Welcome to our summer edition of our Social Work newsletter. In between assisting our clients, the Slater and Gordon re-brand has allowed us the opportunity to update our documents. We now have new brochures available regarding our Social Work Service and revised versions of the Legal Glossary for Victoria and New South Wales. These are available for social workers and health professionals and we hope to develop glossaries for Queensland and Western Australia next.
We have received endorsement from the AASW for our Legal Education program. This is the first time we have obtained endorsement for our program nationally so we are very pleased about this. Our education is free and we will aim to accommodate your needs where we have an office and available legal staff to provide the education. As part of our education program we also now have a topic presented by our Social Work staff about our work with clients: ‘Social Work & the Law: Where legal arenas and psychosocial needs intersect’. We decided to include this topic following a request from the Gold Coast Social Work Practice Group to present this session to their members. Olga travelled to the Gold Coast to present to the group and the session was well received.
We hope many of you will be able to relax and recharge over the festive season. Alexis will be on leave from the 10th December and return on the 19th January. Our Social Work Service will be closed from the 19th December and re-open on the 5th January 2015. Best wishes for the New Year.
Family Law and Parenting Arrangements
Mona Emera is a Principal Lawyer in our Family Law practice in the Brisbane office and has kindly contributed this article.
Many separated couples (or persons with parental responsibility for a child) are able to agree about future parenting arrangements for their children and do not require the assistance of lawyers. Many separated families are also able to effectively communicate and cooperate to ensure that their children’s day to day and long term needs are met. This is no doubt the best outcome for separated parents and their children, and one that should always be encouraged.
Unfortunately, it is not always possible to reach agreement regarding children’s matters for a variety of reasons.
It is important to understand that in Australia, the law is clear that except in limited circumstances, parents should have “Shared Parental Responsibility” for their children. This does not necessarily mean that the children should spend equal time with each parent, but it does mean both parents should have input into important decisions in a child’s life, regardless of who the children live with. A Court can grant sole parental responsibility to one parent over another but this will only happen in a small number of cases.
The most important consideration under the Family Law Act is that arrangements for children must be made in their best interest and not the interests of the parents.
The priority of each parent must therefore be to act and behave in a way that is consistent with these best interests. This may involve actively encouraging a child to spend time with the other party, despite negative feelings. Although the relationship may have ended, the relationship as parents is ongoing.
Orders made by the Court cover all aspects of children’s lives and are phrased in the following simplified terms:
- Parental responsibility – refers to long term decisions in relation to a child’s care, welfare and development.
- Live with - refers to who the child will live with
- Spend time with - refers to who the child will spend time with
- Communicates with - refers to communication including telephone communication.
Terms such as “custody”, “guardianship” and “access” are no longer used.
The Family Law Act sets out both primary and additional considerations that the Court must deal with when determining what is in a child’s best interest.
The primary considerations under the Family Law Act are:
- The need to protect a child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence (overriding consideration); and
- The benefit to a child of having a meaningful relationship with both of their parents.
Some of the additional considerations under the Family Law Act are:
- the nature of the relationship of the child with:
- each of the child’s parents; and
- any other person (including a grandparent or other relative of the child).
- the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
- any views expressed by a child and any factors (such as a child’s maturity or level of understanding) that a Court thinks are relevant to the weight it should give to a child’s views.
- the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
- either of his or her parents; or
- any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
- 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.
- the capacity of:
- each of the child’s parents; and
- any other person (including a grandparent or other relative of the child);
to provide for the needs of the child including emotional and intellectual needs.
- the maturity, sex, lifestyle and background (including culture and traditions) of the child and whether either of the child’s parents and any other characteristic of the child that the Court thinks are relevant.
- if the child is an Aboriginal child or a Torrens Strait Islander child:
- the child’s right to enjoy his or her Aboriginal or Torrens Strait Island culture and heritage; and
- the likely impact any proposed parenting order under this part will have on that right.
- any family violence order involving the child or a member of the child’s family.
The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Once an agreement has been reached about arrangements for your children it is usually important for the agreement to be recorded appropriately. There are 2 options:
- Parenting Plan; or
- Consent Orders.
A Parenting Plan is designed to encourage parents to reach an informal agreement between themselves about matters concerning their children. A Parenting Plan is an agreement that:
A Parenting Plan is an informal agreement between parties that IS NOT approved by a Court and IS NOT legally enforceable. Therefore, there is no penalty for breaching the agreement. Parenting Plans may only be appropriate in very few cases and it is generally advisable to obtain a Consent Order of you are worried about your former partner “changing their mind” in the future.
