眾律國際法律事務所

Books and Records:

Pty Ltd. is a share structure proprietary company, limited by shares. This means that your company must not engage in any activity that would require disclosure to investors under Chapter 6D of the Corporations Act 2001 except for an offer of its shares to its employees of the company or a subsidiary of the company or existing members of the company. It is imperative to notify ASIC of any changes of information as soon as possible or at least within 28 days of the change without incurring any lodgment fees. Things you will need to notify ASIC include: when a new director, alternative directors or secretary is appointed, or when a current one ceases, change to the name or residential address of the officeholders, resignation or retirement of officeholders.

Under s286 (1) of the Corporations Act 2001, a company must keep written financial records that correctly record and explain its transactions, financial performance and position. Such financial records are defined in s9 of the Corporations Act 2001 including invoices, receipts orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers, documents of prime entry, working papers and other documents, the method by which financial statements are made up and any adjustments to be made in preparing financial statements. Financial records can be kept electronically but such record must be convertible into hard copy made available within a reasonable time to a person who is entitled to inspect the records under section 288 of the Corporations Act 2001.

Officeholder obligations:

As officeholders, you must follow the requirements set out in the Corporations Act. This include to ensure company details are kept up to date, maintaining various registers and records and to pay the appropriate lodgment and annual review fees to avoid late fees and non-compliance action. Both director and secretary must ordinary reside in Australia. Directors are responsible for managing the company’s business and may be liable for debts incurred by the company at a time when the company is unable to pay those debts fall due.

Disclosure requirements:

Under section 191 of the Corporation Act 2001, if a director of a company who has a material personal interest in a matter that relates to the affairs of the company, he or she must give the other director notice of the interest unless exceptional rules applies.

Written consent requirements and keeping of records:

Both directors and secretary must ordinarily reside in Australia. Written consent must be obtained from directors, the secretary and members. Please note that you must have the relevant consents and agreements when you lodge the application.

Fees:

Dispute Resolution              

There are various dispute resolution techniques that you can possibly use resolving conflicts. They are:

Negotiation:

Negotiation is a process whereby two or more parties seek to reach a mutual agreement. There may be no third party involvement during the negotiation, therefore the principals usually act for themselves or have their legal representatives to act for them. 

Below is a summary of advantages and disadvantages of using the Negotiation technique for dispute resolution.

Advantages of Negotiation

• Parties with their lawyers are in best position to assess proposed solutions
• Compromise often offer parties at least some of what they want
  • (note: court may not give them any of what they want)
• Parties might not resolve all issues but may narrow them

Disadvantages of Negotiation

• If there is no adequate preparation, a party can agree to a settlement outcome well below what a court may order
• May not have valuations, adequate medical evidence to properly assess case
• A party may feel that they were pushed too far
• A party may agree to an unfair agreement due to inequality of bargaining power/coercion

Mediation

Mediation is a process where an independent third party mediator assists two or more parties to reach a mutual agreement. The mediator’s role is to facilitate communication between parties rather than providing legal or any other advices.

During the mediation process, mediator will aim to engage parties in constructive communication.

8/25，14.00~17.00 正在進行本所為東元集團量身訂做的商標管理訓練課程，由黃怡然律師主講全球商標佈局監控及商標權盡職調查。

Trademark search is important. Trademarks are considered as one of the most important and valuable assets of a business. A good trademark would allow a business to build brand reputation and public goodwill in its goods or services sector. A trademark search is a review of various information and helps to ferret out potential conflicts (which is, intent-to-use, prior use to a similar mark). The trademark search report provides useful information. Such search can give us an idea of the protectability of the mark especially whether such trademark is distinctive or diluted and for which trademarks a particular company owns. If the search findings show that there are numerous references to similar mark for similar goods, the proposed mark may be considered weak and the scope of protection would be narrow. Searching a trademark prior registering is crucial as forgoing a search can be risky. Defendant’s failure to conduct trademark search may constitute “carelessness” and the court may weight in favor of plaintiff’s right to injunctive relief.[1] The description of goods for the proposed mark must be furnished in arranging for a search. It is crucial to insert accurate trademark descriptions because the search will focus on similar marks for similar goods as well as identical marks for unrelated goods.

Trademark search is usually conducted with a review of trademarks recorded on the register for that particular country. Some trademark searches may need to cover multiple countries. It is however uncommon for a trademark to be available for use and registration in all countries. Therefore an alternative trademark may be required in some other countries. Such searches can take about one to two weeks to complete, however it can also be as quick as a few days or as long as several months. Longer time is usually required if there are adverse results and additional steps needs to be taken.

