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.

On Wednesday the 30th of August, the Federal Court found that Judge Salvatore Vasta made numerous errors by going beyond the jurisdiction and engaging in what was called a “gross and irregularity of procedure”. This is a result of Judge Vasta holding a man, known only by his pseudonym Mr Stradford, in contempt in late 2018.

This is a case that has changed Australian judicial history as a judge has never been sued in their personal capacity for a determination they made sitting on the bench. The original case pertained a property division between a divorced couple who were both unrepresented. In a property division case, both parties are required to make full and frank disclosure of all liabilities and assets so that a split of their property can be made in a way that is just and equitable. Judge Vasta is said to have thought that the ex-husband, Mr Stradford, was not being honest regarding his financial situation and not providing full and frank disclosure of his documents. Mr Stradford had outlined that he was trying his best to do so, but that certain people and organisations would not give him the documentation he was requesting. Judge Vasta warned Mr Stradford that if the documents were not presented that he would deal with the matter by way of contempt. Holding an individual in contempt is a power that courts have when it is considered that an individual has broken the law by disobeying or disrespecting the judge or court procedure – a power reserved the most serious situations.

It was found that Judge Vasta told Mr. Stradford to “bring your toothbrush”; in other words, he had already made up his mind about whether Mr Stradford would be held in contempt prior to conducting the necessary hearing. He was sentenced to 12 months for contempt of court, to be suspended after 6 months. He was taken from the court, transferred to the prison system and was allegedly threatened in the van on the way there.

The court found that because Judge Vasta acted outside of the powers he had as a judge that he was largely responsible for the false imprisonment of Mr Stradford, and therefore judicial immunity could not protect him. Therefore, there is an expectation that Judge Vasta will pay for any damages Mr Stradford is entitled to out of pocket.

This is a landmark case as it shows that if judges act extremely beyond their powers and what is deemed appropriate, they may be held personally liable.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8917 8700.

 

 

The Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as “The Hague Convention” is a multilateral treaty ratified between Australia and numerous other countries. This treaty assists those seeking the return of abducted children to their home country, and provides processes in which a parent can seek to have their child returned.

When a parent removes a child out of their home country, without the consent or knowledge of the other parent, the procedures in getting the child back is an incredible complex process, however the enforcement of the Hague Convention through Australian domestic law makes international child abduction a punishable offence. This is through the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

When a child is abducted to Australia, it is primarily the role of the Attorney General’s Department or the Department of Communities and Justice to satisfy the requirements under the Hague Convention, and the Regulations require Australian courts to order the return of a child to his/her home country unless certain specific and exceptional circumstances exist. The best interest of the child is not a paramount consideration and the discretion of a court to refuse to order the return of a child to his/her home country is very limited. The same standards are imposed by the Hague Convention on all signatories of the treaty.

If a child is abducted to a country that is not a part of the Hague Convention, then you may seek assistance from the Consular Branch of the Department of Foreign Affairs and Trade, or an application may be made under the other country’s local laws.

If you are concerned that the other parent of family member may take a child without your knowledge or consent, you should seek immediate legal advice in order to ensure the safety and wellbeing of the child.

Should you wish to discuss this matter further, please do not hesitate to contact our offices on 02 8917 8700.

In Australia, 1.5% (4,754) of women who gave birth in 2021 were under the age of 20.

Whilst the key focus in a teen pregnancy should be on receiving proper health care and support, these are the legal facts you should be aware of:-

Telling others

  1. The law does not require someone who is undergoing a teen pregnancy to tell family members, their parents, or anyone who is close to them.

Receiving treatment

  1. A doctor will need to assess and determine whether the patient is able to consent to medical treatment, without the supervision of parents, if you are under the age of 18. The doctor may consider the patient’s maturity (their ability to comprehensively understand the potential outcomes of a pregnancy, and the required steps of treatment to ensure wellbeing and safety), their age, and the severity or seriousness of the need for treatment.
  2. If a doctor decides that the patient has a capacity to consent, medical treatment may be discussed and serviced with no requirement to have parent’s knowledge or consent. This will mean that any treatment or information discussed will be confidential.
  3. If a doctor decides that you do not have the capacity to provide your informed consent, they may request for a parent’s involvement and consent.

