The Christmas school holiday period is one of the most joyful — and often one of the most stressful — times of the year for separated families. Emotions can run high, travel plans need to be coordinated, and both sides naturally want meaningful time with the children.

As family lawyers, we see many disputes arise at this time of year. With preparation, communication, and a clear understanding of your obligations, the holiday period can run smoothly for you and your children.

Below is a practical guide to help you prepare for Christmas parenting arrangements, understand common pitfalls, and plan ahead to avoid conflict.

Why Christmas Parenting Arrangements Are Different

Christmas is a “special occasion”, meaning it often requires a unique arrangement separate from regular or ordinary term-time care. This period is longer, involves festive events, travel, and extended family gatherings, and is often emotionally charged. It also falls in the longest school holiday period in the year.

For many families, Christmas arrangements differ from the usual routine and require careful planning to make sure the children enjoy their break, maintain relationships with both parents, and avoid being caught in the middle of conflict.

Common Issues That Arise Over the Christmas Holidays

1. Late Planning/A lack of any formal parenting arrangements or agreed arrangements

In certain cases, parties have the benefit of clearly structured parenting arrangements that are reflected in either a Parenting Plan or Parenting Orders. In these circumstances, navigating the care and time arrangements over the holiday period can be easier as the parties have a guide or Orders which assist the parties navigate any disputes and sets out what their obligations may be.

Equally, disputes, problems or confusion may arise for those who do not have the benefit of clearly and adequately structed arrangements; and the parents/carers will be relied upon by their children to facilitate child-focussed arrangements for them. In this circumstance, careful and early planning can be key.

One of the most common triggers for disputes is not arranging holiday care early enough. The Court becomes extremely busy from October onwards, and urgent applications to deal with any disputes may not be heard in time.

2. Misunderstanding Court Orders

Even if the parents/carers had Parenting Orders, those parents/carers sometimes assume the holiday period follows normal arrangements, only to discover too late that their orders have a separate holiday clause, or no clause at all.

3. Travel Disputes

Interstate or overseas travel often requires the other parent’s/carer’s consent. Problems arise when:

• details are not provided early,
• passports are withheld,
• the parties don’t agree to the proposed travel,
• or the giving of consent becomes a bargaining tool.

4. Changeovers & Distance

Changeovers during the festive period can be complicated by travel, family events, and changes to usual locations.

5. Communication Breakdowns

Tension during the holiday season can make communication challenging, but poor communication may inevitably create further conflict.

A Helpful Checklist for the Christmas School Holidays

Use this checklist to prepare well in advance:

✔ Review your Parenting Orders or Parenting Plan

• Check if there is a holiday clause (provisions that deal specifically with Christmas time and/or school holiday time)
• Confirm the dates, times, changeover locations, and any requirements about travel or notice.

✔ If you have no holiday arrangements — discuss them early

Aim to start discussions by September–October, to leave the parties with sufficient time to deal with any disputes that may arise.

If negotiations fail, you may need mediation and/or the guidance of family lawyers before applying to the Court.

✔ Confirm travel plans

Provide the other parent/carer with:

• flight details,
• accommodation information,
• contact numbers,
• travel itineraries,
• any other information/details your parenting plan/parenting orders may require.

If overseas travel is planned, check passport arrangements early.

✔ Plan changeover times and locations

Agree on:

• who is dropping off/picking up,
• a safe and public place if conflict is high,
• contingencies for traffic or delays.

✔ Share information about Christmas events

Children deserve to experience Christmas without tension. Sharing event times, family plans, or religious activities helps avoid overlap or conflict.

✔ Pack appropriately for the children

Ensure the children have:

• clothing for different households,
• gifts they want to bring,
• medications or comfort items,
• school holiday activities.

✔ Keep communication clear, respectful and child-focused

Use Apps like OurFamilyWizard, or parenting communication guidelines if communication is strained.

✔ Consider mediation early

If there is disagreement, you may consider booking mediation well before December. Many services close or become fully booked in late November.

Practical Tips for a Stress-Free Holiday Period

1. Keep the Children at the Centre

Ask: “How will this arrangement affect the kids?”

Children benefit most from low conflict and predictability.

2. Be Flexible (Where Safe)

Sometimes unexpected things happen — illness, family plans changing, or travel delays. Showing reasonable flexibility (where safe and appropriate to do so) can reduce unnecessary disputes and can create positive experiences for the children.

3. Avoid Last-Minute Surprises

Important information should be shared early and clearly. Last-minute changes often trigger conflict.

4. Do Not Use the Children as Messengers

Direct adult-to-adult communication reduces confusion and protects the children from emotional strain.

5. Make Christmas Special in Your Own Way

If Christmas Day is shared or alternated, remember that usually, the date is not as important as the experience. Many families celebrate “Christmas Day” on multiple days or in different households.

6. Seek Legal Advice Early

If you are unsure of your rights, responsibilities, or options, speaking with a family lawyer early prevents problems from escalating.

When Should You Apply to the Court for Holiday Orders?

If you cannot reach agreement and mediation has been attempted (or an exception applies), applications for Christmas arrangements should ideally be filed as early as possible — usually by October.

The Court traditionally sets cut-off dates for Christmas applications, and missing these deadlines may mean the Court cannot hear your matter before the holidays.

Pursuant to the Family Law Rules, interim time applications seeking parenting orders for the end-of-year school holiday period must be filed by 4pm on 14 November 2025.

Final Thoughts

Christmas should be a time of joy, rest, and connection for you and your children. With early planning, respectful communication, and a clear understanding of your arrangements, most holiday disputes can be avoided.

If you need assistance negotiating holiday care, drafting a parenting plan, or bringing an application to the Federal Circuit and Family Court of Australia, our family law team is here to help.

