When can a child decide where they live?

We regularly get asked by clients when their child can decide where they will live and who they will live with. There is no set age at which the Court will allow children to make this decision.

The Court’s paramount consideration when deciding where a child should live is based on the child’s best interests. There are many factors that the Court needs to consider to determine what the best interests of the child are. The Court’s primary considerations are that the child have the benefit of a meaningful relationship with both of the child’s parents and the need to protection the child from physical or psychological harm.

The Court also has additional considerations when determining what is in the best interest of the child. Some examples include: each parent’s ability to look after the child’s needs, the attitude of
each parent, the effect of any change in circumstances may have on the child, the relationship the child has with each parent, and so on. These considerations will be weighed together with the views of where the child wishes to live.

When deciding how much weight to give a child’s view of where he/she wants to live, the Court will consider factors such as:

a) The age of the child – generally the older the child gets the more weight their views will have (e.g the views of a child who is 15 have more weight than a 5-year-old child);

b) The child’s maturity and understanding – maturity levels can vary significantly for children of the same age (e.g you can have two children the same age and have one very mature child who understands the impacts of their view and another child who lacks the insight)

c) Whether the child has been influenced by another parent; and

d) The views of other siblings.

There can also be instances where the Court however considers the child’s views and the other considerations and will still Order that an older and more mature child should spend time with a
parent with who they have said they do not want to spend time with. Unfortunately, it is in not a simple answer.

Children are not required to give evidence to the Court. The way the Court can understand the child’s views is through a Family Report being prepared. A Family Report is a report prepared by either a social worker or a psychologist who reviews the Court material and interviews the parents and the child/ren. In these interviews, the parents and children can express their views and the
Family Report Writer will release a report that sets out the parents and child/ren’s views, an evaluation of the information provided by them, and how much weight should be placed on these
views and they will make recommendations to assist the Court, for example: where the child/ren should live and how much time they spend with the other parent.

As you can see, there is no set age that a child can decide where they wish to live. Generally, the older and more mature they are, the more weight will be given to their views however it is important to remember that the Court’s primary consideration will be the benefit of the child having a meaningful relationship with each parent and the need to protect the child from harm.

At Aylward Game Solicitors we have experienced Solicitors who will be able to assist you in navigating these aspects of your Family Law Matter. If you wish to discuss your parenting arrangements, please contact our office on 1800 217 217

Article Source: Child decide where they live 

Do Grandparents Have Rights in Australia?

Grandparents have a great love for their grandchildren. They want to spend more time with them. But sometimes the parents don’t want their parents to see their children. It is not good for them. But this is an unusual situation but what happens if the parent’s divorce? In this scenario the laws are different, let’s learn a little about the grandparents rights in Australia. 

Grandparent’s rights in Family law:

In Australia, the Family Law Act 1975 applies in cases of separation, division, property division, and custody of children. Grandparents have the right to apply in Family court and ask for the time to spend with their grandchildren. They can also ask for their custody in case of divorce or separation. 

The Family Act Law clearly states that grandparents can apply to the court for the best interest of their grandchildren. But it does not give them an automatic right to have a relationship with the children. 

Custody of children after custody of parents:

In most cases, parents can easily decide who will keep the children. Also, they don’t face any difficulty in making decisions for other aspects of their child’s life. They can put these decisions into a written agreement which is known as a parenting plan. Parents can make these arrangements more formal by writing consent orders and registering the document in the Family Court. 

If you feel that your relationship with the children will not be the same after the separation of their parents, you can ask their parents to include you in the parenting plan or the consent orders. It is not wise to leave the child’s best interest while making such documents. 

What are the child’s best interests?

