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  • Can you disinherit an estranged child?

    Can you disinherit an estranged child?

    In every Australian State and Territory, “Family Provision” legislation exists to allow a natural child to bring a claim for provision (or further provision) from the estate of their deceased parent. At the very core of the Family Provision legislation is the recognition of a moral duty that a parent owes to their child.

    Whilst the Law recognises that a parent owes a moral duty to their child, it also recognises that the moral duty will be impacted based on the nature of the relationship between the parent and the child. This moral factor must be weighed against the Applicant child’s financial need for provision from an estate.

    But what if the relationship between the parent and child had been a strained one? Perhaps for a few years, or a few decades? What if the child or the parent had done something (or failed to do something) which caused a breakdown in the relationship? There is a vast array of case law which looks at “the character and conduct” of applicants, at “disentitling conduct” and “estrangement” between parent and child, and unfortunately, the case law can often be ad hoc and sometimes inconsistent.

    What is consistent among the case law however is that the nature of the relationship between a child and their deceased parent is always taken into account by the Court and may serve to reduce or even deny a claim for provision in circumstances that may otherwise have presented a compelling case.

    Let’s focus just on “estrangement” between a parent and their child.

    We know from the case law that the cause of the estrangement is relevant. Estrangement that is caused entirely by a deceased parent’s unreasonable conduct or beliefs alone cannot amount to disentitling conduct on the part of an Applicant child. The Court therefore engages in a forensic analysis of the conduct and attitude of the deceased judged by prevailing community standards. As we know, moral standards are always changing and what was considered reasonable 30 years ago, may not be considered reasonable today.

    Nonetheless, the cause of the estrangement is one factor. The period of estrangement is another factor – naturally, a longer period of estrangement may justify a lesser moral duty on behalf of the parent towards their child. Of course, moral duty needs to be weighed against other competing claims (e.g. the moral claim of a testator’s children may lose priority to those of the testator’s spouse (for example, the case of Temple v Cowell [2011]SASC 20).

    It should be noted however that issues of fault within family relationships are inherently complex, and often relationship breakdowns have causes that are not exclusive to one party (as recognised by Young J in Walker v Walker)

    More recently, in the case of Larkin v Leech-Larkin (judgement being delivered in October 2017), the NSW Supreme Court came across yet another case involving the estrangement between a mother and her son, Julian.

    The mother had 4 sons and had left her entire estate to her second son Lucien. Two of her other sons had not made a claim against their mother’s estate. One son however ( Julian) decided to make a claim.

    The Court recognised that Julian had a strained relationship with his mother caused predominantly by (a) Julian continuing to have a relationship with his father following his mother and father’s divorce and (b) Julian failing to have any meaningful contact with his mother over the past 40 years of her life, and no contact within the last 8 years of her life.

    The Court also recognised that the other son, Lucien, who was the sole beneficiary of his mother’s estate, had a much closer relationship. They had a shared common interest (being their property in the Blue Mountains), and the Court also found that Lucien had spent a great deal of his own wealth towards this property.

    The estate was worth approximately $680,000 and the Court ultimately dismissed the application by the estranged some Julian.

    Does this case add anything further to the case law on estrangement and moral duty (and the principles in Keep v Bourke and Andrew v Andrew)? The short answer is “not really”.

    The take-away point from this case is that we consistently see the Courts at the very least, having regard to the following:

    1. the family history and dynamic between family members, the parent and the Applicant child
    1. the nature and conduct of the Applicant child and his or her parent, and any dis-entitling conduct on part of the Applicant child;
    1. what is considered to be “prevailing community standards”; and
    1. weighing the above factors with against the applicant child’s financial need for provision from an estate.

    Please contact our Estate Planning team if you need to carefully structure your estate plan, or if you believe you have been unfairly treated in the distribution of an estate.

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  • In bed with Embedded Networks Are Embedded Networks the answer to rising utility prices?

