Parenting Orders

A Parenting Order is an order of a Court issued pursuant to section 65D of the Family Law Act which may deal with, but is not limited to, one or more of the following:

• when or how a child may travel;
• the person or persons with whom a child is to live;
• the time a child is to spend with another person or other persons;
• the allocation of parental responsibility for a child;
• the communication a child is to have with another person or other persons; or maintenance of a child.

It’s the responsibility of the persons that are party to the Parenting Order to ensure that the conditions imposed by such an order are complied with.

Recovery Orders

A Recovery Order is an order of the Family Court that can require that a child be returned to:

• a parent of the child;
• a person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
• a person who has parental responsibility for the child.

You can apply for a recovery order if you are:

• a person who the child lives with, spends time with or communicates with as stated in a Parenting Order;
• a person who has parental responsibility for the child in a Parenting Order;
• grandparent of the child; or
• a person concerned with the care, welfare and development of the child.

If the parent breaching the Parenting Order cannot be found, you may ask the Court to issue other orders to help locate the child including:

• Location Order – which requires a person or government agency to provide the court with information about the location of the child and/or the parent who has taken the child.
• Commonwealth Information Order – requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child’s location that is contained in or comes into the records of the Department.
• Publication order – allows the media to publish details and photographs of the missing child and the person they are believed to be with.

An application for a Recovery Order should be filed in the Federal Circuit Court. If you have a current parenting case in the Family Court, the application should be filed in that Court. If you do not have a current Parenting Order, you should apply for one at the same time as applying for a Recovery Order.

The Family Court however is not itself a child recovery agency, and if the Court makes an Order authorising or directing another person or persons to find, recover and deliver the child, then you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).

Taking Children overseas

Under sections 65Y or 65Z of the Family Law Act it is an offence for a person to take or send a child from Australia:

• contrary to an order limiting or preventing the child’s overseas travel, where court proceedings for a Parenting Order are pending; or
• where an appeal against a Parenting Order is pending.

In April 2019, further amendments to the Family Law Act came into effect creating offences for retaining a child outside Australia where there is a Court order in place, or Court proceedings for a Parenting Order are pending.

All of the above offences are punishable by up to three years imprisonment. Additionally, taking or sending a child from Australia, or retaining a child outside Australia contrary to an order of the court, may result in contempt of court.

The Family Law Watchlist

The Australian Federal Police (AFP) maintain the Family Law Watchlist which is the system designed to alert police to the movement of children. It identifies whether children are leaving Australia in circumstances where their names may have been placed on the Family Law Watchlist. A child’s name may be placed on the Family Law Watchlist in the following circumstances:

• a Court has issued a Parenting Order limiting or preventing the child’s overseas travel;
• a Court has issued an Injunction limiting or preventing the child’s overseas travel;
• the child is the subject of a Parenting Order Application currently before a Court that may limit or prevent overseas travel;
• the child is the subject of an Application for an Order to place the child on the Family Law Watchlist; or
• the child is the subject of a Parenting Order or Injunction under appeal.

Placing your child on the Family Law Watchlist.

In order to place your child on the Family Law Watchlist you must first complete a Family Law Watchlist request form and, in addition, you need to have either:

• obtained a Court Order that limits or prevents the child overseas travel, and which also requests the AFP to place the child on the Family Law Watchlist; or
• filed an Application with a Court for an Order seeking to prevent the child travelling overseas or a Parenting Order that limits or prevents the child’s overseas travel and also requests the AFP to place the child on the Family Law Watchlist.

An Order placing the child on the Family Law Watchlist must be specific, not implied. The AFP prefers that Orders include a defined period of 2 -3 years for any restriction on the child’s travel. Increasingly, Judges are also favouring a defined period for a Watchlist Order.

If you wish to remove your child from the Family Law Watchlist, and their name was placed on the list due to a Court Order, it is generally required that you obtain a further Order removing that child from the Watchlist.