Terminating a pregnancy

  1. The law states that the individual who is undergoing a teen pregnancy is the person who will decide if the pregnancy should be terminated.
  2. The consent of the intimate partner is not required.
  3. There is no requirement to seek the consent of parents (if you are over the age of 16). Someone who is pregnant and under the age of 16 must discuss with a health care professional, social worker, or counsellor if they are unable to tell their parents.

 

Ultimately, it is crucial for anyone undergoing a teen pregnancy to speak with a health care professional, social worker, or counsellor in order to fully understand the options and consequences of pregnancy and treatment.

Services which provide support include: your local GP, The Women’s Information Service, SHINE SA, Kids Help Line, Legal Help Line, Family Planning NSW, ReachOut, and many others.

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

Sources:

https://lsc.sa.gov.au/cb_pages/young_people_and_pregnancy.php

https://www.aihw.gov.au/reports/mothers-babies/australias-mothers-babies/contents/focus-population-groups/teenage-mothers

Your rights at the doctor

The Cab Rank Principle is a rule outlined by the Legal Profession Uniform Conduct (Barristers) Rules 2015 – Regulation 17 which outlines that a barrister must accept a brief from a solicitor or client to appear before a court if:

(A brief contains a summary of information that is given to barristers regarding a case with legal points that they are able to utilise in proceedings in court.)

The term “Cab rank” rule is derived from the idea that a Barrister must act on a first come, first serve basis, similar to the way a cab driver must drive the next person in like at the rank. This principle is a foundational to the Bar and comes back to the rule of law; the idea that no individual is above the law and hence it should be equally accessible and applicable to everyone. The rule has a further basis in that a barrister does not only owe a duty to their client, but also a duty to the administration of justice and thus they must maintain high standards of professional conduct.

As Justice Brennan said:

“The observance of the rule is essential to the availability of justice…it is unacceptable that the privileges of legal representation should be available according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the courts were dependent on counsel’s predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular causes to court and the profession would become the puppet to the powerful” – Giannarelli v Wraith (1988) 165 CLR 453.

Presently, this rule is only applicable to legal professionals who practice as barristers but there have been discussions as to whether this is a rule that should also apply to solicitors considering that all legal professionals, irrespective of whether they practice as barristers, conduct their work primarily to serve the community. Solicitors are also officers of the law and also have their own duties to uphold justice. Thus, if they are able to pick and choose the cases they work on, there may be a danger that those who may be perceived to have unfavourable cases by the public, or those that are marginalised, may be denied access to justice.

Once again noting that lawyers do not only have a duty to clients, but also the wider community and the legal system, it is important to have discussions about the rule and what it will look like in the future.

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

 

 

On 6 August 2023, the Commonwealth Bank of Australia (CBA) announced Australia’s first police referral pilot in New South Wales (NSW). The pilot will aim to revolutionise how banks report technology-facilitated abuse, utilising artificial intelligence and other technologies to alert law enforcement.

In the age of digital banking and ‘apps’, bank users are more susceptible than ever to technological abuse. To combat this threat, CBA utilises a range of interventions to make online banking safer. For example, CBA blocks over 400,000 transactions annually by using artificial intelligence to detect inappropriate language sent via the CommBank app. The newly announced police reporting pilot, which will launch in mid-September of this year, will take safety precautions to the next level, and allow CBA to identify repeat abuse faced by victims. CBA will then reach out to the victim and ask consent to contact NSW police to report the abuse.

As a result, users will be provided with a streamline and fast process of reporting abuse. This pilot will not only support victims, but will also prevent abuse, paving the way ‘for more effective collaboration in the fight against domestic and financial abuse’ said Angela Macmillan of CBA Group Customer Advocate.

If you or someone you know with to discuss the issue further, please do not hesitate to contact our offices on (02) 8917 8700.

 

If you or someone you know is experiencing domestic or family violence, call 1800RESPECT (1800 737 732) or visit www.1800RESPECT.org.au.

In an emergency or if you’re not feeling safe, always call 000.

 

Jumping into pop-culture news for this article from F&G, let’s follow the most recent legal battles relating to conservatorships in America, and how that translates to guardianship laws in NSW.

