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Welfare Law

Issue:

  1. Whether Robbie committed domestic violence against Dora?
  2. Whether Dora can claim the custody of Keela through family mediation?
  3. Whether Craig’s friend could be held liable for sexual assault against Keela?

Rule:

  • Crimes Act 1900
  • Crimes (Domestic and Personal Violence) Act 2007 No 80
  • Family Law Act 1975

Application:

According to the objective mentioned under section 9 of the Act,[1] it states the surety of the safety and protection of all persons, along with children, who become part of domestic violence either directly or indirectly. It also provides the prevention and reduction of violence against any person by another person during the existence of a domestic relationship between those persons. The Act also serves the objective to enact the provisions that are consistent with the principles of the Declaration on the Elimination of Violence against women and the provisions complying with the United Nations Convention on the Rights of the Child. Therefore, in this case, Dora and Robbie were in a relationship and they had a daughter named Keela with them. The incidents of shouting by Robbie on Dora and the incident of choking her throat against the wall displays that the element of domestic violence was present among them and since it involved Keela, it becomes more grave. By keeping Dora away from her relatives and friends, Roby had an intention to coerce and control Dora and kept threatening her thus, causing the violation under section 11.[2] Robbie also did not give Dora financial freedom and kept hold of all the finances due to which she could not have any savings so she moved with her friend Craig.

Family mediation or family counselling is suggested in the cases where there are personal or interpersonal issues between one or more persons including children who have already been affected or might get affected in the future due to the issues occurring with marriage and according to the mental orientation of Robbie, he shall not be provided with the permission to spend any more time with Keela. Also, a major issue taken into consideration is the issue of the care of children and for the same, one or more persons may apply for a parenting order of the child under section 65C,[3] to resolve the issues relating to the care of children.[4] In this case, Dora was attempting to get out of the relationship she had with Robbie and started living with her long-term male friend Craig along with her daughter Keela. However, Robbie started stalking and intimidating her by following her when she was out for Job interviews and with Craig and even parked outside her apartment.[5] Robbie also threatened her in his handwriting, that he will convey the authorities of the Centrelink’s JobSeeker that she is living in a relationship with Craig and has hidden the fact from the authorities by applying for the job as a single person thus committing fraud with the company. However, the allegation raised by Robbie is inappropriate as Dora and Craig are living together in the same rented apartment while sharing food and bill expenses and emotional support but there is no intimate relationship between both of them. He has been blackmailing Dora as he wants to spend some more time with their daughter but the decision depends on the family mediation whether Also, he has caused damage to the previously rented property,[6] and transferred the blame on Dora thus causing a wrongful loss to her reputation due to which she is unable to get a new rented accommodation on her name.[7]

The act committed by Craig’s friend of showing ‘his privates’ to Keela falls under the aggravated sexual assault and aggravated indecent assault to a child of 5 years of age and thus is punishable under s61.[8] The Crimes Act 1900, deals with the cases of aggravated sexual assault and indecent behaviour with the children under s 61J(1), s 61M(1-2), and s 61N(1-2). And these acts are punishable with maximum imprisonment varying from 1.5 yrs. to up to 20 yrs.

Conclusion:

Robbie could be held liable for domestic and physical violence against Dora. Additionally, he can also be held liable for the offences of stalking, blackmailing, and threatening Dora and causing damage to the property. Also due to this behaviour of Robbie, he shall not be provided with the parenting rights of Keela under the Family Law Act. Lastly, Craig’s friend could be held liable for the offences relating to sexual assault towards Keela under the Crimes Act.

*The five referrals are the provisions of the Crimes Act 1900, Crimes (Domestic and Personal Violence) Act 2007 and the Family Law Act 1975. These referrals are appropriate because of their applicability in the problems faced by Dora. The actions of blackmailing, stalking, and threatening by Robbie are the major issues before her and the legal provisions relating to these issues are perfectly applicable thus making relevance in the case. Also, the issues of family mediation/counselling and the sexual assault against Keela have also been dealt with appropriate provisions under the Crimes Act 1900.

Issue:

  1. Whether Keiran can restrict Dave from keeping any contact with Shelley?
  2. Whether the company can claim the overpaid income back from Keiran?
  3. Whether Keiran shall attend the Youth Justice Conference to support his daughter and claim victims support for Shelley?
  4. Whether Keiran shall make social media posts to damage the reputation of the assailants?
  5. Whether Keiran is compelled to pay the increase in rent to the owner despite the ignorance of maintenance requests?

Rule:

  • Defamation Act 2005
  • Fair Work Act of 2009
  • Family Law Act 1975
  • Residential Tenancies Act of 2010
  • Residential Tenancies Regulation 2019
  • Victims Rights and Support Act of 2013
  • Victims Rights and Support Regulations 2013
  • Young Offenders Act 1997.