We have a number of experienced Lawyers who specialise in Family Law matters. If you need help with a Recovery Order or wish to discuss any family law issue, please feel free to contact Oliver Hagen or Ken Gray on (02) 4731 5899 or email us at familylaw@batemanbattersby.com.au.

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New disclosure obligations

Section 66ZM of the Conveyancing Act 1919 (‘the Act’) will require a vendor under an off-the-plan contract to attach a Disclosure Statement in an approved form to the contract before it is signed by the purchaser.

The Disclosure Statement must include a copy of the draft plan of subdivision prepared by a registered surveyor and contain the following information regarding the lot being purchased off the plan:

1. the proposed lot number of the lot;
2. sufficient information to identify the location of the lot;
3. the area of the lot;
4. if the contract relates to land that comprises or includes a lot in a proposed strata scheme — the draft floor plan and draft location plan;
5. if the contract relates to land that comprises or includes a lot in a proposed community, precinct or neighbourhood scheme — the draft location diagram, draft detail plan and draft community, precinct or neighbourhood property plan;
6. the site of any proposed easement or profit à prendre affecting the lot, and,
7. the site of any proposed restriction on the use of land or positive covenant affecting only part of the lot.

The Disclosure Statement must also include the following documents:

1. any proposed schedule of finishes;
2. any instrument under Section 88B of the Act, ie proposed to be lodged with the draft plan;
3. if the contract relates to land that comprises or includes a lot in a proposed strata scheme — the draft by-laws;
4. if the contract relates to land that comprises or includes a lot in a proposed community, precinct or neighbourhood scheme — the draft management statement and the draft of any proposed development contract;
5. if the contract relates to land that comprises or includes a lot in a proposed development scheme — the draft strata development contract;
6. if the contract relates to land that comprises or includes a lot in a proposed strata scheme that relates to a part strata parcel and a strata management statement will be required under Section 99 of the Strata Schemes Development Act 2015 for the registration of the strata plan — the draft strata management statement;
7. if the contract relates to land that will be subject to a building management statement under Division 3B of Part 23 of the Conveyancing Act — the draft building management statement.

New rescission rights

A purchaser will have three new rights of rescission as follows:

1. A failure to attach the Disclosure Statement and included documents will give the purchaser the right to rescind the contract within 14 days after the making of the contract.
2. The vendor must notify the purchaser at least 21 days before completion via a notice of changes in the approved form, if the vendor becomes aware the Disclosure Statement was inaccurate in relation to a “material particular” at the time the contract was signed, or has become inaccurate in relation to a “material particular” after the contract was signed.New provisions in the Act and the Regulation to it, set out what is, and isn’t, a “material particular”. A “material particular” includes a change to the draft plan, management or building statement, schedule of finishes, by-laws or an easement or covenant that will adversely affect the use of enjoyment of the lot, but does not include a change to the proposed lot number, the proposed street name, or a change to the location or area of the parking or storage area of the lot.The purchaser will then have a right of rescission if the change is such that the purchaser:
   a) would not have entered into the contract had the purchaser been aware of the change, and
   b) would be materially prejudiced by the change (Section 66ZO of the Act).
3. The purchaser will also have a right of rescission if, after receiving the registered plan and other documents, the disclosure statement includes any inaccuracy in relation to a material particular. Once again, it will need to be demonstrated that the purchaser would not have entered into the contract had they been aware of the change and they would be materially prejudiced by the change (Section 66ZP of the Act).

It should also be noted that the copy of the registered plan and documents will need to be given to the purchaser at least 21 days before completion of the contract.

New compensation rights

If a purchaser does not wish to exercise a rescission right outlined above, they may, as an alternative, claim compensation from the vendor of up to 2% of the purchase price.

The claim for compensation must be made before completion of the contract and no later than:

1. in the case of a right to rescind under Section 66ZO of the Act — 14 days after the purchaser receives the notice of changes, and
2. in the case of a right to rescind under Section 66ZP of the Act — 14 days after the purchaser receives the registered plan.