    In bed with Embedded Networks

    Are Embedded Networks the answer to rising utility prices?  

    The costs of electricity for households in Australia rose 72% over the ten years preceding 2013. This only slightly outpaced the rising cost of gas, which rose 54% during the period.[1] Prices have only been rising since. This led to the Federal Coalition Party releasing a new energy policy and closer to home, the ACT Government passing the Utilities Legislation Amendment Bill 2017 (the Bill). The Bill aims to remove unnecessary regulation of energy utilities in the ACT. In part, the Bill aims to reduce rising energy costs by promoting the use of Embedded Networks.

    What is an Embedded Network? 

    An Embedded Network is a distribution system within a building development, typically for water, gas or electricity, connected at a parent connection point to the national or regional grid, where the delivery infrastructure to multiple users is owned, controlled and operated by a person who is not a network provider[2] and is typically not the Owners’ corporation. Operating an Embedded Network within a residential or commercial building allows the Embedded Network operator to control the provision of utility services to each unit or part of the building. The argument runs that this allows the Embedded Network operator to reduce the cost of utility services by negotiating with energy retailers for the provision of utilities to the building in bulk.

    How do these amendments affect Embedded Networks in the Territory?

    The Bill, scheduled to come into effect on 1 December 2017, creates an exemption for Embedded Networks from the Utilities Act 2000 and the Utilities (Technical Regulation) Act 2014. This means that those operating an Embedded Network will not need to obtain a licence under the Utilities Act 2000 and thus they will be exempt from compliance with the technical codes and regulations of the Utilities (Technical Regulation) Act 2014. By removing these requirements, it is now easier to establish and operate an Embedded Network in the ACT.

    Problems with Embedded Networks

    Despite the removal of some red tape, there are foreseeable problems for Developers seeking to establish an Embedded Network in new or existing Developments, as well as for Buyers or occupiers within a complex serviced by an Embedded Network. These include:

    1. The commencement of the Scheme coincides with the commencement of the Australian Energy Market Commission “rule determination” on Embedded Networks. This Rule Determination creates an additional level of regulations and obligations for those operating Embedded Networks;
    1. The Electrical Safety Act 1971 continues to apply to Embedded Networks, imposing safety standards for the installation of electrical equipment and wiring work, hence leading to certification and maintenance compliance;
    1. The ability of a Developer of a new Unit Title complex to install an Embedded Network, who must address the ongoing commitment to the Embedded Network operator in accordance with the Developer obligations under the Unit Titles (Management) Act 2011;
    1. The legislative changes do not directly cater for mixed used buildings, where different management groups may have to engage with the operator of the Embedded Network; and
    1. The management (and hence cost) of delivery of the utility through the Embedded Network will be governed through the terms of the contracts that will be offered to the Owners Corporation and to the end user, that represents a cost risk to the buyer and a disclosure risk to the seller.

    Conclusion

    Ultimately, without further change (in particular to Unit Titles and mixed use development legislation) the current legislative changes do little to resolve a number of key issues  associated with what should be an innovative way for Developers to defray construction costs or to remove the maze of legislation and regulation surrounding the establishment and delivery of Embedded Networks in the ACT. Until further change is brought about, the terms of utility supply will become and remain a critical aspect of “cost”. This highlights the good sense in securing legal advice when looking to install an Embedded Network or when purchasing in a complex with an Embedded Network. Should you require legal advice on these issues, please contact a member of our experienced Property and Real Estate team.

    [1]Both figures from: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/EnergyPrices

    [2] National Electricity Rules Chapter 10 (Glossary).

     

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  • Workplace Policies

    If in doubt, leave it out: Making workplace policies work

    It’s only natural (for some) to try to pin things down in writing. This is particularly true for those in the people management business, and especially for those among them who are exposed to bureaucracy. That way everyone knows where they stand – right?

