Bowen Buchbinder Vilensky

Archive for February, 2014

First Things First: Children’s Passports
Friday, February 28th, 2014

By Patricia Schrape, Associate at Bowen Buchbinder Vilensky Lawyers

28 February 2014

When marriages and relationships break down, there can be very little trust left. This is often amplified when the people in question have children. When relations between parents are extremely dire, particularly when there is extended family overseas, many people start thinking of a worst case scenario and their minds turn to their children’s passports.

If your child does not have a passport

  • An application for a child’s passport must be completed and signed by all the people who have parental responsibility for the child. Unless there is a Court Order stating otherwise, this means the child’s parents as stated on their birth certificate.
  • If you are concerned that your child’s other parent may make a false application for a passport (ie forge your signature) you can submit a Child Alert Request to the Department of Foreign Affairs and Trade (DFAT). This will put a ‘flag’ on your child’s name for a period of 12 months, so that DFAT are aware of the parental conflict should a passport application be received.

If your child has an Australian passport

  • If you have possession of your child’s passport, then there is little that the other parent can legally do to remove them from Australia.
  • If the other parent has possession of the passport, and will not provide it to you, you can request that the passport be held by a third-party for safe-keeping. In some cases family lawyers will hold the passport/s and give an undertaking (a very serious kind of promise) that they will not release it without the consent of both parents. In some circumstances the passports can also be held by the Family Court of Western Australia.
  • If the other parent has possession of the passport and you have a very real concern that they may take the children overseas, you can make an urgent application to the Family Court asking for an order that the child’s name be placed on the Airport Watch List by the Australian Federal Police. Being on the List means that the child cannot leave Australia under that passport.

If you have concerns about your child’s passport, or other related issues, the Family Law solicitors at BBV are able to provide advice regarding your specific circumstances.

NB – in the above comments references to ‘child’ relate to Australian citizens under the age of 18 years who have never married. For the full legal definition of child for Australian family law purposes see the Family Law Act 1975 or Family Court Act 1997. If your child is a dual citizen and has a passport/s from countries other than Australia, there are numerous additional considerations.

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Keeping It Private – Are You Ready For The Privacy Law Changes?
Wednesday, February 19th, 2014

By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

19 February 2014

We see more and more cases of unwanted  and unlawful access by third parties (hackers) to business computer systems and the personal and confidential  information held in them. This can result in significant harm to those individuals whose personal and confidential information held in the computer system is accessed and later misused. This can, for example, be where a hacker steals a person’s online identity and later accesses Bank accounts to steal money or incurs debt in the name of the victim or it may be less sinister in the form of the negligent disclosure of personal information to third parties.

The Federal Privacy Act addresses these issues and seeks to protect the public from such loss and harm. There  are a number of significant changes to the Federal privacy laws which will come into effect on 12 March, 2014. Significantly, these changes include (but are not limited to):

  1. The introduction of uniform privacy principles to regulate the handling of personal information by Australian government agencies and businesses. These will impact on most businesses  which will need to ensure they are compliant;
  2.  Increased enforcement  powers for the Privacy Commissioner to, among other things, accept enforceable undertakings, seek civil penalties of up to $340,000 for individuals and $1.7 million for companies in the case of serious or repeated breaches of privacy and  conduct  assessments of privacy performance for both Australian government agencies and businesses.
  3. The recognition of external dispute resolution schemes, changes to credit reporting laws and the introduction of codes of practice.

Businesses will need to ensure that they comply with the new regime by 12 March, 2014.

In doing so, businesses will need to consider whether they handle “personal information”  or “sensitive information” as defined in the new Act.  If they do, then they will need to ensure  that “reasonable steps”   are taken to implement the new practices, procedures and systems requirements.

These steps should  include:

  1. Reviewing and/ or updating the businesses  privacy policy;
  2. Updating the businesses privacy statement on any website that it operates;
  3. Reviewing  practices, procedures and systems for the collection, use, disclosure, updating, notification and storage of information
  4. Implementing  practices, procedures and systems to allow others  to interact with businesses  anonymously;
  5. Updating existing staff training and other business operation manuals to cater for the new practices, procedures and systems, and to identify and manage privacy risk
  6. Carefully reviewing and, if necessary, amending business contract and subcontract documentation to ensure compliance with the new regime;
  7. Reviewing and identifying if there are any risks to the directors and officers of the business for possible  breaches of the new laws. This should factor in the Privacy Commissioner’s increased powers and the penalties that may be imposed on those guilty of breaches of the new privacy laws as well as the fact that a breach of the new privacy laws; and
  8. Undertaking a review of the existing insurance cover of the business to identify any remedy gaps in cover.

These new changes (especially the penalties) will force businesses to be more attentive to data protection and to preventing the inadvertent release of electronic personal information of customers, third parties and even employees held on computer systems under their control.

Failure to do so could prove damaging to reputation and very expensive!

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Can I Record my Telephone Conversations for Use in Court?
Tuesday, February 11th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

11 February 2014

A recording of a telephone conversation can be useful to help to resolve a dispute in Court.  Are there any restrictions on me doing so?

There are only a very limited number of occasions when a private telephone conversation can be secretly recorded lawfully .

An article in the West Australian Newspaper on February 11 2014 referring to criminal charges against Perth Lawyer Lloyd Rayney accusing Mr Rayney of aiding or abetting in interfering with his late wife’s telephone lines before her death highlights this question.