United States for example, “full search” would include searching the U.S. Trademark Register; U.S. pending trademark applications; market directories; state registrations; domain names; telephone directory listings; trade name listings; reported directions and online database and industry publications directed to the goods or services being searched. Such trademark search should be analyzed from two perspectives that are: protectability of the mark from infringing use by others and availability of the mark for use.

Sometimes it can be difficult to determine when you spot potential trademark conflicts. This is especially the case between competitive, similar or closely related marks or goods. You must first evaluate whether the prior user has grounds for protest. In addition, if such grounds for protest exist, you must assess the risk of monetary relief or injunctive should suit be filed. Nevertheless, sometimes potential trademark conflicts can be rested by further investigation. It is important to check whether such trademark is still in use or whether such mark was discontinued. However please keep in mind that even if a trademark registration has expired, such trademark may still in use. One of the reason for such expiration may be due to inadvertent failure to file the necessary maintenance documents. The owner of the expired registration may still be entitled to rely on common-law rights based on his/her continued use.[2] Alternatively, when there is a potential conflicting trademark, you can possibly seek for the other trademark owner’s consent. If you believe prima facie the description of goods on its surface is similar, but the channels of distribution and purchasers do not overlap with each other, it is possible for the first user to be willing to consent for your use. You might also sweeten the negotiation by imposing some restrictions. 

Since the Family Law Amendment[1] commenced on 21 November 2008, it has introduced not only financial aspects of de facto relationship breakdown into the Family Law Act 1975 (Cth) (“FLA”), but has also changed a number of parenting provisions in the FLA which has significant impacts for surrogate families and same-sex couples.

The purpose of this research paper is to consider whether further reforms are required to the FLA when two or more parties are in dispute about parenting arrangements for a child in the context of same-sex relationships:

1. Artificial Conception Procedure (“Artificial insemination”) or;
2. Surrogacy or;
3. Adoption.

Assuming all circumstances, parties and children are in Queensland, State and Commonwealth Laws apply. In considering all of the above scenarios, it is important to keep in mind that the FLA makes the best interest of a child the paramount consideration in all decisions relating to parenting arrangements.[2] In assessing the best interests of children, family law would look at the role of ‘both of their parents’ and ‘other people significant to their care, welfare and development’.[3] Further, the Discrimination Law Amendment[4] has introduced ‘de facto partner’[5] as a new category of ‘spouse’. A large number of amendments have removed references to ‘husband’ and ‘wife’ with a replacement of ‘spouse’. Significantly, these amendments have also made changes to the Acts Interpretation Act 1954 (Qld)[6] that any reference to a ‘spouse’ in other legislations would include a ‘de facto partner’ as part of the interpretation unless the particular legislation expressly states the contrary.[7] Further potential areas of reform for same-sex relationships were identified from the Anti-Discrimination Commission in Queensland,[8] which will be discussed in detail in this paper.

Artificial insemination

When a child is born using an artificial insemination, provided the consent of the other intended parent is given, the child would be the child of the biological mother and of the other intended parent.[9] Relevant sections which apply to same-sex female couples in circumstances of artificial insemination in Queensland include 17, 18, 19, 19C, 19D and 19E of the Status of Children Act 1978 (Qld).[10]

The FLA has been slow to catch up to the changing face of the family. This creates problems for non birth mothers and often, the men who donated sperm to assist them. The new s60H of the FLA[11] now refers to the woman’s partner as an “other intended parent” rather than a “parent” to incorporate all situations if a woman was married to, or a de facto partner of, another person, then the child is the child of the woman and of the other intended parent, not the party who have provided genetic material for the child.[12] However the failure to expand the definition of a “parent” in s4 of the FLA to include an “other intended parent” could potentially be problematic because ss60B (1)(a), (1)(d), (2)(a), (2)(c) and (2)(d) (objects and principles of Part VII); ss60 CC (2)(a), (3)(c), (3)(e) and (3)(i) (best interest of the child); s61C (parental responsibility); s61DA (presumption of equal shared parental responsibility) of the FLA could all exclusively incorporate “other intended parent” to these provisions. This has indicated an inconsistency between s60H and other provisions of the FLA because a non-birth mother may be considered as an “other intended partner” under s60H of the FLA but may not be considered as a “parent” for the purposes of other provisions of the Act.[13] Section 60H of the FLA would need to be read in conjunction with s. 90RB FLA which provides that a child is “child of a de facto relationship’ in accordance with s. 60H and its associated sections to extend such section to “both opposite-sex and same-sex de facto couples.”[14]

