What is an Independent Children’s Lawyer?

An Independent Children’s Lawyer (ICL) represents a child’s best interests. The Family Court can appoint an ICL under section 68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children, or any other person, to represent and promote the best interests of a child in family law proceedings. An ICL is usually appointed by the Court upon application by one of the parties where one or more of the following circumstances exist: there are allegations of abuse or neglect in relation to a child there is a high level of conflict and dispute between the parents there are allegations made as to the views of a child, and the child is of a mature age to express their views there are allegations of family violence serious mental health issues exist in relation to one or both of the parents, or the child, and/or there are difficult and complex issues involved in the matter. What is the role of an ICL? ICLs are obliged to consider the views of the child, but ultimately provide their own, independent, perspective about what arrangements or decisions are in the child’s best interests. The Family Law Act 1975, in Section 68LA, with regard to the role of the ICL states: When section applies (1)  This section applies if an independent children‘s lawyer is appointed for a child in relation to proceedings under this Act. General nature of role of independent children‘s lawyer (2)  The independent children‘s lawyer must: (a)  form an independent view, based on the evidence available to the independent children‘s lawyer, of what is in the best interests of the child; and (b)  act in relation to the proceedings in what the independent children‘s lawyer believes to be the best interests of the child. (3)  The independent children‘s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action. (4)  The independent children‘s lawyer: (a)  is not the child‘s legal representative; and (b)  is not obliged to act on the child‘s instructions in relation to the proceedings. Specific duties of independent children‘s lawyer (5)  The independent children‘s lawyer must: (a)  act impartially in dealings with the parties to the proceedings; and (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and (c)  if a report or other document that relates to the child is to be used in the proceedings: (i)  analyse the report or other document to identify those matters in the report or other document that the independent children‘s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and (ii)  ensure that those matters are properly drawn to the court‘s attention; and (d)  endeavour to minimise the trauma to the child associated with the proceedings; and (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child. Disclosure of information (6)  Subject to subsection (7), the independent children‘s lawyer: (a)  is not under an obligation to disclose to the court; and (b)  cannot be required to disclose to the court; any information that the child communicates to the independent children‘s lawyer. (7)  The independent children‘s lawyer may disclose to the court any information that the child communicates to the independent children‘s lawyer if the independent children‘s lawyer considers the disclosure to be in the best interests of the child. (8)  Subsection (7) applies even if the disclosure is made against the wishes of the child. National Legal Aid has published a set of Guidelines for Independent Children’s Lawyers about what an ICL should do to fulfil their role and responsibilities, and how they should represent and promote the best interests of a child in family law proceedings. The Guidelines are endorsed by the Court and provide useful guidance on all aspects of the role of the ICL. What information does an ICL consider to determine what is in the child’s best interests? The ICL has numerous options when determining what is in a child’s best interest. They may: meet with the child, unless the child is under school age, or there are exceptional circumstances speak to the child’s counsellors, school teachers and principals examine documents from organisations such as schools, child welfare authorities, or the Police examine medical, psychiatric and psychological records of the child and their parents question witnesses, including parents and experts, at the final hearing, and/or make arrangements to obtain independent expert evidence Who pays for an ICL? It’s important to realise that although in many situations the ICL is funded under a Legal Aid scheme established under Commonwealth, State or Territory laws, it’s not a “free” service. From a court’s perspective, an ICL is presumed to be unfunded (unless privately funded) and the courts are generally inclined to order parties to contribute to the ICL’s costs. When a party feels that ICL is biased, what can you do? Discussing the role of ICL, J O’Reilly in KINGLEY & ARNDALE (NO. 2) [2010] FamCA 968 made the following observation at ( 30-33) Murphy J in Knibbs & Knibbs [2009] FamCA 840 at [40] said that he did not necessarily agree with the last of these statements, that is, that it is only in cases of actual rather than perceived impartiality that such consideration should be given, but he did not elaborate on this. For my part, respectfully I am in agreement with Murphy J that is it not only in such cases, that is, cases of actual rather than perceived impartiality that such consideration should be given for the reason that justice must not only be done but be seen to be done in the proper administration of the justice system.  This is the underlying philosophy of the apprehended bias principle.  Thus, in my view, it is appropriate to consider the removal of an independent children’s lawyer if actual bias be demonstrated, or apprehended bias.  It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial. In this regard, the authorities concerning apprehended bias in judges are analogous, and it is relevant to refer to High Court authority on the