    And so the drafting of the HR policy manual begins. Cutting and pasting from here and there while adding their lashings of common sense, the drafters of an HR policy manual do their best to spell out all manner of things relating to work. What is the social media policy? What is the organisational policy on the Christmas shutdown? Where are the tea towels kept? Then the CEO and the Board add in a few of their pet peccadillos, and a HR policy manual is born.

    Sooner or later the original drafters leave the organisation. Eventually, the new policy person gets around to looking at the HR policy manual. They notice a gap in coverage, and add a few more policies, drawing from their previous workplace experience and their own brand of common sense. The new CEO and Board members do likewise. The cycle repeats itself.

    Within a few years, the manual has grown to 5 times its original size. The policies overlap. Inconsistencies emerge between the ‘grievance policy’, the ‘dispute resolution policy’ and the ‘Code of Conduct’ and nobody knows which policies to apply when an intra-staff spat breaks out. In fact, the CEO isn’t even sure if the staff concerned know of the existence of the updated policies, since the version published on the intranet isn’t the version that was included in the employee induction pack. Plus one of the staff members involved in the spat is out in the field and doesn’t have access to the intranet anyway.

    Does all this sound familiar?

    Policies are just that – policies. That is: a document drafted by the organisation for the benefit of that organisation. Unless a policy is serving that purpose, it should be ditched.

    For a start, this means policies should be clear, and internally consistent. If they aren’t, the organisation should change them so that they are. Make sure all your staff know where to find the policies, and make sure any updated versions are clearly published to everyone.

    Secondly, policies should not duplicate or, worse, be inconsistent with employee entitlements located elsewhere (for example, in the employee’s contract, the relevant Modern Award, the Enterprise Agreement or the Fair Work Act). This just asks for trouble. While this all sounds terribly obvious, in my practice it is routine to see (for both NFP’s and FP’s alike) HR policy manuals including substantive entitlements (to, say, redundancy and termination of employment) that are different to the entitlements in the employee’s contract or Award. This can have unintended consequences for everyone and is particularly hard to watch given it was a wholly avoidable situation in the first place.

    Thirdly, the promises (if any) made in the HR manual must be achievable. Courts will not allow clear policy statements to act as a ‘cruel hoax’ on employees.[1] Also, on a common sense level, it just upsets staff when their employer doesn’t follow its own rules. So, if the policies proclaim that the organisation ‘will investigate all grievances within 48 hours’, the organisation must be able to deliver on that – in all cases. If it can’t (and, let’s face it, who wants to be pinned down to that anyway?) then the policy should be recast in more aspirational terms. For example: ‘where appropriate, the organisation will investigate grievances within the earliest practicable timeframe.’ Workers are people, and no two people (or situations) are exactly alike. Policies must be drafted to give your organisation the ‘wiggle room’ it is going to need to respond fairly and reasonably to every workplace situation.

    Finally, give some thought to whether the policy should even exist at all by asking yourself “do we really need to write this down?” Remember, the only HR policies that should exist are the ones that are necessary. Specifically, the ones that:

    • avoid legal liability (e.g.: include policies on sexual harassment, workplace surveillance, and work safety);
    • provide necessary workplace directions to employees that, if breached, can be treated as a disciplinary issue (e.g.: regarding the use of electronic communications and social media in relation to work);
    • give information to employees about basic workplace operations (e.g.: this is how to apply for annual leave); or
    • contain statements of aspiration about the organisation (e.g.: ‘we strive to be a family friendly workplace’).

    HR policies that seek to go beyond this list need to be carefully contained and justified. While NFP’s have some compliance obligations they cannot avoid, they are not the public service. This means that if you look carefully at HR policies, you may well find that less is more.

    [1] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, [223].

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  • Children on site – a heightened duty of care

    Children on site – a heightened duty of care

    Risk to Children

    Young children are at higher risk of injuries as they are often incapable of having the necessary foresight of the consequences of their conduct and need to be protected from injuring themselves.