In circumstances of artificial insemination, the birth mother will be a legal parent whereas the other intended parent, the lesbian co-mother, would need to obtain a parenting order in respect of their child. Such parenting order may not always entitled lesbian co-mothers to have the same financial and work-related benefits as a legal (birth) parents do. The other intended partner in the same-sex relationship will only be considered as a ‘parent’ of a child if the child was born in a de-facto relationship at the time of the artificial insemination.[1] This may compromise the best interest of a child born to a lesbian or gay couple.[2] The result is that same-sex families are excluded from a range of federally funded entitlements and benefits that are available to heterosexual families. Consequently, this has resulted in same-sex families being denied access to benefits intended to help parents’ support their children that may leave the children in a same-sex family worse off than other children from opposite-sex families.

Therefore as a federal government policy officer, it is important to undertake further reforms to ensure equality of the children being raised in same-sex families and to clarify access entitlements for parents seeking to support their children in the best way they can.

Surrogacy

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent. Pursuant to the Surrogacy Act,[3] the intended parent or intended parents may include a man and an eligible woman; or two men; or two eligible women to be parents of the child; and a birth parent would stop being a parent of the child.[4]

The present requirements for gay couples making a parenting order include a proposed order for the well-being and in the best interest of the child; the child must has resided with the applicant for at least 28 consecutive days before the day of the application was made and before time of hearing; proof of evidence of a medical or social need for the surrogacy arrangement and such arrangement was made after the parties obtained an independent legal advice; all parties must have obtained counseling from a qualified counselor about the surrogacy arrangement and such arrangement was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants before the child was conceived; provided such arrangement cannot be a commercial arrangement.[5] It is recognized that further reform is needed to clarify the status and role of a person who has no biological connection to a child.

Article 26 of the International Covenant and Civil and Political Rights[6] provides:

“All persons are equal before the law without any discrimination to the protection of the law. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…”

In Re Michael: Surrogacy Arrangements,[7] Watts J considered[8] s60HB of FLA and found unexpected consequences in relation to application for leave to adopt a child born as a result of a family surrogacy arrangement. This is one example of how the new provision s60H of FLA could lead to strange results.  In Re Michael, Sharon’s mother Lauren, who was in a de factor relationship with Clive, gave birth to Michael by using Paul’s sperm (Sharon’s husband) as Sharon suffered from a cervical cancer, she could not give birth. However, due to the s60G of FLA which defines the “prescribed adopting parent”, Paul and Sharon could not adopt Michael despite the fact that Paul was Michael’s biological father. Section 60H of FLA only provides scope for a child born as a result of artificial insemination to have two parents, this provision would not however assist the children of a gay male couple who have a child or children under a surrogacy arrangement. Such restriction is problematic for children born to multi-parent families, or children born to gay male couples. Despite the fact that the new s60H of FLA has now recognised the status of non birth mother, nevertheless, in a number of cases, s60H of FLA is not sufficiently flexible to recognize the various forms of family that exist in today’s society. Further reform would need to be made to recognise the multiplicity of family constellations for the benefit and security of the children living with them.

Adoption

Section 89 of the Adoption Act[1] restricts its adoption right to heterosexual individuals or couples may infringe article 21 of the Convention on the rights of the child (“CRC”)[2] in conjunction with article 2. Article 21 of the CRC[3] requires countries that permit adoption to ensure that the best interests of the child are ‘the paramount consideration’ in the adoption process. Discrimination against same-sex couples in adoption may also lead to discrimination in access to financial entitlements for the benefit of the family, which are only available to birth parents or adoptive parents.

Such restrictive and discriminatory laws have a particularly serious impact on the children of gay couples. It is particularly difficult for gay couples to become a legal parent of their child without adoption. Gay male couples that wished to have children would need to go through artificial reproductive procedures or intercourse without involving a childbearing woman. Such limited scope of state adoption laws severely limits the possibly of adoption for same-sex couples. Thus, it has certainly infringed article 21 of the CRC[4] that requires the best interests of the child to be the paramount consideration in adoption.  This may also compromise the best interest of the child under article 3(1) of the CRC[5] that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a paramount consideration.

