Bowen Buchbinder Vilensky

Archive for December, 2015

Served With a Violence Restraining Order (“VRO”)? – Now What?
Friday, December 18th, 2015

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18 December 2015

Often over the past few years a client will come to see me because they have been served with an interim violence restraining order.

The client is now prevented from returning to the home (once) shared with their partner, cannot return to the family business, and cannot spend time or communicate with the children.

The situation is usually made worse because their communications are now limited, or even prevented altogether, by operation of the orders.

What You Should Do First

Read the interim order that has been served on you.  Then read it a second and third time.  The orders are in plain language and are generally easy to follow.

Despite what you may think, for the most part, there are reasons that the Order was granted.  Do not be tempted to simply contact the person protected to “talk through it” – this is the first (and sometimes most costly) mistake one can make.  Emotions can run high at this time, but it is important to remain clear, calm and collect.

Do not contact the protected person unless you are absolutely sure that the interim order provides an exception (usually Part B to the interim order on the bottom of the first page).

Sometimes, there is an exception to allow some level of communication between the parties only concerning their children (and usually only by email/text message, and only during certain hours of the day).  Increasingly, I am seeing interim orders made without that exception.

Sometimes, other exceptions are made which allow the restrained party to attend the property (usually under supervision of the police) to remove personal items, or for the purposes of operating a business.  If these exceptions do not apply, it may be necessary to take further action.

What You Should Do Next

Contact a lawyer immediately to get legal advice about the effect of that interim order.

The clock is now ticking.  There are timeframes within which you must respond, otherwise the interim order can be made final without further notice to you.  There are also relevant documents you can obtain from the Magistrates Court which tell you what was said to the Court to get the interim order.

What About Your Parenting & Financial Matters?

Speak with a lawyer about your situation.

You may need a variation of the interim violence restraining order to return to the home for any reason, even to speak with or contact your children.

You may also need to make an urgent application to the Family Court for interim financial orders, such as injunctions for the preservation of assets, the interim operation of a business, or interim spousal maintenance or costs to proceed with your case, or seek injunctions for the preservation of assets, the interim operation of a business, or interim spousal maintenance or costs to proceed with your case.

Again, your emotions may be running high, and sometimes anger and frustration can take over.  It is important to know your rights, responsibilities and options.

The Family Court is unable to hearing an application for parenting orders unless at the time of filing you are able to provide a certificate from a registered Family Dispute Resolution Practitioner, or an Exemption Form.  Parties may only seek an exemption under certain circumstances.

It is important to know the jurisdictional limits of each Court, and again should get advice from a family lawyer about any urgent application, or exemption.

There is a great deal of interplay between family law matters and violence restraining orders.  A violence restraining order may, or may not, be sufficient grounds to apply for an exemption, or make an urgent application.

What Next?

Competent, specific and measured legal advice from an experienced lawyer is invaluable.  It will end up saving you time, effort, and even money in the long run.

It is important to obtain legal advice regarding both the violence restraining order application, and any Family Court applications, from a lawyer competent in both jurisdictions.

Our Family Law team is happy to assist with any queries you may have.

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David vs Goliath – Small Business to Benefit against Unfair Contracts
Friday, December 4th, 2015

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By Les Buchbinder, Director, with the assistance of Giuseppe Graneri, Associate at Bowen Buchbinder Vilensky Lawyers

4 December 2015

In light of new laws recently passed, small businesses have more protection against unfair contracts.  Taking effect on 12 November 2016, following a 12 month transition period, the new laws will supplement the existing law on unfair contract terms for consumers.

The new laws apply to standard form contracts between businesses where one of the businesses employs less than 20 people and the contract is worth up to $300,000 in a single year (or $1 million if the contract runs for more than a year).

To fall under the legislation the following must apply:

  • the contract is a standard form contract, meaning (generally) the contract is pre-prepared by one party and provided to the other party on a “take it or leave it”, “one size fits all” basis with no effective opportunity to negotiate its terms;
  • the contract is entered, renewed or varied after commencement of the substantive provisions of the Bill, being 12 months after Royal Assent.  The amendments in the Bill will apply to the contract as renewed or the terms as varied on and from the renewal day or the variation day (as applicable), in relation to conduct that occurs on or after that day; and
  • the contract is a contract for the supply of goods, services, land, financial products or financial services.  In the case of the Australian Consumer Law, a small business contract must be a contract for a supply of goods or services, or a sale or grant of an interest in land.

The Australian Competition and Consumer Commission (ACCC), Australian Securities and Investments Commission and state and territory offices of fair trading will be enforcing the legislation.

As examples, the following contractual terms are likely to be caught by the legislation:

  • enabling one party (but not another) to avoid or limit their obligations under the contract;
  • enabling one party (but not another) to terminate the contract;
  • penalising one party (but not another) for breaching or terminating the contract; and
  • enabling one party (but not another) to vary the terms of the contract.

Small businesses should be aware that it is only the unfair part of a contract that will potentially be struck out, the rest of the contract remains.

If you have a contract that may fall into this category and would like to discuss this further please contact Les Buchbinder at lbuchbinder@bbvlegal.com.au.

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