If your business is still running on “set-and-forget” contracts drafted a few years ago, 2025 is the year to fix that. Legislative changes have reshaped what you can (and can’t) put in your agreements, especially around unfair contract terms, data security and privacy, and employment-related obligations. Below is a practical checklist of what to update before 2026 to reduce legal risk and protect your bargaining position.

1. Unfair Contract Terms (UCT)

Under the Australian Consumer Law (ACL), it is unlawful for businesses to propose, use or rely on an unfair term in a standard form contract with consumers or small businesses. 

A contract will generally be considered “standard form” if one party has substantially greater bargaining power, the agreement was pre-prepared before discussions began, and the other party was effectively required to accept it on a “take it or leave it” basis with little or no real opportunity to negotiate. Courts also look at whether the terms are tailored to the transaction or simply reused across customers. Even where minor amendments are allowed, the contract can still be standard form if there is no genuine negotiation or individual consideration.

Recent reforms have also broadened the definition of a small business, meaning more contracts are now caught by the regime. A business qualifies if it employs fewer than 100 people or has an annual turnover under $10 million. Under the Australian Securities and Investments Commission Act 2001 (Cth), the regime only applies where the upfront contract price does not exceed $5 million. Under the ACL, that monetary limit has been removed altogether.

While the legal test for what constitutes an “unfair term” remains the same, the consequences have changed dramatically. Each unfair term now amounts to a separate contravention, attracting significant penalties of up to $2.5 million for individuals, and for corporations, the greater of:

• $50 million;
• three times the value of any benefit obtained; or
• 30% of the corporation’s adjusted turnover during the breach period.

Practical Tips:

• Review all standard form contracts and identify, amend or remove potentially unfair terms. Common red flags include:

• one-sided termination, suspension or variation rights;
• automatic renewals with hidden notice periods;
• broad indemnities and liability caps protecting only one party; 
• unilateral price, product or service changes without exit rights; and
• set-and-forget rollover clauses limiting the other party’s remedies. 

• Balance clauses that allocate risk (indemnities, caps, service credits) and document the commercial rationale where asymmetry remains. 
• Use clear language and avoid broad or ambiguous drafting unless objectively necessary to protect your legitimate business interests.
• Be transparent: highlight key terms and ensure they are brought to the other party’s attention before signing.

2. Data Security & Privacy Clauses

The Privacy Act 1988 (Cth) (Privacy Act) has undergone important reforms following the Privacy and Other Legislation Amendment Act 2024 (Cth). These changes strengthen the accountability and enforcement framework for organisations handling personal information and expand the powers of the Office of the Australian Information Commissioner (OAIC). For businesses, this means that privacy compliance and the way it is reflected in contracts is now a critical legal and commercial priority.

Under the current law, penalties for serious or repeated interferences with privacy by corporations can reach the greater of: 

• $50 million; 
• three times the value of any benefit obtained; or 
• 30% of the organisation’s adjusted turnover. 

Individuals can be fined up to $2.5 million. The reforms also give the OAIC broader powers to investigate, issue infringement notices, and seek civil penalties for a wider range of contraventions.

At the same time, the Notifiable Data Breach (NDB) scheme continues to impose mandatory obligations where a breach is likely to result in serious harm. Businesses must assess suspected breaches within 30 days and if the breach meets the “eligible data breach” threshold, they must notify both the OAIC and affected individuals.

The 2024 reforms are just the first stage of a broader multi-year reform process. Businesses should therefore ensure that their contracts are compliant now and adaptable as further obligations take effect.

Key Risks

Vague or outdated privacy clauses can expose a business to serious risk. Agreements that fail to define security standards, incident-response timelines or accountability between parties may no longer meet the strengthened compliance expectations under the amended Privacy Act.

Practical Tips:

• When drafting or updating contracts, particularly with technology providers, suppliers and third-party service providers that handle personal information, include clauses that:

• Reference recognised security standards and include obligations to maintain, monitor and evidence compliance level. For high-risk processing, include explicit audit rights, remediation timelines, and cooperation obligations.
• Require notification of any suspected or actual data breach within a specified timeframe (e.g., 24–48 hours) of becoming aware of it, and mandate full cooperation to supply any information necessary for you to meet NDB obligations.
• Place limitations around data collection and retention and require the secure destruction or return of data at the end of the contract.
• Require prior written consent before any subcontractor is engaged and ensure equivalent privacy and security obligations ‘flow down’.
• Obtain warranties confirming where data will be stored or processed and what safeguards (contractual, technical or organisational) are in place to protect it.

• Map your data flows to understand what information you collect, how it moves through your systems, and which third parties process it.
• Avoid vague terms such as references to “industry standard” or “reasonable” security measures. Instead, use specific, measurable standards.

3. Employment-Related Terms in Commercial and Employment Contracts

The ‘Closing Loopholes’ reforms have introduced major changes under the Fair Work Act 2009 (Cth) that affect not only employment contracts but also the way businesses structure their client and supplier agreements. These reforms aim to improve work-life balance, strengthen employee protections, and ensure fair pay practices, all of which have direct contractual implications for employers.

Key Reforms

• Right to Disconnect: Eligible employees have the right to refuse unreasonable contact outside their ordinary working hours. Disputes can be escalated to the Fair Work Commission (FWC) if they cannot be resolved internally. 

• Criminalisation of Wage Theft: Intentional underpayment of wages or entitlements can now be a criminal offence. 

• Fixed-Term Employment Limits: Most fixed-term employment contracts have been restricted to a maximum duration of two years (including extensions) and no more than two consecutive contracts. 

