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Australian Federal Police uncover child stealing ring in Australia

November 29th, 2018

Child abduction has recently been in the spotlight after the Australian Federal Police made a number of arrests in relation to the involvement by individuals in a child stealing ring that has been operating in Australia.

The individuals involved have been charged with criminal offences of conspiracy to defeat justice and child stealing, for their assistance in continually moving mothers and their children within Australia to avoid detection by authorities and prevent the return of the children to their extended family, in breach of court orders.

A recent decision of the Federal Circuit Court of Australia where a mother who went on the run in Australia with her children was imprisoned, as was the grandmother who assisted, shows that the courts are also cracking down on parental child abduction.

The Federal Government have recently amended the Family Law Act in relation to international parental abduction.

In light of the recent media attention, court decisions and upcoming legislative changes, it is timely to reflect upon how the law restricts travel with children after separation.

So what is child abduction? 

Child abduction occurs, broadly speaking, when one parent travels or relocates with their child:

  1. domestically in breach of court orders, or outside of their time with the child; or
  2. internationally in breach of court orders, or without the prior written consent of the other parent.

There are a variety of potentially serious consequences for making a mistake when travelling with your child after separation, including:

  1. If orders have been breached, the non-breaching parent may commence contravention proceedings seeking that the child be returned to them and then also seek an amendment to the orders in relation to the care arrangements for your child. The party in breach may also be found to be in contempt of court.  The court has a variety of powers to punish a person found in contempt, including order the payment of a fine or imprisonment.
  2. If there are no orders in place, court proceedings may be commenced for the return of the child and also seeking orders about the care arrangements for the child in favour of the non‑abducting parent.
  3. The Family Law Act makes it a criminal offence to travel with a child overseas in breach of a court order, or while there are current proceedings in relation to the child before the court or an appeal. If found guilty, a person faces up to three years imprisonment.  The new amendments to the Family Law Act that will come into effect from a date proclaimed or 26 April 2019 will also make it a criminal offence where a parent travels overseas with a child with the consent of the other parent, but fails to return the child to Australia as agreed or in accordance with orders.  These amendments also introduce a defence, where a parent abducts a child because they believe it to be necessary to escape family or domestic violence.
  4. There are also different state based criminal offences for ‘stealing’ and ‘abducting’ a child which not only the abducting parent faces, but also any other person who knowingly assists that parent.

The key lesson to be learnt is that the law on travelling with children after separation is complex and there are very serious consequences for getting it wrong.  You should obtain legal advice from an experienced family lawyer about your situation.  As a golden rule, written consent (by statutory declaration) from the other parent should be sought, unless there is a court order which allows the travel.

To understand what you should do if your child is not returned to you, ways in which you can prevent your child from being abducted and what to do if the other parent will not consent to travel, we have provided further information below.

What should you do if your child is not returned?

If your child is not returned to you, you should seek immediate legal advice about filing an urgent application in the court for the recovery of your child.

A recovery order permits the Australian Federal Police to recover your child and return them to you.

If the location of your child is not known, then there are other orders such as a location order, a Commonwealth information order and a publication order which can assist with locating your child.

If your child has been relocated outside of Australia, then you should contact a lawyer immediately.  Australia is a party to an agreement called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which permits the Attorney-General’s department to commence proceedings on your behalf in other countries who are also a party to the agreement to seek an order for the recovery of your child.  Such applications can be time sensitive.

Ways you can prevent your child from being abducted

If your child does not have a passport, then it is a requirement for the issue of an Australian passport that any person with parental responsibility consent to the issue of the passport.  However, an additional measure that can be taken is to lodge an alert with the Department of Foreign Affairs and Trade if you consider there is a risk that your child may be issued with a passport without your consent.

If your child does have a passport and the passport is not secure, or you are concerned that a passport may be issued by another country, an urgent application can be made to the court to secure the passport and also to place the child on the Family Law Watch List which will authorise the Australian Federal Police to prevent your child from being removed from Australia via air or sea at all departure points.

What if the other parent does not consent to international travel?

You cannot travel internationally with your child without the other parent’s written consent.  If the other parent does not consent to your child travelling with you, then you can make an application to the court seeking an order that your child be permitted to travel with you.

For more information about this issue and all other family law matters please contact our family law solicitor Rochelle Ryan on 07 4036 9700.

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Badgering, Bullying and Bodies Corporate: The Fair Work Anti-Bullying Laws extend further than you might think

September 27th, 2018

Following a recent decision of the Fair Work Commission on bullying in the workplace, you may be surprised to learn just how far the anti-bullying laws extend.  The definition of “worker” under the Fair Work Act is given a much wider meaning than just the traditional employee/employer relationship.  Bodies corporate and strata managers in particular should be aware of this decision.

Application by Ms A [2018] FWC 4147

The application involved a body corporate committee of a residential strata complex in Brisbane and the company engaged by the body corporate under a management agreement. The company provided maintenance, cleaning and other services to the complex and required that the manager live on site.  It was one of the directors of the company, Ms A, who brought the application alleging she was bullied at work by Mr C, the Chairman of the body corporate committee.

