Currently, Australians everywhere are experiencing the effects of climate change through catastrophic bushfires and extreme flooding. We are in the critical decade for climate action, and this window of opportunity to change is rapidly closing.

In May 2021, a cohort of Australian teenagers sought to fight for climate justice in the Federal Court, and it was found that Federal Environment Minister, Sussan Ley, owed the younger generations a duty of care to prevent climate harm, and consider this duty in approving the mine expansion.

Justice Mordecai Bromberg stated that climate change would be

“the greatest intergenerational injustice ever inflicted by one generation of humans upon the next”.

However this decision was appealed (Minister for the Environment v Sharma [2022]), and the full bench of the Federal Court unanimously rejected the 2021 decision. The current ruling is that Ms Ley does not have a duty of care to protect the younger generations from climate change harm, despite the consisted protesting of young climate activists who argue that expansions would endanger their future and cause injury, ill-health and economic losses.

The primary reason for this ruling was that the control of emissions, and protection of the public from personal injury caused by effects of climate change, were not responsibilities of Members of Parliament (as under current laws). It was also said that there was a “lack of causally connected foreseeable harm… as opposed to a tiny contribution to a sate of overall risk for the future” when approving of mine expansion.

Anjali Sharma (17), one of the young activists, was left devastated by the ruling, however recognised that this is just the beginning of change:

“This case demonstrates that young people are determined to be heard on this issue at the highest levels. We’re proud of representing young people in Australia and fighting to hold people in power responsible for their actions” she says.

Irrespective of the Court’s decision, we should all fight for climate justice and create a safe future for the younger generations.

If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.

 

 

Collating Documents

However daunting and tedious, collating documents is the best place to start to help with the rest of the divorce process. Lawyers will require you to provide your marriage and children’s birth certificates, bank account statements, investment statements, loan and mortgage statements and superannuation statements. Other miscellaneous provisions such as insurance policies, tax records, utility bills, property documents and government benefit documents may need to be collected as well.

Dividing assets and caring for children

It is incredibly important to take time to make important decisions. Making a list of the assets you both own and liabilities can make it easier for you to divide your assets. Similarly, time should be taken on how to care for your children. If you are unable to agree on appropriate parenting arrangements following separation, you should seek a qualified Family Dispute Resolution (FDR) practitioner. You should also contact Services Australia to seek more information about the amount of child support payable in particular circumstances, and the benefits that can be claimed for by separated parents.

Domestic Violence

Some divorces may occur due to violence. To protect yourself and your family, call 000 if you are in danger or to retrieve an Apprehended Domestic Violence Order (ADVO) against your partner.

Work out what happens to your income and expenses after divorce

If you pay a mortgage, make sure to speak to your lender and let them know that you are separated. They may allow you to make an application for financial hardship, which reduces mortgage payments to interest only.

Prepare a budget that does not involve your partner, and work out your income and expenses. You can also contact Services Australia to see if you can apply for government financial assistance. You should speak to a family lawyer regarding spousal maintenance, and their obligation to support you financially following the separation. Consulting a family lawyer at our firm can help you formulate a clear plan and understanding of the procedures, reducing stress and ensuring the best outcome for your family.

If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.

International Women’s Day

International Women’s Day yesterday has brought attention and awareness to respects for women’s rights and gender equality. Despite this, domestic violence continues to thrive, with Australian men murdering their female partners at the rate of one a week. Awareness towards domestic violence laws and access to the right legal protections can help prevent the rate at which this occurs.

Forms of Recognised Domestic Violence

Domestic and family violence is a crime defined in the Crimes (Domestic and Personal Violence) Act 2007. It involves an abuse of power, and can extend beyond physical violence, often involving the exploitation of power imbalances and subtle patterns of abuse.

It can take the form of physical abuse such as punching, hitting, kicking and pushing. It can also involve stalking, unwanted sexual acts, breaking Apprehended Domestic Violence Orders (ADVO) or making threats. Recognising the many forms of domestic abuse is vital to ensuring the necessary help is sought.

Lawful Means of Policing Domestic Violence

Domestic violence related legislation allows courts to include a domestic violence protection order, a condition excluding the person against whom the order is made from a residence shared with the victim. Reporting a domestic abuse situation to the police can help retrieve an ADVO on behalf of victims and children that happen to live or spend time with them.

Police can also investigate breaches of ADVOs, and if an ADVO has been breached, the police have power to arrest and lay criminal charges.

Legislation such as the Family Law Act 1975 (Cth) and Family Violence Act 2011 deals with issues regarding protection of partners in marriages, de facto relationships, divorce and separation. It also highlights the maintenance and care of children who fall victim to the consequences of domestic violence. Consult a family lawyer for professional legal advice.

If you would like to learn more about this issue, or would like to discuss a legal matter, please do not hesitate to call us on 8917 8700.