When the parents are separating the court looks at:

1. Is the child comfortable around both parents?
2. Protection of the child.

The Court also considers:

• How the child feels about his/her parents.
• Relationship of the child with parents, grandparents, and other relations. 
• The willingness of each parent to support the relationship of the child with the other parent.
•  Effect of separation on the child. 
• The capacity of each parent to support the needs of the child. 
• The lifestyle and background of the child and parents. 
• Each parent’s love for the child and role in parenting. 
• Any violence in the family. 
• Any other point the Court thinks is relevant to the case. 

Are you not allowed to see your Grandchildren?

Sometimes grandparents are not allowed to see their grandchildren. It happens due to the breakdown of relationships with your child. Also, if the parents are divorced then the other parent may stop you from seeing the child. 

Unfortunately, the grandparents do not have the primary right to have custody of the child. But, any person who can show enough care and love for the child may apply to the court for parenting orders. If you have a parenting order then you can spend time with the child.

Parental rights vs Grandparents rights in Australia:

There is not a big difference between parents’ rights against grandparents rights in Australia. But they are not the official guardians of the child until they have a parenting order from the court. If the grandparents feel that their grandchildren are not getting proper parenting, they can apply to the court for custody of the child. If the parents make an agreement for the child after separation, the grandparents can ask the parents to add their rights also in the agreement. But still, if the court can order to stop grandparents from seeing the child according to the child’s best interest. 

How to see Grandchild?

The grandparents have the right to see grandchildren in QLD and all around Australia. But if you are having problems with their parents you can follow the given procedure to see your child. 

• Get legal advice: Each situation is unique, so you should get legal advice.
• Dispute resolution: Before going to court try to make an agreement with parents to save time and money. 
• Going to Court: If unfortunately, dispute resolution fails, you can contact the Court to get an order to spend time with your grandchild. 

This is a simple and effective procedure. If you have any queries you can contact us to get legal advice. 

Frequently asked questions:

If my daughter has named me as the guardian of her children will they live with me and not their father when she dies?

Even if you are named as the guardian of the child you don’t have the legal right to force the child to live with you. You can ask the court for custody of the child. If the other parent agrees that the children will live with you, you will still need Court orders. If you don’t have a court order you will have difficulty dealing with schools, doctors, or government departments. 

Do grandparents get financial assistance?

If you are responsible for at least 35% care of your grandchild you may receive child support. The child support agency calculates care according to the number of nights that the child is expected to spend with you in a year that is 12 months. 

Can I take custody of the child from my daughter?

Sometimes the child’s parents may not be the best of parents. They may have a mental illness or addiction which can affect the life of a child. If you find the child’s life at risk you should contact Child Safety Services. If you think that the child is safe with you you can ask the Court to take custody of the child.

For more information on your specific matter, please contact one of our experienced Brisbane Family lawyers at Aylward Game Solicitors.

Article Source

Article Source: Grandparents' Rights in Australia

I Am Engaging A Building Contractor: Any Homework To Do?

This article aims to briefly discuss some of the points that a would-be building owner needs to consider prior to engaging a building contractor and signing a contract. The list is not meant to be exhaustive and the building owner is strongly recommended to seek legal advice.

Is My Building Contractor Licensed?

It is not unusual that a building owner may be given a few names, or introduced to a few contractors who are said to be builders with qualifications. There is nothing wrong to spend a little money or time to conduct your due diligence to confirm the veracity of the information you receive. This is not to suggest that the information provided is unhelpful or untrue. It simply pays to verify and ensure that any information you receive is current, valid, and qualified for the purpose it is sought. In Queensland, you are able to conduct a search through Queensland Building and Construction Commission or QBCC. The search section in their website called QBCC license search is to be used to search the builder and the company they may be associated with. This is to ensure that the builder you are about to engage is qualified and licensed by QBCC.

My building contractor is licensed, what is next?

Now that you have verified that the building contractor is licensed, the next thing to ensure is to learn what the company’s status is. This is to learn, among other things, when the company was established, who the current directors are, and whether any of the directors named in the company is or was insolvent or disqualified to hold the director position in the current or former company(s). You are able to do this search through the website of the Australian Securities & Investment Commission, commonly known as ASIC. A search of the company’s current extract will show who the current directors of that company are.