There are both Federal and State laws which control the recording of telephone conversations.

At a Federal level, recording a telephone conversation may contravene the Telecommunications (Interception and Access) Act 1979.  This Act expressly prohibits the interception, without the knowledge of the person making the communication, of a communication passing over a telecommunications system.

At  State level, in Western Australia the Surveillance Devices Act 1998   regulates the use of listening devices, optical surveillance devices and tracking devices. Under this Act it is an offence to use, install or maintain:

  •  listening devices to record or listen to a private conversation;
  • optical surveillance devices to record visually or observe a private activity; or
  • tracking devices to determine the geographical location of a person.

This Act does not prevent employers, for example,  from using surveillance devices in the workplace, as long as they are not being used to record private conversations or private activities.

A breach of the Federal or State laws may amount to an offence and result in prosecution action being taken against the person or persons recording the conversation (and those knowingly participating in doing so) by the relevant Federal or State authorities and the imposition of significant fines and the recording of a criminal conviction against the person.

Additionally, a breach of these laws may (depending on a variety of considerations including the particular Court jurisdiction concerned)  render the recording itself inadmissible into evidence and therefore unable to be relied upon in Court.

The temptation to secretly record telephone conversations for later use as evidence must be resisted. Failure to do so can not only result in the whole exercise becoming futile (because in the end the recording may be excluded for being considered by the Court) but it may well leave you exposed to being prosecuted and fined a significant sum for a breach of the Federal and/or State laws controlling the recording of telephone conversations.

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Pre-Nups: Are They Useful?
Monday, February 10th, 2014

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers, and Accredited Family Law Specialist

10 February 2014

Binding Financial Agreements (BFAs), better known as ‘pre-nups,’ are a useful but no means watertight solution to protecting the wealth of you and your children.

In the past it was usually richer, older men marrying younger, asset-free women who wanted a BFA.  These days I’m finding it is just as likely to be younger FIFO workers, male or female, who have accumulated significant savings and/or investments by working very long hours in remote locations.  They now find themselves in relationships with partners who do not have the same assets and earning capacity as them and they are seeking protection for the assets they have worked very hard to accumulate.

BFAs signed before a couple gets married serve the purpose of setting out the division of assets in the event of them divorcing, or for de facto relationships on the termination of that relationship.  A BFA can also be used during an otherwise happy relationship to set out what happens if the relationship breaks down.

BFAs can also be used when a couple who are divorcing or separating are able to come to an agreement about a division of assets as an alternative to court orders.  This can provide an effective short cut, enabling couples who are able to agree on a split of assets, to move on with their lives, rather than get involved in the litigation process and maybe having to wait many months for a judge to decide on the division of assets for them.

But BFAs are not straightforward.  Asking your girlfriend or fiancé to sign a legal agreement spelling out the division of assets in event of divorce or separation is not an area where the law and human relationships sit comfortably.  This will no doubt remain the case unless BFAs become more commonplace.

A second and a very important concern is that Courts across the country have set aside BFAs for a variety of reasons.  These include if there has been a material change of circumstances, such as the birth of a child; if one or both parties did not receive competent, independent legal advice before the BFA was signed, and  other reasons.

Being aware of these reasons is critically important to ensure that, when drafting a BFA, the risk of it being challenged is seriously reduced.

My view is that while a carefully drawn and correctly executed BFA may not guarantee a complete and irrevocable solution, if it is used in conjunction with other legal protection, it can serve as a powerful protection of one’s assets.

Click here for the full article in the BBV Media page.

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Bullying in the Workplace – Part 2
Monday, February 10th, 2014

By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

 10 February 2014

In response to my blog post last week highlighting some new changes to the law regarding bullying in the workplace, I received several enquiries which in effect asked what type of conduct can amount to bullying in the workplace.

Whether the particular conduct concerned amounts to bullying depends in each case on the context and circumstances.

Generally speaking under the Fair Work Act 2009 bullying occurs when a person or a group of people in the workplace repeatedly behaves  unreasonably towards another person or group at work, and that behavior creates a health and safety risk.

It is really important to recognize that reasonable management actions done in a reasonable way do not constitute bullying.

Bullying happens when someone repeatedly behaves unreasonably towards another person or group of people and that behavior creates a risk to health and safety.

Bullying behaviour may take different forms. It may involve, for example,  aggressive or intimidating conduct or unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level.

However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.

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Bullying in the Workplace
Friday, February 7th, 2014

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

7 February 2014

In 2013 the Fair Work Act 2009 was amended to provide the Fair Work Commission (the Commission) with the power to make orders to prevent bullying in the workplace.

As from 1 January 2014 a worker in a business or undertaking that it is covered by the Act is able to apply to the Commission for an order to prevent them from being bullied at work.   Such an application can be made by a worker who ‘reasonably believes that he or she has been bullied at work’.   A worker is ‘bullied at work’ if, while at work, an individual or group repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.

The Commission has confirmed it had received 44 applications during the first month of the new anti-bullying jurisdiction.    However, of these 6 were withdrawn.

Given the anecdotal evidence of the prevalence of bullying in the workplace it will be very interesting to see whether the number of applications remains constant or even increases.   It will also be interesting to see what impact the Commission has in rooting out Workplace bullying through this new process.

The real question is, what is unreasonable behaviour and when can a worker ‘reasonably believe’ that he or she is being ‘bullied at work’.

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