Author Archive for Aston

Wife says husband who attacked her and lover with tyre lever is ‘not violent’

EXCLUSIVE

THE husband who brutally attacked his wife and her lover with a tyre lever is not violent and remains a close friend, his spouse said today.

Robert Andrew Mann, 30, was yesterday sentenced to 12 months in jail for his vicious assault on Jaimi-Lee Atkinson, 26, and her then-boyfriend Jeremy Sampson. He had tracked them from the couple’s Tamworth home to Sydney using the Find My iPhone app.

Terrifying footage of the June attack shows Mann, armed with a steel rod, dragging a screaming Ms Atkinson out of a vehicle in a Parramatta car park before she runs away. He then leaned into the car and punched Mr Sampson up to 30 times, before returning his attention to his partner of 13 years.

Jaimi-lee Atkinson, 26, and three of her five children.Source:Facebook

Standing over her, he shouts: “Thought you got away from me, didn’t you?”

Ms Atkinson can be heard begging bystanders to call the police.

The mother of five accompanied Mann to court, where he pleaded guilty on two counts of assault occasioning actual bodily harm, one count of intentionally destroying/damaging property and one count of driving on a suspended licence.

Ms Atkinson today told news.com.au: “Me and my ex are only friends. We will remain close friends. I’ve spent the majority of my life with him.

“Our marriage is over, too much has been done to repair our marriage, but for our children, the stuff that’s happened in our marriage isn’t their fault. We need to be there for them.

“People have made him out to be some kind of animal who bashed me and someone else and that wasn’t the case. He didn’t hit me.”

Mann arrives at Parramatta Local Court for sentencing yesterday. Picture: John GraingerSource:News Corp Australia

Asked whether she had been able to forgive her husband for the attack, Ms Atkinson said: “There is some sort of forgiveness there, but this story that’s been publicised through the media is not what happened. I don’t know where the media got that from. It’s a load of crock.”

She said reports at the time that there was an AVO (apprehended violence order) in place were inaccurate. “There was no domestic violence, no police involved. Robert was never an abusive partner or husband.

“What happened that night was a one-off thing, we had a lot of personal issues leading up to what happened that night, and it just got to the point where something happened he regrets a lot. I regret what happened leading up to that.

“I had a miscarriage, he was working away from home, long hours … I was basically doing it by myself. He was only home one or two days a week and when he was home, he was sleeping. It put a lot of pressure on our marriage.

Robert Andrew Mann is heard shouting ‘thought you’d got away, didn’t you?’ in terrifying iPhone footage of the attack.Source:Channel 7

Ms Atkinson was by her husband’s side as he was sentenced at Parramatta Local Court yesterday.Source:Channel 9

“I’ve suffered, he’s suffered, our children have suffered from what’s been in the media. We’ve basically been shamed in public for what happened. My children have been bullied at school.

“You can see in the video he was getting cranky there … the cut eye I got was from a broken window during the altercation between the two males. I was very scared about them fighting, like anyone would be.”

She and Mr Sampson were treated by paramedics after the attack before being taken to hospital. Police alleged that when officers later approached Mann, from Wee Waa northern NSW, they were verbally threatened and had to use a taser.

Ms Atkinson continued: “I haven’t been the best wife, I was being unfaithful to my husband. I was having an affair. There was three of us at fault … we’re all sorry for what happened that was publicised and people had to see that. Robert’s very sorry about what happened.

“My main priority now is my children and trying to deal with our personal things. It’s hard on them with their parents separating, without the news talking about all this.

“My son’s going to football training and people are talking about it. The kids knowing Robert, he was never like that … Robert’s not known as a violent person … that stuff never happened.

“My hope for the future is the best life for my children. We just want everyone to know the truth.”

Ms Atkinson said her husband, from whom she is now separated, regularly sees their five children, who are aged between 10 and just under a year old. He lost his job in the cotton industry after the attack.

The 26-year-old says it is too late for her and Mann to resume their relationship, but added: “I still care for Robert deeply, I will forever.”

After pleading guilty to four charges, Mann was sentenced to 12 months’ jail, with a non-parole period of six months, disqualified from driving for two years and fined $300, Nine News reported.

Magistrate Jenny Giles said: “You hunted these two victims, pursuing them across the state in a vengeful, rage-filled vendetta.”

Mann walked free after lodging an immediate appeal and will return to court next month.

Call 1800 RESPECT (1800 737 732) if you or someone you know needs help.

emma.reynolds@news.com.au | @emmareyn

Visa Refusals And The Appeal Process

Recent DIBP decisions to refuse Australian visas

In recent times the Department of Immigration and Border Protection (DIBP) has been taking a strict approach to migration with the result that more and more visa applications are being rejected. Interestingly, the grounds for many visa refusals have been subjective, such as:

  • Character (failing to satisfy the DIBP that you are of good character)
  • Genuine position (failing to provide sufficient evidence that the employer genuinely requires the applicant’s experience and skill)
  • Genuine relationship (failing to provide sufficient evidence that the applicant and sponsor are in a real and committed partner/spouse relationship)

There are significant consequences if your visa is refused, such as:

  • The impact on your legal status in Australia, and becoming illegal after your bridging visa (associated with the visa application) has expired (usually 28 days from the refusal date).
  • Restrictions on which future visa applications you can lodge while you are still in Australia;
  • A potential ban on your future return to Australia, due to a 3 year ban on temporary visa applications if you overstay your visa or if you leave Australia while on certain bridging visas and you are affected by a ‘risk factor’.

How to appeal against DIBP decisions – The Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) is a separate body, independent of the DIBP. It reviews DIBP decisions on their merits, meaning it stands in the original decision-maker’s shoes and makes the decision afresh, without being influenced by the original DIBP decision. Due to increased visa refusals the AAT has been experienced a high volume of review applications, with the waiting times for a decision therefore ranging anywhere from 6 to 24 months depending on the type of visa.

An appeal against a decision by the DIBP to refuse an Australian visa is not automatic, it can only take place if you have the right to do so and you make a formal application to the correct division of the AAT. If your visa application has been denied it is very important that you speak with a specialist immigration lawyer as a matter of urgency, as strict legislatively prescribed deadlines apply to the lodging of review applications with the AAT. The AAT does not have discretion to extend the timeframe for making a review application. If you wait too long, the DIBP decision to reject your visa application will be final.