    The purpose of this paper is to show how the law of negligence operates within a school environment.

    General principles

    A child is to be judged, not by the standards of an adult, but according to what could be reasonably expected of a child of their age.

    The cases establish that the law employs a sliding scale of responsibility where the safety and well being of children is involved, sliding down according to their age:

    It is obvious that a child is less capable of taking care of its own safety than a normal adult and the younger the child the less the capacity until a stage is reached at which there is none.[1]

    The relationship between the school authority, teachers and students give rise to a duty of care of general supervision to the students concerning their physical safety.  The High Court of Australia has summarised the extent of teachers’ duty of care to students:

    Children stand in need of care and supervision and this their parents cannot effectively provide when children are attending school; instead it is those then in charge of them, their teachers, who must provide it.[2]

    The duty of the school authority to its students is a duty to ensure that reasonable care is taken of them whilst they are on school premises during hours when the school is open for attendance.  The duty was expressed by the High Court as follows:

    …the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children.  It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.[3]

    Negligence

    To be successful in a negligence claim, it must be established, on the balance of probabilities, that:

    • a duty of care was owed to the person at the time of the injury;
    • the risk of injury was reasonably foreseeable;
    • the likelihood of the injury occurring was more than insignificant;
    • there was a breach of the duty of care or a failure to observe a reasonable standard of care; and
    • this breach or failure caused or contributed to the injury, loss or damage suffered.

    The fact that a duty of care exists does not mean that a school authority will be liable for an injury sustained by a student.  In order for the student to succeed in a negligence claim, all of these elements must be established.

    Foreseeability of risk

    To establish a duty of care, the student must prove that the school authority or teacher ought to have foreseen that the negligent act or omission of the school authority or teacher might endanger the student.  It is not enough to establish that the school authority or teacher knew or ought to have known of the potential hazard.  It must be shown that a reasonable person in the position of the school authority or teacher would have foreseen that the situation constituted a real risk to the student.

    This duty of care is not absolute and only extends to protection from harm where the risk of injury is reasonably foreseeable.  The higher the risk or potential for harm, the greater the duty imposed on the school authority and the teacher.

    In many cases where a student has failed to prove their case, the school authority or teacher have acted reasonably in the circumstances rather than the injury not being foreseeable.

    Breach of duty

    In the Australian Capital Territory for a student to establish a breach of duty of care, three elements need to be satisfied:

    • the school authority or teacher knew or ought to have known of the risk – sometimes called ‘reasonable foreseeability’;
    • the risk was not insignificant; and
    • a reasonable person in the person’s position would have taken precautions against the risk.[4]

    The court in determining the liability of a school or teacher establishes whether the risk of injury was foreseeable, what the school or teacher could have done to reduce that risk being mindful of factors such as the magnitude of the risk, the age and experience of the student, and the cost of eliminating the risk.

    Causation

    To establish negligence, you must show that the act or omission caused the injury.  The High Court has noted:

    “…it is of course necessary that the breach of duty of care must be causally related to the injury received…[students] have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question.[5]

    Once the breach of duty of care has been established, it is often relatively easy to find that the breach caused the injury suffered by the student so long as the risk of injury is ‘not insignificant’.

    The student may suffer physical, psychological (nervous shock or other recognisable psychiatric disorder) injury or financial damage.

    Conclusion

    Teachers and school authorities need to recognise their legal responsibilities to students.  Whether as a teacher in the classroom, on the playing field or on a school excursion, a duty of care is owed to students.  This manifests itself as a duty to protect students from injuries that are reasonably foreseeable.  To avoid injuries that are reasonably foreseeable, teachers and school authorities should at all times maintain an acceptable standard of care given the circumstances.  The consequences for failing to meet this standard and in the event a student suffers injury, the teacher and/or school authority could face an action in negligence.