Recommendations

One of the consequences of the reform introduced by the Same-Sex relationships[6] and the Family Law Amendment[7] is that from 1^st July 2009, the FLA acknowledges that children are frequently cared for by a range of ‘other people significant to the care’ of a child. Those people other than the birth parents or adoptive parents can seek a parenting order from the Family Court of Australia if they wish to formalise their parenting role.[8]

Further amendments are needed to clarify the status and role of a person who has no biological connection to a child. This is to ensure equal protection for the children of same-sex parents. As a federal government policy officer, such reforms should include the recognition of lesbian co-mother or gay co-father. Federal laws should ensure that a lesbian co-mother of an artificial child could access the same financial and work-related entitlements available to a birth mother and birth father. This could be achieved by amending the FLA to include a parenting presumption in favour of the lesbian co-mother of an artificial child and ensuring that the definition of ‘child’ in any relevant legislation recognizes the parenting presumptions of the FLA; or in the Acts Interpretation Acts[9] that any references to a person’s ‘child’ in federal legislation would include the artificial child of a lesbian co-mother. In addition, Queensland should also enact parenting presumptions in favour of lesbian co-mothers and gay co-fathers. While parenting presumptions are appropriate for the artificial child of a lesbian couple, broader adoption laws are the better solution for a gay couple having an artificial child. Federal financial and work-related laws should include the definition of ‘step-child’ that recognizes a child under the care of a ‘de facto partner’ of a birth mother or birth father. ‘Step-parent adoption’ laws should be more readily consider adoption by a lesbian co-mother or gay co-father. Same-sex couples should have equal rights to apply for adoption of an unrelated child. Further, there should be a public information and education campaign to ensure that gay and lesbian families are aware of their rights and entitlements under federal financial and work-related laws. In addition, federal laws should explicitly recognizes the eligibility of a person who has a parenting order from the Family Court of Australia. Such access to financial or work-related benefits would be extended beyond legal parents. 

Bibliographies

Secondary Sources

Belle Lane, ‘Who is a parent?’ (2010) 21(2) Australian Family Lawyer.

A contract would not be considered as legally binding unless both parties agreed to be determined objectively with a reasonable degree of certainty.[1] Therefore if the terms are sufficiently certain, agreements to agree can be enforceable.

In circumstances where a contract containing language that is incapable of giving any definite or precise meaning and the court is unable to attribute to the parties any contractual intention in the eyes of law, will be deemed unenforceable.[2] When there is one or more terms considered uncertain or ambiguous, the court will do its utmost to hold an agreement[3] and to adopt reasonableness principle to interpret uncertain clause.[4]

If such term can link to external standard where there is a term that first appears to be uncertain, parties may provide for external references made directly or indirectly (relying on an original/previous contract to determine the meaning of the terms) to interpret meaning of the term.[5] Nevertheless such contract can only compromise one uncertain term. The invalidity of one term of the contract would not necessary void the whole contract.[6] However, if such uncertain clause forms a vital part of the contract, severance to comprise one uncertain term would not apply.[7] Such severance would only apply if the remainder of the uncertain or meaningless clause, after severance of that ambiguous term, reflects the intention of the parties.[8] On the other hand, if the parties have not agreed on all of the essential terms of the agreement, regardless of whether the language contained was considered uncertain or ambiguous, the contract will be deemed unenforceable.[9] Both parties must reach final agreement on all essential parts of the contract to make the contract legally binding. Lastly, if a contract contained an illusory promise to where one party would not carry out his or her obligations, such contract will be deemed unenforceable.[10]  

To create a contract, there must be an intention to create legal relations for both parties to enter into legal obligations.[11] Factors to be considered whether there is an intention to create legal relations include: status of both parties, subject matter of agreement, language used, parties’ relationship to one another, context of agreement and subsequent conduct. The legal test to see whether the parties intended to create legal relations is objective. The court would look at whether a reasonable person would regard the agreement as legally binding instead of looking at the minds of the parties.[12]

Nevertheless if such negotiation occurred in a business setting, it would be presumed that parties intended the agreement to have legal consequences.[13] In the case of Esso Petroleum Ltd v Commissioners of Customs and Excise, is one example that negotiation took place in a business setting and such promotion was to offer the coins in exchange to purchase petrol despite the small intrinsic value of the coins. When an agreement is entered in a commercial context, a heavy onus will shift to the party denying the existence of the contract to prove that there was no legal intention when making such offer.[14]

Consideration is an act of promise of an act and there often involves a price paid for the other’s promise.[15] Such consideration must be sufficient for ‘something that is valuable in the eyes of the law’[16] and be moved from the promisee.[17] However such consideration would not need to move to the promisor, it would be considered sufficient if consideration moves to a third party at the direction of the promisor. When there are joint promises, there only need one of the parties on behalf of all to move such consideration to the promisor.[18]

Termination of an offer can be divided into five categories: withdrawal by offeror, rejection by offeree, lapse of time, failure of a condition subject to which the offer was made and by death.