If your visa application has been refused the DIBP will have sent you a letter detailing their decision, whether you have a right to appeal, and most importantly, the deadline for lodging a review application that applies in your case. Whether or not you have a right to appeal depends upon the type of visa applied for and the reasons why the visa was denied. For example, if the Minister for Immigration and Border Protection personally decides to reject your visa under section 501 of the Migration Act 1958 (Cth) (‘Migration Act’), you cannot apply to have the decision reviewed by the AAT.

The review application filing fee of AUD$1,673.00 is payable in all cases, except for a review of a bridging visa which resulted in a person being placed in immigration detention. The filing fee is 50% refundable if your matter is successful at the AAT. If you lodge your review application while you are still in Australia it is likely you will be eligible for a bridging visa, allowing you to stay in the county lawfully until the AAT makes a decision in relation to your application.

The appeal process can be highly confusing, particularly if you are not familiar with the Australian legal system and English is your second language. It is imperative that you speak with a specialist immigration lawyer to assess the options which may be available to you, and to advise you as to which is the preferable and most cost effective option in your particular circumstances. If you are concerned that you may be close to the deadline for lodging a review application contact us immediately and we will advise you as to what steps you should take.

Given the increase in visa refusals it is crucial that applicants wishing to appeal DIBP decisions present a very strong case. The appeal hearing provides the opportunity to explain your circumstances in greater detail, to correct any misinterpretations and to provide the missing information or supporting documents that let to your visa application being rejected.

It is vital that you have a legal representative who understands how the appeal process operates and can employ strategies best suited to your particular application and visa category. It is essential that all applications for a review are carefully prepared, thorough, well supported and lodged in a way that meets all applicable DIBP law and policy. In the absence of specialist advice, oftentimes visa and review applications are handled poorly, and unfortunately there are significant ramifications which are out of the applicant’s control.

Once you have lodged an appeal application your case will be reviewed by a single AAT tribunal member, who considers your visa application against the same criteria as the DIBP, pursuant to the Migration Act. You may then be asked to attend an appeal hearing, which is an opportunity to appear in person to present your case and provide the AAT with supporting documentation. If you require an interpreter, one will be provided free of charge.

The hearing takes place in a room which resembles a court room, and is voice-recorded. The tribunal member will ask numerous questions about the application, peruse the relevant documentation and hear from any relevant witnesses you have arranged to attend the hearing. The review hearing can be quite a stressful process for these reasons, and particularly because the outcome determines whether you will be permitted to remain in Australia.

If your appeal to the AAT is unsuccessful, you may be able to seek redress through Judicial Review (at the Federal Circuit Court, in the event the AAT has made a legal error) or Ministerial Intervention (to the Minister of Immigration and Border Protection). However, if your appeal to the AAT was not handled correctly, your Judicial Review options may be limited.

Consult a specialist immigration lawyer to ensure your success

Consulting a specialist immigration lawyer will greatly boost your chances of success. The specialists at our firm offer advice specifically tailored to your particular circumstances, correspond with the AAT on your behalf, represent you at the AAT hearing, submit written submissions and evidence, and will ensure you avoid the common fatal mistakes made by applicants who do not consult a specialist, such as failing to adhere to the strict time limits or submitting the incorrect forms.

If you have any questions and would like to schedule a free consultation to meet with our specialist immigration lawyers, please do not hesitate to contact our offices.

What is an Independent Children’s Lawyer?

What is an Independent Children’s Lawyer?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Family Court to represent the best interests of the child in parenting disputes.

Section 68L of the Family Law Act 1975 enables the child, as well as persons and organisations concerned with the wellbeing of the child, to apply for an ICL. The Court will usually appoint an ICL if one or more of the following circumstances are relevant:

  • There are allegations of abuse towards the children;
  • There is a high level of conflict and dispute between the parents;
  • The child is mature enough to express their own views;
  • There are allegations of family violence;
  • Either one of the parents or child suffer from serious mental health issues;
  • The case involves difficult and complex issues.

What do Independent Children’s Lawyers do?

ICL’s take into consideration the views of the child and form their own opinion about what arrangements and decisions are in the child’s best interests. This may include:

  • Talking to the child.
  • Talking to the family consultant and other relevant people, including teachers and doctors.
  • Reading affidavits.
  • Examining subpoenaed documents.
  • Obtaining evidence to be presented to the Court.
  • Facilitating the participation of the child in court proceedings (if appropriate).
  • Acting for the child in settlement negotiations with the parents (if relevant).

What are the best interests of the child?

In family law the ‘best interests of the child’ has a very particular meaning. Generally, the following are considered in determining best interests:

  • The need to protect the child from physical or psychological harm, abuse, neglect or family violence (including exposure);
  • The need to ensure that the child has the benefit of both their parents having meaningful involvement in their life, in so far as it is consistent with the child’s wellbeing;
  • The need to ensure that the child receives proper parenting; and
  • The need to ensure that the parents fulfil their responsibility to care for the welfare and development of the child.

What is the role of the Independent Children’s Lawyer in court?

At the hearing, the ICL will conduct the case on behalf of the child. They will make submission, present evidence and cross-examine witnesses.

 

When does the Independent Children’s lawyer make a recommendation?

When the ICL knows what orders they wish to seek on behalf of the child they will inform the parent’s lawyers, or the parents directly if they are unrepresented.

Sometimes the ICL may be unable to make a recommendation until late in the proceedings or not at all.

If the ICL makes a recommendation, it may be subject to change, based on the evidence made available to the Court.

Former NFP Head Charged With Sexual Assault

The founder and former managing director of disability support organisation Lifestyle Solutions, David Hogg, has been charged over an alleged sexual assault dating back to the 1980s.

On Friday, Hogg was charged by Sydney police with “sexual assault knowing no consent was given” following an investigation that commenced last year. He was granted conditional bail and will appear in court on 24 January 2017.

The charge relates to an alleged incident on 29 July 1988 when the female victim was 16 years old and Hogg, who was known to her, was 35.

Hogg, who was also a winner of Pro Bono Australia’s 2015 Impact 25 award, established not-for-profit organisation Lifestyle Solutions, which provides national support services for people with disability and children living in out-of-home care, in 2001.