    [1] Cotton v Commissioner for Road Transport (1942) 43 SR (NSW) 66; Jordan CJ at 69

    [2] Geyer v Downs (1977) 138 CLR 91 at 93;

    [3] Commonwealth v Introvigne (1981) 150 CLR 258; at 270

    [4] Section 43, Civil Law (Wrongs) Act 2002 (ACT)

    [5] Geyer v Downs (1977) at p102

    For more information about negligence and duty of care with children on site, please contact Bill McCarthy.

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  • An unholy trinity? Religion, employees and the workplace

    An unholy trinity? Religion, employees and the workplace

    Australia is, by and large, a secular country. Australians have a constitutionally-entrenched freedom of religion, and anti-discrimination laws prohibit discrimination based on religion in a range of spheres. Yet as the furore surrounding the marriage equality survey demonstrated, religious issues sometimes intrude into the workplace. Companies large and small took vocal positions for and against marriage equality; in September a contractor in Canberra was terminated for expressing her religiously-motivated intention to vote no.

    The intersection between religion and employment is vexed. Drawing the boundaries between private and public life, determining reasonable concessions for religious observance in the workplace and exempting religious organisations from general law require delicate judicial and legislative policy judgments. This topic is also inevitably a controversial one. What to an atheist might represent a reasonable compromise between religion and employment would likely be entirely different for a devoutly religious person.

    Religion and the contract of employment

    Religion has tended to intrude on the contract of employment in two distinct contexts. Firstly, spiritual motives may prevent a contract existing due to the absence of an intention to create legal relations. Alternatively, where a contract is on foot, religious law may be incorporated within that relationship.

     Intention to create legal relations

    The mutual intention to create legal relations is an essential requirement in the formation of a contract (Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457). Traditionally, it was considered that family, religious and community settings gave rise to a presumption against the existence of such intentions.

    The Australian position was altered in the seminal case of Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 (‘Ermogenous’) in which the High Court highlighted the dangers of such presumptions. The Court held that the proper inquiry requires an ‘objective assessment of the state of affairs between the parties’ (at 105). Accordingly, ‘to say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment’ (at 110).

    Of course, Ermogenous did not say that a religious worker necessarily has a contract of employment with the relevant religious organisation. While in that case the question was remitted to a lower court, which upheld the existence of a valid contract (2002) 223 LSJS 459), subsequent judgments have retained the view that typically no legal relationship arises in the religious context. In Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201, for example, the Supreme Court of NSW held that teachers at a particular religious school provided their services ‘as volunteers in response to a calling to serve  God’ (at [59]).

    As these varied outcomes demonstrate, whether or not an intention to create legal relations exists will be a fact-dependent inquiry. In some religious contexts, the manner of appointment and on- going relationship will support the existence of an enforceable agreement; in others it will remain in the realm of a ‘consensual compact … based on religious, spiritual and mystical ideas’ (Scandrett v Dowling (1992) 27 NSWLR 483, 513).

    Continue Reading.

    Written by John Wilson, managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law, and Kieran Pender. First published in the Law Society Journal.

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  • Court of Appeal drains Pasminco’s pipe dream

    Court of Appeal drains Pasminco’s pipe dream

    A dispute between developers and a council concerning the construction of a stormwater pipe has given the Court of Appeal another opportunity to consider how to resolve inconsistencies between development consents and construction certificates and the principles to apply when interpreting an uncertain condition of development consent.

    An uncertain condition of development consent can be a nightmare for developers, councils and prospective purchasers when trying to understand what the condition requires. While the starting point must always be the text of the condition, what do you do when the text is itself unclear? What if someone suggests that a document, not in existence at the time the consent was issued, changes the way the condition should be understood?  What effect do the plans and specifications approved by a construction certificate have on the plans approved by the development consent?

    These questions were answered recently by the Court of Appeal in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263.