Practical Tips:

Employment Contracts:

• Review employment contracts, position descriptions, and workplace policies to clarify expectations around after-hours contact and on-call duties. Service Level Agreements (SLAs) may also need adjusting to ensure staff are not contractually required to be available 24/7.
• Define reasonable availability expectations in line with the “Right to Disconnect”.
• Align probation, renewal, and conversion provisions with the latest fixed-term and casual employment rules.
• Consider adding clauses allowing for policy updates as new Fair Work reforms take effect.

Commercial Contracts (Clients and Suppliers)

• Avoid contractual obligations that assume continuous staff availability unless employment contracts expressly provide for it (and appropriate pay arrangements exist).
• Review service levels, response times, and escalation procedures to ensure they do not create obligations inconsistent with the “Right to Disconnect” or other workplace laws.

General

• Update labour-hire, subcontractor, and service agreements to include Fair Work compliance obligations and cooperation clauses if an investigation arises.
• Provide training to managers and supervisors to ensure they understand the practical implications of the “Right to Disconnect” and wage theft provisions.

Final Comments

The legislative landscape for Australian businesses is shifting rapidly, and contracts that were once “fit for purpose” may now expose you to unnecessary risk. Compliance is no longer just about ticking a box, it is about embedding fairness, transparency, and accountability into your commercial relationships. 

Reviewing your agreements before 2026 is not only prudent but essential to avoid penalties, protect your reputation, and maintain strong, compliant business partnerships. 

At Stone Group Lawyers, our experienced commercial team can guide you through this process with clarity and confidence, ensuring your agreements align with both your strategic goals and current legal requirements. To get started, contact one of our commercial lawyers today on (07) 5635 0180.

Introduction

As cryptocurrency becomes a more common vehicle for storing and transferring wealth, Australian regulators and courts have increasingly had to grapple with how traditional asset-preservation mechanisms, such as freezing orders, apply to digital assets.

Recent decisions of the Federal Court have provided insight into how ASIC and court-appointed receivers can locate, preserve, and realise cryptocurrency in the context of enforcement and investor-protection proceedings.

ASIC’s Approach to Freezing Orders Over Digital Assets

When ASIC obtains freezing orders, they typically extend to any assets, wherever located, whether tangible or intangible, including digital assets and cryptocurrency wallets. Once such an order is made, the respondent is immediately prohibited from dealing with, transferring, or otherwise disposing of those assets without leave of the Court or the receivers’ consent.

It is becoming increasingly common that  ASIC’s investigators are  tracing crypto transactions through both domestic and offshore platforms (including popular platforms like Revolut and Binance) to identify holdings in coins. The orders empower ASIC and the receivers to require those exchanges to provide records, enabling identification and control of the frozen wallets

How Receivers Recover and Manage Cryptocurrency

Under the terms of the Court’s directions, receivers are commonly authorised to act on behalf of the defendants to secure and, if necessary, liquidate digital assets. The orders authorise the receivers to:

1. Instruct the cryptocurrency exchange to transfer the digital assets from the respondent’s personal wallet to an account under the receivers’ control;
2. Exercise their power of sale in respect of that cryptocurrency; and
3. Deposit the proceeds of sale into a designated receivership account for distribution in accordance with the Court’s supervision.

The exchange itself is generally ordered to act on the receivers’ written instruction within a specified period (usually 60 days), ensuring there is an enforceable mechanism to compel compliance even where private keys or credentials are not voluntarily provided.

Implications for Crypto Holders and Advisors

For individuals holding cryptocurrency, the key takeaway is that digital assets are not beyond the reach of Australian freezing orders. ASIC, through its statutory powers under the Australian Securities and Investments Commission Act 2001 (Cth), can compel production of account records and direct receivers to secure the assets.

Any person or entity holding cryptocurrency should be aware that:

1. Even offshore accounts or exchanges are subject to disclosure and potential restraint if linked to Australian proceedings;
2. Failing to disclose crypto holdings in response to freezing orders may expose individuals to findings of contempt; and
3. Once a receiver is appointed, any dealing with cryptocurrency (including conversion or withdrawal) without their consent may breach both the court orders and the equitable duties arising from the receivership.

Conclusion

The Court’s evolving jurisprudence makes clear that cryptocurrency enjoys no immunity from regulatory oversight. ASIC and receivers are now equipped with both procedural tools and judicial endorsement to trace, secure, and liquidate digital assets just as they would with traditional property.

For individuals and entities holding funds in crypto wallets, transparency and compliance are essential. Legal practitioners should ensure clients understand the breadth of freezing orders and the real-world consequences of non-disclosure in an increasingly digital financial landscape.

Russell Hall 

Associate 

In a significant decision of the Supreme Court of Queensland, Storey v Britton [2025] QSC 151, Freeburn J reaffirmed the importance of clarity, consistency and legal advice when navigating breach, termination and performance of contracts, particularly in residential property transactions.

This case provides a practical exploration of complex contractual doctrines, including repudiation, rescission, election, and the equitable remedy of specific performance. It also stands as a cautionary tale about the consequences of mismanaging contractual obligations and communications.

The Background

The plaintiffs, Mr and Ms Storey, entered into a contract to purchase a Sunshine Coast property from the defendants, Mr and Ms Britton, for $3.264 million. The contract, structured in three staged deposit payments, also included a side deed granting the Storeys “exclusive access” to the property from the time of the first deposit payment.

The first installment of $125,000 was due by 2 February 2024. The Storeys paid $90,000 on 1 February and the balance of $35,000 two days late, on 4 February. Notwithstanding the brief delay, communications between the parties (including texts from Ms Britton acknowledging receipt and expressing no concern) indicated the parties were proceeding with the contract.

Nevertheless, on 12 February 2024, the Brittons purported to terminate the contract for breach of an essential term. The Storeys resisted, asserting the Brittons had elected to affirm the contract through their conduct. The Court ultimately agreed.