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New Important Changes to Employment law – Closing Loopholes: Fair Work Act changes

The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023  received Royal Assent on 14 December 2023. Some of the changes introduced are as follows: Redundancy payment changes for small business Small business employers aren’t usually required to pay redundancy pay to employees who are made redundant.  However, a non-small business can become a small business as part of the process of downsizing its workforce. This can be due to insolvency in the period leading up to (or after) becoming: bankrupt, or going into liquidation. In the past, this has meant that these employers no longer need to pay redundancy pay to employees made redundant after the business has fewer than 15 employees left. Under the new laws, non-small business employers that become a small business employer in these circumstances may still be required to pay their employees redundancy pay. Employees, unions and host employers can now apply to the Commission for new types of orders relating to labour hire employees. When one of these types of orders applies, a labour hire employer must pay their employees supplied to a host employer at least the same rate they’d receive under the host employer’s: enterprise agreement, or other kind of instrument that provides for terms and conditions of employment (for example, a public service determination). The orders are subject to certain rules too. Where an order has been made, host employers must: notify the labour hire employers covered by the order when a new enterprise agreement has been approved that will, if it comes into operation, become the instrument covered by the order apply to the Commission to vary the order if they engage another labour hire employer and their employees to perform the same work as those already covered by the order notify potential and successful tenderers of the possible effect of the order on them. Exceptions The Fair Work Commission ( “FWC”) can’t make an order if: it’s not fair and reasonable in the circumstances the arrangements are for a service to be provided rather than the supply of labour to a host employer the host employer is a small business employer. In addition, an order won’t affect: employees engaged in training arrangements under state and territory laws certain short-term employment arrangements (usually 3 months or less). Disputes about orders If a dispute about an order can’t be resolved at the workplace level, a party to the dispute can apply to the Commission to resolve it. Penalties may apply to employers that don’t comply with the new provisions. This includes new prohibitions that applied from 4 September 2023 on entering into arrangements to: prevent the Commission from making an order avoid the operation or effect of an order that has been made. 3. NEW DISCRIMINATION PROTECTIONS There are stronger protections against discrimination for employees experiencing family and domestic violence. This means that it’s unlawful for an employer to take adverse action (including dismissal) against an employee because the employee is (or has been) experiencing family and domestic violence. This discrimination protection also applies to potential future employees. Awards and enterprise agreements must also not include terms that discriminate against an employee because they’re experiencing (or have experienced) family and domestic violence. 4. Workplace delegates’ rights Workplace delegates now have new rights and protections under the Fair Work Act. A workplace delegate is an employee: appointed or elected under the rules of an employee organisation who represent members of the organisation in the workplace. The changes mean that delegates are entitled to: represent the industrial interests of members and potential members of the employee organisation (including in disputes with their employer) reasonable communication with members and potential members about their industrial interests reasonable access to the workplace and its facilities to represent those industrial interests. Delegates employed by non-small businesses are also entitled to have reasonable access to paid time during normal working hours for workplace delegate training. The changes also introduce new general protections for which penalties may apply. An employer must not: unreasonably fail or refuse to deal with the workplace delegate knowingly or recklessly make a false or misleading representation to the workplace delegate, or unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate. 5. Compulsory conciliation conferences in protected action ballot matters A protected action ballot is a secret vote by eligible employees on whether they want to take industrial action for a proposed enterprise agreement. Where the Commission has made a protected action ballot order in relation to a proposed enterprise agreement, they’re required to make an order directing all bargaining representatives for the proposed agreement to attend a mediation or conciliation conference. This change means that for the subsequent employee claim action or employer response action to be protected, the following must have attended the mediation and conciliation conference: the employee bargaining representatives who applied for a protected action ballot order the employer and any bargaining representative of the employer. 6. Right of entry The requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the Fair Work Act has been removed. Please contact us if you need an Employment Lawyer in Perth, an unfair dismissal Lawyer in Perth. We can handle all areas of employment law, including: Employment contract law, Employment contract reviews, Breach of employment contract, Unfair Dismissal, Unlawful termination, Constructive dismissal, Redundancy, Workplace discrimination, Sexual harassment, Workplace bullying, Workplace harassment, Workplace rights and adverse reaction, Workplace investigation, General Protection claim, Restraint of Trade, Unpaid Salary and wages, Flexible Working Arrangement, Federal Circuit and Family Court of Australia Employment Law Proceedings, Appeal to Federal Circuit, Misleading and Deceptive Conduct, Fair Work Commission Proceedings, Fair Work Commission Appeals.