    Background facts of the case

    The dispute between (our client) Bunderra Holdings Pty Ltd (Bunderra) and Pasminco Cockle Creek Smelter Pty Ltd (subject to a Deed of Company Arrangement) (Pasminco) concerned the ultimate responsibility to construct a stormwater pipe due to an ‘awkwardly drafted condition’ of a development consent issued by Lake Macquarie City Council (the Council).

    The land the subject of the development consent, known as the Tripad site, originally formed part of a larger holding of land owned by Pasminco.  Pasminco sold the Tripad site to Bunderra after the Council had granted Pasminco development consent for a residential subdivision on the Tripad land. The Tripad site was below the Pasminco site.

    The consent required the subdivision to occur in accordance with stormwater strategies which had been prepared on behalf of Pasminco. These contemplated the construction of a pipe under a road that divided the two sites to carry stormwater from the Pasminco site through the Tripad site. A condition of consent required the applicant to demonstrate that stormwater could safely flow from the Pasminco land through the Tripad site and required plans and calculations for these stormwater controls to be submitted to the Council prior to the issue of a construction certificate for the residential subdivision.

    After the consent was issued, Pasminco submitted a further stormwater strategy to the Council.  This was said to be in response to the consent condition referred to above, and expressly required the pipe to be built as part of the Tripad site subdivision works, ie, by Bunderra.

    Bunderra obtained construction certificates from the Council for all required civil works and carried out those works.  The Council issued certificates of practical completion for all of those works. The plans approved by the construction certificates did not provide for the construction of the pipe.

    A dispute then arose between Pasminco and Bunderra over who was responsible for the construction of the pipe. This culminated in Pasminco bringing class 4 proceedings in the Land and Environment Court to restrain the Council from granting a subdivision certificate for the development until after the pipe had been constructed.

    Pasminco succeeded at first instance.  Robson J held that:

    1. Pasminco’s further stormwater strategy, which expressly provided for the construction of the pipe as part of the Tripad subdivision, was impliedly (and retrospectively) incorporated into the consent; and
    2. the issue of the construction certificate, which made no provision for the construction of the pipe, did not alter the applicant’s obligations under the development consent.

    Bunderra appealed.

    The Court of Appeal’s decision

    The Court of Appeal reversed Robson J’s decision and, in doing so, gave some important guidance on the interpretation of development consents.

    Development consents are to be construed to achieve practical results

    The Court reaffirmed the principle that development consents are to be interpreted to achieve practical results. In doing so, it pointed out that development consents are drafted by planners and not lawyers, and should therefore be given a liberal construction.

    The retrospective incorporation of the later stormwater strategy.

    The Court found that the stormwater strategy given to the Council after the development consent had been granted could not be retrospectively incorporated into the consent for the purpose of interpreting the consent conditions. In doing so, the Court reinforced the principle that, because a development consent enures for the benefit of subsequent land owners, it is of fundamental importance that people are able to determine with precision what the consent requires by reference to the text of the consent and any documents incorporated into the consent either expressly or “by necessary implication”. A document that does not come into existence until after the consent has been granted cannot be used to determine the meaning of the conditions of consent.

    The effect of the construction certificate

    The Court confirmed that the plans and specifications approved by a construction certificate prevail over the plans and specifications the subject of development consent to the extent of any inconsistency between them.

    In Bunderra’s case, the Court concluded that the construction certificates issued by the Council imposed no requirement to construct the pipe and held that these must prevail over any inconsistent provisions of the development consent plans.

    Lessons learned

    There are two key lessons to be learned from this case:

    1. A development consent must be interpreted by reference to the text of the consent itself and any documents incorporated “by necessary implication”. A document that is not in existence when a development consent is granted cannot be used to interpret the meaning of the conditions of consent.
    2. In the event of any inconsistency between development consent plans and the plans the subject of a construction certificate, the construction certificate plans will prevail to the extent of any inconsistency.

    To learn more about this case, please contact Andrew Brickhill.

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