A two-year-old girl, only known only as DIZ18 to the public, was evacuated from The Nauru Regional Processing Centre for urgent medical care following months of court proceedings in 2018 which forced the Australian Commonwealth to provide her with the correct procedures and medical treatment she required at the time.

Five years later and the child’s legal team has fought hard for this two-year-old girls human rights violations to be heard in front of the High Court of Australia. Eventually the legal team, made up of Maurice Blackburn Lawyers with senior associate Bridie Murphey, were able to continue their fight with a legal claim for compensation against the Commonwealth for ‘aggravated and exemplary damages’.

The claim for compensation was “strenuously contested” by the Commonwealth, which denied it even owed a duty of care to the child, despite the Australian Human Rights Commission claiming that ‘Australia has obligations to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of how or where they arrive and whether they arrive with or without a visa.’

The two-year-old girl, her family, and her legal team however, fought hard for generous compensation from the Commonwealth for the delayed treatment and need for urgent medical care to protect this child’s life earlier in 2018.

Bridie Murphey, senior associate at Maurice Blackburn Law, states that “access to justice is a cornerstone of our legal system.” And that the mistreatment of such a young girl deserves compensation. “This case has been running through the courts for most of our client’s life. We are pleased that a measure of justice has been obtained for her and her family,” Ms Murphy says when interviewed by Lawyers Weekly.

She also mentioned that even the existence of detention centres such as Nauru should be considered “national shame” and “That the Commonwealth had to be taken to court to ensure this child received medical care is astounding…This case, and those that remain before the court, are an important reminder of why no child should be held in immigration detention.” She also urges the Commonwealth that all refugees seeking asylum and safety in Australia should be treated with the fairness and human rights of any Australian citizen.

“Few other countries go to such lengths to deliberately inflict suffering on people seeking safety and freedom.” says Anna Neistat, Senior Director for Research at Amnesty International

“Australia’s atrocious treatment of the refugees on Nauru over the past three years has taken an enormous toll on their well-being,” said Michael Bochenek, Senior Counsel on Children’s Rights at Human Rights Watch, who specialises in the mistreatment of children like said two-year-old girl on refugee camps like Nauru.

However, after the long legal battle, the two-year-old girl and her family were able to receive a generous compensation from the Australian Commonwealth for their lack of urgent medical attention on said child’s life. Her family’s whereabouts are unknown regarding the question of if they remain of the island, but the child now remains with her family and with access to immediate medical attention if required.

When a there is a dispute between parents, often the court will serve an order to ensure the welfare and financial stability of both parties and the child. This is legally binding for both parties. In family law cases, there are two types of court orders that can be served. The first being a Parenting Order. This concerns the child’s custody arrangements as well as communication with parents and travel plans. A Financial Order is in regard to spousal and child support, as well as property and asset settlement. Non-compliance or a breach of a family court order is a serious offence and carries significant penalties. This can look like not allowing your child to see their other parent or refusing to pay child support, either intentionally not complying, making no effort to comply, or forbidding another party to comply.

If you are found to be breaching a family court order, the court may:

in accordance with Division 13A of Part VII in the Family Law Act 1975. As well as this, the court may revisit the terms of the Parenting Order and the division of custody and child support.

However, there is the possibility of there not being any legal ramifications if there is a reasonable excuse for non-compliance with a court order. The excuses being; reasonable belief that a breach will protect or maintain the welfare of the child/person involved, a misunderstanding or lack of understanding regarding the court order or, the breach of order did not exceed that time that was necessary to protect the child or person.

If you have suffered from another party breaching a Parenting or Financial court order you have to file a Contravention Application containing an Affidavit, a valid Section 60I Certificate from a Family Dispute Resolution Practitioner, and what orders have been contravened. It is also important to collect any emails, texts, or other evidence that proves the non-compliance with the court order.

If you have any questions about this matter, please do not hesitate to contact our offices on 02 8999 9837

In the age of social media, there is a growing platform of people sharing everything about their lives online. This can be a tool used for good, providing people with a sense of community and understanding. However, in regard to family law matters, it is crucial to carefully monitor, and even stay off social media whilst in the midst of proceedings. Although seemingly harmless, there is a growing prevalence of social media being used as evidence in court proceedings which can affect the opinion and outcome of the case.

In the Family Law Act 1975 Section 121, it is stated that anyone who disseminates information regarding:

commits an indictable offence punishable by a year in jail.