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Resolution of Status Visa

Resolution of Status Visa In 2020, the High Court of Australia handed down a decision in Love v Commonwealth of Australia [2020] HCA 3 (‘Love Case). This involved two plaintiffs, Mr Love and Mr Thoms. Both were born overseas and neither of them was Australian citizens. Mr Love was a Papua New Guinea (‘PNG’) citizen by birth. Since 1985, he had resided continuously in Australia and had not departed. Mr Love identified as a descendant of the Kamilaroi tribe. His paternal great-grandfather was descended, in significant part, from Aboriginal inhabitants of Australia who lived in Australia before European settlement. Mr Thoms was born in New Zealand and was a New Zealand citizen by birth. Since 1994, Mr Thoms had permanently resided in Australia and identified as a member of the Gunggari People and was accepted by other Gunggari people as such. The Gungarri People hold common law native title in respect of lands in Queensland’s Maranoa region. Because neither of the men were citizens of Australia, their lawful presence in Australia depended upon their each holding a valid visa. Both Mr Love and Mr Thoms had types of permanent residence visas which permitted them to indefinitely remain in Australia. Their status as non-citizens, however, made their lawful right to remain in Australia conditional upon the continued validity of each of their permanent residence visas. Both of them were convicted for criminal matters and were given a custodial sentences. Mr Love was handed down 12 months imprisonment and Thoms was given 18 month custodial sentence. As their custodial sentences were for a period of 12 months or more, their visas were cancelled by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth), the relevant effect of which is to require the Minister to cancel a person’s visa if the person has been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. Upon cancellation of their visas the plaintiffs became unlawful non-citizens and liable to be removed from Australia. The Migration Act and the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) are enacted under s 51(xix)3. Both argued that they are outside the purview of those statutes citizens and s 51(xix) because they have a special status as a “non-citizen, non-alien”. They claimed that they had that status because although they were non-citizens they couldn’t be aliens because they were Aboriginal persons. The High Court decision, by a majority of four judges to three, determined that Aboriginal Australians, described by Brennan J in Mabo v Queensland (No. 2) (‘Mabo’) were not within the reach of the Commonwealth Parliament’s so-called ‘aliens power’ in section 51(xix) of the Constitution. As a result of this case, Australian Government has made amendments more commonly referred to as the Migration Amendment (Resolution of Status Visa Additional Cohort) Regulations 2023. It helps people affected by a court case called Love v Commonwealth; Thoms v Commonwealth. These changes allow certain non-citizens who are recognized differently under the law because they’re Aboriginal or Torres Strait Islander to get a permanent visa (Subclass 851 – Resolution of Status). This visa also helps them access government support. The court said that some people who aren’t citizens or regular non-citizens can’t be detained