How Can I Ensure That The Builder Is Solvent?

You could only do so much at a time to find out if the builder is solvent when you are about to sign a contract with the builder or its company. Let’s call this stage one of the builder’s solvency fact-finding. The ASIC search referred to above will show if the company is officially insolvent (i.e. a liquidator or administrator is or has been appointed). As this only shows the official position, once a company has officially been declared insolvent, it does not give any information regarding potential insolvency. You should research the building company to see if there are any reports or indications that it might be in financial difficulties. However, you are strongly recommended to seek legal advice to find out how you may be able to reasonably protect your interest.

What To Do With A Dispute Over The Quality Of Builder’s Work?

There is something in common law called “duty of care”. In essence, the person who owes this duty to another, whether morally or legally, is obliged to ensure that he/she takes into account the well-being and interest of that other person to whom the duty is owed to. Likewise in this context, the builder owes a duty of care to a building owner or the person who contracted the builder to perform building works, to perform such works to the standard of a reasonably competent builder. What is reasonable is a question of fact and turns on its own merit. The duty raised here will be breached if the builder fails to ensure that the building or repair works carried out were not performed in a workmanlike and competent manner. The question that needs to be answered when the quality of works performed is in dispute is to identify first whether the defective work is structural or non-structural.

Any time limits to bring in structural or non-structural defect claims?

In Queensland, the QBCC provides that a structural claim must be made within 6 years and 6 months from the date (whichever is earlier) of paying the insurance premium on a property, entering into a contract, or work starting. Non-structural defects claim must be made when you become aware of the defect within 6 months after the day the work is completed in which case you need to lodge the claim within 7 months of the day the work is completed.

Can My Builder Vary The Contract That We Already Agreed?

This question is better answered if we consider whether the variations have been agreed between the builder and the building owner in writing and whether the variations to the contract complies with section 40 of Schedule 1B of the Queensland Building and Construction Commission Act (the Act). The gist of the section is that the building contractor must give the building owner a copy of the variation in writing before the first of the following happens; (a) 5 days elapse from the day the building contractor and the building owner agree to the variation; and (b) any domestic building work the subject of the variation starts. Section 40(5) of Schedule 1B to the Act also states that, the building contractor must not start to carry out any domestic building work the subject of the variation before the building owner agrees to the variation in writing.

For advice or assistance with all building contract disputes, contact the Litigation Law Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Contractor Engaged 

Cyberbullying in Australia: Contemplating Countermeasures

This article aims to briefly examine the cyberbullying issue in Australia and what can be done to minimize or eliminate its interference with the daily life. The recommendation(s) are not meant to be exhaustive, nor intended to be a substitute for any form of protection or safety. If you are subject to any form of cyberbullying, it is highly recommended to immediately seek professional help/advice as may be appropriate to your circumstances.

What is cyberbullying and how do I know if I am being bullied online?

Cyberbullying occurs when someone uses the internet to be mean, or hostile to a child, young person, or even adult person. The initial aim of the person who commits the cyberbullying is to hurt the person who is the subject of the bullying. Sometimes the bully uses the online platform to send and share with third parties hurtful or embarrassing photos or videos that is related to the person who is subject to the bullying. Other forms include using a fake account in the name of the person who is subject to the bullying and sending messages pretending to be from the person who suffers from the bullying act.

What in general does a cyberbully want to achieve?

The likely objective(s) of a person or persons who commits cyberbullying is to get your attention and lure you into engaging with them, however short, so they can either inflict harm upon the person’s interest, hurt him/her in some way, or deceive/defraud the person in order to illegally enrich themselves.

Who is most affected by cyberbullying in Australia?

Research conducted into the digital lives of Aussie teens has reported that as at 2021, 44% of Australian young people reported having a negative online experience in the 6 months to September 2020. The research was based on a survey of 627 teens aged 12 to 17 in September 2020.

