R U OK? Day happens on the second Thursday of September every year and is a campaign that aims to ignite meaningful conversations about mental health. After this year’s R U OK? Day, some firms were approached regarding their opinions on the current state of mental health in the legal profession.

There is no doubt in the legal profession, many individuals may experience high levels of stress, burnout, and lack of purpose as a result of long working hours and the intensity of the demands of the job.  Hamilton Locke managing partner, Nick Humphrey, has commented that this can negatively impact mental health and well-being overall. Significantly, the Leading Mentally Healthy Workplaces Report 2023 has reported that burnout has become a significant problem affecting many Australian workers – 44% reported that burnout affects their performance at work.

The Corporate Mental Health Alliance Australia has encouraged organisations and companies to begin creating and implementing safe environments that encourage an open dialogue and normalise discussions about mental health and to ensure that employee’s mental health is considered in business strategies.

Particularly in the legal profession, it has been noted that vicarious traumatic stress has increased, and family law firms have been encouraged to implement safety plans for the workplace for any staff that may be involved in family violence matters. It is a tough area of law where individuals are exposed to difficult conversations and circumstances through cases and ensuring that there is a plan for staff to seek help if needed is crucial. This is not only something that impacts staff, but it can also potentially impact a practitioners ability to work at the best of their ability. A Healthy Mind Clinical principal psychologist, Dr Adrian Allen, has commented that some factors that have the potential of increasing the risk of experiencing vicarious traumatic stress include an individuals own traumatic experiences, relating to a clients experience, and experiencing or being prone to anxiety and depression. The demands of the profession then intersect with these situations which can lead to lawyers and other legal staff vulnerable to developing vicarious traumatic stress.

To tackle these concerns, it is important to ensure that leaders are trained and coached to be attuned to the signs of burnout and to take steps to have conversation regarding mental health. Nick Humphrey has further commented that turning away from the culture of doing all-nighters, not getting any sleep and working all through the weekend is important to changing the impacts of the profession on mental health. He says: it is a marathon, not a sprint.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

In NSW, drink and food spiking reached record highs last year. “Spiking” is the term given to the action of placing drugs in another person’s drink or their food without their knowledge or consent. Under section 38A of the Crimes Act 1900 (NSW), the spiking of another person’s food is illegal and can result in a maximum term of imprisonment of 2 years, 100 penalty units, or both.

NSW Police received record breaking reports just in the last year of food and drink spiking incidents. The NSW Bureau of Crime Statistics and Research reported that between July of 2022 and June of 2023, there were a total of 220 reports of food and drink spiking. It is reported that this is the highest number of spiking reports since the number of incidents regarding the same which last occurred back in 2008. The spiking of food and drink has almost doubled since June 2019 where 115 reports were made – that is a 20% increase since 2019.

The predominant areas where spiking has been reported to occur in the last year include the Sydney CBD, Central Coast, Newcastle and Wollongong. Almost half of the total reports occurred in these areas. 71% of the incidents occurred in either clubs or pubs. Yet, despite the prevalence of these incidents, a very small proportion of the reports resulted in legal actions being sought. Out of the 183 reports lodged back in 2021/2022, only 2 (1.1%) led to a criminal proceeding.

NSW Police opinions that the rise in spiking incidents is due to individuals’ willingness to report the incidents rather than an actual increase in spiking behaviour. They note that recent campaigns that target spiking have educated and supported victims by encouraging them to come forward and have ensured that other members of the public are always on the lookout for their drinks and food. NSW has ensured that all spiking reports are thoroughly investigated.

A significant gap in the regulation and law in the area can be seen in the processes that licensed venues are required to take when these incidents occur on their premises. While they are required to log incidents of drink spiking, they are not required to inform the police of these events. The Alcohol and Drug Foundation has commented that although new data confirms spiking incidents to be higher than previous years, it may still be underreported as victims may feel that they will be blamed or not believed, meaning that real data of food and drink spiking incidents may be much higher than understood at this time.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

An update on the law

Following the passing of a landmark bill on Wednesday 20 September 2023 by the Western Australia Parliament, abortion by doctors has now been decriminalized across all of Australia and replaced with laws which are more health-focused and support reproductive freedom.

What are the changes?

The changes made by the Abortion Legislation Reform Bill 2023 include the following:

History and Current Issues

Western Australia was in fact the first Australian state to legalize abortion, following the introduction of the bill to decriminalize abortion by former Labor MP Cheryl Davenport in 1988. But since then, the state has fallen behind in the progress made by other states and territories with respect to viewing the medical procedure as a fundamental aspect of access to healthcare.