or removed from Australia under these rules. So, the new regulations create a way for these people to apply for a special visa if they’ve been offered a permanent stay in Australia and meet certain conditions. The rules for getting this visa are different for the Love-affected group compared to others. They don’t need to meet some criteria like health checks because of their special legal status. This helps them stay in Australia permanently. Please contact us if you need an Immigration Lawyer in Perth, Migration Lawyer in Perth and require assistance with Asylum legal assistance, Citizenship legal assistance, Deportation defence litigation, Employment-based immigration legal dnassistance, Family-based immigration assistance, Investment visa legal assistance, Student visa legal assistance, Visitor visa legal assistance, Work visa legal assistance, Australian Immigration, Business Migration 188 Visa and 888 Visa, 186 ESN Visa, 888 Business Visa, Contributory Parent Visas, Distinguished Talent Visa. Employer Sponsored Visas Ens 186 Visa, 482 TSS Visa, Ens Visa 186, General Skilled Migration 189 Visa, 190 Visa, 491 Visa, Migration Laws, Refugee and Protection Visas 866, Partner & Family Visas 820 Visa, 309 visa, Partner Migration 820 Visa and 309 visa, Partner Visa, 820/801 Visa and 309/100 Visa, Permanent Protection Visa 866 Visa, Permanent Residence Visa, Prospective Marriage Visa 300 visa, Provisional Visa, Resident Return Visa, Student Visa 500, Skilled Migration Program, Skilled Regional Visa 491 and 494 visa, Temporary Activity Visa, Temporary Graduate Visa 485 Visa (TR), Temporary Protection Visa, Temporary Skill Shortage Visa (TSS 482 Visa), Tribunal & Appeals Visa (AAT), Visa Application, Visa Cancellation, Visa Lodgement, Visa Process, Visa Refusals, Working Holiday Visa,  Administrative Appeals Review, Adoption Visa, Australian Citizenship, Business Innovation And Investment Visa, Business Talent Visa, Career Visa, Immigration Consulting Services, Dependent Child Visa, Employer Nomination Scheme, Immigration Advisory, Immigration Law, Immigration Lawyers in Perth, Initial Consultation with Immigration lawyers in Perth, Partner Visa, Visa Assistance, Skilled Independent Visa, Qualified Immigration, Ministerial Intervention, Regional Sponsored Migration Scheme, Skilled Nominated Visa, Temporary Work Visa, Orphan Relative Visa, Skill Assessment Applications, General Skilled Migration Visa, Resident Return Visa, Review of AAT Decision, Bridging Visa B, Business Migration, Business Sponsorship, Employer Sponsored Migration, Federal Court Appeals, Finance Visa, Prospective Spouse Visa, Protection Visas, Regional Sponsored Skilled Migration Scheme, Skilled Migration Scheme, Skilled Regional Sponsored Visa, Skilled Visas, Sponsor Visas, Spouse Visa Application, Subclass 870 Temporary Sponsored Parent (Tspv) Visa, AAT And Court Appeals, Visa Appeal, Visa Appeals, Visa Cancellations And Refusals, Visitor Visa (Subclass 600), 482 Visa, AAT Appeal, Australia Immigration, Business Immigration, Business Innovation And Investor Visas, Business Owner Visa, Business Visas To Australia, Business Visas/Skilled Work Visas, Carer Visas, Character Cases, Character Submission, Child Migration, Citizenship, Company Applications, Complex Migration Issues, Complicated Immigration Matter, Contributory Parent Visa, Corporate Immigration Lawyers,