Application:

According to section 61C of the Act,[9] any of the parents has the responsibility of the child who is less than 18 years of age but the point is that Dave is not a parent of Shelley and even in the case of any marriage or re-marriage, the parents have their parental responsibility, therefore Keiran can easily restrict Dave to meet his daughter from previous marriage after getting an order under section 65C of the Act.[10]

As provided under the Fair Work Act,[11]if an employee has been overpaid by any of the mediums mentioned under section 323 of the Act, then the employer cannot claim the overpaid amount from the employee without his written consent.[12] Also, Keiran has an option of denying the fact that there is no overpayment of salary since the amount paid to him was done by Robodebt and section 323(c) mentions that the payment made through any medium other than the traditional modes shall be considered equally valid. However, Keiran can discuss the issue with Centrelink and identify whether there was any such case of overpayment or not and if he is satisfied that he was overpaid then he can return the money as per his ease after making a written agreement for the same purpose (FWO 2020).

Keiran shall attend the Youth Justice Conference[13] on the request of the convener along with Shelley and support her to share her experience so that strict action shall be taken against the assailants. The gravity of the physical and the mental damage that the assailants have caused to Shelley is so intense that she has dropped the idea of joining the school which might affect her whole life. Also, Shelley is eligible for the victim compensation scheme under section 19 of the Act.[14] The amount to be paid to Shelley being the primary victim may be decided after referring to the regulations.[15]

However, making social media posts to mercilessly defame the assailants shall not be done by Keiran as this will hold him liable under section 7(b) of the Act,[16] for the tort of defamation. Therefore, it shall be advised to Keiran. Not to make any such posts on the social media rather present the experiences before the Youth Justice Conference so that the assailants shall be held guilty of the acts they have committed.

Keiran can object or negotiate before the landlord for the high rent increase and can raise the point that he has already requested for repairs in the flat and the rent will be paid once the repairs have been made.[17] However, Keiran can also appeal before the Tribunal within 30 days, if there is no outcome of the negotiation where the tribunal will order the landlord to resolve the issue.[18] Even when the rental agreement of Keiran expired a year ago, the rent increase shall have been made by the landlord in the first six months, therefore the process of negotiation and appeal before the tribunal comes into effect again (FT 2020).

Conclusion:

Keiran can restrict Dave from meeting his daughter, Shelley after obtaining a parental order from the court. Centrelink cannot claim any amount from him unless he agrees in writing to pay back the amount after discussing with the employer. Keiran shall attend the Youth Justice Conference with Shelley and share the experiences before the conference so that appropriate action shall be taken by the conference and Shelley shall also claim the relief as provided under the victim compensation scheme. However, if Keiran makes any defamatory posts against the assailants on social media then he shall be held liable for the tort of defamation thus he shall not do so. Additionally, regarding the high rent increase, he shall discuss to negotiate the rent increase and if no outcome is observed then he shall appeal before the Tribunal for the same.

*The five referrals are the solution of the five issues raised on behalf of Keiran and the solutions of those issues as mentioned under the rule application. The referrals are perfectly applicable and effective and serve the exact purpose of the resolution of the issues therefore, the referrals are highly recommended.

Bibliography for Dora and Keiran IRAC Case Study

A Acts/ Legislations

Crimes (Domestic and Personal Violence) Act 2007 No 80

Crimes Act 1900

Defamation Act 2005

Fair Work Act of 2009

Family Law Act 1975

Family Law Act 1975

Residential Tenancies Act of 2010

Residential Tenancies Regulation 2019

Victims Rights and Support Act of 2013

Victims Rights and Support Regulations 2013

Young Offenders Act 1997.

B Articles/ Journals/ Reports

FT 2020. Changes to the residential tenancy laws. Fair Trading. NSW Government. [Online]. Available at: https://www.fairtrading.nsw.gov.au/about-fair-trading/legislation-and-publications/changes-to-legislation/new-residential-tenancy-laws (Accessed on 18 September 2020).

FWO 2020. Deducting pay and overpayments. Fair Work Ombudsman. Government of Australia. [Online]. Available at: https://www.fairwork.gov.au/pay/deducting-pay-and-overpayments#:~:text=Employers%20can%27t%20take%20money,and%20has%20to%20set%20out%3A&text=the%20amount%20of%20money%20overpaid (Accessed on 18 September 2020).

[1] Crimes (Domestic and Personal Violence) Act 2007.

[2] S11 of the Crimes (Domestic and Personal Violence) Act 2007.

[3] S65C of the Family Law Act 1975.

[4] S10B of the Family Law Act 1975.

[5] S31 of the Crimes (Domestic and Personal Violence) Act 2007.

[6] S199 of the Crimes Act 1900.

[7] S249K of the Crimes Act 1900.

[8] S61 of the Crimes Act 1900.

[9] Family Law Act 1975.

[10] Family Law Act 1975.

[11] Division 2 of the Fair Work Act 2009.

[12] S324 of the Fair Work Act 2009.

[13] Part 5 of the Young Offenders Act 1997.

[14] Victims Rights and Support Act 2013.

[15] Victims Rights and Support Regulations 2013.

[16] S7 of the Defamation Act 2005.

[17] Residential Tenancies Regulations 2019.

[18] S16 of the Residential Tenancies Act 2010.

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