Changes to the cooling-off period

Currently, a 5 business days’ cooling-off period applies to off the plan contracts for residential property. Under the new legislation the cooling-off period will be extended to 10 days for off-the-plan contracts.

If you or someone you know would like more information about an off the plan purchase, please contact our accredited property law specialists, John Bateman or Michael Battersby on 02 4731 5899 or email us at property@batemanbattersby.com.au.

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A mix of 10 fixed and portable mobile phone detection camera devices have been operational since 1 December 2019 and another 35 are planned over the next four years. Sophisticated software in the cameras automatically detects if a driver is handling a phone and the filtered images taken by the camera are then checked by a human eye by NSW authorities before a fine is issued.

The mobile phone camera detection system works night or day and in any weather conditions and its advanced camera and radar technology can operate accurately at speeds up to 300kmh. The high-speed and high-resolution technology is so accurate it could also be used to enforce speeding, seatbelt use, and detect the number of occupants in cars in transit lanes, however for the time being the focus of the new cameras will only be on detecting illegal mobile phone use.

Unlike NSW speed cameras, which have currently warning signs before them, there will be no warning signs for the new mobile phone detection cameras. However, NSW drivers caught by the detection cameras will be sent warning letters – but no fine – for the first three months of their operations with fines and demerit points to be issued to those caught from 1 March 2020 onwards.

Mobile Phone Use Offences

Despite NSW having some of the strictest laws in the world restricting the use of mobile phones in motor vehicles, many drivers are still unaware of the extent of these prohibitions.

For all drivers and riders in NSW it’s illegal to hold and use a mobile phone at any time while driving or riding and includes using your phone while stationary at traffic lights or stuck in traffic. In reality, this means that a mobile phone cannot be held and used by a driver or rider for typical hand held functions including phone calls, video calling, texting, emailing, social media, web browsing and photography unless their vehicle is parked. It’s also illegal to access a Digital Driver Licence on a mobile phone when driving, including when stationary, unless you’re asked to do so by a police officer

Mobile phone use prohibitions extend much further for restricted licence holders, including Learner, P1 and P2 drivers and riders, as they are not permitted to use their mobile phone at all while driving or riding, including using the mobile device on loud speaker or as a navigation tool. This prohibition applies regardless of whether the mobile phone in use is being handled, resting on any part of the body, secured in a cradle or is being used hands-free (i.e. via Bluetooth).
Full (unrestricted) licence holders and bicycle riders are permitted to use particular mobile phone functions, including making or answering a phone call, playing audio or using a mobile phone as a driver’s aid (e.g. navigation), BUT only if the phone:

• Is secured in a cradle; or
• Can be used without touching any part of the phone (e.g. Bluetooth).

Penalties for Illegal Mobile Phone Use

The fine for illegal mobile phone use is $344, or $457 if detected in a school zone. There is also a five demerit point penalty for illegal mobile phone use, which increases to 10 demerit points during double demerit periods.

Learner and provisional P1 licence holders will automatically exceed their demerit point threshold and lose their licence if caught illegally using their mobile phone. All learner and provisional P1 and P2 licence holders will exceed their demerit point threshold and lose their licence if they are caught using a mobile phone during a double demerit period.

These penalties apply to offences caught by the new mobile phone detection camera and infringements issued by NSW Police in conducting their duties.

If you or someone you know is issued with a Traffic Infringement Notice which they want to contest or are charged with a Driving Offence and would like more information about the available options please contact Oliver Hagen on (02) 4731 5899 or email litigation@batemanbattersby.com.au.

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For a contract to be valid, binding and enforceable, it needs to be executed correctly by the parties to it. There are a number of ways that a document can be signed by a company and it is important that all directors are familiar with the formalities that need to be adhered to when executing documents.