He stepped down from his role of managing director in June this year, and Lifestyle Solutions confirmed that he no longer has any involvement with the organisation.

Andrew Hyland, who was appointed CEO in November this year, told Pro Bono Australia News: “David Hogg left the organisation on Tuesday, 14 June 2016 to make way for new leadership.

“We note that the alleged assault was dated Friday, 29 July 1988, pre-dating the inception of Lifestyle Solutions in 2001. David left Lifestyle Solutions in June 2016, and is no longer a director or employee of the organisation.

“As the matter is before the court we cannot make any further comment.”

Hogg declined to comment, but his lawyer Hugo Aston said on his behalf that he would be entering a plea of not guilty.

“He will be vigorously defending the charge,” Aston told Pro Bono Australia News.

Pro Bono Australia will assess David Hogg’s Impact 25 award following the outcome of the court case.

If you or someone you know is impacted by sexual assault, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au.

 

Ellie Cooper  |  Journalist |  @ProBonoNews

Ellie Cooper is a journalist covering the social sector.

Had to give the accessories back then? Student, 21, who ‘spent millions on luxury items after bank mistakenly put $4.6M in her account’ pleads not guilty after fronting court in sneakers and an energy drink cap

  • Christine Jiaxin Lee, 21, pleaded not guilty at Downing Centre Court on Tuesday
  • Her lawyer, Hugo Aston, said they would be ‘vigorously defending the charges’
  • Mr Aston said her family had come to Australia from Malaysia to support her
  • Ms Lee allegedly spent $4.6 million on luxury items after Westpac error

The Malaysian student accused of splurging $4.6 million on luxury items after Westpac mistakenly gave her account an unlimited overdraft has pleaded not guilty.

Christine Jiaxin Lee arrived at Sydney’s Downing Centre Court on Tuesday wearing ripped jeans, a Monster energy drink cap and white canvas shoes.

The 21-year-old’s lawyer, Hugo Aston, told Daily Mail Australia they would be ‘vigorously defending the charges’ of dishonestly obtaining financial advantage by deception and knowingly dealing with the proceeds of crime.

Christine Jiaxin Lee arrived at Sydney’s Downing Centre Court on Tuesday to plead not guilty after she allegedly spent $4.6 million when she was mistakenly given an unlimited overdraft

Ms Lee is pictured with a Chanel cushion and luxury handbags, including YSL

We feel confident our client will be acquitted,  Mr Aston said.

Mr Aston said her family have travelled from Malaysia to support her through the matter.

Ms Lee is pictured wearing a Chanel necklace. The 21-year-old was arrested in May

Ms Lee allegedly went on a massive shopping spree after receiving the overdraft. She is pictured with a YSL purse

Representatives from Westpac were in court to observe the matter.

Matt Tregoning, from the bank’s investigations area, told Daily Mail Australia he hoped to see ‘justice’.

Ms Lee sat in court on Tuesday wearing ripped jeans, white canvas shoes and a black singlet. She had a tattoo on her wrist, arm and ankle visible, and had a pink fluffy key-chain attached to her light brown backpack.

As she left the court room, Ms Lee put her Monster energy drink cap back on, a germ mask, and grey hooded jacket.
Ms Lee was arrested in May by immigration officials at Sydney airport as she tried to board a flight to Malaysia.

Some of the handbags seized from Ms Lee’s apartment were by designer brand Hermes (centre two and two at right)

She allegedly spent $220,000 at the Christian Dior shop in Sydney in a single day

The chemical engineering student had been given an unlimited overdraft in a Westpac processing error in 2012.

It is alleged she realised in July 2014 she had an unlimited overdraft and then allegedly went on a $4.6 million spending spree for the following 11 months.

In a single day, Ms Lee allegedly handed over $220,000 at the Christian Dior shop in Sydney.

In April last year, a senior manager from the bank realised the error and called Ms Lee and demanded she account for the missing millions.

Ms Lee has previously claimed she believed the money had been transferred by her parents.

Pictured: Hermes handbags including The Birkin Bag (right) and The Kelly Bag (left) seized from Ms Lee’s apartment in Rhodes

The 21-year-old chemical engineering student from University of Sydney pleaded not guilty on Tuesday

Pictured: The Birkin Bag by Hermes, one of the luxury goods Ms Lee allegedly purchased with the overdraft

Pictured: Hermes handbags. The Rodeo Horse charm pictured on the centre front Hermes Birkin Bag is also by Hermes and sells for about US$1,1500

Ms Lee is pictured with a designer handbag and Moschino sticker or case on her smart phone

Christian Louboutin heels among the items allegedly found at Ms Lee’s Rhodes apartment

Pictured: A Christian Dior handbag at Ms Lee’s Rhodes apartment

Dior and Chanel jewellery seized from Ms Lee’s Rhodes apartment is pictured

The overdraft was put in her account by mistake by Westpac in 2012

Ms Lee’s lawyer told Daily Mail Australia she hopes to return to Malaysia

Ms Lee’s lawyer told Daily Mail Australia her family was supporting her

Her boyfriend, Vincent King, is pictured leaving court earlier in the year

Sydney student accused of $4.6m spending spree pleads not guilty

 

Christine Jiaxin Lee accused of going on a $4.6m spending spree after a banking error gave her access to unlimited funds. (AAP)

 

The Sydney student accused of going on a $4.6m spending spree after a banking error gave her access to unlimited funds has pleaded not guilty to fraud charges.

Christine Jiaxin Lee, 21, was arrested in May trying to board a flight to Malaysia and has been charged with dishonestly obtaining financial advantage by deception and knowingly dealing with the proceeds of crime.

It is alleged Ms Lee transferred $5000 per day over a nine-month period in several bank accounts across Australia and spent $220,000 in a single day at a Christian Dior store in Sydney.

Hugo Aston, the 21-year-old’s lawyer told the Daily Mail his client would be “vigorously defending the charges”.

“We feel confident our client will be acquitted… Her family are fully supportive of her. We are very much a united team,” he said.

The chemical engineering student was given access to the extraordinary amount of funds when Westpac accidentally linked an unlimited overdraw facility to the account she opened in 2012.

A senior manager with the bank released the error in April last year and contacted Ms Lee to question her over the missing millions.