Key Legal Issues

1. Repudiation and Election

Repudiation arises where one party evinces an intention not to be bound by the contract. However, the innocent party must then elect either to terminate or affirm the contract. The critical principle is that termination and affirmation are mutually exclusive — once a party affirms a contract, the right to terminate for that breach is lost.

Here, the Court found the Brittons had, through their words and conduct after the late payment, clearly elected to affirm the contract. Phrases such as “no problem at all” [at 11] and ongoing cooperation regarding keys and access were deemed inconsistent with termination.

2. Rescission and Revival

The Court also rejected the Brittons’ argument that a purported termination on 12 February 2024 brought the contract to an end. Even if it had, the Court held that a party may revive a terminated contract by express agreement or conduct. A 1 March 2024 letter from the Brittons’ solicitors affirming the contract was admissible and effective in reviving any agreement that may have been previously ended.

3. Readiness, Willingness and Ability

For a party to obtain specific performance, they must demonstrate that they were ready, willing and able to complete the contract. The Storeys did so. The Court accepted the evidence of their conveyancer, including that funds were available and settlement was only thwarted by the Brittons’ refusal to cooperate.

4. Specific Performance as a Remedy

Specific performance was granted, a powerful reminder that in real estate transactions, courts are prepared to enforce agreements where monetary damages would be insufficient, particularly where the property is unique and the breach was not fatal.

Why Legal Advice Matters

This case illustrates just how perilous it can be to act on instinct rather than legal advice in contractual disputes. The Brittons were not legally represented for much of the matter. They attempted to assert rights of termination without appreciating that their earlier conduct amounted to affirmation. They failed to heed the implications of their side deed granting exclusive access and misunderstood their obligations at settlement.

Likewise, issues such as mischaracterising access rights as trespass, confusing contractual clauses, and inconsistencies in evidence further undermined their position.

A properly advised party would likely have taken a very different course, including issuing notices in the appropriate form and timeframe, avoiding affirming conduct, and responding coherently to correspondence.

How We Can Help

We regularly assist clients facing disputes about contract performance, termination and enforcement. Whether acting for buyers, sellers or business parties in high-value transactions, we provide clear strategic advice on:

• Whether a breach constitutes a repudiation;
• Whether to terminate or affirm the contract;
• The consequences of making an election;
• The viability of obtaining specific performance; and
• Managing communications and evidence in ongoing disputes.

I have personally advised on and acted in several disputes involving similar questions of contractual breach, interpretation of special conditions, and remedies for non-performance, including in Supreme Court proceedings. These disputes demand not only a technical understanding of the law, but also strategic judgment and strong advocacy.

Conclusion

Storey v Britton is a timely reminder that how a party responds to a contractual breach can determine the outcome of the entire dispute. Electing to affirm or terminate is not simply a matter of preference, it is a legally binding choice with real consequences.

If you are facing a dispute involving contractual breach, delay, or disagreement about access or settlement, we encourage you to seek legal advice early. The right decision at the right time can preserve your rights, and your deal.

Russell Hall

Associate

As the 2024–25 financial year draws to a close, state and territory nomination programs are reaching their allocation limits, and many have already closed their doors to further nominations. For migrants pursuing the subclass 491 and 190 visas, understanding these changes is crucial for strategic planning.

Current Status of State and Territory Nomination Programs

As of 5 June 2025, the status of state and territory nomination programs for the Skilled Nominated (subclass 190) and Skilled Work Regional (Provisional) (subclass 491) visas is as follows:

Understanding Early Closures

State and territory nomination programs operate within allocated quotas set by the federal government. Once these allocations are filled, programs close to new applications to manage processing times and ensure quality assessments. High demand in certain occupations and regions can lead to faster exhaustion of quotas, resulting in early closures.

Looking Ahead: What to Expect in 2025–26

The upcoming 2025–26 program year will have new allocations, and each state and territory will need to plan around the allocations to make best use. While specific allocations for each state and territory are yet to be announced, programs will reopen progressively from July 2025, with some states potentially delaying until as late as September. States and territories may release new occupation lists to meet their demands and priorities based on the allocations they are given. Their specific criteria may also be adjusted to attract candidates more likely to contribute to the workforce in the priority industry, such as requiring a job offer for the next 12 months.

Key trends to watch include:

• Regional Focus: Continued emphasis on regional migration to address skill shortages.
• Sector Prioritisation: Occupations in construction, education, healthcare, and technology may receive increased attention.
• Program Adjustments: States may revise their nomination criteria to align with local economic needs.

Visa Expiry: Immediate Steps to Consider

If your visa is approaching its expiry and you are waiting on a state or territory nomination, it is important to consider backup options. Our top tip to clients pursuing General Skilled Migration is to always have a Plan B, as invitations are never guaranteed. Being prepared with an alternative pathway can help avoid unnecessary visa complications and ensure you remain lawfully in Australia. We recommend considering the following:

• Alternative Visas: Consider other temporary visa options, such as Training and Skills in Demand visas, to lawfully extend your stay. If you’re exploring employer-sponsored options, have these conversations with your employer as early as possible. Preparing a sponsorship application can take time, and requirements such as Labour Market Testing can cause delays or limit eligibility. Avoid leaving it to the last minute, as timing can be critical.
• Consider Offshore Options: If you are in Australia and facing limited onshore visa options, and your visa expiry is fast approaching, it may be worth preparing for the possibility of continuing your migration journey from overseas. This could include building international work experience, securing employment in your nominated occupation overseas, or strengthening your qualifications. Offshore applicants are still eligible for state and territory nomination, subject to meeting the state or territory’s specific criteria. By positioning yourself strategically, you may still have a chance of receiving an invitation, even if it means stepping away temporarily.
• Seek Professional Advice: Consult with an experienced migration lawyer to assess your options and ensure compliance with immigration laws. Each state and territory has different criteria, occupation lists and priorities. We can help you navigate the options and identify the most suitable pathway.

