Internet dating

Professor Patrick Parkinson in his paper “Relocation Disputes Project” records that internet dating was the cause of ‘some’ of the 40 relocation cases studied by him.

The internet does not respect boundaries leading to the formation of long distance relationships and the consequent desire to move (with the children).

I suspect the massive LNG projects in Western Australia and Queensland will provide further impetus for relocations as these projects draw away from major cities tens of thousands of skilled workers.

For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.

Relocation research

Professor Patrick Parkinson has reported the outcome of an ongoing study of 80 separated parents involved in relocation of children interstate or overseas. He has reported:

1. In 65% of cases the applicant was allowed to leave.

2. 72% of cases where children were permitted to move were decided by consent of the parents.

3. Where a judicial determination was necessary, 58% of the cases permitted a departure.

These outcomes contradict the popular sentiment that the “shared” parenting laws are preventing relocation. However, Professor Parkinson noted that successful relocation applications were more likely out of Melbourne and Perth than in Sydney. This is reported to be due to different legal interpretations by judges in cities. It also might reflect a different settlement culture.

For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.

Divorce rates falling - less work for family lawyers?

Statistics reported in The Australian today indicate that more people are getting married, and that divorce rates are dropping.

When will the court order paternity testing?

There is significant community interest in the capacity of DNA assessment to affect court proceedings. It is suggested that a swathe of wrongly convicted persons might be released because of “DNA evidence.” That is yet to bear fruit. On the other hand, offenders may more easily be convicted with “DNA evidence.”

There would be little controversy in the use of this evidence to inculpate the offender and to exculpate the innocent. Significantly more controversy exists in using DNA evidence to “determine parentage.”

In Re: H & A (Paternity: Blood Test) (2002) 1 FLR 1145, Lord Justice Thorpe held that as science had developed significantly, paternity is a matter to be determined by science and not by legal presumption. That may be so. The difficulty that arises, however, is that whilst science has advanced to precisely determine “paternity,” neither science nor the community has developed so much that it can precisely determine “fatherhood.” And it may be said that the development is so stagnant so as to assume, at least for the time being, that paternity and fatherhood always overlap. But do they?

Further, the debate continues to rage over the extent of “misattributed paternity,” where various groups suggest the issue affects “no more than 3% of tests” to “over 30% of tests.”

This is not intended to be a forum to fully extrapolate the variety of philosophical differences to DNA paternity testing. It is suffice to say that there are differences and it is those differences that have led the courts to develop a careful jurisprudence.

The authority of a court to order a paternity test is found in section 69W of the Family Law Act 1975. Machinery provisions exist at sub-sections (2) to (5). Sub-section (1) states as follows:

“If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order ) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.”

The language suggests an almost unfettered discretion and was held as such by Butler J in F & R (1992) FamLR 533. However, as his Honour continued, an unfettered discretion must be dealt with according to the ordinary rules of justice and fairness between the parties. In addition, one might argue that a proper statutory construction is always based upon the spirit and objects of the Act as a whole. As a consequence, the Court has set a number of factors for determination prior to ordering a paternity test. These were most recently and fully discussed by Kemp FM in Letsos & Vakros [2009] FMCAfam 897.

1. There must be substantive proceedings before the court. The court will not order parenting testing simply to satisfy the interest or knowledge of a person. The results must have implications for broader questions of parenting or child support.

2. Paternity must be an issue in the proceedings; that is, there must be established on the evidence, the onus of which is on the applicant, that there is a doubt in the applicant’s mind as to paternity, and the doubt must be honest, bona fide and reasonable. Importantly, the applicant need not show that any person is the father of the child. The applicant need only show that there is an honest, bona fide and reasonable doubt as to paternity. Often, evidence of such belief is difficult to corroborate and, consequently, the court will accept that evidence unless the court concludes the applicant’s alleged doubt is affected by malice or other extraneous considerations.

3. The court will not dismiss an application simply because the applicant’s evidence is inconsistent. Recollection of such personal and intimate matters is frequently inaccurate.