 

 

 

The Full Court of the Federal Court of Australia has recently handed down two appeal decisions that provide further guidance on business interruption insurance policies and whether they cover businesses for COVID-19 related losses.

On 21 February 2022, the Full Court of the Federal Court of Australia handed down two appeal decisions:

The judgements reached in the above cases uphold the first instance judgements, with the exception of one policyholder, which confirmed that there was no insurance coverage available for businesses claiming losses related to COVID-19.

This decision was made on account of the specific policy wordings issued to each of the policyholders that did not allow for businesses to be covered, particularly the wordings used in each insuring clause to determine the circumstances that are required to establish cover.

The Court upheld that the Policyholders’ claims that assert coverage under the 'Hybrid' or 'Prevention of Access' clauses did not succeed on the basis of the known facts, as such clauses “require closure or evacuation of the business “by order” of a relevant authority, which was not the same thing as the order having the consequence that premises were closed” as noted by Derrington & Colvin JJ.

Further, there was discussion within the Court over whether COVID-19 was considered a 'catastrophe' under the ‘Catastrophe’ clause. In both appeal cases, the Full Court upheld that the COVID-19 pandemic was not a 'catastrophe' within the meaning of the insurance policies in question, affirming the first instance interpretation.

These judgements handed down by the Full Court of the Federal Court of Australia provide much needed judicial guidance for businesses who intend to make business interruption claims. From the decisions reached, it is essential to recognise the importance of the specific wordings of the policies issued to individuals as well as the facts of their situation, as these considerations will determine the availability of coverage accessible to them.

If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.

What is child abduction?

The law defines child abduction to be the unlawful removal of a child from their legal caretaker, even with the consent of the child. This means that the defence of consent is not valid.

Parental child abduction is a criminal offence under the Family Law Act 1975 (Cth). Amendments ensure that offences can also extend to persons acting on behalf of the parent in attempting or succeeding in the abduction of a child.

How do I recover my child if an abduction has occurred?

If a child in your care has been abducted, you can apply to the Court for a recovery order. This empowers Australian Federal Police to investigate the activities and movements of the missing child and abducting parent. In the case of an international abduction and the abducting parent has removed the child from Australia, the AFP will cooperate with international agencies to find and return the child.

Defences to child abduction

Legitimate defences against a charge of child abduction exists. This may include a parent who is trying to escape domestic violence and wishes to protect the mental and physical health of their child. In addition to this, a general claim of self defence may be sufficient.

In instances where child abduction amounts to kidnapping, defences include self defence, necessity, duress, or claim of right.

Children abducted to non-Hague countries

The Hague convention on the Civil Aspects of International Child Abduction is an international agreement between certain countries, covering international parental child abduction. A full copy of the convention is available at the following webpage, Convention on the Civil Aspects of International Child Abduction. If your child has been abducted to a non-Hague country, seek legal advice from an Australian family lawyer immediately. Consult a family lawyer in the non-Hague country. The International Academy of Family Lawyers is a starting point to finding a lawyer in most jurisdictions.

If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.

Recently, the High Court of Australia delivered rulings for two cases that certainly refined the test for determining whether a worker is an employee or an independent contractor.

Previously, the Courts did not have a standard test for determining a worker’s legal status, but instead relied on a ‘multi-factorial’ approach that considered and weighed many factors such as who supplied the equipment, how the work was controlled, and generally what the relationship between parties was like.

The decisions recently delivered in the two cases clarified some of the ambiguity that lingered in the multi-factorial approach and provided new guidance. In the situation where the parties’ relationship is comprehensively elucidated within a written contract, the High Court rules that in differentiating between employee and contractor the Courts must first and foremost focus exclusively on the legal rights and obligations that are agreed upon in the contract. This line of reasoning can be seen in the recent cases:

  1. ZG Operations Australia Pty Ltd v Jamsek

In this case, two men engaged as truck drivers for the same company began proceedings to seek entitlements alleged to be owed to them as employees of the company. The High Court held that while some factors may indicate an employment relationship, such as evidence of an ongoing regular relationship between parties, the written terms of the contracts agreed upon by the parties determined the relationship to be contractual.

  1. Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd

Here, a young worker began proceedings in court against a construction company, seeking orders for compensation and penalties after being unable to work on a second project for a client who provided by the same construction company. The claims were made on the basis that the worker was an employee of the company. The High Court ruled that he was indeed an employee on the basis that the contract did not allow for the worker to disobey the client that the company assigned to him.

In summary, the recent judgements made by the High Court place an emphasis on the significance of the wording of the terms and conditions set out in the contract and renounces the earlier multi-factorial approach that looked at the relationship as a whole.

If you or someone you know wish to discuss this matter, then please contact our experienced solicitors at 02 8999 9809 for assistance.

