Under the Sex Discrimination Act 1984 (Cth), it is unlawful to discriminate against someone because of their sexual orientation. This includes terminating one’s employment based on their sexual orientation.

In the case of Bunning v Centacare, the plaintiff was an employee of the defendant which was an organisation run by the Catholic Church. In August of 2013 the plaintiff was dismissed for gross misconduct by bringing the defendant into disrepute for her associations with the Brisbane Poly Group.

The plaintiff identified as being polyamorous and begun participating and associating with a Brisbane Poly Group during the period of her employment with the defendant. The conduct engaged in by the plaintiff in relation to the group was contrary to the values of her employer and was contrary to their Code of Conduct and Policies. It was on this basis that the plaintiff was dismissed from her employment.

The pivotal argument in this case was whether polyamory was a sexual orientation for the purpose of the Act and therefore whether the defendant had discriminated against her by terminating her employment for the above reasons.

Section 4 of the Act defines sexual orientation to be an orientation toward:

  • Persons of the same sex
  • Persons of different sex
  • Persons of the same sex and persons of a different sex.

The Court held in this case, that the definition in the legislation operates in a way that confines it “to the words actually used”. The Court held that orientation, as it is defined in the legislation, is interpreted as “a state of being”, an “attraction”, and an “inclination towards”. They went further to distinguish this “sexual state of being” from its manifestation into a “sexual behaviour”.

The Court rejected the notion that a person’s behaviour is a determinant of sexual orientation and cautioned that if this were the case illegal behaviours such as paedophilia and necrophilia may have protection under such a definition. The Court maintained the view, under the legislation, that orientation is the cause of behaviour not the result of the behaviour. Their reasons for this was that “sexual orientation is something far more than how one behaves sexually” and that behaviours should be distinguished and may be treated differently to an orientation.

The Court held that polyamory is a manifestation of a state of being, a lifestyle, not a “state of being” itself. Because it is defined as behaviour not orientation, discrimination on this basis did not fall within the ambit of the Sex Discrimination Act. Because of these reasons the action for unfair dismissal on the basis of Sexual Discrimination was unsuccessful.

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Lessons Learned from Hanna v Body Corporate for Surfers Hawaiian

On occasion, you’ll find situations in which tenants are promised something by representatives of Centre Management or Body Corporate. The tenants then act in reliance on the promise – only to be informed later on that the promise will not be honoured.

Hanna v Body Corporate for Surfers Hawaiian was a classic case of exactly that.

Case Summary

Mr and Mrs Hanna (“the Applicants”) ended up in a dispute with the Body Corporate of a high rise building known as Surfers Hawaiian over their rights to exclusively use an area of common property within the complex. The Applicants, as Tenants to a lease, were running a restaurant within the building in a lot owned by Mr and Mrs Hearns – the Landlords. Shortly after the Applicants started their restaurant, they sought a license to entitle them to exclusive use of an outside area of common property alongside their lot.

After attending a meeting with the Body Corporate, the Applicants spoke with a lady they believed to be the manager and the treasurer who informed them that their license application was successful. They were granted exclusive use of the common property for an initial three year period with two further three-year options.

However, it was later found that a licence for exclusive use of common area for more than three years could only be granted if the motion was passed in the general meeting without dissent. This meant that every member at the Body Corporate meeting had to approve of the motion. In this situation, it was only passed by a sufficient majority to constitute what was known as a “special resolution.”

Soon after the concern arose and comments by an adjudicator were made, the Landlords and the Body Corporate entered into a second licensing agreement without the knowledge of the Applicants. This license was for a term of three years only and had slightly more specific terms, costs, and restrictions to the previous agreement.

Hence, in accordance with the second agreement, the Body Corporate alleged to retake possession of the licensed areas upon expiration of that license.

Questions of Law

Should options be included in calculating the term of a lease or license?

It was argued by an adjudicator that the license would need to be approved again after the initial three year term ends since the license would extend beyond a three year term and was not passed as a resolution without dissent. Other cases pointed to the fact that the options would be regarded as separate.

Imperatively, however, the Body Corporate and Community Management Act 1997 (Qld) provides that if a person honestly enters into an agreement with a member of the Body Corporate who has the apparent authority to bind the Body Corporate, the agreement is valid and binding.

This implies that the first license agreement was valid, as the Applicants consulted with the treasurer and manager – representatives of the Body Corporate who both appeared to hold great authority – to make the agreement binding.

In relation to the second license agreement, since the lot was leased by the Landlords to the Applicants, the dealings between the Landlords and the Body Corporate could not make a valid license agreement which took precedence over the first valid license agreement between the Applicants and the Body Corporate. This was because of the practical reality that when property is leased, rights over the property are transferred to the Tenant (without transferring legal ownership of the property).

Outcome

The Applicants’ request for an interlocutory injunction to prevent the Body Corporate from taking back the common area was permitted.

This was because, on the balance of convenience, there was no evidence that the Body Corporate would suffer any prejudice if the property was not returned to their possession right away, given that the Applicants had been using the licensed area for the past five years. It was also determined that damages would not be an adequate remedy since most evidence, on a practical level, pointed towards the Applicants being entitled to use the property.

Lessons Learned

Whether you’re a Landlord, Tenant, or a member of Body Corporate – this case is an important one to note. While arguments may be made about entitlements and legal rights on the basis of interest in the property, rights over the property, and those distinctions between common property and private property which are especially relevant to the function of Body Corporate – attention must never be shifted away from the facts and circumstances involved in any given day-to-day situation.

