It’s an increasingly common situation – you and your partner decide to separate, and must ensure the needs of the children you have together are met. You’ve consulted your family lawyer and begun the process of negotiating your child’s living, schooling and other related arrangements. After this process, the Court has made Final orders stipulating the rights and responsibilities of each parent in relation to the children’s arrangements.
And then, despite these Orders having been made, one of the parties breaches the Orders. In this situation, what penalties are available?
Penalties from the Family Law Act
Division 13A of the Family Law Act 1975 (Cth) states the penalties that arise from contravention of orders and other related obligations that affect children. The section deals with situations where:
- A contravention is alleged, but not established;
- A contravention is established, but there is a reasonable excuse for it
- A contravention without reasonable excuse
This grouping shows the broad nature of the powers available to the Family Court – by allowing for a variety of situations in which orders may be breached, the Court is able to tailor the specific breach to the most appropriate penalty.
What the Court Can Do:
Depending on the seriousness of the breach and whether a reasonable excuse for any contravention can be found, the Court has a range of powers available to penalise a mother or father breaching a parenting order. These include:
- Section 70NDB: An order that compensates one party for any time lost with their child due to the other party’s breach of the order
- Section 70NEB(1)(a): An order that requires one parent to attend a post-separation parenting program
- Section 70NEB(1)(c): Adjourn the proceedings in order to allow one of the parties to the matter to apply for a further parenting order that discharges, amends or suspends the previous order/s
- Section 70NEC: An order that the party who has contravened the order must enter into a bond for a period of up to two years that requires them to attend family dispute resolution, family counselling or be “of good behaviour”.
- Section 70NFG: That the party who has breached the order be sentenced to imprisonment.
These examples of the wide-ranging nature of the penalties available to the Court is dependent on the seriousness of the breach and a variety of other factors.
Given the wide range of penalties available to the Court in the event of a breach, if you or the other party believe there has been a contravention of a Parenting Order, it is essential that you seek the advice of your Family Lawyer.
If you believe you or your former partner have breached a Parenting Order, or for any legal advice relating to parenting matters, please do not hesitate to call Freedman & Gopalan Solicitors for legal advice on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
In the hustle and bustle of the work day, it is sometimes difficult to remember what responsibilities are part of your job and what are not. It is easy to forget what your employer is and isn’t able to do. However, it is important to remember that rules because they exist to protect all parties involved.
In what has been called the ‘Employment Law Case of the Year’, Uber is currently facing legal action from drivers who believe they should be supported with rights and regulations like any employee despite being self-employed individuals.
This case is interesting because it reflects the new status quo in which companies and organisations are hiring and outsourcing work to self-employed individuals rather than keeping work within the company. This outsourcing or maintenance of ‘workers’ as opposed to ‘employers’ can reflect the impact of unbearable workloads, leaving an organisation with no choice but to offload some of the work to external sources. However, it can also be seen as a cost-saving method.
Uber’s main argument revolves around the above theory, that the drivers’ currently seeking legal action have misunderstood their role. Uber is a technology company that puts people in touch with potential drivers, and the drivers are given greater flexibility in their role with Uber.
So, what is the difference between a worker and an employee?
Most will argue that the key difference lies with the duties and obligations of both parties. For example, a worker is entitled to the basic employment rights such as holiday pay, the right not have deductions made from their salary and entitlements to the national minimum wage. An employment relationship will also be evident from the amount of control that an employer can exercise over the employee.
Whether or not Uber will be successful in their legal battle against the drivers, it remains important that employees know their rights and employers ensure there is no miscommunication regarding their status in the workplace.
If you believe you are being treated unfairly at work, or would like some legal advice in relation to Employment Law, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.
Singer-songwriter Ed Sheeran is being sued by two parties, Martin Harrington and Thomas Leonard, who claim his song “Photograph” is a copy of their 2010 song “Amazing”. With $20 million USD at stake – the amount the parties are claiming from Sheeran – the situation brings to light the complex and potentially costly issue of stealing other’s work.