Preparing for the New Program Year

To position yourself advantageously for the 2025–26 program year:

• Documentation: Ensure all necessary documents, including skills assessments and English language tests, are up to date. Keep note of the expiry date for your documents – you don’t want to be in a position where you receive an invitation after your documents have expired!
• Stay Informed: Regularly check official state and territory migration websites for updates on program reopenings and criteria changes. Some state and territories may not consider EOIs submitted in the previous program year.
• Strategic Planning: Align your skills and experience with the priorities of your desired state or territory to enhance your nomination prospects.

How Stone Group Lawyers Can Help

At Stone Group Lawyers, we take a considered and client-focused approach to General Skilled Migration (GSM). Our role is to help you understand the process, assess your suitability, and make informed decisions before committing to the pathway.

We begin with a tailored consultation where we assess your anticipated points score, evaluate your eligibility for each state and territory’s nomination program, and identify where you are most competitive. Each jurisdiction has its own occupation list, priorities and criteria, and these often shift throughout the program year. We stay across these changes so you don’t have to.

We also provide advice on alternative visa options if an invitation does not eventuate, ensuring you’re not left without a plan.

Too often, applicants underestimate the importance of the initial steps, such as maximising the value of the skills assessment or understanding when points can lawfully be claimed in an Expression of Interest. Errors at this stage can lead to refusals or even jeopardise future applications. We are here to make sure you’re set up for success from the outset.

Final Thoughts

While the closure of nomination programs can be disheartening, it’s a temporary phase in the migration cycle. Proactive preparation and staying informed are key to navigating these transitions successfully. Engage with migration professionals, monitor official state and territory websites, and be ready to act when opportunities arise in the new program year.

Summary

On December 11^th, 2024, the High Court of Australia established a significant precedent allowing damages for psychiatric injury to be awarded in cases involving a breach of an employment contract. This development broadens the scope of recoverable damages, recognising psychiatric injury as a distinct category.

Mr. Elisha first took his case to the Supreme Court of Victoria, where he argued Vision Australia, his employer, failed to adhere to the disciplinary procedure incorporated into his employment contract, which constituted a breach of contract. Elisha was awarded $1,442,404.50 in damages for psychiatric injuries caused by the breach. Vision Australia appealed to the Court of Appeal of the Supreme Court of Victoria, which overturned the ruling. Mr. Elisha appealed that decision to the High Court of Australia that the Court of Appeal erred in law by ruling he was not entitled to recover damages.

Mr. Elisha’s employment was terminated in May 2015 following an incident in a hotel where Elisha was alleged to have acted aggressively towards the hotel manager, the circumstances of which were later disputed. Vision Australia was informed of the allegations and gave a letter to Elisha stating he was to stand down and attend a disciplinary meeting to respond to the allegations of misconduct. The letter contained the allegations from the hotel incident but omitted references to other unsubstantiated claims of a pattern of aggressive behaviour. As the omitted allegations were not disclosed, Elisha was deprived of the opportunity to respond. Consequently, Vision Australia failed to adhere to the process outlined in the 2015 Disciplinary Procedures policy, which led to the wrongful termination of Elisha and the breach of contractual protections.

Psychiatric Injury as a Recoverable Damage

In the aftermath of his wrongful termination, Mr. Elisha developed a major depressive disorder, rendering him incapable of working in the foreseeable future. As noted by the primary judge in the Supreme Court, “the psychiatric injury likely built as time passed as he continued to ruminate over what occurred”. 

Under common law, mental distress is generally not recoverable as damages for a breach of contract, even if mental distress is likely to occur from the breach. Mental distress is only awarded when the main purpose of the contract is to “provide enjoyment, relaxation or free from molestation”.

However, the High Court of Australia distinguished between psychiatric injury and mere mental distress as different types of damage. The Court clarified that psychiatric injury refers to a medical diagnosable condition and is part of a class of physical or personal injury. This is supported by Rix LJ in Essa v Laing Ltd noting that mental distress or injury to feelings “is a common-day experience and is something distinct from illness”.

The dissenting judge, Steward J, noted the term “psychiatric injury” may be too broad, in the same way “physical injury” would be too broad. Steward J suggested common law needs to distinguish between serious psychiatric injuries, such as acute schizophrenia, and mild forms of depression when awarding damages for psychiatric injuries.

The High Court’s Decision

The first issue considered was whether Vision Australia could be held liable for psychiatric injury. The Court considered what liability the parties reasonably contemplated and were “willing to accept” when the contract was formed. 

Vision Australia relied on the law made in Addis v Gramophone Company Ltd (1909), stating damages could not be awarded for how a dismissal process occurred, even if the procedures were flawed. The High Court overturned the long-standing ratio decidendi of Addis v Gramophone Company Ltd (1909) for three reasons. First, the case did not state that damages can never be recovered for psychiatric injury. Second, the social context in 1909 is significantly different from what it is today, revealing the necessity for a revaluation of the principles. Third, the Court in Baltic Shipping Co v Dillon recognized psychiatric injury was part of a class of physical or personal injury, which has recoverable damages. There was also no suggestion that any category of contracts was excluded for recovering damages for physical or personal injury. Following that reasoning, the High Court found that Vision Australia was liable for the psychiatric injury caused by their breach of Elisha’s employment contract.

The second issue considered whether Vision Australia’s argument, that the damage was too remote from the breach, was correct. Remoteness concerns whether the parties reasonably contemplated the damage and manner of its occurrence as a “serious possibility”, at the time of the contract. The precise psychiatric injury suffered did not need to be considered, only the general manner of its occurrence as a serious possibility.

