Think Foley's

William Lye OAM QC and Glen Pauline discuss commercial mediation starting with online mediation and their experiences with online platforms for conduct of mediations. Glen discusses the legislative framework for and issues arising in, mediation of commercial tenancy disputes that arose due to COVID-19 and the outcomes for landlords and tenants achieved through mediation. William also reviews the cultural issues that arise in commercial mediations in particular with relation to Asian cultures.

Cath Devine and Emma Heggie present a timely reminder of how the COVID-19 pandemic impacts on child support matters. This podcast outlines the significant changes to the child support legislation introduced in 2018 through that lens. Cath and Emma also analyse a recent Family Court decision dealing with the impact of COVID-19 on an application to set aside a binding child support agreement.

Philip Barton reviews Supreme Court and County Court cases over the past 5 years on contracts of sale of land: 1. Offer and Acceptance including a solicitor’s authority to conclude a contract and a company director’s authority to make a contract 2. The 4 Masters v Cameron categories and contract interpretation 3. Statute of Frauds 4. Void for Uncertainty 5. Estoppel against denying existence of a contract 6. Section 32 statements 7. Cooling off under s 31 Sale of Land Act

Bronia Tulloch and Caroline Jenkins discuss the authorities relevant to common issues in the assessment of contributions in family law property cases. The emphasis is on situations where money or property has been provided to a party to a marriage by family members. The case law discussed covers the treatment of “gift vs loan”, resulting trusts and the presumption of advancement, the impact of timing on the weight to be given and the treatment of inheritances.

Brenton Devanny explains what has changed in insolvency law, how it has affected small business and what the package of reforms promise for small business in 2021. 2020 has been a year where many of the historical practices of insolvency law and how it relates to small business have been delayed and deferred. This presentation includes a summary of changes to insolvent trading, statutory demands and bankruptcy notices, and generally the proposed debtor-in-possession restructuring regime and simplified liquidations.

Sam Tatarka and Michele Brooks present tips and traps for solicitors. This presentation provides a refresher on the key requirements for Victorian lawyers around their LPUL compliance obligations and the consequences of non-compliance, with a broader focus on strategies to improve compliance, proactively manage client complaints and update risk management strategies to avoid problems in future. The session ends with some practical tips to consider when reviewing and updating existing costs agreements. 

Michael Stanton and Julia Kretzenbacher review section 138 of the Uniform Evidence Acts, which deals with improperly or illegally obtained evidence. In this presentation, we will review the history and background in relation to the common law discretion, the Australian Law Reform Commission reports on the law of evidence that led to the introduction of the Uniform Evidence Acts, and the text and purpose of section 138, including the factors relevant to the balancing exercise that must be undertaken by judicial officers. We will consider relevant cases from the High Court, the Court of Appeal and the Trial Division of the Supreme Court of Victoria.

Jeanette Swann and Chiara Bryan explore that question in the context of reproductive technology and changing concepts of family. They examine the relevant provisions of the Family Law Act, including section 60H, and discuss the High Court case of Masson & Parsons, testing the principles of that case against various factual hypotheses and family configurations. They also ask the question, how many parents can a child have? A quirky but related point is considered, being the allocation of parental responsibility to children diagnosed with gender dysphoria who are also Gillick competent. All up, our commentators conclude that while Masson & Parsons gives certainty to the operation of section 60H and the definition of a “parent”, there are still unanswered questions and manifest scope for legislative reform to ensure that all Australian families are treated equally before the law.

Marcus Hoyne and Priya Wakhlu provide an overview of the key areas of reform and outline what practitioners must know in operating under the new regime.  On 17 November 2020, royal assent was given to the Victorian legislation amending the Defamation Act. These reforms are consistent with similar legislation which has passed or is expected to be passed in other Australian jurisdictions shortly. These reforms constitute a significant overhaul of Australian defamation law. 

Simon Fuller and Alex Finemore address a number of ethical issues often faced by family lawyers including making serious allegations in Affidavit material, how to assess a client’s legal capacity, what to do when a client has lost capacity and our ongoing obligation of confidentiality. The purpose of this session is to provide guidance about how to navigate these ethical issues and avoid being faced with charges of professional misconduct or civil action brought by a disgruntled client.