The issues with WA’s existing abortion laws were brought to stark attention following the Supreme Court decisions in Roe v Wade in the US, and the importance for laws in this respect to better reflect community values, expectations and modern clinical practice.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The International Criminal Court’s (ICC) lead prosecutor Karim Khan has announced that the ICC will begin prosecuting cyber war crimes in the same way that kinetic and physical war crimes are.

The ICC is in an international court that investigates and, where possible and warranted, tries individuals who are accused and charged of some of the most serious crimes of concern to the international community such as the crime of aggression, genocide, war crimes, and crimes against humanity. In it’s endeavours the court aims to hold individuals who are responsible for such crimes accountable and to help prevent future crimes from occurring. The ICC aims to complement domestic national courts rather than replace them and as such it alone cannot achieve such goals.

Cyber war crimes involve acts whereby individuals from a nation-state attempt to infiltrate other nations computers and networks to cause a disruption or some type of damage.

The Hague, which hosts the ICC, has recognised that cyber war crimes have significant real-world consequences as it is a rapidly developing form of warfare that can be misused to carry out or help facilitate other war crimes and the aggression of one nation to another. As such, the ICC will begin, as part of its investigations, to collect and review evidence of this kind of conduct.

Under the Geneva Convention, a form of humanitarian law that regulates the conduct of armed conflict and aims to limit its effects, attacks against civilians constitute war crimes which forms the basis upon which many scholars and researchers in the area have pushed for cyber crimes to be recognised.

In fact, Ukraine has been calling for cyber crime to be considered a war crime as the Victor Zhora, the nation’s Chief Digital Transformation Officer, has stated that Russia has used these types of attacks to support their kinetic attacks which have been targeted towards civilians. It is noted that the State Service of Special Communications and Information Protection of Ukraine has already been collecting evidence to back up their claims and form a strong case.

As of yet, there has been no confirmation as to when these changes will come into effect. In a world where we all see the continuous and quick advancement of technology, it will be interesting to observe how the ICC and nations around the world begin managing such claims and cases.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

TW: This article has mentions of domestic and family violence.

Here are some common family law myths we've heard, and whether they are true or not!

“I can’t get a divorce unless my partner agrees to it”

This is false! The only legal ground for getting a divorce is to prove that there has been an ‘irretrievable breakdown’ of the marriage and there is no reasonable likelihood that the marriage may reconcile. Even if your partner does not agree to the divorce or want a divorce to occur, you can make an application on your own.

“My partner cheated so I will get more out of the property settlement.”

Incorrect! The Family Law Act 1975 (Cth) introduced the notion of ‘no-fault’ divorce. Prior to this legislation, one party could prove that the other party engaged in infidelity in order to have the offending party punished in some way, for example through the asset division.

However, the current law stands that reasons for divorce such as infidelity are irrelevant when determining the asset distribution split. In order to determine the property settlement split, the court will look at what is just and equitable, by examining factors such as the net value of the couple’s assets and liabilities, and the couple’s financial and non-financial contributions to the marriage and family.

“I automatically am entitled to 50/50 custody of my children”

The court puts the child’s best interests as a paramount consideration when determining parental responsibility, and under Australian law, children’s best interests often involve having a meaningful relationship with both their parents, so long as they are kept safe from harm. However, a 50/50 parental responsibility split is not always ensured, and numerous factors are considered including certain aspects of parenting and who the primary carer may be, ability of both parents to maintain an amicable co-parenting relationship, and special needs of the child.

“Since I have separated with my partner, one of us need to move out”

Not necessarily, but it is recommended! One of the requirements for a divorce is for both parties to be separated for 12 months, however you and your partner can be separated under one roof. There are many reasons why couples do this, including financial dependence or children. So in order to prove that you were separated for 12 months whilst under the same roof, parties will need to demonstrate that they had separated finances, were not sleeping in the same bed, told family and friends about the separation, and ceased almost all social activities between each other. Parties can make this claim by preparing a written statement, called an affidavit.

“Domestic or family violence is only physical abuse”

Abuse within relationships occurs in many forms, even an individual’s behaviour towards their partner may constitute abuse. Whilst physical abuse is the most well-known and evident form of abuse, other forms include verbal abuse, coercive control, financial abuse, emotional manipulation and sexual abuse. Australian law recognises that domestic and family abuse extend beyond the physical aspect, through enforcing Apprehended Violence Orders that can restrict a person’s actions and behaviours.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Active Super who is stated to be one of Australia’s leading responsible super funds has become a party to civil penalty proceedings commenced by the Australian Securities and Investments Commission (ASIC) for allegedly greenwashing their Impact Report.