How does cyberbullying impact some Aussie teens?

The above research further indicated that 30% of young persons were being contacted by someone they did not know, 20% received inappropriate or unwanted content and 16% were deliberately excluded from events or social groups.

What are some examples of cyberbullying?

Imagine you are online and someone either known or unknown to you, uses some sort of threat to harm you. This form of threat, sometimes not always, involves some sort of blackmailing. For instance, someone might threaten you that if you tell the truth about a common subject that you are both aware of, he/she, in retaliation, will post a photo of you, or share it with a stranger or someone you may know, a private moment of your life, that you do not want to be shared online or with any third party.

There are other forms of online intimidation whereas you are asked to withdraw from a group, team, or association because you are deemed by the bully to be the cause of their loss. That said, humiliating you online using derogatory terms or harmful adjectives to describe your personality, or your action is another form of cyberbullying.

How did Australia address the cyberbullying issue?

In 2015, Australia established eSafety Commissioner (eSafety). The eSafety is Australia’s national independent regulator for online safety. The eSafety drives its powers from the Online Safety Act 2021 which took effect in January 2022. The aim of the eSafety is to help protect all Australians from the most serious forms of online harm.

Is cyberbullying a criminal act?

The short answer is yes. Section 474.17 of the Criminal Code Act 1995 (Cth) stipulates using a carriage service in a menacing, harassing, or offensive way is against the law and thus a crime.

For further information about the eSafety, you may access the information using the following link:

https://www.esafety.gov.au/research/digital-lives-aussie-teens

For advice or assistance with cyberbullying matters contact the Cyberbullying Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Cyberbullying in Australia

Federal Court Rules on Fujifilm Australia’s Unfair Contract Terms

This article aims to briefly examine the Federal Court’s ruling in relation to the unfair contract terms concerning Fujifilm Business Innovation Australia Pty Ltd.

Who commenced the action?

The Australian Competition and Consumer Commission (ACCC) commenced an action against Fujifilm Business Innovation Australia Pty Ltd (Fuji) alleging that between November 2016 and December 2021, Fuji used 21 identifiable template contract forms as a basis for entering into contracts with consumers. The court documents showed that some 34,000 contracts were entered into or renewed using the template contracts.

What was wrong with the contracts?

In summary, the contracts, among other things, “allowed Fuji to Unilaterally vary either the price charged to the customers and/or the rights and obligations between Fuji and the customer”; it incorporated additional contractual terms by reference to one or more extraneous documents, which documents are difficult for the customer to locate or identify, and which Fuji can unilaterally vary with no obligation to give notice of the variation; and more importantly, the contracts limited Fuji’s liability for any delay in supplying or delivering equipment to the customer in circumstances where the customer has no right to be excused from charges payable for the periods of the delay.

What Fuji agreed to do?

Fuji by consent, among other things, agreed to write to all those customers affected stating that the Federal Court of Australia made orders by consent that some of Fuji’s agreements with small business customers contain unfair contract terms, meaning, that those terms are void and cannot be enforced by Fuji if they were in a small business contract. Fuji also was ordered, by consent, to place a corrective notice on its website and further pay a contribution to the applicant’s costs of and incidental to the court proceeding fixed in the amount of $250,000.

The Take-Home message

It is very likely that the court will declare any contractual obligation which creates a significant imbalance between the parties’ rights and obligations as null and void and if that be the case, the terms declared as void cannot be enforced. There are other factors that in any contract interpretation the court will take into account. For instance, the court in interpreting the wording of a contract, will examine the ordinary meaning of that wording and further will see whether the term viewed objectively would make any commercial sense to any reasonable business individual. Therefore, it is important to seek professional legal advice prior to agreeing to any written contract, and preferably prior to its drafting. This may save some time and money for you and prevent you from agreeing to a contract that may disadvantage you.