Ms Lee, who has been living in Australia on a student visa, is expected to return to Malaysia at the end of the court case.

 

‘I know what I’ve done is stupid’: Sydney GP Brian Crickitt tells police he lied after death of his wife

By: Emma Partridge

Hours after he allegedly murdered his wife, Sydney GP Brian Crickitt sat in a grey interview room with police where he cried, laughed and at one point, lied.

Dr Crickitt told police that on the night of his wife’s death the pair had squabbled in bed about 1am on New Year’s Day, 2010.

“The last month things have been very difficult and I’ve been very unhappy. I’ve been in two minds about what to do … frequently wanted to leave,” Dr Crickitt said in an electronically recorded interview which was played to the NSW Supreme Court on Thursday.

Dr Crickitt is accused of murdering his wife with a fatal dose of insulin in their home in Sydney’s south-west sometime between December 31, 2009 and January 1, 2010.

He said during the argument his wife had accused him of having an affair, which he denied.

Not wanting “things to turn physical” he told police that he packed some clothes and went for a drive from his house in Woodbine to Campbelltown.

He said he did a bit of thinking, pulled over near a park and slept for a bit before doing some more driving.

The 63-year-old then told police that he had called his “friend” Linda Livermore.

pic1

Brian Crickitt with his new wife Julie Crickitt. Photo: Daniel Munoz

During the interview police asked him: “Is there any intimate relationship with her at all?”

To which Dr Crickitt responded, “No there is not”

Christine Crickitt was found dead in her Sydney home.

Christine Crickitt was found dead in her Sydney home.

But several hours later when the accused was interviewed again, he confessed that he had lied about his relationship with Ms Livermore because he was embarrassed.

He also said that after the argument with his wife that he had driven straight to Ms Livermore’s home, where he spent the night in her bed.

Sydney GP Brian Crickitt arrives at the NSW Supreme Court on the first day of his trial for the murder of his wife. Photo: Daniel Munoz

Sydney GP Brian Crickitt arrives at the NSW Supreme Court on the first day of his trial for the murder of his wife. Photo: Daniel Munoz

“I know what I’ve done is stupid,” he told police in his second interview.

He explained that he had been intimately involved with Ms Livermore, and spent most nights at her house in month leading up to his wife’s death.

“I guess we were just getting closer and enjoying each others company – it was nice compared to what things were like at home.

“What I was said was wrong about where I was last night and I guess the nature of the relationship with Linda.

“I had every intention of telling you, you know”.

During the opening of the judge-alone trial on Wednesday, Crown Prosector Mark Tedeschi, QC, told the court that Dr Crickitt had killed his wife with insulin he had obtained by writing a false prescription for another patient.

Mr Tedeschi said the Crown also alleged Dr Crickitt had chosen to kill his wife on on New Year’s Eve, knowing that there would be no one available to do her autopsy on New Year’s Day.

He allegedly did this knowing that insulin cannot be detected in the body more than 24 hours after it is administered.

The Crown case is that Dr Crickitt murdered his wife in order to have a relationship with his mistress, Ms Livermore, and to claim more than $500,000 in life insurance.

The trial continues before Justice Cliff Hoeben.

The Realm of Metaphor – Slavery “This Most Rotten Branch of Human Shame”

Australian Labour Law Conference, Melbourne, 14-15 November 2008.

Introduction

The illegal nature of slavery, or having property in a person, presents some unique problems of definition. In a non-slave owning society, there are no slaves but there can be people who try and treat others like slaves. Should extreme proprietorial misbehaviour over others be called slavery or something else? This is the question that the High Court in the Queen v Tang has recently answered. The High Court’s decision in the Queen v Tang was delivered on 28 August 2008 and provides guidance on the content of the slavery offences in the Commonwealth Criminal Code (‘the Code’).

The main issue that the High Court had to consider in the Queen v Tang was the mens rea necessary for a person to be guilty of possessing a slave. As Justice Haynes observed during the hearing of the Queen v Tang:

…we are in the realm of discourse where the rights of ownership in question are the antithesis of rights that are legally enforceable so we have entered at least a realm of comparison perhaps a realm of metaphor. The rights or the powers in question … are by definition … powers that are not going to find legal support for their exercise.

Slavery as a discrete criminal offence is a metaphor that has been marshalled to perform the role of proscribing the boundary of permissible labour relations. In one sense, making illegal something that has been illegal for over 150 years defies logic but it seems to be working (after a lot of difficulties).

Background

The Macquarie Dictionary defines a slave as ‘one who is property of and wholly subject to another’. This definition equates with what the literature terms ‘chattel slavery’. Namely, all aspects of the person being under the control of another.

For most recorded history and for as long as there have been developed legal systems, a slave was recognised as a legitimate type of property. Many ancient and no so ancient legal systems had extensive provisions concerning the treatment and maintenance of slaves. As Jean Allan has observed the essence of slave laws ’since the time immemorial has been the inability to treat slaves as property and thus to recognise in them their humanity.’

Modern legal systems do not recognise that one person is able to own another. Slavery is a practise that has progressively become more and more aberrant- let alone legal. One of the reasons why modern slavery or slavery like practises are considered so degrading and worthy of condign denunciation is that they are an entirely illegal and exploitive activity. The protections that existed for slaves in slave owning systems do not exist.

The 19th Century Slave Acts

Prior to 1999, no Australian Parliament had legislated on slavey and the relevant law was found in old Imperial statutes produced as the by-product of the abolitionist movement in the early 19th Century and generally designed to outlaw the slave trade rather than slavery like practises.

The abolitionist movement of the early 19th century had as its focus the slave trade. In 1824, the Slavery Trade Act abolished the slave trade in the United Kingdom and its colonies. The 1824 Act also contained a number of criminal offences concerning participation in the slave trade and dealing in slaves. In 1833, the Slavery Abolition Actabolished the institution of slavery in all British Colonies. The Slavery Abolition Act 1833 stated:

Slavery shall be and is hereby utterly and forever abolished and declared unlawful throughout the British colonies, Plantations and Possessions abroad.

Abolition is a powerful statement – a person cannot be property. The law that recognises that a person is a person negates any exercise of proprietorial rights over another person. Any specific attempt to ‘own’ the person will be a discrete criminal offence such as assault or trespass. Abolition has a simply and attractive reliance on equality before the law.

