Think Foley's

Jeanette Swann and Chiara Bryan explore that question in the context of reproductive technology and changing concepts of family. They examine the relevant provisions of the Family Law Act, including section 60H, and discuss the High Court case of Masson & Parsons, testing the principles of that case against various factual hypotheses and family configurations. They also ask the question, how many parents can a child have? A quirky but related point is considered, being the allocation of parental responsibility to children diagnosed with gender dysphoria who are also Gillick competent. All up, our commentators conclude that while Masson & Parsons gives certainty to the operation of section 60H and the definition of a “parent”, there are still unanswered questions and manifest scope for legislative reform to ensure that all Australian families are treated equally before the law.

Marcus Hoyne and Priya Wakhlu provide an overview of the key areas of reform and outline what practitioners must know in operating under the new regime. 

On 17 November 2020, royal assent was given to the Victorian legislation amending the Defamation Act. These reforms are consistent with similar legislation which has passed or is expected to be passed in other Australian jurisdictions shortly. These reforms constitute a significant overhaul of Australian defamation law. 

Simon Fuller and Alex Finemore address a number of ethical issues often faced by family lawyers including making serious allegations in Affidavit material, how to assess a client’s legal capacity, what to do when a client has lost capacity and our ongoing obligation of confidentiality. The purpose of this session is to provide guidance about how to navigate these ethical issues and avoid being faced with charges of professional misconduct or civil action brought by a disgruntled client.

Rae Sharp and Joel Tito review the practicalities of raising constitutional points in criminal proceedings including giving notice, costs and urgent relief and procedural requirements. 

Sam Tovey and Kate Ballard provide a guide to indictable driving offences.

Lucy Line discusses what employers need to know about employees’ use of traditional and online media. Lucy examines recent cases where workers in the private and public sectors have sued their employers after having been dismissed for their media use.

With reference to the Fair Work Act, Lucy discusses what claims can be brought and what courts will consider in assessing the strength of a claim. With the popularity of social media, this session helpfully unpacks how employers can lawfully regulate and control the use of media by employees, and highlights to what extent employees are entitled to do as they like online, outside of working hours.

Julian R Murphy discusses the modern approach to statutory interpretation with a particular focus on how courts interpret criminal statutes. The presentation covers general principles as well as specific presumptions of interpretation, including the principle of legality and the principle requiring that criminal statutes are interpreted strictly.

Emma Swart and Johannes Schmidt discuss section 79A, in particular section 79A sub-section 1a and sub-section 1A of the Family Law Act 1975 varying and setting aside final orders in relation to property of a marriage (section 90SN for de facto relationships).

They then take you to a recent case extending time to apply under section 37A to review a Registrar’s decision and how that can be used to set aside final consent property orders.

They start with a brief look at the issues in applying for leave out of time under section 44 sub-section 3 and section 44 sub-section 5, relevant not only to situations where there are no orders at all but also relevant to considerations of delay in bringing an application under section 79A or section 37A and consider the special rule 16.05 which only applies in the Federal Circuit Court.

Mark McKillop and Amanda Carruthers discuss details of the Personal Property Securities Act, why we have it, when it applies, how to use it, and the tips and traps every practitioner needs to know.

Simon Fuller provides some clarity on issues such as what is a casual employee? What are their rights? And what are employers’ obligations in respect of casual workers?

With particular reference to two recent Full Court decisions (being WorkPac Pty Ltd and Skene and WorkPac Pty Ltd and Rossato) that have, in some respects, changed the landscape for casual workers.

The session also considers the federal government’s regulatory response to some of the issues raised in Skene and also the pending High Court challenge to the Full Court’s decision in Rossato.

The introduction of new discrete lists, hearings in front of Registrars and tips and tricks for drafting and preparation in an electronic era in the Family Law Courts.

This zoom session presented by Alex Metherell and Nonni Sdraulig discusses how hearings in the Family Law Courts have evolved recently including the introduction of new listing practices and lists, such as the discrete property and contravention lists. How to prepare for hearings in front of Registrars instead of Judges including a discussion about Registrars powers and the impact that COVID-19 pandemic has had on face-to-face hearings in the Court system.

It provides solicitors with practical advice and tips and tricks about how to best to prepare for electronic hearings in both parenting and property applications. Together with a more general discussion about how to prepare clients for electronic hearings before Registrars in the Family Law Courts.

For resources please visit: https://foleys.com.au/cpdresources.aspx

David Kim and Priya Wakhlu focus on a Landlord’s right of re-entry following a tenant’s breach of the lease agreement.

David and Priya will closely examine landlords’ rights of re-entry and termination under both common law and the Property Law Act 1958 (Vic), compliance with notice requirements and the consequences of not validly terminating the lease.

For resources please visit: https://foleys.com.au/cpdresources.aspx

Cecily Hollingworth and Jason Gullaci discuss the different sentencing regimes that have come into place in Victoria in the last few years. They provide detail on what the offences and categories are that fall under the current mandatory sentencing provisions or the standard sentencing provisions.

Dr Rishi Gulati discusses the potential impact of the COVID-19 Pandemic on the law of the international civil service, commonly known as international administrative law. Undoubtedly, the pandemic is having a serious impact on international organisations, staff members, consultants and contractors of international organisations, as well as other third parties associated with international organisations.