The Court found when Vision Australia entered the 2006 employment contract, it was within their reasonable contemplation that failure to follow the dismissal procedure, resulting in a wrongful termination, would lead to a serious possibility Mr. Elisha would suffer a psychiatric injury. As such, the psychiatric injury was not too remote from the breach and damages were reinstated.

What does this mean for employment law?

This new precedent now allows damages to be awarded for breaches of employment contracts resulting in psychiatric injuries. However, it is unlikely damages will be awarded for minor psychiatric injuries, which would likely fall under mental distress which has no recoverable damages. As Steward J noted, there will need to be a distinction drawn between “psychiatric injury” and “serious psychiatric injury”.

This marks a significant step towards the social destigmatisation of psychological injury, acknowledging that work can be a source of identity, self-esteem, and livelihood for people. The case highlights that dismissals for some people can have a high emotional and psychological effect, especially when the procedure is not followed and handled unfairly.

Employers must follow the disciplinary procedures laid out in their company policies, as failure to adhere will now lead to paying the price. 

To speak with one of our employment lawyers, today, call us on 1300 088 440

Contract negotiations are a critical aspect of doing business, but they can be tricky and lead to contract disputes and financial losses if not handled carefully. Whether you’re a small start-up or an established corporation, understanding the common pitfalls that can arise during the negotiation process is crucial to avoid costly disputes and safeguard your interests. 

We discuss below some of the key pitfalls Australian businesses should watch out for when negotiating contracts. 

1. Lack of Clear Objectives and Priorities

One of the biggest mistakes in contract negotiations is entering discussions without clear objectives and priorities. 

It is crucial to have a solid understanding of what you want to achieve from the contract. Are you focused on cost, quality, or deadlines? Are there preconditions that need to be met for the transaction to occur? Are there specific obligations to be placed on either party? Defining your goals upfront will help you stay on track during negotiations and ensure that your priorities are addressed. 

When parties are not on the same page about what they aim to achieve, negotiations can be scattered, leading to misunderstandings, or, worse, agreeing to terms that do not align with your business needs.

Tip: Before entering negotiations, make a list of your key objectives and share these with your legal team or advisors to ensure everyone is aligned.

2. Ambiguous Contract Terms

Ambiguity in contract terms is a common issue that can lead to significant disputes regarding the interpretation and enforcement of contracts. Ambiguity arises when a term can be reasonably interpreted in more than one way. This is often a result of vague language, inconsistent terms or conflicting clauses within the contract, or failing to specify details. 

For example, a contract might specify delivery to “the warehouse”, but if the company has multiple warehouses, then the term becomes ambiguous. 

It is essential to ensure that the language in your contract is clear and unambiguous. Vague terms about payment schedules, performance standards, or deadlines can be interpreted differently by each party, resulting in conflicts that could have been avoided with clearer drafting.

Tips:

• Clear Drafting: Use precise language and ensure all key terms are clearly defined.
• Consistency: Make sure that all terms are consistent throughout the contract.
• Detailed Descriptions: Provide detailed descriptions of timelines, conditions, and each party’s obligations.
• Review and Revise: Review and revise the contract to ensure clarity and address any ambiguities before signing.

3. Overlooking Regulatory Compliance

Regulatory compliance involves adhering to laws, regulations, and industry standards relevant to your business operations. Overlooking regulatory compliance in contract negotiations may result in contracts being unenforceable and can expose businesses to penalties or even litigation. 

Parties must ensure that their agreements adhere to applicable laws and industry-specific regulations to avoid enforceability issues and potential penalties. This is particularly important in highly regulated industries such as employment, building and construction, real estate, finance, and healthcare.

For instance, a contract that involves hiring employees or contractors must comply with employment laws, including those relating to wages, working hours, and workplace safety.

To list a few key regulatory aspects that businesses should consider when negotiating contracts:

• Competition and Consumer Act: Businesses need to ensure that their contracts comply with the Competition and Consumer Act 2010 (Cth), which promotes fair trading and competition. This includes avoiding terms that would restrict competition. For instance, clauses that enforce exclusivity without a legitimate business reason could be challenged under this Act.

• Australian Consumer Law: The Australian Consumer Law(ACL) set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) applies to all businesses operating in Australia and provides protections for consumers against unfair practices. When negotiating contracts, businesses must ensure that their terms do not violate statutory consumer guarantees or other consumer rights, such as the inclusion of unfair terms or misleading representations.

• Property Law: Australian contracts dealing with real estate or leasing must comply with relevant property laws, such as the Property Law Act 1974 (Qld) in Queensland. Failing to ensure compliance with these laws can lead to disputes over ownership, property rights, or lease terms.

Tip: Always consult a legal professional familiar with the specific regulatory environment your business operates in to ensure compliance with all applicable laws and regulations during contract negotiations.

4. Ignoring the Impact of Unfair Contract Terms

The Australian Consumer Law (ACL) protects consumers and small businesses from unfair contract terms in standard form contracts. A term in a contract will be considered unfair if it:

• creates an unjustified and significant imbalance in the parties’ rights and obligations; 
• is not reasonably necessary to protect the legitimate interests of the party who benefits from the term; and
• would cause detriment to the other party if enforced.

For example, if a contract allows one party to unilaterally change the terms of the contract, terminate the contract, or limit their responsibilities under the contract, this could be considered an unfair term under the ACL.

If a term is found to be unfair, it will be void, meaning that it will no longer apply to the parties to the contract. If the rest of the contract can continue without that term, then the rest of the contract will continue to apply to the parties.

Businesses must be vigilant in identifying and avoiding the inclusion of unfair terms to prevent disputes and potential legal challenges. 

5. Failing to Document Negotiations

Another common pitfall is failing to properly document negotiations. Proper documentation is crucial because it provides a clear and objective record of the terms discussed, agreed upon, and any changes made during negotiations. This can include emails exchanged during negotiations and notes from meetings and phone calls.