The complainants state that
“the songs’ similarities reach the very essence of the work” and that “the similarity of words, vocal style, vocal melody, melody and rhythm are clear indicators, among other things, that Photograph copies Amazing.”
This suggests they believe Sheeran’s song is not simply inspired by their earlier work, but rather copied – a claim that is actionable in a court of law.
Plagiarism, particularly in the context of popular music, is becoming an increasingly common issue at law as technological advances ensure that music, while easily accessible, can mean that songs are not attributed to the original artists.
Blurred Lines in Ownership
This was seen earlier last year in the court battle between Marvin Gaye’s children and singers Robin Thicke and Pharrell Williams. The jury determined that the two artists copied Gaye’s hit song ‘Got To Give It Up’ in order to create ‘Blurred Lines’ and awarded Gaye’s children approximately $7.4 million.
With so many different platforms from which to listen to music – online streaming, downloading, radio, television and more – one can see how it may be easy to cross the line. There is danger between being ‘inspired’ by a particular song, and not necessarily being aware of copying on a conscious level, and directly plagiarising the song’s content and claiming it as your own.
So, what is difference between an ‘inspired’ song and a rip off? This will depend on a number of factors, including melody, chord progression, rhythm and lyrics. Under the Copyright Act 1968, a person who has created something which they believe has been copied or stolen by another, will potentially have action.
Sheeran’s songs have brought together people all over the world. His songs prove popular at weddings and couple events. Hopefully, this dispute can be settled outside of court.
If you believe you are in a similar situation, or think you have a legal issue relating to Intellectual Property or Copyright Law, please do not hesitate to contact us on 02 8917 8700.
In the era of technology, nobody escapes judgment and nothing you do is private. This includes our actions undertaken at home as well. With the purchase of every smartphone or camera device, you and your loved ones are documenting each other’s every movement, and evidence such as this is beginning to show its usefulness in Court.
If you are in the process of filing for divorce or in the midst of a property settlement dispute and your partner is being less than agreeable, what evidence are you able to use if the only solution is taking the matter to court?
It has been estimated that over 30% of family law litigation cases are submitting recordings that have often been recorded without the knowledge of the other part, as evidence to support their case.
Is the use of this evidence legal?
Ordinarily no, in NSW this evidence is not legal as Section 11 of the Surveillance Devices Act 2007 prohibits a person from recording the private conversation of another without their consent.
However, as a result of home-recorded audio and video material becoming ‘the norm’, the Family Court of Australia has allowed evidence of this kind to be used under certain circumstances. This includes how valuable the information might be.
While this may bring hope to some, people trying to document the wrongdoings of the other party should also be warned, home recordings have the potential to leave the person who made it in a less than favourable position.
Federal Magistrate John Coker said that he has seen cases where the recording held little value and it reflected poorly on the individual who made the recording. As a result, a Judge has the power to refuse to see footage because home-recorded material has the potential to add conflict.
Where does that leave us?
The take home message from using home-recorded audio and film materials is to take precautions. Only use such material if it will add probative value to your arguments. An example of this was evidenced in the 2014 family violence case of Gorman & Huffman, in which the presiding Judge allowed illegally recorded materials to be admissible. The hardship of proving family violence behind closed doors was the primary factor of allowing this evidence.
If you believe that you have home-recorded materials and are unsure about whether it can be relied upon as evidence, or have any questions on evidence in Court, please call us on 02 8917 8700.
With an increasingly casualised and underemployed workforce within the hospitality industry, and with mainly “vulnerable” workers such as young people, international students and women being exposed to these conditions, it is vital to be aware of your rights and responsibilities when working in your local café, bar or restaurant. For instance, the practice of tipping is becoming increasingly more popular in Australia. Though it is not customary to tip, the practice has gained momentum and is now fairly common in the industry. So in a country where tipping is not compulsory, what should happen when a grateful customer hands you a $20 note?
In Australia, the hospitality industry is regulated by the Hospitality Industry (General) Award 2010, which was consolidated by Fair Work Australia. The Award states the prescribed rights employees and employers have when working in the hospitality industry, including minimum wage, leave entitlements, hours of work and termination procedures.
However, the Award does not, in any manner, cover any rules or regulations regarding tips. This means that in Australia, tipping is an unregulated practice and there is no legal precedent to govern the hospitality industry’s tipping procedures. Therefore, tip distribution is largely left to the restaurant’s own policy or practice, which in turn is influenced by customs and practices within the wider industry. Common arrangements include pooling tips to be shared equally between staff members, or saving all tips to be used in end-of-year functions such as Christmas parties. However, these practices are in no way regulated, and are thus open to misuse and abuse by management or employees.
What are your options if you believe that your tips are being taken unfairly?
As the usual legal duties between employers and employees continue to exist such as the contractual duties arising from your employment contract, tipping distribution may be covered through one of these areas of law - for instance, if the company’s tipping procedure is covered in the employment contract. This is just one instance of where tipping may be regulated through another area of law. If you are concerned, It is important to seek legal advice so that a solicitor can fully examine your employment situation in order to gain a fair and just outcome.
What is more important? Protecting and investing in the future of our children or safe-guarding our communities from hooligans and ‘rogue youth’. Some are arguing that this is not a case of who is more important, but what will cost less?
Earlier this month, the Northern Territory Chief Minister, Adam Giles, spoke out via social media and proposed that the presumption in favour of bail for youths will be removed. As a result of what Giles believes is poor legislation, ‘rogue youths’ are disobeying the police, breaking the laws and mocking the second chance society has given them.
Giles’ views of preventing youth access to bail follows in the wake of the State changes to bail and firearm laws in response to the Lindt Café Sydney siege. NSW Premier Mike Baird announced that in an attempt to keep the public safe, anyone suspected of having links with extreme terrorist groups will struggle to be granted bail.
In this vein, one could almost argue that Giles believes Australia’s ‘rogue youth’ should be treated like suspected terrorists.
In response to this social media rant, Children’s Commissioner Colleen Gwynne affirmed the points being made by Law Society President Tass Liveris by stating that “putting kids behind bars didn’t work. Detention actually teaches young people to be better criminals and re-traumatises kids who have already been abused or come from dysfunctional families.”
The Australian Bar Association has also taken a stance on this issue by asking the Northern Territory to examine the far-reaching and negative impacts changes to legislation would have on Indigenous Australians who make up close to 90% of the prison population in the Northern territory.
This issue has now attracted the attention of the other side. With the election nearing closer, this current concern has prompted Labor Leader Michael Gunner to highlight that the CLP are only looking at youths once a crime has been committed. His party will work towards preventing crime rather than punishing kids after the fact.
As Mr Liversis has stated, "Everyone is sick and tired of what communities see as the revolving door of jail. We have been on this path for some time and the community is no safer for it.”
If you are struggling with the bail requirements following the changes to these laws, or wish to ask how proposed changes might affect you or a loved one, please do not hesitate to call Freedman & Gopalan Solicitors for legal advice on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP!
An Australian Child Protection Offender Reporting scheme has been established by legislation in each Australian State and Territory. The scheme requires child sex offenders, and other defined categories of serious offenders against children. The purpose behind the scheme is to ensure that police are kept informed of sex offenders’ whereabouts and other personal details for a period of time after they are released into the community. However, in all states and territories (except Western Australia), the registry is not available to the public and can only be accessed by police.
The MAKO Website
To view the details and whereabouts of sex offenders in Australia, the public does have access to the ‘Movement against Kindred Offenders’ (‘MAKO’) website. MAKO is an Australian non-profit organisation. This website is not endorsed or authorised by any government body so its legitimacy cannot be verified. However, one can see that its relatively simple access may be appealing to parents or other concerned parties.
The website lists parties’ names and locations based on the following evidence:
“send copies of whatever documentation/ proof you can to regarding the sex offenders court case/ guilty plea/ convictions/ sentencing/ appeals...Victim compensation documentation and other case related material may also be helpful.”
Once this information is verified by the organisation, it can be put up on the website, where the public can access the offender’s name, age, known locations and other relevant details. The MAKO website enables you to search for offenders by surname, or more generally, offenders by the state or territory in which they are known to be located.
As long as the state and federal governments of Australia do not allow the public to have access to the names and locations of sex offenders across the country, the MAKO website is at least a starting point to ensure the safety of children.
If you have any legal queries in relation to the sex offender registry or offences against children, please do not hesitate to contact our offices on 02 8719 8700.
Separating from a partner can be really difficult and it has the potential to become more challenging when your assets have to be divided. The assets can be comprised of real property, personal property and debts.
To make sure you are helping yourself to get the best possible outcome, stay informed of the various ways division is undertaken.
Firstly, you and your partner can agree on how your property will be divided without any court involvement. If you and your partner do reach an arrangement that suits the both of you, the next step would be to formalise your agreement by applying for consent orders in the Family Court.
Whilst this would be the most beneficial for both parties, it is evident that this is easier said than done.
Therefore, if you and your partner cannot reach an agreement, you can apply to the court for Financial Orders. These Orders are binding and allow the court to order a person to pay money to another person by a certain time, transfer or sell property, and sign documents.
In this case, it should be stressed to any newly divorced or separated person, that the outcome will rarely be an even split of the assets as the court takes a number of factors into consideration when dividing property. However, the Family Law Act 1975 requires orders for a just and equitable division of assets.
The division process will ordinarily involve a number of steps:
- Identify and value all assets and liabilities including superannuation and money held in trusts.
- Assess the various contributions made by both parties. This will include financial contributions, contributions as a parent and contributions as a homemaker.
- After taking the above into account, the court will adjust for any future needs of the parties such as the care of a child or differences in income, age and health.
If you have found yourself in the position where the above facts are important, it is time to consider legal support. The area of divorce and property settlement is a minefield no one could expect you to go through on your own.
If you are struggling with the process of property settlement following a divorce, please do not hesitate to call Freedman & Gopalan Solicitors for legal advice on 02 8917 8700 and let us guide you through it.
If you and your partner separate, it can be a stressful and emotionally turbulent time. If you and your partner have children together, then the process can be even more complex, as you balance your own emotional well-being with ensuring the children are as content as possible. In these situations, it is best that you consult with a family lawyer so that you are aware of the legal requirements that you and/or your partner must indicate when embarking on his process, in order to create the safest, happiest outcome for your children.
Family Dispute Resolution
Where you both disagree in determining arrangements for your children, the first step that you and your partner should take is to make genuine and reasonable efforts to communicate with your former partner; and make genuine efforts to resolve the dispute by attending counselling or mediation, often called “Family Dispute Resolution”. In fact, Family Dispute Resolution is a requirement that both parties must fulfil before the matter is taken to the Court as you will require a Section 60I Certificate to be obtained before legal proceedings can be commenced.
Parenting Plans
The next step in this process will usually be discussing what kinds of parenting arrangements/agreements can be entered between yourself and your partner. Your family lawyer will be able to assist you in creating a Parenting Plan.
Importantly, the plan must be in writing, signed and dated, and can be amended by simply creating another written, signed and dated agreement. Parenting plans do not create any kind of legal obligation on either parent – but if the matter does go to Court, the Court can take into account the content of the parenting plans.
Consent Orders
Next, Consent Orders may be made. Consent Orders are a legally binding agreement that is filed with the Courts that formally states the agreement that is made and negotiated between parents in regards to arrangements for the children. It is very important that a family lawyer assists you with creating this document; as it is legally binding.
It is important you are aware of the rights and responsibilities the agreement will have on you and your partner.
The Next Steps
If the matter is unable to be resolved through these means, it may go to the Court – either the Local or Family Court. At this stage, the Court will determine arrangements for you and your partner’s children by deciding what is in the best interests of the children.
The Parenting Orders made by the Court will include factors as to who the children will live with, how responsibility for the children will be shared, and how many future disputes in relation to what is in the Orders will be resolved.
If you are thinking of separating from your partner or are in dispute about arrangements concerning your children, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.