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Changing existing parenting orders

As circumstances change, the needs of children often change and previous parenting orders are no longer relevant or need to be varied to take into account the changes in circumstances. Before proceeding with an application for variation, the applicant needs to be aware of the real risk of achieving a worse arrangement than is currently in place and the costs associated with litigating. Please contact us if you need a Family Lawyer in Perth, Divorce Lawyer in Perth and require assistance with Child support family court case, Contested divorce family court hearing, Custody and visitation rights Family Court case, Divorce case, Fathers’ rights litigation, Guardianship case, Mediation, Parent timesharing family court case, Paternity establishment Family Court case, Property division litigation in Family Court, Spousal support and alimony in Family Court, Simple and untested divorce legal services etc.

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Federal Court allows appeal of an Indian man in – Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Introduction This appeal was heard together with that in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh).In both Singh and here, separate judges of the Federal Circuit Court of Australia (FCCA) made findings that the same migration agent had engaged in fraudulent conduct in the course of making separate visa applications for his two clients by providing false information to the Department concerning their skills.  Both visa applications were refused on the basis of the public interest criterion in PIC 4020 and the provision of false or misleading information concerning the visa applicants’ respective skills.  Both visa applicants were unsuccessful in their separate review applications to the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal).  Each then separately brought judicial review proceedings in the FCCA in relation to the Tribunal’s decisions.  A central issue in both cases was whether the effect of the agent’s fraud meant that the visa applications were not valid visa applications.  The judicial review applications were both dismissed.  Unlike in Singh, however, the appellant’s judicial review application in this proceeding was dismissed not on the ground of lack of utility but on the basis that relief should be withheld because of the appellant’s “indifference and imputed authority in the agent”. The central issue in this appeal is whether the primary judge erred in concluding that because of the appellant’s “indifference” to his agent’s fraudulent conduct and the “general authority” he had given to his agent, he had to bear responsibility for that conduct. Summary of background facts   The appellant, who is a citizen of India, entered Australia in June 2009 as the holder of a student visa.  On 3 May 2011, an application was made online in his name for a Skilled (Provisional) (Class VC) visa (the visa).  It was stated on the visa application form that the appellant had obtained a skills assessment from Trades Recognition Australia (TRA) and a reference number for that assessment was provided.  On 14 April 2012, the Minister’s delegate refused to grant the appellant the visa.  The delegate stated that TRA had confirmed that there was no skills assessment with the reference number stated in the visa application form.  The delegate found that the public interest criterion in cl 4020(1) of Sch 4 to the Migration Regulations 1994 (Cth) (the Regulations) was not satisfied, which meant that the appellant could not satisfy the visa criterion in cl 485.224 of Sch 2 to the Regulations.  The appellant’s application for the visa was thus rejected.  On 9 May 2012, the appellant sought a review of the delegate’s decision in the Tribunal.  He claimed that he had been the victim of fraudulent conduct by his former migration agent and that the agent had, without his knowledge, provided false information in his visa application, with the consequence that his visa application was invalid. The appeal to this Court  The notice of appeal raised the following four grounds of appeal.  First, the FCCA erred in finding that there was a valid visa application in circumstances where it was satisfied that there was fraud by the migration agent and the appellant was not positively complicit in that fraud (ground 1).  Secondly, the FCCA erred in finding that the appellant was “indifferent” to the fraudulent actions of his agent in a manner that amounted to a general authority to the agent (ground 2).  Thirdly, the FCCA erred in considering that its finding that the appellant “was indifferent” to his agent’s fraud, having regard to the nature of that indifference, was a sufficient basis to deny the appellant the relief he sought given that the FCCA found that there was fraud by the migration agent and no evidence that the appellant was positively complicit in that fraud (ground 3). Fourthly, the FCCA misunderstood which “process” was stultified by his agent’s fraud because the procedures before the Minister’s delegate and the Tribunal were not the relevant processes, rather the relevant process was the legal consequences which attached only to valid visa applications for the purposes of ss 46, 47, 48, 49 and 98 of the Migration Act (ground 4). The relief sought by the appellant in the appeal included an order quashing the Tribunal’s decision and a declaration that there was no “valid visa application” within the meaning of s 46 of the Migration Act.  Alternatively, an order was sought remitting the matter to the FCCA for rehearing according to law. A central issue as seen by the primary judge was whether the Tribunal erred in finding on the basis of the evidence before it that there was an agency agreement under which the agent acted on the visa applicant’s behalf in making a sub-class 485 visa application. This finding was based on evidence which indicated that the visa applicant had instructed the migration agent to lodge the visa application and that a fee was discussed.  This was found by the primary judge to be sufficient to ground the Tribunal’s finding that there was an agency agreement.  The primary judge stated at [44] that the visa applicant “plainly knew, as his evidence indicates, that an application was to be submitted on his behalf” and that he “plainly said he sent the fee and documents as discussed”.  The primary judge also found that it was open to the Tribunal to find that the visa applicant was “indifferent to the detail of the application” (at [45]).  But the matter did not stop there.  Significantly, the primary judge rejected the visa applicant’s contention that he was simply an innocent or gullible person who had been “duped” by the agent.  The primary judge observed at [48] that the Tribunal had expressly addressed this matter and that it was not persuaded by the visa applicant’s evidence having regard to his educational and migration circumstances over the preceding three years.  The primary judge held that the Tribunal’s findings were reasonably open to it on the basis of the evidence before it and that it was immaterial that another Tribunal member may have taken a different view.  Perhaps reflecting the way

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