On a deeper legal level, if you are a Tenant, experience often tells that to know whether any statement or representation made by a Body Corporate representative has been run properly through their correct internal procedures is difficult from the outside looking in.

This case demonstrated the Court’s acknowledgement of the aforementioned difficulty and support of Tenants in these situations of detrimental information asymmetry by establishing that when the Tenant honestly and reasonably believes that they have entered into an agreement with Body Corporate, it may be valid even if the Body Corporate’s representations are not necessarily compliant with its own internal regulations.

While in an ideal world, business engagements would all follow internal regulations, terms of agreement, and relevant legislative provisions to a ‘T,’ experience tells us that reality does not always reflect the ideal.

In light of this, it is almost always a good idea to seek legal advice from your preferred law firm before entering into any major agreement to get a better picture of your legal position under the circumstances, and receive advice as to how to manage any risks of incurring legal liability before trouble comes.

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Restructure of the Family Law Court System

by Andrew Lind on 3 July, 19

There has been a lot of talk in the media lately about the problems with the family law court system, especially in relation to the delay experienced by parties.

There are currently two courts responsible for dealing with family law matters – the Family Court of Australia and the Federal Circuit Court of Australia.

The Attorney-General’s Department estimated that in 2016-17 almost 106,000 family law applications were made to the two Courts. Such a large volume of applications clearly necessitates an efficient system of dealing with matters.

On 30 May 2018 the Australian Government announced its proposal to restructure the family law court system. It is hoped that the restructure will:

  • maximise court resources
  • improve access to justice
  • increase efficiency
  • result in more consistent resolutions

The proposed restructure is currently on schedule to come into effect on in mid-2019 and includes the following proposed changes:

  1. The current Family Court of Australia and the Federal Circuit Court of Australia be amalgamated into the Federal Circuit and Family Court of Australia (FCFCA).

That there will be two divisions of the FCFCA:?

  1. Division 1 comprised of the existing judges of the Family Court of Australia and dealing only with family law matters; and
  2. Division 2 comprised of the existing judges of the Federal Circuit Court of Australia and dealing with both family law matters and general federal law matters.

That the two divisions of the FCFCA remain separate but there be a single point of entry.

  1. The Appeal Division of the Family Court of Australia not be retained. Appeals in family law matters would be heard by a new Family Law Appeal Division of the Federal Court of Australia.
  2. That there be a single set of rules and forms for both divisions of the FCFCA.

It is hoped that the structural reforms will allow up to an extra 8,000 cases to be resolved each year. It has been questioned how the structural reforms will achieve this in the absence of extra funding for the family law court system.

For more information, visit the Attorney-General’s Department’s webpage Structural Reform of the Federal Courts.

It seems like change is afoot in the family law jurisdiction.

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The paramount consideration for a Court in making parenting orders is the best interests of the child.

The best interests of the child are determined through consideration of a number of matters set out in section 60CC of the Family Law Act 1975 (Cth), including:

“Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.”

The High Court of Australia considered the views expressed by two children in the decision of Bondelmonte v Bondelmonte [2017] HCA 8.

The parties had three children: two sons and one daughter.

The two sons – aged 15 and 17 years – travelled with their father to New York for a holiday.

While in New York, the father decided that it would be in his best interests financially to remain there indefinitely. 

He told the mother that the two boys would remain with him. The mother filed an application that the two boys be returned to live with her in Australia.

Orders were made for the return of the two boys to Australia and the father appealed that decision to the High Court of Australia.

He argued that the primary judge did not give proper consideration to evidence that the boys expressed a desire to remain living with him in New York.

The primary judge considered the views expressed by the boys but noted a number of factors which were relevant to the weight to be attached to those views, including:

  • The conversations that the father had with the boys and the lifestyle he was offering them would have almost certainly influenced any views expressed by the boys.
  • The boys did not appear to have given any thought to other matters, including the effect of their separation from their mother and their sister.

In any event, the views expressed by the children were only one consideration to be taken into account in assessing what was in their best interests.

The High Court found that the approach of the primary judge provided no basis for concluding that he failed to consider the views expressed by the boys.

The appeal was dismissed and the children were returned to live with the mother in Australia.

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In April 2014, the Australian Government announced a review of the Personal Property Securities Act 2009 (Cth) (“the Act).  The interim report was delivered on 31 July 2014, focusing particularly on the impact of the Act on small businesses.

The overarching themes of the submissions made by small businesses were the unsatisfactory complexity of the Act and the Register itself, and the lack of awareness by many businesses of the implications of the Act.  The focus of the interim report is in recommending Government action to support increased understanding of the Act, more than amendments to the legislation.

Submissions for the review have been closed, however consultation papers are being released on the:

  • Reach of the Act (available online);
  • Creation and perfection of security interests; taking free rules; priority rules; and other dealings in collateral (available online);
  • Enforcement of security interests; Particular types of collateral; interaction with other legislation; miscellaneous provisions (released 17 October); and
  • The register (released 31 October).

All entities interested in the operation of the Act (including small businesses) are invited to give feedback and comments online. The final report is due on 30 January 2015, and will take into consideration any feedback given by the specified closing dates, and make recommendations for improving (and where appropriate, simplifying) the Act.

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