4. Whether or not testing is in the best interests of the child. Although, plainly, not a substantive parenting order, Coleman J in Tryon & Clutterbuck [2007] FamCA 580 held that an order for paternity testing is still an order with respect to the welfare of the subject child. Applying such definition to section 64B(2)(i) of the Family Law Act 1975, an order for paternity testing is therefore a “parenting order” for the purposes of the Act. It being so, the paramountcy principle applies – section 60CA of the Act refers. It then behoves the court to consider the matters outlined in section 60CC of the Act so far as they are relevant and so far as any evidence is led to draw an inference or make a finding.

A paternity test is, therefore, not for the asking. Very careful legal considerations must be examined before a client is advised to bring an application. Moral considerations, the purview of many other papers and other philosophies, must come next.

For more information, please contact Adam Cooper or visit Barry & Nilsson Lawyers.

Forced Relocations – What must be included in a Relocation Notice?

A landlord may wish to relocate a tenant for a variety of reasons. With a view to maintaining a harmonious relationship between the parties, a landlord would normally seek to reach agreement with its tenant so that the relocation takes place on a co-operative basis. However, when the parties cannot reach agreement and the relocation clause in the lease must be triggered, the implied provisions in the Retail Shop Leases Act require the landlord to give the tenant certain information before the relocation notice is effective. Specifically, the relocation notice must give the tenant:

1. details of the proposed refurbishment, redevelopment or extension of the Centre (“the proposed works”);

2. details of the “reasonably comparable” alternative premises; and

3. the date by which the tenant must vacate

Simple? Probably not because there is likely to be an element of uncertainty over whether there is a “genuine proposal” to carry out the proposed works or whether the alternative premises are “reasonably comparable”. If the tenant disputes the validity of your relocation notice then you may find yourself in the Tribunal. There are no apparent limits on what the Tribunal may take into account when considering what constitutes a “genuine proposal” or what is “reasonably comparable”.

Some recent decisions under equivalent retail leases legislation in Victoria and NSW have provided useful guidance as to how the Tribunal may interpret the implied provisions in the Retail Shop Leases Act.

1. Details of the proposed works

There must be enough details in the relocation notice so that the affected tenant can come to a conclusion about whether the proposed works:

(a) are a “genuine proposal”;

(b) will be carried out within a reasonably practicable time after the tenant is relocated; and

(c) cannot be carried out without vacant possession.

Consequently, we recommend that you provide as many details of the proposed works as you can when giving a relocation notice.

2. Details of the “reasonably comparable alternative premises”

The relocation notice must give the tenant enough details about the alternative premises so that it can form a view as to whether the alternative premises are “reasonably comparable” to the existing premises. Apart from the obvious details like size, location and any adjusted rent, the Tribunal may also consider the commercial value, exposure to traffic, or general appearance of the alternative premises to determine whether they are “reasonably comparable”.

The minimum information that should be set out in a relocation notice includes:

(a) the size, layout and location of the alternative premises (preferably shown on detailed plans);

(b) the proposed rent (if it is to be adjusted to take account of the different commercial value of the alternative premises);

(c) any unusual or distinguishing features of the alternative premises; and

(d) any information of special relevance to a particular tenant (e.g. a food retailer should be given information about the location and size of any grease trap servicing the alternative premises).

3. The date by which the tenant must vacate

The relocation notice must be given at least 3 months before the tenant is required to relocate. As always, it is best to issue the notice as early as possible. The closer it is to the commencement of the works, the stronger the bargaining position of the tenant if the notice is defective.

Generally, you should also ensure that the relocation notice is given to the tenant in the manner provided for in the lease. When posting, you should allow a minimum of 2 business days for delivery. Service by fax or email is not recommended unless specifically provided for in the lease.

The consequences of a defective relocation notice could be dire. If you are considering forced relocations of tenants then we recommend that you seek legal advice to minimise the risk that your relocation notice is open to challenge. Our experienced team of retail property lawyers are ready to provide you with whatever assistance you need.

Review of children’s provisions

The Institute of Family Studies has been requested by the Federal Attorney General to review the 2006 amendments to the Family Law Act, sometimes called the shared care amendments.

[Barry Nilsson] I am confident that the Institute can cut through the self-interested anecdotal based lobbying to reach a sensible conclusion. Anecdotes are typically boring and irrelevant. One outcome should be to recommend simplification of the convoluted provisions in the Act.

Tony Abbott’s reported suggestion to allow couples to opt into a fault based system are not likely to live long in the public mind. [Barry Nilsson]

For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.