The 1824 Act created a number of offences associated with dealing with slaves but it and subsequent Imperial enactments never specifically criminalise possessing a slave. These enactments of the British Parliament were incorporated into Australian law and only repealed in 1999. Until 1999, these enactments of the British Parliament and some later ones were the law in Australia concerning slavery.

The Australian Law Reform Commission in its 1990 report on the Criminal Admiralty Jurisdiction and Prize noted that the 19th century Slave Acts were ‘obscure’, ‘archaic’ and:

…a number of their provisions related to circumstances and institutions that have either changed or long fallen into disuse. …The Acts are less certain in their application to slavery itself. Unless enslavement and purporting to own a slave represents dealing in slaves they do not clearly constitute offences. Slavery is abolished and declared unlawful in Australia under the Slavery Abolition Act 1933 but no penalty is prescribed. (paras 108 – 111)

The Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 criminalised possession of a slave as a discrete form of prohibited behaviour. This Act repealed the previous Imperial Acts that comprised Australian slavery law and reiterated the abolition of slavery and for the first time introduced slavery and sexual servitude offences. In addition to being abolished slavery or more correctly possession of a slave was now a discrete offence.

International law aspect

The 19th century Slave Acts dealt with what is termed ‘chattel slavery’. Persons as property and more specifically persons as items of international mercantile trade. From the beginning of last century, there was awareness that slavery should encompass a broader array of oppressive labour relationships and cultural practises. Under the broad banner of slavery there have been international efforts to deal with many diverse types of exploitative human relationships. In the travaux prepratoires to the 1926 Slavery Convention there was discussion of abolition of slavery ‘in all its forms’ and similar conditions including ‘debt slavery’, ‘the enslaving of persons disguised as the adoption of children’ and ‘the acquisition of girls in the context of dowry payments’. More recently in 2000, a United Nations Working Group on Contemporary Forms of Slavery has examined apartheid, colonialism and incest under the guise of slavery. Needless to say many of these more ambitious definitions of slavery have not gain acceptance but public international law contains some important principles in relation to the proscription of slavery. Australia’s international obligations concerning slavery provide the constitutional basis for slavery offences.

The 1926 Slavery Convention (‘the 1926 Convention’) is the first of a number of significant international conventions that seek to suppress the slave trade and bring about the abolition of slavery ‘in all its forms’ and related practices. The article 1(1) slavery in 1926 Convention has been highly influential. Slavery is defined as ‘the status or condition or a person over whom any or all of the powers attaching to the rights of ownership are exercised.’ The use of the terms ’status’ and ‘condition’ is significant:

… ’status and condition’ seeks to distinguish between slavery de jure and slavery de facto, whereby slavery as ’status’ is a recognition of slavery in law; and slavery as ‘condition’ is to be under stood as slavery in fact.

This definition acknowledges that it is one thing to abolish slavery within a legal system but there can still be persons whose lives are lived under slave like conditions.

The Supplementary Slavery Convention 1956 (‘the 1956 Convention’) was adopted by the United Nations in 1956 and was intended to ’supplement’ and ‘augment’ the 1926 Convention. Article 1 of the 1956 Convention deals with institutions and practises similar to slavery and calls on parties to ‘progressively and as soon as possible’ abolish or abandon the following practices:

‘… whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926:

(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

(c) Any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or
(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person;

(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Most recently and significantly the 1998 Statute of the International Criminal Court (‘the Rome Statute’) lists ‘enslavement’ as a crime against humanity. The Rome Statute defines enslavements at article 7(2)(c) as ‘… the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.’

The International Tribunal for the Former Yugoslavia also has dealt with allegations of enslavements. The Appeal chamber’s decision Kunarac and others deal with a number of persons found guilty of a variety of crimes against humanity including enslavement. The appeal chamber noted that slavery encompasses ‘any exercise of any or all of the powers attached to the rights of ownership’ and:

… in the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of owner associated with chattel slavery, but in all cases, as a result of the exercise of any or all of the powers attached to the rights of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of chattel slavery but the difference is one of degree.

The Commonwealth is of Australia is a party to the 1926 and 1956 Conventions and the Rome Statutes. Chief Justice Gleeson in the Queen v Tang after a lengthy discussion of the international jurisprudence and Kunarac noted that slavery as proscribed in the Criminal Code is ’sustained by the external affairs power’ and is ‘not limited to chattel slavery.’

Recent Commonwealth legislation

Australian legal systems did not proscribed possession of a slave as a criminal offence. Until in 1999, the Criminal Code (Slavery and Sexual servitude) Act remedied this situation. The Act inserted a new Chapter 8- Offences against humanity and related offences into the Commonwealth Criminal Code. The Division has been amended on a number of occasions most notably in relation to Australia’s ratification of the Rome Statute and by a significant overhaul of the Chapter in 2005 with the insertion of various new slavery related offences including an offence called debt bondage in relation to oppressive contracts.

The relevant parts of the current Code Act concerning slavery read:

270.1 Definition of slavery

For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

270.2 Slavery is unlawful

Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.

270.3 Slavery offences

(1) A person who, whether within or outside Australia, intentionally:

(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:

(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;
is guilty of an offence.
Penalty: Imprisonment for 25 years.

(2) A person who:

(a) whether within or outside Australia:

(i) enters into any commercial transaction involving a slave; or
(ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or
(iii) exercises control or direction over, or provides finance for, any act of slave trading; and

(b) is reckless as to whether the transaction or act involves a slave, slavery or slave trading;
is guilty of an offence.
Penalty: Imprisonment for 17 years.

(3) In this section:
slave trading includes:
(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or
(b) the purchase or sale of a slave.

(4) A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.

(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).

In 2005, the Criminal Code Amendment (Trafficking in Persons Offences) Act inserted a number of new offences into Chapter 8 of the Code. The new offences included a general trafficking offence that criminalised bringing a person to Australia by means of threats, force or deception, an offence of trafficking in children and deceptive recruiting for sexual services.

The 2005 Act also included a debt bondage offence that criminalises the use of exploitative debt contracts or arrangements that force a person into providing sexual services or other labour to pay off large debts.