In Australia, a company must either execute documents in accordance with: –

• the Corporations Act 2001 (the Act); or
• the provisions for executing documents contained in the company’s Constitution

The Corporations Act

Under Section 127 of the Act, a company may execute documents using its common seal (usually a stamp stating the company name and its ACN) or the now more common method of choosing to execute documents without using a common seal by use of words stating the company is executing the document. In both instances, the document must be signed by:

• two directors of the company; or
• a director and company secretary of the company; and
• for a proprietary company that has a sole director who is also the sole secretary – by that sole director/sole secretary.

Section 129 of the Act states that people dealing with companies are entitled to assume that a document has been duly executed by the company if it appears to have been signed in accordance with Section 127.

Section 126 of the Act states that a company can resolve to authorise a director or other agent to sign on its behalf. In these circumstances, the other party to the contract should request proof of the authority to sign (eg the resolution) as the other party cannot rely on the assumption in Section 129 of proper execution for this type of signing.

Company Constitution and Powers of Attorney

A company can also set rules on how to execute a document through the company’s Constitution and vary these rules from time to time to suit the company’s business needs. Rules can also be made in the Constitution to provide for agents or representatives who are not company officers to be appointed to sign on behalf of the company whether in relation to all company transactions or limited to a specified type of transaction.

This arrangement is particularly useful for large companies who have a large volume of transactions where it would be impracticable for a director or company secretary to sign off on every one of them. Whoever is appointed as the company’s agent or representative must have the required authority to sign on behalf of the company. This authority is usually provided by a board resolution or alternatively by a registered Power of Attorney.

If you want advice about ensuring that your company is correctly signing contracts and other documents or would like assistance with any company or business matter, please call John Bateman or Michael Battersby on 02 4731 5899 or email commercial@batemanbattersby.com.au.

Examples of execution as follows…

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What are Class Actions?

A class action (or ‘representative proceedings’) is a type of proceedings in which one or several persons take legal action on behalf of a larger group of persons, referred to as “the class” or group members. The proceedings usually start as the result of complaints by people who feel they have been harmed by a fraud, a defective product, illegal conduct, or a deceptive practice of another party. While the subject matter of Class Action proceedings can vary widely, two factors are almost always present for every Class Action:

• the issues in dispute are common to all members of the class, and
• the persons affected are so numerous so as to make it impracticable for them to all bring separate actions before the court.

The Class Action process saves time and expense and avoids the need for the courts to determine common issues of fact or law more than once, enabling disputes and claims involving large numbers of people to be resolved via a single case.

How do they work?

In Australia, Class Actions take place in the Federal Court and State Supreme Courts and there are three criteria that need to be met for proceedings to commence:

1. There must be 7 or more people claiming against the same person;
2. From the same, or similar, event/circumstances; and
3. The claim must relate to at least one common issue of law or fact.

Australian Class Actions work an opt-out model. This means that all people affected by the event or circumstance become members of the action whether they intended to or not. These group members are bound by the decision of the Court, or negotiated settlement, unless they opt-out of the proceedings before a date which is fixed by the Court.

The Court in which the Class Action is commenced supervises a “notice” procedure to give group members sufficient information to decide whether to accept, oppose, or “opt out” of any settlement of the Class Action. This may be done by direct notification if all people affected are known because of available information, and/or by placing easily identifiable advertising in national, capital city and regional publications. If a person chooses to opt out of the settlement, they are required to notify the Court and, in doing so, preserve their right to take their own action at their own cost.

What does it cost to join a Class Action?

As with all court proceedings, cost orders can be made against the unsuccessful party. The representative taking the class action is technically exposed to the risk of these costs but that person and the class members are usually protected against these costs by either the law firm running the Class Action entering into a ‘no win no fee’ arrangement with the representative or the representative entering into an agreement with a Litigation Funder where it agrees to pay the costs if the Class Action is unsuccessful. In return, if the class action claim is successful, the law firm usually gets an up lift on its fees, or the Litigation Funder gets a percentage of the claim recovery.