The conduct complained of included constant emails from Mr C, up to seven times per day at all hours of the day, as late as 11.00 pm at night.  The emails were about a number of different issues to do with Ms A’s performance of her duties under the management contract.  Some of the items complained of by Mr C included:

  • the prompt performance of the clearing of leaves and other vegetation on a daily basis;
  • attending to garden maintenance including the trimming of trees;
  • pool maintenance;
  • conducting of regular inspections;
  • keeping the common area toilets clean;
  • being contactable and actually living on site; and
  • the enforcement and policing of by-laws.

Mr C argued that his conduct was not bullying, but reasonable management action carried out in a reasonable manner.

The Fair Work Commission found that the issues raised by Mr C were in fact reasonable issues to raise about Ms A’s performance of the services.  However, a “war engaged in by email” was not an appropriate way to raise them.  Particularly, the use of sarcastic and derogatory language in Mr C’s emails to Ms A combined with the excessive amount of emails (sometimes well outside business hours) and the publication of those exchanges to other members of the committee was unreasonable.

The Commissioner pointed out that, as a member of the body corporate committee, Mr C had access to the resources and information to deal with any disputes in the proper manner.  The strata management company engaged by the body corporate could have advised Mr C on the formal dispute resolution process for body corporate matters.

Mr C was ordered to stop bullying Ms A and given direction as to the subject matter, timing and content of future email correspondence.  The orders also required that telephone communication be used in the first instance to assist with the repair of the working relationship between Ms A and Mr C.

The parties in the proceeding were not indentified in order to avoid any impact on other residents of the complex and to facilitate the resumption of a safe working relationship.

What are the Anti-Bullying Laws

At the beginning of 2014, the Fair Work Act was amended to include anti-bullying provisions that allow the Fair Work Commission to make decisions and orders about bullying in the workplace.

The changes allow a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission to make an order to stop the bullying conduct.

A worker will be bullied at work if, while at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.  In this application the Fair Work Commission was satisfied that bullying had occurred.

Who is a worker

In the Fair Work Act anti-bullying provisions, the term “worker” is given a particularly broad meaning.  It includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, apprentice, trainee or volunteer.

As a result the body corporate (and by extension the body corporate committee) have duties to provide a safe working environment to third party contractors.

This is the first time the Fair Work Commission has applied the anti-bullying provisions to a situation outside of the traditional employment relationship.  The decision demonstrates that the anti-bullying laws will extend to all contractors who are performing services or work.

There is also no requirement that a contractor be an individual person.  In this case the ‘contractor’ was a company and it was the director of the company, Ms A, who brought the application under the anti‑bullying rules.

Key points to take away from this decision

The key points to take away from this decision for bodies corporate and strata managers are:

  • The Fair Work Commission found that it had jurisdiction where the resident manager was a company (not just an individual person providing the services). This means that the scope of the anti-bullying laws apply to third party contractors as individuals but also to the employees or directors of third party contractor companies.  Due to the constitutional limits of Commonwealth legislation, the commission may not have jurisdiction if no corporations are involved.
  • It also found that the manager and its employees were “workers” who were owed duties by the body corporate. The anti-bullying legislation applies to workers as defined by the Fair Work Act and this goes well beyond a standard employment relationship.
  • While the chairperson of the body corporate committee was found to be justified in raising many of the issues which he had with the management, it was the manner in which they were raised which was inappropriate.
  • Civility, courtesy and reasonableness in interactions with contractors will not only improve working relationships, but also protect the body corporate from potential liability.

If you would like any further information about this decision, the roles and responsibilities of bodies corporate generally or advice on the resolution of disputes in a strata complex, please contact Lauren Doktor in our property law team on 07 4036 9700.

 

 

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BEWARE! The consequence of releasing assets to an executor without a grant of probate

July 31st, 2018

An executor, when administering an estate, may try to avoid obtaining a grant of probate of the deceased’s will.  In this situation, the executor will often request that the party holding the assets on behalf of the deceased (i.e. a bank) waive the production of a grant of probate and simply distribute the assets to the executor named in the will.

Generally, upon receiving these requests the party releasing the deceased’s assets will, in exchange for dispensing with the requirement for the production of probate, request that a release and indemnity form be signed by the executor of the estate.  Whilst most of these requests to waive probate typically arise in low value estates where it would be uneconomical to obtain a grant, it is still important to handle these requests with great caution and care.

Be warned, a release and indemnity form signed by a “purported” executor, in exchange for waiving the requirement to produce a grant of probate, may be insufficient protection against future claims.  The recent case of Public Trustee v CBA & Ors [2018] SASC 25 is a timely reminder to all banking personnel, accountants, stockbrokers, financial planners, insurance brokers, company directors, superannuation fund trustees, and business owners (essentially anyone releasing funds/assets to an executor of an estate) of the importance of probate and why you should always think twice before waiving the requirement for the production of a formal grant.

Public Trustee v CBA & Ors [2018] SASC 25

The deceased, Ms Martin passed away on 3 October 2008, aged 90.