The Code Act defines debt bondage as:
… the status or condition that arises from a pledge by a person:
(a) of his or her personal services; or
(b) of the personal services of another person under his or her control; as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if:
(ba) the debt owed or claimed to be owed is manifestly excessive; or
(c) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt;
(d) the length and nature of those services are not respectively limited and defined.

A person commits the offence of debt bondage if ‘the person engages in conduct that causes another person to enter into debt bondage’. Debt bondage is punishable by a maximum of 12 months imprisonment. Compared with slavery that has a maximum of 25 years imprisonment it is a relatively minor offence. Debt bondage could be described as ’slavery lite’.

In the slavery prosecution of Trevor McIvor and Kanokporn Tanuchit in New South Wales, both accused were initially charged with debt bondage offences in relation to contracts with sex worker in their brothel in Fairfield in Sydney. The prosecution did not present an indictment that included a charge of debt bondage as an alternative to slavery when both were tried in the NSW District Court. In 2007, a jury convicted both of slavery offences. Other than this prosecution, the author is unaware of any other prosecutions for debt bondage.

On 29 August 2008, District Court Judge Taylor in the NSW District Court sentenced both McIvor and Tanunchit in relation to 5 counts of possessing a slave and 5 related counts of exercising a right of ownership over a slave to a cumulative sentence of 10 years and a non parole period of 7.5 years. An appeal is highly likely but the NSW District Court judgment is available and provides a useful insight into slavery prosecutions in contemporary Australia.

Slavery does appear to be the preferred charge and the Commonwealth Director of Public Prosecution has had some success in slavery prosecutions over the last 5 years.

In summary, the Code Act includes the following slavery related offences:
– slavery (penalty of up to 25 years imprisonment);
– sexual servitude (up to 15 years);
– deceptive recruiting for sexual servitude (up to 7 years);
– trafficking (up to 12 years);
– trafficking in children (up to 25 years);
– domestic trafficking in persons (up to 12 years); and
– debt bondage (up to 12 months).

The Queen v Wei Tang

This is the leading and very recent case concerning the meaning of slavery in terms of the Criminal Code. The High Court delivered its judgment on 28 August 2008.

Ms Wei Tang was the owner of a licensed brothel 417 Brunswick Street, Fitzroy known as Club 417. Wei Tang was convicted following a trial in County Court of Victoria of 5 offences as intentionally exercising over persons powers attaching to the rights of ownership contrary to section 270.3(1)(a) of the Criminal Code. Each offence related to women who were Thai nationals. They had all previously worked in the sex industry in Thailand. Each came to Australia voluntarily as ‘contract workers’ at Club 417. There was no written contract, but there were agreed conditions.

The women were brought to Australia by a syndicate and acknowledged a debt to the persons who brought them to Australia and thereafter ‘owned’ them. The women appeared to be able to be purchased for $20,000.00. At least in relation to 4 of the women Wei Tang was an ‘owner’. The debt amount varied between $40,000.00 and $45,000.00. For each customer the women had sex with the debt would be reduced by $50.00. An amount of $110 was charged per customer, the brothel owner, Wei Tang, received $43 and the rest went to the owners. Wei Tang was the owner for at least 4 of the women also. Each ’service’ reduced the debt by $50.00. The women received no payment except they were allowed a free day when they could retain $50 from the $110.00 fee charged to the customer. The work regime was that the women would work 6 days a week. The women were not kept under lock and key and the trial judge found that they well nourished and provided for. The demands of their work meant that they were effectively restricted to the brothel premises.

All the women came to Australia aware of their condition as contract workers on the understanding that once their debts had been paid off they had the opportunity to earn money working as prostitutes on their own account. The brothels in which they worked had a combination of ‘contract girls’ and other workers. The High Court rejected that significance of consent or that a contract or debt was involved as somehow antithetical with slavery.

Wei Tang was convicted after a lengthy trial in the Victorian County Court. The co-accused Paul Pick was acquitted of slavery offences. The trial judge sentenced Wei Tang to 10 years imprisonment with a single non-parole period of 6 years. It was the first conviction in Australia for slavery offences after a trial by a jury. In 2005, DS had pleaded guilty to 3 counts of possessing a slave: (R v DS [2005] VSCA 99).

The Victorian Court of Appeal found the direction that the trial judge had given to the jury in relation to the knowledge that a possessor of slaves must have defective. In essence, the Victorian Court of Appeal demanded that an accused must be able to be shown to have intentionally exercised a power that an owner would have over property and was doing so with the knowledge or in the belief that the person was no more than property. Justice Eames in the Victorian Court of Appeal noted:

… much more is required than that the person be shown to have been exploited abused or humiliated, whether physically, emotionally or financially. To be a slave, the person must be in a state where others deal with him or her as though he or she was merely property- a thing. For the exercise of the power to contravene section 279.3(1)(a) the accused must have knowingly treated the person as though he or she was the accused’s property. Only when that state of mind exists is the exercise of the power referable to rights of ownership as the section requires.

One of the concerns of the Court of Appeal was the apparent problem of differentiating exploitive employment relationships and slavery. The Court of Appeal’s solution was to demand that the slave owner must know that the slave is a slave and then exercise proprietorial rights in relation to the slave. The High Court disagreed.

The leading judgment is that of the then Chief Justice and gives a thorough review of international developments in the area and clearly notes that slavery is not limited to chattel slavery. It is one of the last judgments of Chief Justice Gleeson. Chief Justice Gleeson states that what is relevant are the nature and extent of the powers exercised over the person alleged to be a slave. As Chief Justice Gleeson and Justice Haynes in their judgments noted section 270.03(1) (a) of the Code criminalises ‘possession of a slave or exercises over a slave any of the other powers attaching to the rights of ownership.’

Chief Justice Gleeson noted that various exploitive labour practises are not necessary mutually exclusive with the international law definition of slavery although it was unnecessary and unhelpful to determine whether ’servitude, peonage, forced labour or debt bondage were forms of slavery.’ Further Chief Justice Gleeson observed that it was not necessary for the prosecution to establish that Wei Tang had any knowledge or belief concerning the source of the powers exercised over the women.

The Chief Justice noted:

It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery. The term “slave” is sometimes used in a metaphorical sense to describe victims of such conditions, but that sense is not of present relevance. Some of the factors identified as relevant in Kunarac, such as control of movement and control of physical environment, involve questions of degree. An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee’s freedom of movement. Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.