Britney Spears' Conservatorship

Public knowledge about conservatorships boosted exponentially following the debacle that was Britney Spears’ 13-year conservatorship, which was terminated after nearly 14 years by a Los Angeles court ruling in November 2021. Spears’ case revealed the extreme lengths to which an individual living under a conservatorship or a guardianship order, can be governed – including her being unable to remove a contraceptive device so she could fall pregnant.

ABC News notes that 1.3 million Americans live under strict conservatorships. Australia does not have conservatorships as they exist in the United States. Instead, each state and territory harbour various guardianship and financial management laws which mimic the function of a conservatorship. A report by the Australian Guardianship and Administration Council notes that there are a total of 19,879 guardianship and administration/financial management orders active between 1 July 2021 and 30 June 2022.

The NSW Equivalent of an American Conservatorship

In NSW, guardianship orders can be sought for individuals seeking to appoint another person with the ability to make decisions about their health, accommodation, services and other lifestyle matters. Similar to the conditions of Britney Spears’ conservatorship, individuals subject to a guardianship order are not able to consent themselves to medical and dental treatment. There are limitations on who can be the subject of a guardianship order. Unfortunately, these limitations still raise significant concerns about the impact of substituted-decision making where supported-decision making can be more beneficial for some individuals under guardianship orders.

The NSW Civil and Administrative Tribunal (NCAT) is responsible for reviewing guardianship applications and making orders. The NCAT will only grant a guardianship order, where the following requirements are satisfied:

The Intended Purpose of a Guardianship Order vs the Practical Effect

As these requirements highlight, guardianship orders are intended to serve as ‘support’ mechanisms for those with a disability – this may be a mental health condition, an intellectual disability, or a disability affecting someone’s ability to communicate their decisions. The Guardianship Act 1987 (NSW) states that the welfare and interests of persons with disabilities should be given paramount consideration and that their freedom should be restricted as little as possible.

In practice, however, there are minimal checks and balances on how a guardian undertakes their role to substitute an individual’s capacity and consent with their own – which is discussed by the Intellectual Disability Rights Service in this report. Australia has also been subject to criticisms by the United Nations. Despite being a signatory to the Convention on the Rights of Persons with Disabilities (CRPD), the UN finds that Australia has failed to adhere to the values and principles of the CRPD, by continuing to implement substituted decision-making regimes that enshrine restrictive practices.

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.

 

Breaking news from 9 News Australia on Wednesday 9 August 2023  followed the story of a woman who was dismissed from her 18-year tenure at an insurance company, after her employer was unsatisfied with her work productivity and performance while working from home.  What may seem a normal instance of workplace dismissal was made more controversial by the fact that the woman’s employer had been monitoring her laptop activity through logged keystrokes and assessing the amount of work she was doing from home.

Understandably, this has raised concerns from employees regarding their right to privacy in light of employers’ rights.

Is it legal for employers to spy on employees in this manner?

Yes – in NSW, employers can monitor the usage of equipment provided to employees for work purposes. Actions to be monitored can generally include time spent on work-issued devices such as laptops and phones, as well as the content of movements on such devices (i.e. text messages on a work phone). Reports also identify employees tracking location, mouse movements, and capturing screenshots.

How is this data obtained?

With the intention of more accurately measuring productivity and efficiency outside of the physical workspace, employee monitoring software saw a significant rise in demand during the COVID pandemic. The use of such spyware on company-supplied equipment has continued into the post-pandemic era, and concerns arise where the focus of the tool turns to surveillance and control. In most circumstances, employers must also notify employees of the software being installed on work-issued devices and explain what is being monitored, 14 days prior to the installation of such software.

What can employees do to protect themselves?

The key action to take is to check the terms of your employment contract and your workplace policy. These documents are essential as they:

As the panel discussion for the program noted, the increase of working-from-home arrangements and its normalisation during and after the peak of the COVID pandemic has ushered both positives and complexities in how workplaces function. The flexibility offered by work-from-home arrangements enable greater employee engagement and productivity for some. However, issues arise where the benefits are misused and create an imbalance between privacy protections for employees and employers right to enforce a standard of workplace conduct.

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.

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