Ms Martin had made three wills following the death of her late husband in 1987:

  • will dated 29 April 2008, appointing Ms Martin’s son Michael as the executor (“the 2008 will”);
  • will dated 16 October 2007, appointing Michael’s estranged wife Alba as the executor (“the 2007 will”); and
  • will dated 22 October 2002, appointing the Public Trustee as executor (“the 2002 will”).

A grant of probate in solemn form was made on 15 May 2013, propounding the 2002 will.  The reason that a grant of probate was issued for the 2002 will and not the later wills is because the court determined that Ms Martin did not have the requisite capacity at the time the 2008 and 2007 wills were prepared.

At the date of Ms Martin’s passing she had account with the Commonwealth Bank of Australia (“CBA”) and the Bank of South Australia (“Bank SA”).

In June 2009, Michael sought payment of the proceeds of those accounts to him, as the executor of the estate pursuant to the 2008 will.

CBA wrote to Michael requesting that a certified copy of probate be provided in order to release the funds, along with several other forms to be completed.  Michael responded to CBA requesting that “…probate be waived as there is no property in the Estate of my late mother, only cash, and I would like to distribute it to the Beneficiaries”.

CBA agreed to waive the production of a grant of probate upon the condition that Michael complete and sign a “Claim for Assets Held on Behalf of Deceased Customer form”, along with a few other forms. Michael returned the signed form to CBA, whereby he agreed to indemnify the CBA against all action, suits claims or demands in respect of Ms Martin’s account.  CBA then closed the account held in Ms Martin’s name and released the funds, being $69,290.33, to Michael.

Similarly with respect to the proceeds held by Bank SA, Michael wrote to an officer at Bank SA requesting that probate be waived “as there is no property in Ms Martin’s estate, only cash, to be distributed among the beneficiaries”.

Michael provided several documents to Bank SA, including a “Deceased Estates Statutory Declaration”, signed and dated by Michael wherein he declared that he was the executor of Ms Martin’s estate and indemnified Bank SA “from and against all claims, demands, actions, proceedings and losses of whatever kind and extend arising out of our incidental to such instructions…”. Again, Bank SA agreed the waive probate and paid out the proceeds, being $108,461.00, to Michael.

Following the grant of probate being issued in 2013, the Public Trustee demanded that CBA and Bank SA repay of the proceeds in those accounts to them, as the lawful executor of Ms Martin’s estate.

The banks refused to make the repayment sought by the Public Trustee and asserted that they had already paid the monies to Michael pursuant to a valid release and discharge that he gave to each of them on behalf of Ms Martin’s estate.

The Public Trustee then brought proceedings against CBA and Bank SA, alleging that the banks were indebted to repay those amounts. 

At the date of the hearing, Michael’s whereabouts were unknown to the Public Trustee.

The issue for the court to determine was whether CBA and Bank SA were liable in debt to the Public Trustee for the proceeds in the accounts (totalling approximately $177,751.00) and whether the defence of discharge was made out in respect of the debt claimed.

The court held that:

  1. the Public Trustee, as executor of Ms Martin’s estate had a claim in debt against the CBA and Bank SA pursuant to contracts between customer and banker;
  2. Michael was liable to account for the assets of Ms Martin’s estate that he illegitimately dealt with in his capacity as an executor de son tort*; and
  3. CBA and Bank SA took a risk in circumstances where they could have acted conservatively and prudently by insisting upon the production of a grant of probate. Without a grant of probate, CBA and Bank SA could not obtain a valid release from Michael as a person claiming to be the executor of Ms Martin’s estate pursuant to an unproven will.
  4. CBA and Bank SA were required to pay out the monies to the Public Trustee as the lawful executor of the estate, however the banks were entitled to set-off its claim in equity pursuant to the indemnity given by Michael (and the other living children) against the Public Trustee’s claim to the extent of the amount that Michael (and the other living children) would otherwise have received from the residuary estate.

Lessons to be learned

When releasing assets of a deceased to an executor, without the production of a grant of probate, exercise caution and care.  Strictly speaking, any party holding assets of the deceased, no matter what their value, may insist on sighting a grant before releasing the assets to an executor.  However, as mentioned previously, obtaining a grant of probate may not always be appropriate or practical for an executor, especially when the value of the assets of an estate are minimal.

It is sometimes difficult to balance the fine line of requesting the production of a grant of probate and waiving/dispensing with the requirement.  It will often depend on the circumstances at hand and weighing up the associated risks.

As set out in the case of Public Trustee v CBA & Ors [2018] SASC 25 it is important to remember that only a lawful executor, appointed pursuant to a grant of probate, is able to give a valid and effective release and discharge.

If you would like further information about the production or waiving of a grant probate in estate administration matters or are an executor who needs assistance applying for a grant of probate, please do not hesitate to contact our wills and estate planning solicitor Bianca Stafford.

*An executor de son tort is a person who has no authority to act as personal representative but who nevertheless intermeddles in the administration of an estate and is considered to be the duly appointed representative and is held liable accordingly.

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