Accordingly, the High Court, apart from Justice Kirby who agreed with the Victorian Court of Appeal, characterises possessing a slave in terms of behaviours that can be seen ‘as a power attaching to ownership’.

Accordingly, slavery is a matter of degree in terms of whether behaviours will constitute an exercise of ‘a power attaching to ownership’. From a practical point of view, the fact that there are a number of behaviours that are together consistent with ownership will be significant.

Justice Hayne found 2 powers attaching to ownership of critical importance in the case:

There was the evidence that each complainant came to Australia following a transaction described as purchase and sale. There was the evidence of how each complainant was treated in Australia, in particular evidence about the living and the working conditions of each. And a critical feature of that evidence was that each woman was treated as having incurred a debt that had to be repaid by working in the brothel. Although there was evidence that one of the complainants was able to secure a reduction in the amount of her initial debt, there was no satisfactory explanation in the evidence of how the so-called debt of any of the complainants was calculated, or of what had been or was to be provided in return for the incurring of the obligation.

The Hight Court confirmed the conviction of Wei Tang. The sentence appeal of Wei Tang was remitted to the Victorian Court of Appeal and is to date unresolved.

Conclusion

The initial title of the paper was ‘The re-emergence of slavery’. What there has been in Australia is an engaging of the legislature, the police and prosecution authorities with issues associated with forced labour and human trafficking in Australia that is significant. There have been problems but there has been real progress in dealing with some highly unpleasant labour relationships through the proscription of slavery. In either the County Court in Melbourne or the District Court in Sydney lengthy trials involving allegations of maintaining slaves or sexual servitude are occurring on a semi regular basis. This did not happen 10 years ago.

Accordingly in this sense there has been a re-emergence of slavery. Significantly, the High Court has recently considered what it means to possess a slave in a modern non-slave owning society in its decision in R v Wei Tang. Wei Tang’s case is an important decision and provides some clear assistance in effectively denouncing practises that involve one person seeking to treat another as property.

The approach of the High Court is also consistent with current international practise. Significantly enslavement is now an offence in the Rome Statute.

What judicial scrutiny shows is that slavery is a sophisticated and complex vehicle to denounce extreme labour practises. Exercising ownership over an individual is an activity that requires something to be done but some resort to what Justice Hayne calls the ‘realm of metaphor’. The author’s personal view is that the very extreme nature of the concept of slavery is at times unhelpful. No person in a modern society will identify his or her behaviour as keeping a slave. Therefore it will be almost impossible for an offender to see himself or herself as a keeper of slave. Workers will be ‘contract girls’ or described in some other euphemistic or culturally specific manner. Crimes that the subject cannot clearly identify as committing can be considered problematic in terms of general and specific deterrence. In cases such as Tang and other prosecutions, the accused focussed on freedoms enjoyed by the slaves so as to somehow negate the accusation that slaves were being kept. Wei Tang’s legal representative in the High Court, for example, sought to advance the argument that the definition of slavery in Australia was limited to chattel slavery. Significantly, in the Wei Tang prosecution both at the trial, Court of Appeal and in the High Court no significance was given to a dispute whether the complainants were in fact locked in their accommodation in the evening.

Slavery prosecutions are very expensive and difficult prosecutions. The trials that have been conducted have been long and arduous affairs and only recently has there been a consistent pattern of success. The 2 recent successful trials involving Wei Tang and co-accused McIvor and Tanuchit both concerned oppressive contractual arrangements, Despite the Chief Justice’s coyness in the Queen v Tang to list all the practises that constitute slavery, there is a credible legal argument that the Australian law against slavery includes now oppressive contractual arrangement,

It may be more effective in terms of dealing with such aberrant labour relationships to identify and proscribe the particular practises that constitute exercising a power of ownership over an individual. To some extent the Parliament has acknowledged these problems and Chapter 8 of the Criminal Code now contains offences such as debt bondage. The problem with the debt bondage offence is that the maximum penalty (12 months) is completely inadequate in relation to the types conduct concerned. If the punishment could fit the crime, a more robust debt bondage offence could do much of the work that metaphor has been pressed into recently.

The recent international jurisprudence concerning slavery indicates the needs for such an offence in Australia if not for no other reason than Australian criminal law should reflect current international practise.

Despite these problems, juries appear to ‘get it’. Since Wei Tang, there have been a number of cases where juries have found the offence of possessing a slave proven. Juries abilities may further indicate that there is a role for slavery offences. Every group of criminal offences needs the metaphorical capital offence and slavery is ‘it’ in terms of proscribed labour relationships. Lastly, for labour lawyers, slavery represents the really‘bad stuff’ and should remind labour lawyers that the discipline involves a spectrum of human relationships.
Getting Help
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Sydney NSW 2000
Tel: (02) 9635 3777
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Email: info@astonlegal.com.au

Westpac in multimillion-dollar banking glitch before $4.6m Christine Lee error

Westpac in multimillion-dollar banking glitch before $4.6m Christine Lee error

The case of a 21-year-old Sydney woman who allegedly had $4.6 million mistakenly given to her by her bank is not the first in which Westpac has been left red-faced by a costly “glitch”.

In near-identical circumstances, Westpac accidentally set the wrong overdraft limit on Leo Gao’s account in 2009, prompting the New Zealand service station owner to flee to Asia and churn through $NZ6.7 million.

In that case, he was tracked down by Interpol 2½ years later and sentenced to four years’ prison on seven charges of theft.

Last Wednesday, Sydney student Christine Jiaxin Lee, 21, was arrested while trying to board a flight to Malaysia and charged with overdrawing $4.6 million from her Westpac account.

christinelee

Christine Lee has been released on bail. Photo: Facebook

Ms Lee opened the account in 2012 and was accidentally given an unlimited overdraft facility by Westpac.

She apparently only realised in 2014 and, over the space of a year, allegedly made numerous overdraws totalling $4,653,333.02.

The chemical engineering student has been charged with dishonestly obtaining financial advantage by deception, and knowingly dealing with the proceeds of crime.

However, magistrate Lisa Stapleton kicked off what will become a fierce argument in court about whether Ms Lee has broken the law or not.

christinelee01

Ms Lee was detained at Sydney airport. Photo: Facebook

On her initial reading of the police facts, Ms Stapleton told Waverley Local Court last Thursday that the bank gave Ms Lee the unlimited overdraft and so Ms Lee used that credit.