An offer can be withdrawn at any time prior acceptance[1], this is even the case where the offeror has promised to keep the offer open for a period of time (except the offeree has provided consideration in the eyes of law). Please keep in mind that revocation of an offer is only effective to be communicated to and received by the offeree.[2] Such revocation can also be withdrawn by a third party, provided such withdrawn are from a reliable source.[3] If the offeror wishes to withdraw offer to world at large, the offeror should use the same method as they did to advertise the offer to make such withdrawn to be valid. On the other hand, in unilateral contracts, such offer may not be withdrawn after the promise has begun to perform the necessary condition to fulfill the contract.[4] Nevertheless in the case of Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd[5] indicates that this legal principal is not clear as there is no clear expression made by the Federal Court that an offeror could not be revoked after acceptance had commenced.

The other type of revocation is rejection by offeree. Once the offeree rejects, such offer would be terminated and cannot be accepted at later stage.[6] Nevertheless, such rejection must be made to the offeror for such rejection to be effective. Mere request for information or to clarity certain terms would not be considered as a rejection of the original offer.[7]

For lapse of time, the offeror can illustrate a time for such offer to be valid, for which the offer will lapse within a reasonable time after the offer has been made.[8] Such offer can also be expressly or impliedly subject to conditions, failure of a condition for which the offer was made, the offer will cease accordingly.[9] Nevertheless, effect of death by one of the parties before acceptance of the offer is not entirely settled. The outcome may differ depending whether it is the offeror or offeree who has passed away. There are also some other factors to be considered such as: intention of the parties, subject matter of the contract and whether such offer was granted with an option. If during the offer, such offer was made in the condition that such offer is to be made and could be accepted notwithstanding the death of the offoror or offerree, such agreement can still be possibly made. However if such offer is to do with personal services, agreement can never be possibly made as the parties could not have intended to exercise such agreement following death.

Acceptance can be any forms of expression, by words or conduct, of the assent to the terms of the offer in the manner prescribed or illustrated by the offer. Nevertheless, a person cannot accept an offer for which has not been communicated.[10] There are two elements that must be fulfilled for an acceptance to be valid. Offeree must intend to accept the offer and the intention to accept must also be communicated to the offeror. This is the case where offeree must aware, having knowledge of, and act in reliance on the offer.[11] However if a person intended to accept an offer but introduces new terms which wasn’t included in the offer, would only be considered as a counter-offer of his or her own and won’t be considered as a valid contract.[12]

There are in total three elements of a simple binding contract in common law countries. They are:

• Agreement (offer and acceptance)
• Intention to crate legal relations; and
• Consideration

A valid agreement is based on offer and acceptance which can exist between two or more parties. Nevertheless, it may be necessary to look at the whole of the relationship, including the communication between the parties, together with their conduct, to determine whether there has been a valid agreement.[1]

Offer:

Offer here is considered as an expression of their willingness to be legally bound by the stated terms.[2] In the case of Australian Woollen Mills Pty. Ltd. v. The Commonwealth[3], is considered as a leading case regarding to what constitutes as a legally binding offer. There are three elements for an offer to be legally binding. Include:

1. Statement made to another person that it must be made to another legal entity.

2. Offeror indicates that a preparedness to be legally binding to where offeror must be prepared to be legally bound if the offer is accepted by the offeree.

3. Such statement made by the offeror must contain in stated terms, including any kinds of formal document, verbal statements, emails and any other means of communication.

However there are some circumstances where such offer won’t constitute as a legally binding offer. This is especially the case where some features akin to a valid offer, however in reality, it is something less.

Mere puff for example, to where the claims are made for advertising purposes won’t be considered as a legally binding offer. Such offer would ‘mean nothing’ in the eyes of law. There are a few reasons behind this. Such offer may be offered to public at large that the offer is not made to any person in particular.[4] Also offers made through internet is another offer made to the public at large.[5] Mere supplying of information is another example that won’t be considered as a valid offer either. Usually enquiries are made to other parties for such information to be exchanged. Therefore it is difficult to determine whether the response is just a response or an actual agreement to formulate a contract. Invitation to treat wont’ also be considered as a valid offer. Invitation to treat is often considered as a technique used by a person who wants another person(s) to make an offer. Usually this is in the circumstances that both parties are still negotiating the terms of the contract. Therefore it falls short of a valid offer.

Acceptance: