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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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What Do Child Custody Laws Say If Your Child Doesn’t Want To See the Other Parent?

Relationship breakdown can often be a difficult and turbulent time for your children. To navigate this time, some families seek parenting orders from the Court to determine where the children should live and when they can see the other parent. But what do child custody laws say if your child does not want to see the other parent? According to child custody laws, certain obligations exist for the resident parent to comply with the Court orders, some of which are considered below.

Positive Obligation to Encourage Access

In the matter of Stevenson and Hughes (1993) 112 FLR 415, the mother pinned the father’s telephone number near the telephone and informed the child they could call the father whenever they liked. On a separate occasion, the mother took the child to the husband’s residence in accordance with the orders but the child refused to go inside. The father made an application for contravention, claiming that the mother contravened the Court orders by failing to give the father access to the child. The Court found that “an access order imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.” The Court found that the wife had not done all that was reasonable in the circumstances to encourage the child to come to the telephone and speak to the father but had, in effect, issued an invitation in a manner in which the child was given the option to refuse.

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New Australian Consumer Law Warranty Requirements

If you run a business that supplies goods to a “consumer” within the meaning of the Australian Consumer Law (ACL) and you also provide an express warranty against defects in respect of those goods, then you will be aware that the ACL imposes mandatory wording that must accompany that warranty.

New Requirements

Changes to the ACL now mean that if you supply “services” or “goods and services” to a “consumer” within the meaning of the ACL and you provide an express warranty against defects in respect of same, then new mandatory wording applies.

Mandatory Wording – Services

The new mandatory wording is:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the services, you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
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Social Media Liability: Are you liable for comments made on your Facebook page?

The realm of social media liability has been a relatively untouched legal subject up until a recent landmark case in the Supreme Court of New South Wales. The case of Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 held that three media companies were classed as the ‘publishers’ of comments made by the public on their Facebook posts for the purposes of a defamation class.

The three companies typically used their facebook page to disseminate links to news stories, which would also invite the public to leave comments on their public facebook page or their respective news website. Liability in defamation arises because the actual publication of the material is defamatory in nature, and ‘publication’ occurs when the material is delivered to the public. In this case, the Court found that ‘publication’ only occurs in respect of the comments when the comment is placed in a form that is easy to understand and able to be viewed by the public, which is done by the owner of the facebook page as opposed to the actual author of the comments.
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Interlocutory Injunction at the Land and Environment Court

An interlocutory injunction is a type of an interim relief that the Court can order, usually to preserve the status quo until a formal hearing can be conducted. In this article, we will take a look at the elements of the interlocutory injunctions in the planning and environmental law context, and discuss some of the common issues councils may face when applying for interlocutory injunctions.

The Elements

There are, in essence, two elements that must be positively addressed before the Court will grant an interlocutory injunction.

Firstly, the applicant for the interlocutory injunction must prove there is a serious question to be tried. It is not necessary, for the purpose of addressing this element, to show that the applicant has a strong case. It would be sufficient to show that the applicant has a prima facie case by identifying the statutory or other legal rights on which the final relief are based.

Secondly, the applicant must show that the balance of convenience favours the applicant. In the planning and environmental law context, the Court would often consider the following non-exhaustive factors:
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The Importance of Grampian conditions

The recent case of Visionary Investment Group Pty Ltd v Wollongong City Council [2019] discussed the flexibility of imposing a condition of consent when there is insufficient information provided with the development application.

The case involved a development application for a community title subdivision. During the duration of the proceedings, the applicant filed and produced a wide variety of amended plans/reports in support of its application.

One particular issue related to insufficient detail provided by the applicant in respect of ‘upstream’ impacts of off-site wastewater and water supply infrastructure which needed to be built in order to service the proposed subdivided lots. The design for the wastewater site was not put before the Court and Council argued that the development application could not be granted as these plans needed to be assessed.

In reply, the applicant argued that under the processes in Division 5.1 of the Environmental Planning and Assessment Act 1979 the Court has the ability to grant consent based on the fact they are able to give proper consideration and assessment of the ‘upstream impacts’. Noting this, the applicant stated that any consent granted could include conditions necessary to ensure that the div 5.1 processes were followed before commencing development.
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Clarification on the Meaning of “Land” in Section 57 of the Heritage Act

The 19 June 2019 decision of Stamford Property Services Pty Ltd v Mulpha Australia Ltd [2019] has assisted in further understanding the definition of ‘land’ within s57(1)(e) of the Heritage Act 1977 (Act). Where s57(1)(e) provides a requirement that approval for development must be obtained “in relation to the land” if it is a State heritage item or is subject to an Interim Heritage Order (IHO).

Meaning in Relation to s57(1)(e)

On appeal from the Land and Environment Court (LEC), the Court of Appeal found that within s57(1)(e) the meaning of ‘land’ refers to the physical part of the land which the State heritage item or IHO applies. This is contrary to the decision in the LEC which defined ‘land’ as the whole cadastral review with a relevant link to the heritage item. Furthermore, all judges disagreed with the LEC which held that the word ‘land’ cannot be determined by evaluating the circumstances within each individual case, but must be applied in an overarching manner to all cases to not detriment of the efficacy of the Act.
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Recent amendments made to the Local Government Act 1993 No 30

The Local Government Amendment Bill 2019 (NSW) (‘Bill’) which was assented to and commenced on 25 June 2019 has amended a number of sections of the Local Government Act 1993 No 30 (NSW) (‘LGA’). The Bill amends the LGA in relation to election planning, rates, tendering requirements, mutual recognition of approvals as well as other regulatory matters and other purposes.

Under the Bill, a total of 21 amendments to the LGA were introduced. 14 of such amendments have already been implemented into the updated LGA whilst the remaining seven amendments are yet to commence on a day or days to be appointed by proclamation.

Changes to election planning

The new section 296 (5A) has been inserted into the LGA to enable a council to enter into an arrangement with the Electoral Commissioner to administer the election of ordinary councillors in 2020, or all elections including that election, if the council resolves to do so on or before 1 October 2019 and enters into the arrangement on or before 1 January 2020. Under the previous LGA, an arrangement would have been required to have been entered into by June 2019.
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