In that case, she would need to pay the money back but wouldn’t have broken the law.

Leo Gao leaves Auckland District Court with his lawyer Ron Mansfield in 2012 after pleading guilty. Photo: John Selkirk, Stuff.co.nz

Leo Gao leaves Auckland District Court with his lawyer Ron Mansfield in 2012 after pleading guilty. Photo: John Selkirk, Stuff.co.nz

Kara Hurring ... had a baby boy with boyfriend Leo Gao while overseas. Photo: Photo: Chris Hillcock, Waikato Times

Kara Hurring … had a baby boy with boyfriend Leo Gao while overseas. Photo: Photo: Chris Hillcock, Waikato Times

“It isn’t proceeds of crime. It’s money we all dream of,” she said.

In the case of Gao, who became known in New Zealand as the “accidental millionaire”, the law was not so favourable.

However, a Westpac worker accidentally put the decimal point in the wrong spot and gave him a $10 million overdraft.

In April 2000, Gao applied for a $NZ100,000 overdraft on his Westpac account to help spruce up his struggling service station in Rotorua before selling it.

However, a Westpac worker accidentally put the decimal point in the wrong spot and gave him a $10 million overdraft.

“I’m f—ing rich!” Gao reportedly told his girlfriend Kara Hurring after discovering it.

Mr Gao and Ms Hurring told friends they were going on holiday, left a note at the service station to say it had gone under, and skipped the country.

Mr Gao transferred $NZ6.7 million to various accounts in China, Hong Kong and Macau before Westpac froze his accounts two weeks after the blunder.

He was arrested by Interpol 2½ years later when he tried to enter Hong Kong from China.

The bank recovered about $3 million and Gao, who was reportedly released from jail in 2013, has refused to say where the remainder is.

Ms Hurring, who was deemed a minor player, was sentenced to nine months’ home detention.

In an interview with the Rotorua Daily Post just before his imprisonment, Gao said he was paranoid for much of his time on the run.

“A lot of people say: ‘You’re lucky, like winning the lottery.’

“I say: ‘Nothing worse could happen to you,’ ” he said.

In Ms Lee’s case, police said about $1 million had been recovered.

Her lawyer said some of the money had been spent on handbags and luxury items and her student boyfriend could only afford $1000 surety.

Ms Lee listed her address as a harbour-view apartment in Rhodes with rent of $780 a week.

She also reportedly transferred small sums into several other bank accounts between 2014 and 2015 but she continued to live in Sydney and study chemical engineering at the University of Sydney.

A warrant for her arrest was issued in March after repeated attempts to contact her, police said.

She applied for an emergency Malaysian passport about the same time.

The Role of an Independent Children’s Lawyer

What is an Independent Children’s Lawyer?

In general, an Independent Children’s Lawyer is a lawyer who will represent the best interests of a child in family law proceedings.

According to section 60CA of the Family Law Act 1975, when deciding upon a parenting order, regard for the child’s best interests must be the paramount consideration of the court.

In circumstances where this principle appears misplaced, section 68L of the Act allows the Court to order the appointment of an Independent Children’s Lawyer (‘ICL’) to represent the best interests of the child.

According to the Act, the Court may order the appointment of an ICL either on its own initiative, or on the application of either the child, an organisation concerned with child welfare or any other person.

However, where proceedings are in relation to international child abduction as outlined under section 111B, the Court may only order an ICL if the Court considers there are exceptional circumstances that justify doing so.

As was demonstrated in the case of Re K in 1994, typically, an ICL is appointed where one or more of the following circumstances exist:

  • There are allegations of abuse or neglect in relation to the child.
  • There is a high level of conflict and dispute between the parents.
  • There are allegations of family violence.
  • Serious mental health issues exist in relation to one or both of the parents or children.
  • There are difficult and complex issues involved in the matter.

What is the role of an Independent Children’s Lawyer?

Outlined under section 68LA, the primary role of an ICL is to form an independent view, based on available evidence, as to what is in the best interest of the child, and to act upon these interests.

Though an ICL is obliged to consider the views of the child, they do not act under their instructions and so must form an independent view on what the child’s best interests are.

According to section 68 LA of the act, the main roles of an ICL include, but are not limited to:

  • Arranging for necessary evidence, including expert evidence, to be obtained and put before the court.
  • Analysing any evidence that may be made available and ensuring that those matters are properly drawn to the courts attention.
  • Facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case.
  • Acting as an honest and impartial broker between the child and the parents, and facilitating settlement negotiations where appropriate.
  • Minimising any trauma that the child may experience in relation to the proceedings.

Determining a Child’s Best Interests

In determining the best interests of the child, section 60CC requires the court to have regard to two primary considerations. These are:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.

Though these may be the primary considerations of the court, section 60CC also allows the court to consider the following when determining what is in the child’s best interests:

  1. any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
  2. the nature of the relationship of the child with:
    1. each of the child’s parents; and
    2. other persons (including any grandparent or other relative of the child);
  3. the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
    1. to participate in making decisions about major long-term issues in relation to the child; and
    2. to spend time with the child; and
    3. to communicate with the child;

    (ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

  4. the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
    1. either of his or her parents; or
    2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  5. the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
  6. the capacity of:
    1. each of the child’s parents; and
    2. any other person (including any grandparent or other relative of the child);
    3. to provide for the needs of the child, including emotional and intellectual needs;
  7. the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
  8. if the child is an Aboriginal child or a Torres Strait Islander child:
  9. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
    1. the likely impact any proposed parenting order under this Part will have on that right;
  10. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  11. any family violence involving the child or a member of the child’s family;
    1. if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
    2. the nature of the order;
    3. the circumstances in which the order was made;
    4. any evidence admitted in proceedings for the order;
    5. any findings made by the court in, or in proceedings for, the order;
    6. any other relevant matter;
  12. whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  13. any other fact or circumstance that the court thinks is relevant.

 

In accordance with section 60B of the Act, the court can make certain the best interests of children are met by:

  1. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
  2. Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
  3. Ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
  4. Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

At the core of these objects is the belief that children have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together. In this way, children should be entitled to develop a meaningful relationship with both of their parents to the extent that it is safe to do so.