If you or someone you know wants more information about Class Actions, please contact Ken Gray or John Bateman on 02 4731 5899 or email litigation@batemanbattersby.com.au.

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Assets inherited directly by your beneficiaries become part of their personal assets and fall under their control. As a result, the sensible use and investment of these assets is dependent on the beneficiary’s ability to manage their own financial affairs. Leaving an inheritance directly to a beneficiary who is vulnerable or has special needs may lead to the loss or misuse of their inheritance if they don’t have the required capacity or skills to manage their financial affairs. These may include people affected by one of more of the following: –

• they have a physical disability;
• suffer from a mental disability or illness;
• have a drug or gambling addiction;
• are of advanced age; or
• are too young to manage large sums of money or significant assets.

Testamentary Protective Trusts

In a typical Testamentary Protective Trust, the person with the disability (principal beneficiary) will usually be the sole beneficiary of a specific trust fund established under a Will. The principal beneficiary receives the benefit of the income and / or capital of that part of the Willmaker’s assets that the Willmaker bequeathed to create the specific trust fund, but the principal beneficiary cannot call for it or deal with it personally.

The trustee of the specific trust fund can be the executor of the Will or another person or entity nominated by the Willmaker in the Will to be the trustee. The Trustee manages and invests the trust fund and authorises the expenditure from it.

Who makes the rules of the Trust?

It is the Willmaker in their Will who determines the important rules for the Trustee to implement relating to the Trust, such as:

• the duration of the trust – typically until the death of the principal beneficiary, but it can be shorter;
• the investment powers of the trustee;
• whether it is only income, or income and capital that can be spent;
• the purpose of expenditure – typically for maintenance, education and advancement of the principal beneficiary but can also be for other specific purposes nominated by the Willmaker including accommodation, or specialist care;
• whether any surplus accrued income in any year is accumulated in the Trust or distributed to other persons;
• the intended ultimate beneficiaries once the Protective Trust has come to an end, such as the children or siblings of the principal beneficiary.

Testamentary Protective Trusts can be an important vehicle for ensuring that a beneficiary you wish to provide for under your Will, who has a limited or affected capacity to manage their financial affairs, actually receives the full benefit from the gift you wish to leave to them

If you would like further information about including a Testamentary Protective Trust in your Will or want to make a Will or update your existing Will please contact Lisa Delalis or John Bateman at our office on 02 4731 5899 or email willsestates@batemanbattersby.com.au.

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Some obligations exist to disclose this type of information about a residential property (known as “material facts”) but who is responsible for doing so, and what can happen if these material facts are not disclosed to a purchaser?

Vendor’s Duty of Disclosure

There are statutory obligations on home owners in NSW to disclose certain information about their property when selling by attaching to Contracts for Sale mandatory “disclosure documents” such as a full title search, zoning certificate, sewer diagram, land tax certificate and if applicable, certificates relating to the compliance status of a swimming pool.

However, the common law doctrine of “caveat emptor” or “let the buyer be aware” still applies to the sale of residential property in NSW. Accordingly, there is no mandatory obligation on home sellers to disclose any further information about the state or condition of their property or its history. Real estate agents however, do have a statutory obligation to disclose to prospective purchasers “material facts” about a home they are selling on behalf of a home owner, and the failure to do so can result in the agent being fined and/or being sued by a purchaser for misleading and deceptive conduct.

Estate Agents Duties to Disclose “Material Facts”

Section 52 (1) of the of the Property, Stock and Business Agents Act 2002 (the Act) states that it is an offence against the Act if a licensed estate agent or registered salesperson in the course of performing their functions induces another person is to enter into any contract or arrangement through:

• a statement, representation or promise which is false, misleading or deceptive (whether to the knowledge of the person or not) or;
• by concealing a material fact (whether intended or not).

Section 52 imposes an onus on the selling agent to inform the purchaser ‘of matters which could not be revealed through undertaking usual enquiries, such usual enquiries being enquiries like a physical inspection of the property, professional building and pest inspections, and searches conducted by the purchaser’s solicitor or conveyancer.