As well as this, any posts that demonstrate inappropriate behaviour can also be used in court to attest to you being an unfit parent. If your post can be misconstrued to sound like you are denigrating the other party or that you are an unsuitable parent, it’s better to not post. And beware, even if you have deleted a post or message, there is a chance someone may have saved it, and they can be retrieved by police if necessary.

An example is the case of Lackey & Mae [2013] FMCAfam 284, the father regularly denigrated the court, Independent Children's Lawyer, and mother regarding the legal proceedings which resulted in a breach of the Family Law Act 1975 Section 121. He was ordered to take down all his posts and he and his immediate family were restrained from posting anymore. This outcome and evidence significantly affected the judgment, where the mother got sole parental responsibility for the children.

In order to maintain your safety and security on social media while undergoing legal proceedings, be sure to:

Should you wish to discuss this matter further, please do not hesitate to contact us on 02 8999 9809.

 

Child Support in Texas, United States of America

As of 1 September 2023, the State of Texas has given effect to House Bill 393, confirming that any person who is convicted of intoxication manslaughter will now have to pay restitution. In other words, this means that guilty persons convicted of drunk driving in Texas, will now have to pay child support if they kill a parent or guardian of a minor.

Known as ‘Bentley's Law’, the legislation was enacted to make drunk drivers financially accountable for the expenses associated with raising a family when an earner of that family is killed. The legislation also hopes to deter drivers from driving whilst intoxicated by demanding even greater consequences on perpetrators.

Under Bentley’s Law, perpetrators will continue to pay child support until the child is no longer a minor – meaning they must either turn 18 years of age or graduate high school – which ever is later. These payments are not an alternative to incarceration, in fact perpetrators will be required to make such payments despite being in prison. If a person cannot make these payments due to being incarcerated, they must make the payments no later than a year from their release. Bentley's Law also provides the option for perpetrators and victims to come to an agreed payment plan.

In Australia, offenders of drunk driving may be liable to pay compensation to their victims, including pedestrians, cyclists and passengers of other vehicles, or for clearly identifiable damages and loss, such as damage to another vehicle. However, the requirement by law in Australia does not, and may not for the foreseeable future, require a payment of child support from guilty parties.

Child Support in Australia

This raises the question as to how does child support work in Australia?

What is Child Support?

Child support in Australia refers to payments made between separated parents to help with the costs associated with raising their children. This is done so that both parents can continue to contribute to the lives of their children. Child support payments may be made from one parent to another, or even by both parents to a ‘non-parent carer’, such as a grandparent, with whom the child may reside (for at least 128 nights per year).

Types of Child Support

Child Support in Australia is run by the Australian Government’s Child Support scheme via Services Australia. Within Services Australia, parents may apply for a ‘Child Support Assessment’, whereby the service will determine the payment costings and manage the transfer from parent to parent. In a simplified explanation, Services Australia does so through their ‘8 step Formula’ which considers the parent’s annual salary of each parent and percentage of care, to procure the child support amount.

On the other hand, parents may elect to ‘self-manage’, which means that they are able to chose and manage how much they pay, at what intervals and through which channels. However, parents are only eligible to receive the base rate of Family Tax Benefit Part A, which is a lower amount.

If you have any questions about Child Support, please do not hesitate to contact our offices on (02) 8917 8700.

The way children are raised is significantly dependent on the sociocultural influences around them, and a contentious issue that is often discussed is the use of physical punishment on children as a form of discipline.

The NSW Law

Under the Crimes Amendment (Child Protection - Physical Mistreatment) Act 2001 No 89 (NSW), the use of excessive physical force to punish children is limited, and only specific parts of a child’s body can be subject to force. Further, Section 61AA of the Crimes Act 1900 (NSW), in criminal proceedings brought against a person arising out of the application of physical force to a child, there is a defence of “lawful correction” if the physical force was applied by a parent for the purposes of punishment, and that the physical force was reasonable having regard to various factors including age, health and maturity. The defence will not however be available if the Court determines that the force was applied to any part of the head or neck of a child or to any other part of the body of a child in such a way as to be likely to cause harm to a child that lasts for more than a short period.

Effect on Children

Whilst there are laws surrounding the extreme use of physical force against children, corporal punishment is highly prevalent globally and there is often no legislation effectively regulating the extremity that some children may experience. The World Health Organisation found that around 60% of children aged between 2 and 14 regularly experience physical punishment by their parents or caregivers, and evidence shows that this not only increases children’s behavioural problems, but also links to a range of life-long negative outcomes such as mental illness, increased aggression, and impaired socio-emotional development. Further, the American Psychological Association has proposed alternative ways to resolve child behavioural issues that do not involve conflict, including taking away certain privileges, using praise to shape behaviour, or ignoring the behaviour.

