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The Presumption of Equal Shared Parental Responsibility – What this means and how it affects your child – Child Custody Lawyer advice

The presumption of equal shared parental responsibility is a consideration of the Court when determining child custody applications. The “best interests of the child” is an enshrined consideration under Australian law and is the foremost consideration in child custody cases. As such, the Act set out under section 61DA (1) that it is ‘in the best interests of the child for the parents to have equal shared parental responsibility for the child.’ It is important to note however that this presumption looks to shared responsibility, not shared time. Furthermore, it requires both parents to make joint decisions about the long-term considerations for the child. Therefore parents are required to make a genuine effort to consult with the other parent and come to a general consensus about such decisions. This is all in the best interests of the child.

The Court’s presumption applies to interim and final orders.  There are circumstances where this presumption does not apply (s61DA (3)). Such circumstances are specific and the presumption will not apply if the Court finds there are reasonable grounds to believe that a parent (or person living with the parent) has engaged in either abuse of the child or another child who was a member of the parent’s family at the time or in family violence in general (s61DA(3)).
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Family Law Lawyer advice on the effect of death on property proceedings

The law often deals with unforeseen events in the course of Court proceedings under the Family Law Act. If the other party in your proceedings dies before property proceedings are completed, then your family lawyer will inform you of Section 79(8) of the Family Law Act.

The Court will look to this section if in your case, the other party (your ex-spouse) passes before property related proceedings are completed. It is important to know that under the relevant section of the statute (79(8)(a)) any proceedings which have commenced by a family law lawyer before the person passes can be continued by or against the personal representative of a deceased party. This appointed representative would then continue the case on the deceased’s behalf. The Court may make the property order it would have made had the deceased party not died, and only if the court deems it appropriate to do so. Such a property order would still be enforceable by or against the estate of the deceased party. The Court considers the appropriateness of an order to be made after the passing of one of the parties according to the case of Erdem & Ossay. If you are worried about the state of your own health or that of the other party it is advised that you inform your Family Law Lawyer as soon as possible in order for your legal representative to make necessary arrangements and decisions in your case.
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Overlapping responsibilities in Condition of consents for music festivals

The entertainment and live music industry has undoubtedly taken the biggest hit by the coronavirus pandemic. To grapple with the economic fallout, the Federal Government announced a $250 million targeted package to help restart the creative, entertainment, arts and screen sectors.

As event organisers slowly formulate management plans, local councils will undoubtedly play a significant role to consult with other agencies to ensure a COVID-safe environment. The following case of NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 is relevant as it demonstrates the complexities of having a condition of consent that involves multiple local agencies.

Background

In 2015, the Richmond Valley Council granted the applicant, Rabbits Eats Lettuce Pty Ltd (REL), temporary development consent to hold music festivals in Koppenduff (the Consent).

One of the conditions, which the Court found was unusual, stated:

Condition 7

 An event must not proceed if either New South Wales Police, New South Wales Rural Fire Service or Richmond Valley Council advises it is unsafe to do so.
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Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2020] NSWCA 50

The Court of Appeal recently considered and upheld a judicial review decision, Universal 1919 Pty Ltd v 122 Pitt Street Pty Ltd [2019] NSWLEC 117 (“Universal  1”). As a result, we now have a unanimous decision from the Court of Appeal of NSW that the statutory requirements found in Schedule 5 of the Environmental Planning and Assessment Act 1979 to afford procedural fairness to a recipient of a section 9.34 Notice are sufficient to exclude any remaining common law rights.

Universal 1 was a decision made by Justice Biscoe in the Class 4 jurisdiction of the Land and Environment Court, in relation to the validity of a Development Control Order No. 10, Restore Works Order issued under section 9.34 and 9.35 and Schedule 5 of the Environmental Planning and Assessment Act 1979 (‘the Act’).

This case also deals with the validity of orders (pursuant to section 9.34) issued to an Owner of a building (the landlord), as opposed to an Occupier.
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Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

The above case in the Land and Environment Court reminds us of the crucial role that investigators of a Public Authority, such as Council Officers, play in upholding the foundational principles and goals of the Environmental Planning and Assessment Act 1979. The carrying out of development without consent or not in accordance with the consent undermines the objects of the Act, and Council Officers are usually the ones who bring this conduct to the attention of the Court.

 “People need to be aware that the offence of carrying out development not in accordance with development consent is a crime, that offenders will be prosecuted and that the Court will impose significant penalties on offenders”  Chief Justice Preston

Introduction

It may seem strange to some people that in today’s day and age where there are large scale campaigns to encourage more recycling by everyone, that an actual recycling plant should be penalized for recycling more than it is lawfully allowed to do on the site. However, the Land and Environment Court made such a decision recently in relation to an offence by a large recycling company operating in Wollongong.
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Clarity Regarding Council Entry to a Residential Premise

The recent decision of the Land and Environment Court in Bobolas v Waverly Council (No 2) [2020], the latest instalment of cases between Bobolas and Waverly Council (‘Council’), provides clarity as to the powers of entry possessed by councils onto residential land. This decision considered an application for judicial review challenging a section 22A order issued by Council is accordance to section 124 of the Local Government Act 1993 (NSW) (‘the Act’).

The order sought by Council on 29 January 2020 was to remove waste and refrain from collecting further waste at the property by 26 February 2020. Pursuant to section 124 of the Act, a section 22A order enables council to issue such an order ‘to remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises’ if ‘the waste is causing or is likely to cause a threat to public health or the health of any individual’.
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Winding Up Applications and the Extension of Time

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

Section 459R(1) of the Corporations Act 2001 (Cth) (“the Act”) requires that an application be filed to wind up a company, and for it to be determined within six months of filing. Should that six month period expire, the application can be dismissed without the orders sought being made.

However, there is provision for the six month period to be extended under section 459R(2) of the Act, if the applicant can satisfy the Court that special circumstances exist.

These time limits compare unfavourably with the Bankruptcy Act 1966 (Cth), which allows 12 months for an application for a sequestration order to be determined and the ability to extend the application for up to a further 12 months.

In the New South Wales Supreme Court, His Honour Justice Hamilton has said in relation to an application to extend time under section 459R of the Act:
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The Consequences of Escaping Debt in Family Property Proceedings

If you or your former spouse owe a significant sum of money to a person or company known as a creditor, you may be wondering how this will be dealt with in your family property proceedings. Some have attempted to transfer property from one spouse to another in a bid to protect their property from a creditor’s claim. Our family law lawyers can provide some guidance on what you should do if you owe money to a creditor and the consequences for non-disclosure.

During your family property proceedings, there is an obligation on both parties to disclose any significant creditors or any significant claim against them by a third party to the Court. This includes Applications for Orders made by consent. In circumstances where a Family Court Order would prevent a creditor to recover their debt, your family law lawyers may need to give the creditor notice of the Family Court proceedings who are then provided the opportunity to intervene in the proceedings and seek their own orders to protect their interests in having their debt paid.
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