The agent has a defence if the agent did not know about the material fact and had no reasonable cause to suspect a statement, representation, or promise was false, misleading or deceptive.

What Constitutes a “Material Fact”

NSW Fair Trading has stated that a “material fact” is “a fact that would be important to a reasonable person in deciding whether or not to proceed with a particular transaction” and that a fact about a property can be material in two ways:

1. it can become ‘material’ because, in the particular circumstances, it is known by the agent to be material to the particular purchaser, even though agents and purchasers may not typically regard the matter as ‘material’; and
2. it may become ‘material’ by the application of an objective standard which has regard to what a reasonably informed purchaser with a fair-minded understanding of the real estate market, including the role of a real estate agent, would regard as ‘material’.

“Material facts” can include “potential psychological stigma attached to a property which is likely to be shared by a significant proportion of the population” including where a property has been the scene of a serious crime during the current or previous occupation. While such circumstances may not represent a physical barrier to the use of the property “they may significantly affect the extent to which occupants would be comfortable using the property”.

NSW Fair Trading has indicated a number of other matters that may constitute “material facts” about a property depending on the nature of the property including;

• the recent history of use or activity in a dwelling, and;
• the neighbourhood surrounding the property which may not be immediately apparent upon inspection;
• whether the property contains asbestos; and
• if the agent is aware of some past damage to the property (e.g. water damage) which is not now evident on inspection of the property.

What it means for Vendors

If you use an agent to sell your property, you will need to enter into a Selling Agency Agreement with your chosen agent. This agreement will usually contain a “material facts” clause under which you:

• acknowledge that the agent has an obligation under the Act to disclose all material facts about the property to prospective and actual purchasers; and
• give the agent a warranty (i.e. a promise) that you have supplied the agent in writing with all relevant details and information pertaining to all material facts about your property; and
• authorise the agent to provide all material facts provided in writing by you to all prospective and actual purchasers of the property.

Whilst intent of the “material facts” clause is to assist the agent with their duty of disclosure, the agent still has an obligation to make their own assessment of the “material facts”. If you fail to disclose a material fact to the agent, and the purchaser suffers a loss, the purchaser may be able to take action against you and the agent under Section 30 of the Australian Consumer Law for false or misleading representations about the sale of land.

At Bateman Battersby we have extensive experience in assisting and advising clients on all matters relating to selling or buying property. If you need help please feel free to contact our accredited specialists, John Bateman or Michael Battersby on 02 4731 5899 or email us at property@batemanbattersby.com.au for further information or assistance.

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Mostly, parents wishing to change their child’s name will want their child to bear the same name as them. It may be because there is one parent with whom the child does not live, has not seen the child for a long time or has had limited involvement in the child’s life. Alternatively, it may be that the parent with whom the child lives has other children from a subsequent relationship and the parent wishes the children to all have the same name. However, there are barriers that may stop a parent unilaterally changing their child’s name.

Changing a child’s name in NSW

In NSW the Births, Deaths and Marriages Registration Act 1995 (BDMR Act) provides that parents are eligible to lodge an application to change their child’s name at the Registry of Births, Deaths and Marriages (RBDM) if the child:

• is under 18 years of age, and
• their birth is registered in NSW, or
• they were born overseas and have been a resident in NSW for three consecutive years immediately prior to the application.

The child’s name can be changed once in a 12 month period and a total of 3 times only.

The BDMR Act requires that both parents of a child must jointly apply to change a child’s name unless the parent applying is:

• the only living parent of the child; or
• the only parent named on the child’s birth certificate;

If the child is over 12, the child must also sign the application.

The only other circumstance where the RBDM will accept an application to change a child’s name lodged by one parent is if a Court has approved the proposed change in name. It’s important to note in this context that a Court order giving one parent sole parental responsibility of a child does not in itself extend to allowing that parent to unilaterally change the child’s name.