Recently, businessman Geoffrey Edelsten left his only child just over $50,000 out of an estate worth over $1 million. Edelsten wanted to “limit the benefit” to his son as he was provided with substantial financial disclosure, regardless of there being limited contact between the father and son.

Edelsten’s Will also specifies that he left nothing to two of his ex-wives as he provided for them “substantially” and “excessively” during these marriages.

Surprisingly, Edelsten is said to have left a string of debts regardless of making $100 million after selling his chain of GP clinics. He was a man known for flaunting his lavish lifestyle, and regardless of making a series of disastrous financial decisions which left him bankrupt, he continued to take loans to maintain this wealthy lifestyle.

His final Will however has revealed the dire financial circumstances he was in prior to his death, finding that $998,614 of his $1 million estate was a private loan, with only just over $60,000 in his bank accounts. Creditors are now attempting to challenge Edelsten’s will in order to recoup millions of dollars in debt.

Ultimately, Edelsten's case shows how enforceable Wills can be, and how important it is that you have one in order to ensure your estate is distributed as to your wishes. There are two avenues through which property can be distributed after a person's death:

    1. If there is a Will: The estate will be distributed pursuant to the provisions of the Will, if the Will was validly executed; or
    2. If there is no Will: The estate will be distributed pursuant to intestacy laws.  Intestacy applies when a person has died without leaving a Will, or they otherwise fail to dispose of all of their property.  Chapter 4 of the Succession Act 2006 (NSW) outlines the order of priority with regard to this distribution.

If you or someone you know wish to retain our services in assisting you to make your Wills, then please contact our experienced solicitors at 02 8999 9809 for assistance.

Following Priyanka Chopra and Nick Jonas' announcement for their surrogate baby, discussion surrounding surrogacy has been sparked.

What is surrogacy?

Surrogacy is the process where a woman agrees to carry a baby for another person who, by legal agreement, will become the baby’s parents after birth. There are two forms of surrogacy arrangements that are relevant to Australian law:

  1. Altruistic surrogacy arrangements are arrangements where the surrogate mother does not receive any financial reward or profit from the. However, the mother will be reimbursed for any expenses incurred due to the surrogacy (for example medical, legal, and general costs).
  2. Commercial surrogacy arrangements are arrangements where the surrogate mother receives financial reward that covers more than the associated expenses and makes a profit from the surrogacy.

Surrogacy in Australia

In Australia, altruistic surrogacy is currently legal across all states and territories. However, commercial surrogacy is banned in NSW, QLD, TAS, and the ACT. There are no uniform laws that cover surrogacy, but instead, each state has its own regulation. Therefore, it is critical to check your state’s surrogacy regulations if you require further information.

Generally, the intended parents of a surrogacy are eligible to enter a surrogacy arrangement if they are unable to conceive or carry a baby themselves. Age and other requirements are specific to each state.

Furthermore, a surrogacy arrangement is not enforceable. This means that if the surrogate refuses to hand over the baby or the intended parents do not accept the baby, neither party can be forced to do so under the agreement.

When the baby is born, the surrogate mother and her partner are recognised as the birth parents of the baby on the Birth Certificate. In order to transfer parentage, the intended parents must apply for a Parentage Order to the Court in the state they live in to confirm they satisfy the relevant requirements. The specifics in the process to transfer parentage from the surrogate to the intended parents differs in each state, and thus, you must check your state’s regulations and requirements for more information.

If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.

Shocking revelations surrounding the tragic death of nine-year-old Charlise Mutten have arised in the media over the past week.

Charlise was reported missing on Friday 14 January 2022, while spending her holidays at a Blue Mountains property owned by her mother’s fiancé, Justin Stein. A full-scale search involving the homicide squad, specialist and local police, and other volunteering services commenced immediately. On Tuesday 18 January 2022, police searched a site near the Colo River, and found Charlise’s body inside a barrel. Court documents allege that Charlise was killed between 7PM on Tuesday 11 January and 10AM on Wednesday 12 January. Mr Stein has since been arrested and charged with the murder of Charlise Mutten.

Both Charlise’s mother Kallista Mutten and Mr Stein have complex histories. Her mother was convicted and spent approximately two years in prison after being found guilty of dangerous driving causing death and driving with an illicit drug in her system in 2016. Mr Stein has been under long-term care for serious mental health problems and has been prescribed high doses of antipsychotic drugs for many years.

Child abuse is any form of ill treatment by someone in a position of responsibility, trust or power, that harms a child’s health, survival, development or dignity. It is a conversation that makes many people uncomfortable, but it is a conversation that must be taught in schools and spoken about in public discourse.

There are many platforms available to victims to be able to reach out:

If you or anyone you know might be experiencing family violence, please do not hesitate to reach out and call us on 02 8999 9809.

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