Australia

Hundreds of people yesterday protested outside the Sydney office of Home Affairs against the continuing use of Temporary Protection Visas for people found to be genuine refugees. Temporary Protection Visas, which have been used since the 1990s, have long been criticised for the uncertainty they bring to refugees who have been through trauma and want…

In May 2019, the Federal Circuit Court of Australia decided an application to exclude video recordings made in secret from evidence in a parenting matter. The secret recordings had been made by the mother in the matter when the father was attending her home for hand overs of the children. There were also two audio…

In March 2019, the Full Court of the Family Court decided an application in the parenting matter of Mahoney v Dieter. The mother in the matter sought the variation of orders made by the Family Court Division of the District Court of New Zealand on the basis that there had been a change of circumstances…

Procedural fairness means fairness in the procedures followed when arriving at an administrative decision. It is a principle that is fundamental to the administration of justice and a person can file an appeal and get a decision overturned on the basis that procedural fairness was not observed. When procedural fairness has been denied, the decision…

On 19 June 2019, the High Court handed down its decision in the matter of Masson v Parsons. The case concerned whether a man engaged as a sperm donor was a parent within the meaning of the Family Law Act. Mr Masson had donated sperm to a lesbian mother on the understanding that he would…

On the 12 June 2019, the High Court of Australia handed down its decision in the matter of the Australian Securities and Investment Commission v Kobalt. The case concerned whether the provision of ‘book-up’ credit to customers of the general store in a remote Aboriginal community amounted to unconscionable conduct. Unconscionable conduct is prohibited under…

A fundamental principle of our legal system is that a judge or magistrate must not sit on a case in which he or she is biased. This is important both so that justice is done and so that justice is seen to be done. There are well established tests for actual and apprehended judicial bias…

A long-established principle of the common law is “de minimis non curat lex”, which translates as ‘the law does not concern itself with trifles.’ The de minimis rule has application both in civil and in criminal jurisdictions. It effectively means that the law should not get involved in circumstances where what has occurred is extremely…

Family trusts are a structure frequently used to arrange the financial affairs of a family. They provide many benefits, particularly in tax planning and estate planning. A trust has an appointed trustee, who is a legal owner of any assets held in the trust and who holds and manages assets on behalf of the beneficiaries.…

When courts decide whether a matter has been proven, they do so according to a benchmark which the party initiating the proceeding must reach. This is commonly referred to the standard of proof. All forums, including courts and tribunals, must apply the appropriate standard of proof when deciding if a matter has been proven. The…

Family law appeals are relatively uncommon. However, appeals are a vital part of the legal system to ensure that matters are decided according to the law and that judges exercise their discretion appropriately. An appeal may be the only means to seek to remedy an unfavourable judgment. For those with an unfavourable interim result, an…

The cross-examination of survivors by perpetrators of family violence will soon be banned in family law proceedings. The ban, which comes into effect in September 2019, will apply in certain circumstances where allegations of family violence have been raised. The ban was introduced with the passing of the Family Law Amendment (Family Violence and Cross-examination…

Beyond a reasonable doubt is the highest standard of proof in our judicial system. Our system has two differing standards of proof, namely on the balance of probabilities in a civil jurisdiction and beyond a reasonable doubt in a criminal jurisdiction. Criminal law in Australia is underpinned by the the presumption of innocence, which does…

Before the Family Court or Federal Circuit Court can decide how best to finalise the financial arrangements between parties following the breakdown of a relationship, it must have all relevant information as to the parties’ financial circumstances. Each party to a Family Court proceeding is required to provide the other parties with all documents which…

In recent years the family courts have seen a significant rise in the number of cases where parents are exposing children to potential harm by consuming or being under the influence of illicit substances. Where there are allegations of drug abuse in a parenting matter, orders will often be made that the party submit to…

A criminal conviction can have a significant impact on your life. It can be used adversely against you with respect to travel, rental applications, employment, loans and more. For this reason, should you be convicted of an offence (regardless of whether you plead guilty to the charge or are found guilty at trial), it is…