Discussing case law from the various international administrative tribunals, Dr Gulati sheds light on the key legal issues that international organisations and their employees should take into account when making decisions pertaining to employee rights in times of great stress.

If you would like access to the accompanying paper mentioned in this podcast, please contact Dr Gulati directly on rishi.gulati@vicbar.com.au 

Chris Oldham discusses Immigration Law and the entangling that can occur with other jurisdictions, most notably Criminal Law. He outlines sentencing and the relevant considerations that flow from visa cancellation or the risk of visa cancellations. He also discusses other forms of visa cancellations that may be worth considering for Criminal law practices and finishes off with outlining the risks of incorrectly filling out a passenger arrival card and considerations that may be undertaken for applicants or respondents in family violence intervention order applications. 

Philip Barton examines Co-ownership Disputes.  He commences with severance of joint tenancy and adverse possession between co-owners.  However, he focuses primarily on Part 4 of the Property Law Act which covers sale and division of co-owned land and goods. He covers central concepts, VCAT’s jurisdiction, grounds for refusing an order - in particular grounds based on contracts and trusts inconsistent with sale, aspects of orders for sale or physical division, and the jurisdiction of the Supreme Court and County Court.

Anna Parker discusses Drafting Affidavits in Family Law Matters. She outlines what an affidavit is and the importance of drafting a sound and relevant affidavit. She provides a detailed description of the applicable rules of evidence, and other tips and tricks in preparing such a document in order to positively assist a case rather than hindering it. 

Simon Tisher presents a State Taxation Update. He discusses the changes and activity which have taken place in Victorian State Taxation over the past few years, with several legislative amendments and numerous decisions from the Supreme Court and the VCAT. This episode is tailored to the small and medium enterprise market and Simon provides general observations about state taxation litigation; the legislative changes made in 2019 in relation to economic entitlements, fixtures and the land tax valuation of heritage buildings; the duty exemption from trusts to beneficiaries; land tax and the principal place of residence exemption, land tax exemptions for primary production land; foreign purchaser additional duty and lastly, the absentee owner land tax surcharge.

Anna Parker talks about Contravention Applications in Parenting Matters. She outlines the parenting regime provided for in the Family Law Act, the applicable remedies and penalties, and discusses what constitutes a ‘reasonable excuse’. Anna provides details and outlines points and principles when representing parties in contravention proceedings, including during such times as the current COVID-19 pandemic.

Emma Heggie discusses ideas for effective uses of technology for solicitors working in the current COVID-19 climate where social distancing and working from home are currently enforced by the Government. She outlines what technologies could be useful to solicitors working remotely and assisting clients to navigate the legal system in light of the new restrictions. She also provides insightful tips on making conferences, mediations and hearings run as smoothly as possible.

Practical checklists for remote working

Home office:

Have you checked that your…

1) data is regularly updated to the cloud or to an offsite location?

2) back up device is ready to go so if your primary device has an issue you can keep working?

3) software updates are under control?

4) home office has the capability to video conference, keeping in mind that many smart phones / tablets / laptops have a built in camera?

5) headphones / headset is available to keep freedom of movement while you are on a telephone or video conference?

6) home office matches the flow of your normal office as much as possible?

Electronic briefs:

Have you considered …

1) providing counsel with an electronic brief?

2) discussing the most efficient way to provide the brief with counsel to save time?

3) whether email is possible, or if the attachments are too cumbersome, using a file sharing service such as Dropbox, TA law, OneDrive, Google Docs or Sharepoint?

4) how the brief can be most easily updated, such as by using a file sharing platform as a single central location for all brief documents?

5) generating an index, such as one exported from your file management program, adapted from a court portal, or by the following file naming structure: YYYY-MM-DD [Document Title – including reference to any annexures] [Index number]?

6) bookmarking the PDF file, if all documents are provided as a single PDF file?

7) providing documents in a searchable PDF format or using OCR so they can be searched?

File based work

Have you considered whether …

1) clients would want to conduct a court event or ADR by video rather than facing delays?

2) a video conference (such as by Zoom) with the client and counsel ahead of an electronic court event or ADR would assist with building trust in the process?

3) in case of court events being unable to proceed by video, whether they would be suitable for mediation or arbitration?

4) some work can be brought forward now to avoid delays when face to face events resume?

Some technology to consider:

Videoconferencing / video calls

Zoom (zoom.us and most app stores)

Microsoft Teams (https://products.office.com/en-au/microsoft-teams/group-chat-software and most app stores)

Google Hangouts (https://hangouts.google.com/ and most app stores)

WhatsApp (most app stores)

FaceTime (iPhones and iPads)

Productivity

Scanning documents: CamScanner (most app stores)

Team communication: Slack (most app stores)

Workflows: Trello (most app stores)

Checklists: Wunderlist (most app stores)

Limiting time on non-work websites: StayFocusd (https://chrome.google.com/webstore/detail/stayfocusd/laankejkbhbdhmipfmgcngdelahlfoji?hl=en)

Notetaking: GoodNotes (most app stores)

Annotating PDFs: LiquidText (most app stores)

Data backup / file sharing

iCloud (https://www.icloud.com/)

Google Drive (www.google.com/drive)

Dropbox (www.dropbox.com)

Microsoft OneDrive (https://support.office.com/en-au/onedrive)

Microsoft SharePoint (https://products.office.com/en-au/sharepoint/collaboration)