When negotiations are not adequately documented, key points or agreed terms can be forgotten, misunderstood, or misrepresented. For example, one party might believe that certain terms were agreed upon verbally, while the other party may not have the same understanding. There is also a higher risk that one party will try to renegotiate terms later, claiming that there was no agreement on a particular point or that something was left out.

In the event of a dispute, properly documented negotiations can provide crucial evidence. If there is no documentation however, it can be challenging to prove what was originally intended or agreed upon between the parties.

By ensuring that all negotiations are properly documented, parties can avoid many of the common pitfalls that lead to disputes and ensure a smoother, more transparent contract negotiation process.

Tip: If discussions take place in person or over the phone, always follow up with an email summarising the agreed points. This creates a paper trail that can help avoid disputes over what was or wasn’t agreed upon.

6. Inadequate Dispute Resolution Mechanisms

No one enters a contract expecting a dispute, but disagreements can happen. Contracts with inadequate dispute resolution clauses leave parties without clear direction on how disputes will be handled. This can lead to confusion, delays, and disagreements on how to proceed when a conflict arises. 

Without an appropriate mechanism for resolving disputes, businesses may find themselves involved in lengthy and costly litigation, which can be expensive, time-consuming, and unpredictable.

Common alternatives to litigation include mediation and arbitration, both of which are less formal and generally faster than court proceedings. Including either or both these options in the contract can provide a clear and structured process for resolving issues, potentially saving both parties significant costs. 

Parties should consider whether mediation (usually non-binding) or arbitration (binding) is better suited to the nature of the agreement. A well-drafted dispute resolution clause should:

• clearly outline the steps, such as negotiation, mediation, or arbitration, that will be followed before escalating to litigation;
• include deadlines for each stage of the process to ensure disputes are resolved in a timely manner; and
• specify the legal framework and location under which disputes will be handled (especially important for international agreements).

Conclusion

Contract negotiations can be complex, but by being aware of these common pitfalls, Australian businesses can better protect their interests. Always ensure your contracts are clear, comply with relevant laws, and include appropriate dispute resolution mechanisms. When in doubt, seeking professional legal advice is the best way to avoid costly mistakes.

At Stone Group Lawyers, we are here to assist you with all your contract negotiation needs. Our experienced team can guide you through the process, ensuring your contracts align with your business objectives and comply with applicable laws and regulations. Give one of our commercial lawyers a call today on (07) 5635 0180.

If you are or have been in a significant relationship or marriage, separation is a challenging time. This process can be easier to navigate with the support of a family lawyer and specialist legal advice. Our family lawyers are here to assist you in either considering separation or a separation matter, to answer your questions, provide you w aware of your options and make informed decisions.

Pre-Separation or Early Separation Advice Can Be Advantageous

Seeking pre-separation advice from a family lawyer allows you to understand what steps you may need to take and how the process works. This can help you feel prepared and less overwhelmed.

Even if your separation is amicable, getting early advice is crucial to ensure the process goes smoothly and your interests are protected.

If You Are Married, You May Need to Wait to Apply for a Divorce

In Australia, if you have been married for two or more years, a divorce application can only be made after one year and one day has passed since the date of separation.

In the meantime, you can take the following steps:

• Making parenting arrangements for the children;
• Beginning the process of financial separation and property settlements; and
• Organising spousal maintenance or child support payments.

Court is not the only option

Not all separations require going to court. If both parties are committed to resolving issues amicably, there are alternative options such as a collaborative approach or mediation. These methods can often resolve disputes related to parenting arrangements or property division without the stress and expense of court proceedings.

Finalising Property and Parenting Arrangements

Finalising legal arrangements related to property division and parenting arrangements is essential to moving forward after separation.

Under the Family Law Act 1975 (Cth), you can formalise this arrangement in two ways:

• A Parenting Plan: A jointly agreed arrangement that is not legally enforceable but can serve as evidence if needed later in court proceedings.
• A Consent Order: A legally binding agreement formalised by the court, where breaches can lead to serious consequences.

Taking care of these agreements early can help provide clarity and stability moving forward.

Has There Been Domestic Violence and do you require a Protection Order?

If your ex has been physically or emotionally abusive and you are concerned about yours or your children’s safety during the separation, you should report this to the police as a priority and may need to apply for a Protection Order.

A Protection Order can legally limit contact between you and your former partner, offering a layer of security and mental relief.

It is not always possible to maintain no contact during separation, especially in cases involving children. What is common in these situations is for at least one party to find communication difficult post separation, feeling that the other’s words are meant to be hurtful and are made maliciously.

Here are five practical tips that our Gold Coast family lawyers  have to make post-separation communication smoother and less stressful:

Ensure All Communication is ‘On the Record’

If communication with your former partner tends to escalate into conflict, we recommend avoiding telephone or face-to-face contact as best you can, as these can be unpredictable and off-the-record. These conversations can lead to finding yourself in situations which may become heated or challenging and may harm your relationship with the other parent or your case.

It is best to receive all communication through text and email to ensure a paper trail of the communication, which may be later referred to in your case. Writing letters, emails and text messages minimises the risk of ‘he-said-she-said’ in your family law matter and ensures a clear record of all communication to present to the court as evidence if needed.

Find a ‘Rationaliser for Communication’

Whether this is a family member or a close friend, it is helpful to have someone to reach out to when an inflammatory message comes in. This ‘rationaliser’ can provide perspective to prevent an emotional reaction and may even suggest when it is necessary to delay responding or seek legal advice prior to responding.

Keep Communication Away from Children

It is essential to protect your children from conflict, hearing conversations about sensitive matters or being used as messengers. If toxic communication continually occurs around the children, work with a family lawyer to request that such behaviour be addressed and stopped.

