. To make a claim the employee must be covered by the national unfair dismissal laws, in that they work for an employer with more than 15 employees and a private enterprise. The application must be lodged within 21 days after the dismissal takes effect.

If your business has less than 15 employees, then the Fair Work Act 2009 defines you as a small business. This means that you are governed by the Small Business Fair Dismissal Code. Small business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement. If an employee is dismissed after this period and the employer has followed the Code then the dismissal maybe deemed to be fair.

Before terminating any employee, you should obtain independent advice from an employer association or lawyer.