Obtaining a Court Order

If one parent of a child does not consent to an application being lodged at the RBDM to change the child’s name, the
other parent may lodge an application to change the child’s name with any Court having jurisdiction under the Family Law Act 1975. As with any application for parenting orders, there is a requirement to attempt mediation before commencing proceedings except in certain circumstances such as urgency or where there is family violence.

As with matters relating to the child’s education, religious upbringing and health, a child’s name (and any change made to it) is considered by the Family Court to be a significant issue affecting the child’s long-term care, welfare and development. Accordingly, in any application to change a child’s name, the best interests of the child are the paramount consideration. The matters that assist the Court in determining what is in a child’s best interests are found in s.60CC of the Family Law Act 1975. Other relevant factors that the Court will consider when determining an application to change a child’s name as established in name change cases to date include:

• Any embarrassment likely to be experienced by the child if their name is different to the name of the parent with whom they live;
• Any confusion of identity which may arise for the child if his or her name is changed or if it remains the same;
• The effect that any change in surname may have on the relationship between the child and the parent who had shared the same surname as the child since birth;
• The effect of frequent or random name changes;
• The contact the parent with whom the child does not live with has with the child or is likely to have with the child in the future;
• The degree of identification that the child has with the parent with whom they do not live; and
• The degree of identification that the child has with the parent with whom they live.

Court applications for changing a child’s name are usually contested and much will depend upon the type and weight of evidence which can be led in support of the application, addressing each of the factors referred to above. The outcome will, as always, depend upon the particular circumstances of each case.

If you want more information or assistance to lodge an application to change your Child’s name or help with any Family Law issue, please contact our Family Law specialists, Oliver Hagen or Ken Gray on 02 4731 5899 or email familylaw@batemanbattersby.com.au.

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While it may be technically possible to legally arrange almost all aspects of a funeral without using the services of a funeral director, practically and emotionally most people choose to engage a funeral director to help navigate the sometimes confusing legal requirements and the logistics involved at a time of grief.

For many years though, consumer groups have shone a spotlight on high cost of funerals and on the practices of the funeral industry, which has been accused of providing overpriced and unnecessary products, quoting a wide range of prices for the same service and causing confusion for consumers.

Until now little has been done to address these industry activities and the existing regulations in NSW have only required that funeral directors disclose a price list for a basic funeral service – and then only if they offered one. The new rules being introduced by the State government will provide a pricing regulation that will ensure greater transparency and easier decisions for bereaved consumers dealing with funeral costs during a difficult time.
The new rules

The new regulations are contained in the Fair Trading Regulation 2019 and become effective from 1 February 2020. They will allow consumers to compare services offered across the funeral industry by every funeral director by introducing an expanded funeral goods and services information standard for easier price comparison for like products and services. This will ensure people have access to clear and concise pricing information for all goods and services.

The regulations also include provisions requiring funeral directors to:

• give a cost-itemised quote, in writing, to a consumer before entering an agreement to carry out their funeral services;
• display their price lists at each place of business and prominently on their websites, if they have one;
• display the cost of their least expensive package; and
• disclose whether mortuary or crematorium services are managed by an external supplier.

Enforcing the new rules

If funeral directors fail to comply with the information standard requirements, they can be fined $550 for each offence. In serious cases, they may be prosecuted under the Fair Trading Act where the maximum penalties payable if they are
convicted is $22,000 for an individual or $110,000 for a corporation.

NSW Fair Trading will be responsible for enforcing the new regulations which from part of the NSW Fair Trading Act. The new rules are compulsory and apply to all NSW funeral directors and any business in NSW that arranges and conducts funerals. Complaints about breaches of the rules can be made with NSW Fair Trading, either online or by phone.

Arranging a funeral can be an emotional and time-sensitive process. When coping with grief and arranging a funeral, people are seemingly reliant on funeral suppliers and have been limited in their ability to shop around. The new rules are a step in the right direction and will make it easier for people to find options that are fair, affordable and appropriate

If you need advice about your rights when dealing with a funeral director or require assistance with the administration of an Estate, please contact or John Bateman or Lisa Delalis at our office on 02 4731 5899 or email willsestates@batemanbattersby.com.au.