Income disparity

The Australian Institute of Studies has released a study confirming the long held view that divorce has lasting impacts on women’s income levels compared with their male partners. [Barry Nilsson] The information collected to reach this conclusion was compiled since 2001. There has, of course, been major legislative change in the form of the `shared care’ amendments during the study time. It is my experience that the `shared care’ regime and greater flexibility by employers has enabled mothers to re-enter the workforce far sooner. [Barry Nilsson] I suspect the reported gap will close somewhat over the near time.

Legal advisers should always be aware of spouse maintenance entitlements. I am sure many women have been `short changed’ by their advisers by not recommending the pursuit of this entitlement.

For more information, please contact Don Leembruggen or visit Barry & Nilsson Lawyers.

Sharon Templeton - Promotion to Partnership

We are pleased to announce the promotion of Sharon Templeton to partnership. Sharon commenced with the firm as a Senior Associate in 2001 and has over 10 years experience in construction litigation and insurance law. She acts for insurers, self-insureds and underwriters with respect to complex public liability, product liability and property damage claims. Sharon also advises on risk management and coverage issues frequently linked to these matters. [Barry Nilsson] One of her specialisations is defending local authorities in relation to claims involving flooding, subsidence, town planning and road maintenance issues. Sharon also has a broad range of experience advising on liability for claims arising out of major building and construction projects, including contractual claims and dual insurance.

Insurance Law Review - 2009

Our seventh Annual Insurance Law Review titled “Weathering the Storm” will be held in Brisbane and Sydney in September 2009.

Dr Andries Terblanché, Chairman of Financial Services for KPMG, will discuss the global financial crisis in an insurance context.

For more information click here to register your interest.

Check out the latest articles form Barry Nilsson.

Court of Appeal declares that "ratchet" rent review clauses in retail shop leases are ok

Connor Hunter v Keencrest Pty Ltd [2009] QCA 156

The Queensland Court of Appeal has today declared that ‘ratchet’ rent review clauses in a lease are permitted by the Retail Shop Leases Act 1994 (“Act”). Ratchet rent review clauses do not allow CPI or market rent reviews to decrease the rent.

Section 36(e) of the Act provides that a rent review clause in a lease is void if it provides for the rent to change in accordance with whichever of two or more methods of calculating rent will result in the highest amount.

The tenant in this case (Keencrest Pty Ltd) successfully argued at first instance that the ratchet rent review clause was void because it stopped the rent from decreasing. [Barry & Nilsson] However, the Court of Appeal by a 2 to 1 majority, has today overturned that decision.

The Court of Appeal considered the wording of section 36(e) of the Act and noted that it refers to methods of calculating a ‘change’ in the rent. By requiring the rent to remain the same if there was to be no increase, the Court concluded that the ratchet rent review clauses did not fall foul of section 36(e) because if rent remained the same then there would be no change in the rent.

The Court found that the wording of section 36(e) was clear and so it considered that it was not entitled to have regard to the explanatory memorandum for the Act and the Minister’s second reading speech from 1994, [Barry & Nilsson] despite that fact that these sources made it clear that it was the Parliament’s intention to prohibit ratchet rent reviews.

After nearly 15 years, this decision overturns the previously held belief that ratchet rent review clauses in retail shop leases are void. In light of the express intention of Parliament to discourage these types of clauses, it is likely that we can expect further amendments to the Act to reverse this decision in the near future.

We recommend that you do nothing for future leases. It would be a brave landlord who re-tests the intent of Parliament.

For further information on this topic, please contact Cameron Graham, Clive Nichol or Sonia Whitehouse at Barry & Nilsson Lawyers.

Barry and Nilsson - Financial agreements and property settlements - the pitfalls

It is increasingly the policy of our governments that parties to an ended marriage or de facto relationship should be able to resolve their differences by way of agreement, rather than litigation.

It is also the case that newly committed couples are encouraged to enter into agreements to spare themselves further heartache upon the foreseeable, [Barry and Nilsson] yet unwanted, demise of their relationship.

Of the latter variety, there is still some resistance, particularly from young couples, who see the negotiation and existence of such an agreement as unromantic and contrary to the very nature of their new commitment. And before we laugh at their naivete, it must be remembered that it was not too long ago that such agreements were deemed void in Australian law as a imposition upon the sacred institution of marriage. There is some small hypocrisy in making a vow “for life” and at the same time negotiating to break that vow.