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

A cruise with 28 deaths and more than 600 victims of COVID-19; the Federal Court has made it’s decision.

In March 2020, the Ruby Princess Ship set for departure carrying “a significant risk of a coronavirus outbreak, with possible disastrous consequences, and yet they proceeded regardless”, as said by Justice Stewart of the Federal Court.

Despite COVID-19 outbreaks on two previous ships, Carnival Australia confirmed to passengers their reassured safety prior to departure. Later found to be a misleading representation of reasonable safety.

The lead applicant, Ms Susan Karpik, and also one of many applicants in the class action lawsuit against the cruise, suffered psychiatric injuries as her husband was hospitalised for COVID-19, including having to be placed into an induced coma. Ms Karpik sought damages in the sum of $360,000 for personal injury, distress, and disappointment. Unfortunately, the lead applicant was only able to recover $4,400, which had already been covered by a refund provided by the cruise ship. Judge Stewart reasoned that her case was below the claimable threshold as she did not satisfy suffering from long COVID.

Nonetheless, the class action has been regarded as the first successful cruise ship class action as the court is now to answer to each passenger and their proof of individual damages. This would include the tragic injury suffered by Ms Karpik’s husband, who is likely to recover damages due to the substantial claim.

Ultimately, Carnival Australia was found negligent due to misleading passengers with claims of reasonable safety, not providing a “happy and relaxing holiday” as advertised, and breaching their duty of care to every passenger’s personal health and safety.

It is predicted that Carnival Australia may settle all claims outside of Court, given the expected lengthy litigation and legal findings behind each claim.

In the meantime, the matter has been listed for case management hearing an Final Order on 10 November 2023.

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

Excessive use of police powers in social justice contexts has been the topic of public criticism on numerous occasions, with respect to the impediment of individual rights to protest and right to privacy.

These concerns arose once again, ahead of the pro-Palestinian rally held on 15 October 2023 in Hyde Park, Sydney CBD. Comments by the NSW police Acting Commissioner, David Hudson, and NSW Premier Chris Minns advocated the use of “extraordinary powers” to search protesters without reason and arrest and charge those who refuse to identify themselves at Sunday’s planned pro-Palestinian rally.

Emergency Powers under Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

Introduced following the 2005 Cronulla race riots, these powers in Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) assist police in defusing and controlling large-scale public disorder. The powers are enlivened when the threshold of an ‘actual or threatened large-scale public disorder’ is met. While what constitutes ‘large-scale’ is left ambiguous in the legislation, a ‘public disorder’ is defined in Part 6A as a ‘riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations’. Once approved by either the Commissioner of Police, Deputy Commissioner or Assistant Commissioner, the powers enable the NSW Police Force to undertake a range of actions, including some of the following.

Section 87I - Power to place or establish cordon or roadblock

This power enables the police to establish a roadblock or place a cordon around a target area, for the purpose of stopping and searching people involved in the 'large-scale public disorder' or to prevent persons from entering or leaving the area without the permission of a police officer.

Section 87K - Power to search persons

Bodily searches without reasonable cause are authorised under this section, if a person is in an area where the power is authorised. A person can be detained by a police officer for as long as reasonably necessary to conduct a search.

Section 87L - Power to obtain disclosure of identity

Individuals in an area where use of the emergency powers are authorised, must disclose their identify if requested by a police officer to do so. Refusal to do so without  a reasonable excuse will result in a fine or 12 months imprisonment.

Use of the Powers in the Context of Peaceful Protest

Violent behaviour and the chanting of antisemitic slurs at the earlier pro-Palestine rally in front of the Opera House on Monday were the primary justifications for use of the extended police powers. Notably, in the Parliamentary debate on the Part 6A emergency powers and Second Reading Speech, it was unequivocally affirmed that the powers would not be used in the policing of peaceful rallies and demonstrations. However, the Legislative Review Committee’s review of the Part 6A powers included criticisms that the right to peaceful assembly and right to privacy were affected by the extended powers (NSW Ombudsman, Review of Emergency Powers to Prevent or Control Disorder).

While the rally on Sunday was originally planned as a march, the failure of the organisers to submit a form for the protest 7 days in advance meant that the event was changed to a static rally. Reports following the rally confirmed that while over 6,000 people gathered, no arrests were made. Notwithstanding the positive and peaceful outcome of the event, it is important to keep note of the potential imbalances between the extension of police powers for public safety, against individuals’ rights to peaceful assembly and privacy. If arrested, individuals will often be required to participated in a police interview. It is important to note that individuals under arrest reserve the right to remain silent, and to seek independent legal advice before answering any questions.