Create a Communication Barrier, If Necessary

Creating a barrier between you and your former partner in circumstances where toxic communication cannot be managed, by having your family lawyer manage communications on your behalf, can be extremely beneficial for your mental health and general wellbeing. This gives you time and space and removes the stress that is associated with the anticipation of calls and texts which may appear at any time.

You can direct your former partner to forward all communications to your lawyer. Then, your family lawyer can control the flow of information and communication to you. They will notify you of any urgent matters and generally keep you informed as your matter moves forward, allowing you to make decisions with a clearer mind.

Consider Applying for a Temporary Protection Order (TPO)

If toxic communication escalates into harassment, threats or harmful behaviour and other methods have failed, it may be necessary to apply for a Temporary Protection Order (‘TPO’). A TPO can legally limit contact between you and your former partner, offering a layer of security and mental relief. In extreme circumstances of abusive or unmanageable communication, this may be the best option for the safety and peace of mind of you and your children.

Co-parenting involves both parents actively participating in the child’s life, working together to raise the child in changed living conditions. Whether it’s schooling, discipline, medical needs or living conditions, the focus should always be on the best interests of the child. What is in a child’s best interests will differ from family to family, particularly in cases of younger children versus older children, but successful co-parenting is achievable with the right approach.

Here are ten tips from a family lawyer to help navigate the complexities of co-parenting:

Make a Co-Parenting Plan

If you and your ex-partner have successfully agreed on parenting arrangements, you can formalise this arrangement, ensuring both parents understand the agreement can help to avoid disputes in the future. The agreement should address decision-making for major decisions about the children, contact and visitation (including holidays and special occasions), medical needs and travels.

Under the Family Law Act 1975 (Cth), you can formalise parenting arrangements in two ways:

• A Parenting Plan: A jointly agreed arrangement that is not legally enforceable but can serve as evidence if needed later in court proceedings.
• A Consent Order: A legally binding agreement formalised by the court, where contravention can lead to serious consequences.

If you cannot agree, consider working with a mediator or, if mediation is unsuccessful (or there are urgency or safety concerns), applying to the court for parenting orders. Going through court can be costly and stressful, so it is ideal to settle disputes without litigation if possible.

Think of the Future

In every co-parenting scenario, there are bound to be moments where it is challenging, and you may want to shout or say hurtful things to your co-parent. In these situations, it is important to take a breath and think about your child’s future. Imagine moments like your child’s graduation, or wedding day, or the birth of your first grandchild. Consider the impact unreasonable behaviour in this moment may have on preventing you from standing beside each other on those special occasions. If those are moments you want to be happy and have special memories, take a breath, remain calm and diffuse the situation as much as possible.

Treat your Co-Parent like a Business Partner

Your ‘business’ is taking care of your children, so approach communication as you would in a professional relationship. Be cordial and respectful and stick to the facts and what directly impacts the children. Whatever you write or say should be specific, clear and brief to avoid misinterpretation. Avoid emotional outbursts, name calling or any gestures which may escalate tension. 

Speak Positively of Your Co-Parent in Front of the Children

You should encourage your children to grow up with feelings of respect and admiration for both parents, as this is beneficial to their well-being and general stability. Even if your co-parent does not show the same courtesy in speaking positively of you, try to take the high road and explain to your children that people say things that they don’t necessarily mean when they are upset. Negative comments can be damaging to your child’s emotional well-being. Communicate directly with your co-parent instead of relaying messages through your children. 

Avoid Social Media Grievances

Grievances aired on social media can have lasting consequences. Something you write in haste or after a few wines may seem harmless at the time but may haunt you for years to come, damaging your relationship with your co-parent, children or being used against you in court proceedings. No good can come from emotionally charged venting on social media. We suggest keeping the relationship and any issues between you, your ex-partner and a few close confidants, and if you need to vent, keeping it private.

Plan Ahead and Be Proactive

Flexibility, to some degree, is necessary as unfortunately emergencies, special events, extra-curricular activities and other events may interrupt your schedule throughout your co-parenting experience. This does not mean you have to agree to or propose ongoing changes to existing arrangements but accepting that things don’t always go to plan will make it significantly easier to accommodate your children’s ever-changing needs. Keep your co-parent informed and up to date with important events and appointments and aim to give sufficient notice whenever possible.

Use Co Parenting Apps

Platforms like Coparenting Plus, Two Houses, Cozi or Our Family Wizard are designed to help separated parents communicate more effectively and manage shared responsibilities. Features like shared calendars, expense tracking and secure messaging reduce the likelihood of miscommunication or toxic exchanges and create a neutral space for discussing parenting matters.

Be Considerate and Respectful

Whether you are hurting or have moved on, respect is crucial in co-parenting. Be polite and open to communication. Focus on building a respectful relationship for the sake of your children, setting aside personal emotions to work collaboratively in the children’s best interests. Keep your co-parent informed, ask their opinion where you are willing to, try not to criticize or place blame and remember that small gestures can make the world of difference.

Make the Most of Your Free Time

When the kids are with your co-parent, give yourself some important ‘me time’. This could be anything from catching up with friends, going to see a movie, doing housework or working out in the gym. Sitting around and moping will only highlight the negatives of the situation and leave you feeling upset. Avoid intruding on your co-parent’s time with the children and allow space for them to nurture their relationship with the children.

Seek Professional Help

Counselling or therapy can be invaluable in managing the emotional challenges of separation and co-parenting.

If legal guidance is needed, a Family law solicitor can assist in establishing parenting plans, mediating disputes and offering tailored advice on effective communication with your co-parent.

By following these tips and maintaining focus on your child’s best interests, co-parenting can become a positive and successful experience for everyone involved.