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Time Limits For Family Property Settlements

Certain time limits apply for bringing a property dispute to the Family Court. The deadline for bringing a property application by your divorce lawyer is either:

  1. If you were married, 12 months after a divorce order has taken effect,
  2. If you were not married, 2 years after your separation as a de facto couple.

Accordingly, it can be a good idea to keep a record of the date of your divorce or separation and set a reminder a few weeks before the deadline.

If you want to make an application for property after the deadline has passed, your divorce lawyer may be able to seek permission from the Court for an extension of time. The Court will not be able to grant you permission, unless it is satisfied that hardship would be caused to you or a child if the Court did not step in. Your divorce lawyer will also have to demonstrate a reason for the delay in bringing proceedings after the deadline. The Court will also consider the length of your delay in making you claim.

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False Allegations of Child Sexual Abuse – What Can Go Wrong in Child Custody

In the matter of Massey & Wilenski [2019] FamCA 657 the parents had one child to the relationship whereby the mother was the primary caregiver. After separation, the child made disclosures to the mother’s then partner Mr C of inappropriate touching perpetrated by the father. Mr C recorded three disclosures of the child all within an hour and a half. The mother reported the disclosures to the police the next day. As a result of these disclosures, the mother made the decision to stop all time between the father and child and made an application in the Family Court for child custody that the father should spend no time with the child. The mother ceased child custody with the father for a period of about 11 months.

In considering the matter of child custody, the Court then needed to consider:

  • Whether the child had been sexually abused by the father
  • Whether the father poses an unacceptable risk of harm to the child

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Debt Recovery: Who Do I Sue?

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

A fundamental of any relationship is knowing who you are dealing with. This goes especially for business relationships where dealing with the correct customer may make the difference between getting paid, and missing out.

Your customer is not generally the purchasing clerk who rings up to order your goods or the foreman who requests your services on site. However, even more importantly, the customer is not a business name! Rather, this business name will normally be owned by, or used by, a legal entity. It is of the most fundamental importance in business that you properly understand the legal entity with whom you are dealing. This may be a corporation, partnership or sole trader. In addition, entities trading on behalf of others, for instance trustees, add another layer of complexity to business relationships, and to debt collection.

The foundation of the business relationship where the customer purchases goods or services on credit should be set out in your debt collection procedures and starts with a written request from the customer for credit. This request can be as set out on a pre-printed form, or credit application, setting out the details you will require to enable the credit request to be considered.
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When Should I Send A Letter of Demand?

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

The key to any business’ success is a strong relationship with its customers. But what happens when you supply the goods or services and the payment is not forthcoming? A relationship can quickly be eroded when the question of money is raised.

Internal Debt Recovery Process

Every business should have a clearly defined debt recovery process so that the debt collection team know when certain actions are to be taken against wayward customers who default on payment. This should ideally consist of two processes – an internal and an external process.

Internally your business’ debt recovery process should dictate when certain actions are to be taken. The debt recovery process should have been prepared with the input of many members of your business including sales who promote the business relationship, finance who know cash flow demands and the debt collection team who manage the collection process.
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New Laws – Religious Discrimination Legislation on Track to be Introduced in 2020

The Federal Government is on track to introduce religious discrimination legislation in 2020, with a second exposure draft of its Religious Discrimination Bill introduced in parliament in late December 2019.

The Bill adopts the general objects, protections and prohibitions contained in similar Federal anti-discrimination laws such as the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act, with some alterations to reflect the distinct nature of ‘religious belief or activity’ as a protected attribute.

Amongst other things, the Bill will (if passed):

  • protect and promote the right of religious freedom in Australian public and private sectors
  • make it generally unlawful to discriminate against a person on the basis of their religious belief or activity, or because they have or do not have a religious belief, or because they do or do not participate in a religious activity
  • introduce a Freedom of Religion Commissioner at the Australian Human Rights Commission
  • contain specific provisions relating to discrimination in the context of employment including ‘carve-outs’ such as the right to discriminate against a person on the grounds of religious belief or activity in employment if they are unable to carry out the inherent requirements of that employment or in order to preserve the ‘religious ethos’ of the employer

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Court Cases – Personal Leave Calculation Decision Off to The High Court

2020 may see a fundamental shift in how personal leave is accrued and paid following a controversial Federal Court decision relating to the calculation of leave for employees with non-standard rostered hours.

In the case of Mondelez v AWMU:

  • relevant employees were covered by an enterprise agreement
  • the enterprise agreement permitted employees to work ordinary hours of 36 per week (by way of 3 x 12 hour shifts per week) and entitled those employees to 96 hours of paid personal leave per year of service
  • when they took paid personal leave though, the employer deducted 12 hours from their accrued balance, meaning they only accrued enough leave over a year of service to cover 8 days absence
  • a claim was made that this contravened the National Employment Standards (found within the Fair Work Act) as it failed to provide such employees with 10 days of paid personal leave per year of service
  • the majority of the full Federal Court agreed, however, Mondelez has since appealed to the High Court

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Whistleblower Policies – Must be in Place by 1 January 2020

From 1 January 2020, all public and large proprietary companies must have in place a whistleblower policy which meets all mandatory statutory requirements.

Amongst other things, these laws:

  • modify existing legislation relating to corporations, the banking industry and insurance companies
  • provide significantly stronger protections to whistleblowers who make disclosures about protected matters and expand the scope of persons who may make protected disclosures
  • impose substantial civil and criminal penalties for breaches of whistleblower protections
  • mandate all public and large proprietary companies have a compliant whistleblower policy in place by 1 January 2020

A large proprietary company is one that has 2 or more of the following characteristics:

  • $50+ million in consolidated revenue
  • $25+ million or more in consolidated gross assets
  • 100 or more employees

Currently fines of up to $12,600 can apply for failing to have a compliant whistleblower policy in place by 1 January 2020, and repeat fines can also apply to every subsequent year this requirement is not met.
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Annualised Salaries – Changes to Burden Employers

The Fair Work Commission has turned its focus to the disparate ‘annualised salary’ provisions found within various modern awards and with the inherent lack of employee wage safeguards being a key driver for change, the Commission has created new rules that govern same.

Presently 21 modern awards will be varied to incorporate a model annualised salary term including:

  • Clerks–Private Sector Award
  • Manufacturing and Associated Industries and Occupations Award
  • Hospitality Industry (General) Award
  • Restaurant Industry Award
  • Mining Industry Award
  • Legal Services Award
  • Banking, Finance and Insurance Award

Amongst other things, the new annualised salary provisions introduce several new and onerous notification, record-keeping and wage reconciliation obligations on employers who pay their award-covered employees annualised salaries including:

  • notifying employees of the annualised salary, which specific award provisions are satisfied by it, and how the annualised salary has been calculated
  • limiting how many hours of overtime or weekend hours are included within it and requiring additional payments to be made if those hours are exceeded

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