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

Appeals are applications to higher courts by a party who believes that the decision at first instance was incorrect. Appellate work is a special area of law and usually requires specialist lawyers who are knowledgeable in the area of appeals. Appeals are primarily heard and determined in the Federal Court in its appellate jurisdiction.

 

Jurisdiction

Across Australia, numerous courts have a specific ‘jurisdiction’, which refers to the scope of a Court's power to decide on a particular issue. This will usually depend on the purpose for which a Court was established and is typically defined within the legislation establishing said Court. Jurisdiction is often determined based on the location of the Court, the type of parties to a case or subject matter, the amount of money in the dispute or the penalties that can be handed down. Other Courts may also have a specific jurisdiction, like the Children’s Court or have a broader general jurisdiction, like the Supreme Courts of the states and territories. The distinction between jurisdictions also applies to the time a case is heard. If it is the first time that a matter is heard, then that will mean the Court at first instance is hearing a matter in its ‘original jurisdiction’. Whereas if a matter is heard a second time against the decision made by a Court in the original jurisdiction, the Court hearing that matter again will have ‘appellate jurisdiction’.

The appellate jurisdiction of the Federal Court of Australia includes:

Appeals sometimes reach the High Court of Australia; however, there is no automatic right to do so. An individual may apply to the High Court for permission to appeal, called a ‘special leave’ application. However, this is only granted in the most exceptional cases.

 

Types of Appeals

Strict Appeals: Where a Court with appellate jurisdiction determines whether the Court at first instance made a mistake, and it will be constrained to only considering evidence that was available to the first Court.

Rehearing Appeals: Where the appellate Court will consider the law at the time of the appeal and any events leading up to it. Here, fresh evidence can also be brought in.

Appeals De Novo: Where the appellate Court retries all the issues heard at first instance with the opportunity to consider fresh evidence. Each party will be able to present their case, and the Court will hear the whole matter and is not constrained to only reviewing the decision of the first Court.

 

Types of Review

Merits Review: This applies to decisions by government agencies rather than by the Courts. This right is created by legislation where a person is directly affected by the decision of a government agency and thus allows for the decision to be reviewed by other government officials.

Judicial Review: This is a common law right, meaning it is not derived from legislation. This applies to a higher appellate court, whether it is a decision by a government agency or by a lower Court or Tribunal. Traditionally, the grounds that can form the basis of a judicial review application include:

 

Appealing Discretionary Decisions

Some decision-makers in particular areas of law (e.g., family law, immigration law, probate law) have discretionary power. This means they can decide on a matter by making a judgment and considering all relevant information on a case-by-case basis. With discretionary powers, the decision maker has the choice of either choosing to exercise a particular power (or make a particular decision) or not. Conversely, some decision-makers have mandatory powers where they have an obligation to exercise a particular power in a certain way. Appealing a decision by a decision maker with discretionary powers is different to usual appeals.

In 1936, the High Court laid down the principles of appealing the decision of a discretionary decision maker in the case of House v The King (1936) 55 CLR 449. Justices Dixon, Evatt and McTiernan identified four grounds on which a party may make an appeal:

  1. The decision maker considered irrelevant material.
  2. The decision maker failed to consider relevant material.
  3. The decision maker made a mistake of fact; or
  4. The decision was unreasonable or wholly unjust.

The case determined that a person seeking an appeal must establish that the decision maker made an error while exercising their discretion. These grounds are known as ‘House Errors’ and continue to be used today. The grounds identified in this case can be applied to cases in criminal law, civil penalties, family proceedings, costs, valuation of property, quantum of damages and more.

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

A referendum was held on 14 October 2023, where Australians were asked whether they would like to change the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.

As at 2023, there have been 45 nationwide referendums, with only 8 of which have been carried out. For a referendum to be successful, there needs to be a ‘double majority’ vote of ‘yes’ to the proposed change, meaning that at least 4 out of 6 states should have a majority of votes. The 2023 referendum saw that no state in Australia voted ‘yes’ for the Voice to pass, with more than 60% of Australians voting ‘no’ to the constitutional alteration. However, in remote Aboriginal communities, there was an overwhelming vote in favour of the Voice, with support being close to 90%.

Many Yes campaigners were devastated in this result, stating that the referendum loss was due to the abundant misinformed campaigning and the entrenched racism within our society.

PM Anthony Albanese said the failing of the referendum "is not the end of the road" for attempts to address the disadvantages facing Aboriginal and Torres Strait Islander people.

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

envelopeprinterphonemap-marker