The term ‘greenwashing’ is used to describe organisations that spend significant funds and time on marketing themselves as environmentally friendly than on actually taking steps to minimising their environmental impact. It is a marketing strategy used by organisations to show and persuade the public that the organisations business practices and policies are environmentally sound. They are also alleged to have made misrepresentations regarding environmental and social impacts and governance.

The proceedings are being heard in the Federal Court and they allege that Active Super misled the market and consumers by making claims that it was an ethical and responsible superannuation fund. Recently, there has been a crack down by ASIC on numerous organisations for greenwashing with legal claims commencing against EnergyAustralia and Vanguard and even Etihad who faced a complaint by the Australian Competition and Consumer Commission instead.

Active Super currently has an estimated 89,000 members with $13.5 billion superannuation assets. They stated on their website that Active Super had eliminated investments that pose too great of a risk to the environment and the wider community such as the manufacturing of tobacco, gambling, and oil tar sands. They also stated that they included Russia in the list of excluded countries after the invasion of Ukraine was announced. As such, ASIC is now claiming that Active Super has exposed its 89,000 members to investments which it advertised they had restricted or eliminated altogether.

From February 2021 to June 2023, Active Super is reportedly alleged to have 28 holdings, both directly and indirectly, in organisations that were involved in tobacco manufacturing, gambling, coal mining, oil tar sands and Russian entities.  This is why ASIC is now seeking declarations, adverse publicity orders, pecuniary penalties and an injunction against Active Super.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The War on Drugs

Australia is no stranger to the war on drugs. With over 1.5 billion dollars invested into Australia’s drug criminalisation, per year, the war on drugs is a great priority of the Australian Government. With a myriad of legislation including, but not limited to, the Narcotic Drugs Act 1967 (Cth), Therapeutic Goods Act 1989 (Cth), Customs (Prohibited Imports) Regulations 1956 and Narcotic Drugs (Licence Charges) Regulation 2016 (Cth), Australia drug laws have a retributive purpose; to criminalises and punish the possession, cultivation or trade of drugs. The status of Australia’s drug use must be rather low then, right? In reality, despite copious amounts of funding, legislation and police efforts, the Australian public spends over 10 billion dollars on drugs annually, and consumed an estimated 15.7 tonnes of methylamphetamine, cocaine, MDMA and heroin in 2020–21, according to the Australian Criminal Intelligence Commission.

Clearly, the retributive attempts of the law to punish drug users are not an adequate enough deterrent to stop the Australian public from consuming potentially dangerous drugs. As such, the nation’s capital city, Canberra, has taken a leap towards decriminalisation. This follows the Drugs of Dependence (Personal Use) Amendment Act 2022, which aims to prioritise harm reduction.

What is Decriminalisation?

 Decriminalisation, not to be confused with legalisation, allows wrongdoers to be dealt with by the law from a civil standpoint, rather than a criminal standpoint. This means that, in most cases, perpetrators may no longer face jail time for small possessions of illicit drugs. Whilst this may seem like a radical switch for many Australians, decriminalisation has already proven itself to reduce addiction and death internationally, the most renowned example being Portugal’s leap towards decriminalisation in 2001.

In Canberra, as of 28 October 2023, it will not be a criminal offence to carry drugs, including but not limited to, 1.5 grams of amphetamines, cocaine, methylamphetamine and 3,4 Methylenedioxymethamphetamine (commonly known as ‘MDMA’) 50 grams of Cannabis and 1 gram of Heroin. Rather than be arrested, people found in possessions of these quantities may be issued with a “simple drug offence notice”. The person will then be able to pay a $100 fine or attend an assessment and harm reduction session.

Why is Decriminalisation Important and What are the Next Steps?

Criminalising an issue without addressing the social and political drivers that make Australians susceptible to dangerous drug use does not work to eradicate the problem. Similarly, criminalising the drug supply, without attempting to alleviate drug demand, is a short-term, and unjust approach. In order to increase the safety of our communities and decrease harm, decriminalisation steers wrongdoers away from the Criminal Justice System and allows for education and medical attention where needed.

So, what are the next steps for decriminalisation in Australia? Australia needs to further address the harms associated with drug composition – that is, all the substances inside the drugs sold through illegal trade. One of the greatest catalysts for a bad drug reaction is the quality of the drugs – and when illicit drugs like MDMA are not sold in pharmacies and by medical professionals, they cannot be regulated. As such, drug users may find that their substances actually include baby powder, glass and sawdust. One answer to this is pill testing, again relating back to allowing Australians to educate themselves on the substances they intake and seek medical help.