But, now we have them, and they ought to be used. Our preferred form of advice to unwilling couples is to think of the agreement a little like a will. No-one plans to die, certainly not in the short term future, and yet a will provides for that eventuality.

It is also our experience that agreements made at the start of a relationship can disfavour women. Even couples willing to enter into agreements generally negotiate it on the basis that what each party brings in to the relationship is theirs and they will split what they acquire during the relationship equally. It seems fair, but it’s usually not. [Barry and Nilsson] The reason being is that inevitably during a lengthy relationship, the dynamics of the relationship change. One party, usually the man, acquires the greater financial control. One party, usually the woman, sacrifices career and money for the primary care of children. Inevitably couples do not consider the “future needs factors” the courts must consider in property settlements in Queensland – for both married and de facto couples.

There are mechanisms to counter this – sunset clauses, contingency clauses and the like. All are acceptable. But even sophisticated couples will be reticent to find out they might have to do this unromantic thing again, perhaps at a time when the relationship is at its zenith – at the birth of a child.

Further still, our governments have decided that if the agreements don’t “tick all the boxes” the relevant legislation requires, then the parties may well have not bothered. If a de facto couple does not have a “recognised separation agreement” as opposed to an “agreement,” or if a married couple does not have a “binding financial agreement” as opposed to an “agreement,” then the agreement is almost of no value whatsoever.

What does this all mean?

Unfortunately, and perhaps in spite of the governments’ policies, it is simply impossible for these agreements, if they are to be just, equitable and binding, unless each party consults upon a family lawyer. If you, or someone you know, is about to start living with someone else, get married, or is dealing with the death throes of a relationship, encourage them to enter into an agreement and to seek the appropriate advise to make the agreement work.


For further information on this topic, please contact Barry and Nilsson Lawyers.

De facto financial disputes come to the Federal Courts

The latest update from Barry & Nilsson lawyers:


On 25 June 2008 the Family Law Amendment (De Facto Financial and Other Measures) Bill 2008 (the Bill) was introduced to the federal parliament. If passed, the Bill will introduce a number of landmark changes to the Family Law Act 1975 (the Act).

Most notably, the Bill will signal the end of the bifurcated [Barry & Nilsson] system that requires de facto couples to resolve financial disputes in state and territory courts, notwithstanding their ability to [Barry & Nilsson] settle parenting matters in the federal court system.

Participating jurisdictions

New South Wales, Queensland, Tasmania and Victoria have all passed legislation referring power to the Commonwealth. Existing constitutional power enables the Commonwealth to legislate in relation to the Northern Territory and the ACT.

Currently South Australia and Western Australia are not participating jurisdictions, but are in discussions with the Commonwealth regarding their position in relation to the Bill.

Jurisdiction

The legislation will not apply to parties to a de facto relationship that breaks down prior to the commencement of the new provisions. This might mean parties either try and break up earlier or later, depending [Barry & Nilsson] upon the benefits of the change of the legislation. It may also mean that the end point of a relationship may well be a litigation point, depending upon the benefits. It’s important to note in this regard that NSW’s present de facto legislation does not provide for “section 75(2) factor” considerations (unlike Part 19 of the Property Law Act 1974).

Applications for maintenance, declarations of property interests or property settlement must be made within two years of the breakdown of the relationship.

There are also threshold tests similar to those in present de facto legislation going to the status of the relationship.

Substantive Provisions

The law is designed to mirror existing financial provisions for married couples. As a result, all relationship [Barry & Nilsson] property settlements will be determined is much the same way and the old distinctions as to the status of a relationship (or the parties to them i.e. same sex couples) are designed to be eliminated. Lawyers will be able to provide greater certainty to clients given that all property settlements will be dealt with by either the Family Court or the FMC, courts specifically tasked with that jurisdiction.

For more information contact Barry & Nilsson

Low cost retail shop lease disputes does not mean low evidence

Barry & Nilsson lawyers posts under commercial & property law.

To avoid costly and time-consuming disputes in the Retail Shop Leases Tribunal, the party intending to commence proceedings should ensure that it has evidence to the standard required to prove its claim. This is a key point to take away from a recent decision by the Retail Shop Leases Tribunal in which our firm successfully acted for the landlord in defending a claim for compensation by a tenant.