Full case of Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928 may be accessed using the following link:

Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928

For advice or assistance with all contract and commercial matters, contact the Commercial Law Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Unfair Contract Terms

#unfaircontractterms #contractterms #whatarethetermsofacontract #termsinacontract

The difficulty of using the symbol “and/or” in a Contract or a Statement of Claim

 

This article aims to briefly examine the use of the symbol “and/or” in a contract or a statement of claim drafting and why this symbol should be avoided. It is said that by using the symbol, the draftsman is not clear as to the extent of its application to the subject they refer to.

The voice from the bench clearly says “don’t use it”

In common law jurisdictions, it was as early as 1855 that the courts expressed their disapproval of the use of “and/or” in drafting a contract. Alderson B in Cuthbert v Cumming (1855) 24 LJ Ex at 199 examined a contract that used and/or in its content. The contract on the face of the charter party was, that the parties were to “load a full and complete cargo of sugar, molasses, and/or other lawful produce” so that according to the contract, the parties were either to load a full and complete cargo of sugar and molasses, and other lawful produce, or a full cargo sugar and molasses, or a full cargo of other lawful produce, leaving it open in every way by reason of the words “and” and “or” being introduced into the charter-party.

Examples of how the court interpreted “and/or” in a Deed

It was in Neame v Neame’s Trs [1956] SLT 57, that the majority of the court read “and/or” in a deed, as meaning nothing more than “and”. The Lord President, Lord Clyde, said (at 62), “But it would be most unfortunate if a confusing expression such as “and/or” were to become a common feature in Scottish marriage contracts or testamentary settlements”. Lord Russell added that “I would venture to add that in my judgment the phrase “and/or” is at best a loose and ambiguous term which would be better not to be used in formal legal writs affecting patrimonial interests”. Lord Sorn joined the chorus of disapproval when he said, “the expression “and/or” is not a happy one and, if occurring in a simple gift, might give rise to a serious problem of construction”. He further added, “in my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding.

Why do the courts disapprove of using “and/or” in drafting a Contract or a Statement of Claim

The disapproval stems from the fact that in the court’s interpretation of “and/or”, the symbol endangers accuracy for the sake of brevity. Fowler J in Employers Mutual Liability Insurance Co of Wisconsin v Tollefsen 263 NW 376 at 377 said, “it is manifest that we are confronted with the task of first construing “and/or”, that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with a view to furthering the interest of their clients. We have even observed the ‘thing’ in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not”.

What does Garner’s Modern English Usage say about the use of “and/or”?

Bryan Garner is of the view that “a legal and business expression dating from the mid-19th century, and/or has been vilified for most of its life – and rightly so. To avoid ambiguity, don’t use it”.

Queensland Supreme Court opines on “and/or” in its judgment

His Honour Justice Martin in PFJV Pty Limited v Bartter Enterprises Pty Limited [2022] QSC 110 in relation to the ambiguity that the use of “and/or” caused in the pleading material said at [16], “that vagueness commences with the use of the term “probability and/or possibility”. I expressed my disdain for the “and/or” conjunction in St Clair v Timtalla Pty Ltd (No 2) [2010] QSC at 480. His Honour further Quoting Barry J in Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94 at 98, whereas the latter said, ‘I agree that expression “and/or” is commonly an indication that the draftsman is not clear in his own mind about the matters with which he has to deal (cf Piesse, Elements of Drafting, pp. 52-57).’

The take-home message

Whether you need a contract or intend to prepare a statement of claim, it is imperative that you seek professional legal advice to ensure that your interests are protected. An ill-worded contract or statement of claim can be detrimental, not to mention a vague contract or pleading can be struck out for failing to precisely lay a foundation of the proceeding.

For advice or assistance with all contract and commercial matters, contact the Commercial Law Team at Aylward Game Solicitors today on 1800 217 217

Find Brisbane Commercial lawyers on Google Maps near you.

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Article Source: Statement of Claim