Whether these changes come, we’ll just have to see.

If you need support in relation to your drug use, call the National Alcohol and Other Drug Hotline on 1800 250 015.

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on 02 8999 9809.

When hearing your Family Law-related case before a judge, courts will begin by considering the presumption of “equal and shared responsibility”. This means that courts must consider arrangements for the child to spend time with each parent and for each parent to share an equal say in decisions relating to their children.

This was often misconstrued. Rather than the law’s intention for a child to spend a nominated period of time with each parent, it was often misunderstood that each parent had a right to spend the same, equal or a significant amount of time with the child.

As a result, the Family Law Amendment Bill 2023 has been proposed. Simplifying a court’s process to determine Parenting Orders, the Bill aims to place the child’s safety, wellbeing, and best interests at the forefront of any decision made on parenting arrangements.

The Bill proposes the following changes:-

  1. To remove the presumption of “equal and shared responsibility”;
  2. To simplify the list of factors considered when assessing the best interests of the child;
  3. To clarify when an existing parenting order may be reconsidered.

Removing the presumption of “equal and shared responsibility”

According to Section 61DA and 65DAA of the Family Law Act 1975, the court is required to apply a presumption, which says parents must have equal shared parental responsibility for the child – equal or substantial and significant time.

The wording is to be amended to a presumption of “joint decision making on major long-term issues”, as to prevent misinterpretation of “equal time” spent with the child.

This amendment has been proposed with the aim of the child’s best interests being of most importance.

Simplifying the list of factors considered when assessing the best interests of the child.

In abolishing the “equal shared responsibility” presumption, the best interests of the child will be the primary focus. Judges will be required to assess and review the following factors when determining what their best interests entail:-

Clarifying when an existing parenting order may be reconsidered.

The Family Law Act 1975 currently does not specify the circumstances as to when parties may seek revisions on a Parenting Order. Taking this issue into account, the Bill provides the following conditions to revise an existing Order:-

More information on the progress of the Bill can be found here.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The use of AI in legal proceedings has arisen again as a subject of discussion following a trademark battle in India between Louboutin, and M/S The Shoe Boutique.

ChatGPT in Louboutin Trademark battle

The High Court of Delhi proceedings focused predominantly on Louboutin’s red sole trademark and spiked shoe design, which Louboutin’s counsel argued was breached by shoes sold by M/S The Shoe Boutique. As the elements of trademark were made out, Justice Singh ordered an injunction against M/S The Shoe Boutique from selling shoes which slavishly imitate Louboutin designs.

But more interestingly the Court’s comments on the trademark elements of the proceedings encompassed discussion of the use of AI-generated evidence in courts. As part of its arguments on the acquired distinctiveness of Louboutin’s products, Counsel for Louboutin relied on a response from ChatGPT to demonstrate the association of red soled shoes to the brand. A screenshot of the ChatGPT interface highlights ChatGPT’s affirmative response to the question of whether Christian Louboutin is “known for spiked men’s shoes”. Although the Court accepted other evidence to the brand’s acquired distinctiveness, such as Louboutin’s advertising and long-standing use of red soled designs, it rejected the use of ChatGPT’s response as evidence of the same.

Justice Singh’s reasoning followed that the answers provided by Large Language model-based chatbots such as ChatGPT do not satisfy the standards of reliability and accuracy for legal evidence, given that significant possibilities of incorrect information and Imaginative data persist. The Court stated that “AI cannot substitute either the human intelligence or the humane element in the adjudicatory process, [and] at best the tool could be utilised for a preliminary understanding or for preliminary research and nothing more”.

Views on Use of AI in Court Proceedings

Courts in other jurisdictions have echoed similar sentiments regarding the use of generative AI tools in legal proceedings – particularly the use of such tools directly and significantly in the drafting of legal documents to be filed. In the United States, a New-York based law firm and 2 experienced lawyers were fined almost $7,500 for misusing ChatGPT in a court filing for a personal injury case. Even in this circumstance, the Court did not condone the use of ChatGPT as a tool for assistance. Rather, the Court’s censure was directed to the failure of the legal professionals to undertake due diligence in confirming the accuracy and relevance of citations and arguments made in the court filing.

The rise of commonplace and innovative uses of AI is a phenomenon which we will continue to watch unfold in the coming months and years, and ultimately, it requires areas such as the legal sector to have open discussions on the limitations of using such tools, as well as the undeniable advantages from incorporating AI into our daily work.

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