What happened?

• The tenant operated a café and take-away food outlet and service station business. The tenant’s lease was for a period of three years, commencing on 30 September 2003, with two three-year options to renew.

• The landlord was required by the lease to supply all the fuel required for the operation of the service station and to maintain the fuel bowsers in good repair. The lease also made provision for the tenant to supply its own fuel if the landlord did not supply fuel for 7 days or more.

• The tenant’s obligations under the lease included accounting to the landlord for the proceeds of fuel sales (less the tenant’s commission) and keeping proper records of all purchases and sales of fuel.

• The tenant was in arrears in its accounting to the landlord for the proceeds of fuel sales (less commission) and the landlord locked the fuel pumps. Within a few trading hours, the tenant had removed the locks from the fuel pumps and it was able to continue selling fuel.

• During the term of the lease, the landlord served three separate notices to remedy breach in relation to the tenant’s failure to make certain payments under the lease (including the proceeds of fuel sale less commission) and provide daily control sheets to the landlord recording sales of fuel and stocks held.

• The landlord terminated the lease on 17 August 2006 after the tenant failed to comply with the latest notice to remedy breach. The tenant remained in possession of the premises for a further six months, but it only operated the café part of the business.

What the tenant claimed

• The tenant claimed damages for breach of the term implied in the lease by s43 of the Retail Shop Leases Act (“RSLA”), alleging that the landlord substantially restricted the flow of potential customers and caused significant disruption to the café and service station business by:

• regularly failing to supply fuel;

• locking the petrol pumps;

• failing to maintain fuel pumps and delivery measures in a safe condition; and

• failing to repair and maintain the subject premises.

• The tenant also claimed damages of an unspecified amount for unconscionable conduct, the conduct being the landlord’s refusal to renew the lease after a purported exercise of the option by the tenant and alleged interference with the tenant’s quiet enjoyment of the premises.

What the landlord argued

• The landlord denied that the tenant was without fuel on the days alleged by the tenant. The landlord argued that it was diligent in efforts to maintain supplies of fuel, but in the absence of the daily control sheets, the landlord was forced to estimate the amount of fuel to be delivered, which at times resulted in an over or undersupply of fuel.

• The landlord denied that any failure to supply fuel caused significant disruption to the café trading because the business attracted numerous walk-in customers unrelated to the sale of fuel and the tenant kept the café open for trading in the evenings after the service station had closed.

• The landlord argued that it had properly maintained the fuel pumps and it gave the Tribunal evidence of that maintenance.

• The landlord made a counterclaim for arrears of rent, electricity, other payments owing to the landlord by the business and the value of equipment removed from the premises by the tenant.

What the Tribunal decided

• The Tribunal found that the tenant had failed to substantiate its claim that the landlord had substantially restricted the flow of traffic to the premises by failing to supply fuel.

• The Tribunal’s view of the landlord’s conduct in locking the fuel pumps was that the tenant did not appear to have suffered any loss.

• The tenant’s claims in relation to interference with quiet enjoyment and the landlord’s failure to maintain the fuel pumps were dismissed due to lack of evidence. The Tribunal also dismissed the claim that the landlord had failed to maintain and repair the premises, as the majority of alleged defects were minor and did not adversely affect the business.

• The Tribunal found that the tenant forfeited the right to exercise the option because it was in breach of the lease at the time, a circumstance not permitted under the lease.

• The tenant’s claim for loss of capital value was dismissed due to lack of evidence of the market value of the business. The Tribunal did not accept the tenant’s accountant’s evidence of the value of the goodwill of the business, pointing to declining sales and diminishing gross profit, as well as the nominal value of the plant and equipment that remained.

• In relation to the landlord’s counterclaim, the Tribunal rejected the claim for the value of the plant and equipment but awarded the landlord a reduced amount for rental arrears and electricity costs.

Why the decision is important

The tenant’s failure to prove any aspect of its claim should be a timely reminder about the standard to be met in proving a case before the Tribunal. While the RSLA provides that the object of the RSLA is to be achieved through a low cost dispute resolution process for disputes, landlords and tenants should not expect that the low cost process is available at the expense of the evidence that a party would otherwise be required to adduce in other courts or tribunals.

For further information contact Barry & Nilsson lawyers.