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When a person is declared bankrupt under the Bankruptcy Act, a Trustee (Bankruptcy Trustee) is appointed to take control of their assets and income so that their debts can be paid from them. The bankrupt’s assets vest in (go into control of) the Bankruptcy Trustee immediately they are declared bankrupt. The bankrupt then cannot deal with or transfer their assets. This can lead to frustration for both parties involved in the marriage or the family law property dispute, particularly the non-bankrupt spouse, as their ability to further negotiate directly with their bankrupt spouse is very limited.
Bankruptcy and Family Law

As a result of the Bankruptcy and Family Law Amendment Act (2005), the bankruptcy of a spouse does not prevent the non-bankrupt spouse from pursuing an adjustment to the parties’ property interests under the Family Law Act. Whilst we normally expect property proceedings to occur when spouses separate, it is not a prerequisite that the spouses be separated before the non-bankrupt spouse can take proceedings.

The Family Court has comprehensive powers to deal with proceedings for property settlement in circumstances where a Bankruptcy Trustee has been appointed and property belonging to the bankrupt spouse has vested in the Trustee. In determining the property dispute, the Court will apply the same process required under the Family Law Act regardless that one spouse is bankrupt.
The Family Court

The Court will likely deal with three types of property of the marriage: –

• the bankrupt spouse’s property that has vested in the Bankruptcy Trustee;
• the bankrupt spouse’s property that has not vested in the Bankruptcy Trustee being exempt assets under the Bankruptcy Act, such as superannuation; and
• the non-bankrupt spouse’s assets

The Court must then determine, whether it is just and equitable to make an order altering the parties existing interests, taking into account the financial and non-financial contributions of the parties during their relationship and considering the specific needs and characteristics of the parties. What is different is that the Court must determine the competing rights of the Bankruptcy Trustee on behalf of the bankrupt spouse’s creditors, and those of the non-bankrupt spouse, but neither has priority.

If necessary, the Court can interfere with the rights and interest of the Bankruptcy Trustee and creditors of the bankrupt spouse so as to give the nonbankrupt spouse a share in the bankrupt spouse’s assets that have vested in the Bankruptcy Trustee.

The Bankruptcy Trustee cannot itself commence the Family Law property proceedings on behalf of the bankrupt spouse. However, if the proceedings had been commenced before the bankruptcy, or once the proceedings are commenced by the non-bankrupt spouse after the bankruptcy occurs, then the Bankruptcy Trustee can join in those proceedings.

A spouse who is bankrupt, or becomes bankrupt, must notify the Court at the start of the proceedings, or if the proceedings have already started, as soon as they become bankrupt. Unless the Family Court gives permission, a bankrupt spouse is not entitled to make submissions to the Court in relation to the division of his or her property that has already vested in the Bankruptcy Trustee. This right then belongs to the Bankruptcy Trustee. However, the bankrupt spouse can make submissions about property that has not vested in the Trustee, such as the bankrupt spouse’s superannuation.

Once the Court makes a property settlement order in favour of the non-bankrupt spouse, the Bankruptcy Trustee can on very limited grounds apply to set aside the order. Sometimes spouses may obtain property settlement orders from the Family Court on a consent basis before the bankruptcy arises. For the Bankruptcy Trustee to succeed, the Trustee needs to establish that the order was obtained by reason of a failure to disclose relevant information (such as the imminent bankruptcy of one of the spouses), fraud, duress or false evidence.

At Bateman Battersby we have a number of experienced Lawyers that specialise in Family Law Property Settlement matters. If you need help sorting out who gets what when a marriage or relationship breaks down, please call Oliver Hagen or Ken Gray on (02) 4731 5899 or email us at familylaw@batemanbattersby.com.au if you require further information or assistance.

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