A Consent Order is a written agreement that is approved by a Court. The relevant agreement is drafted in legal terms and signed by the parties. The Application and the Orders are then sent to the Court for approval. Once approved, the Court will formally make the agreement Orders of the Court. This means that the agreement becomes a legally binding agreement and the Court can impose penalties if one or both of the parties refuses to follow the Orders.
If agreement has been reached about all issues, obtaining Consent Orders is usually a straightforward process.
The issue of consent in a health setting
The issue of consent, is one that affects the practice of all social workers, and we are often asked questions about our legal responsibility in this area. NSW health is currently running a consultation on a draft of a new Consent Manual for health professionals that will reflect some of the changes in this area of law. The 80+ page manual will set out the law on consent to medical treatment, and will have some significant changes from the last version including:
- consent by ‘mature minors’;
- more information on advanced care directives;
- clarification of the meaning of ‘Special Medical Treatment’;
- clarifying consent procedures for mental health patients; and
- Inclusion of various privacy provisions and associated guidelines regarding the disclosure of genetic information.
The draft Consent Manual and the comments template is available on the ASMOF website.
Clinical images & the use of mobile phone cameras
In the changing world in which we live, technology including smart phones, cameras, tablets, laptops, and portable music devices are being used more and more within the hospital environment. In response to this, on 21 November 2014 the Australian Medical Association released a guide for medical students and doctors on the proper use of personal mobile devices when taking and transmitting clinical images. The guide outlines the key ethical and legal issues to be aware of before using a personal mobile device to take or transmit clinical images for the purpose of providing clinical care. The guide uses case examples to talk about privacy and confidentiality, use, consent and disclosure of images.
The guide, Clinical Images and the Use of Personal Mobile Devices, was developed jointly by the AMA and the Medical Indemnity Insurance Association of Australia (MIIAA) and may be of interest to social workers who use technology as part of their practice. The full document can be found here.
Social Media and Criminal Behavior
With the party season fast approaching, use of social media to share images and videos with friends online has become a favorite pastime for many of us, and for many of our clients. The rise in image sharing sites like Instagram and Snapchat has made it even easier. It seems though, the more we get used to posting images and videos the less we think about the consequences or the social embarrassment that inappropriate posts can cause.
Not only can some posts be a breach of privacy, but they can also be used as evidence of criminal conduct. Deleting images already posted online, is often not effective in disposing the content either, screenshots and other devices are being used to capture images and videos.
Behaving appropriately within the law also extends online, some social media activity that can lead to criminal charges include:
- Images and video of unlawful behavior such as assaults, drug use, underage drinking, harassment and public nuisance behavior captured on social media can be used as evidence of criminal conduct.
- Taking, posting or forwarding sexually explicit material of someone under the age of 18 carries serious criminal consequences, including child pornography charges.
- If a person films and posts sexual conduct online, but are not involved in the activity, they can still be charged.
- Secretly recording someone – i.e. without their consent, is a criminal offence.
It is also important to remember that police have recently been using social media technology to track terrorism and protests at the G20 in Brisbane, as well as during Schoolies.
Even if the material posted online does not lead to a person being charged, if they later find themselves before the court, it is common for police and prosecuting agencies to search online for material which may be used against them.
A word of warning to pass on to clients: if a person engages in illegal activity and posts it online, the police are likely to find out about it. Law enforcement is adapting to the growing presence of technology and social media. Of course, anyone who thinks they have been the victim of a crime, including online, should report it to police immediately.
Criminal Law and Arrests: Rights and Responsibilities
At times you may be presented with a client who is unaware of their legal rights if arrested by police. A police officer can arrest you if they have reasonable grounds for suspecting you’ve committed an offence. It doesn’t matter whether you actually did or didn’t commit the offence. They can also arrest you if they reasonably suspect you’re about to commit an offence, if you’re breaching the peace or if you’ve breached your bail conditions. Usually the police don’t need a warrant to arrest you. When arrested, it is important to seek legal advice as soon as possible. To learn more about what constitutes a serious indictable offence; reasonable force by police; police searches; how long police can keep you in custody; and how bail is set here.
Family Law: parental rights of access to children
There are a number of important things for social workers to consider when it comes to the legal rights of clients who are in separated families. The most common misconception in family law is that parents have a legal right to see their children. They don’t. Family Law does not recognise any right of a parent to see a child. It does, however, recognise that a child has a right to have both parents and other significant adults in their lives. The law believes that it is in children’s best interests to have important people in their lives as role models.
The law also considers that in developing a plan of access, a parent’s involvement should be in all aspects of their children’s lives, both with significant events and also the day care of the child. The Court therefore favours orders that provide for both weekday and weekend time with each parent.
Again, all things being equal, a child should be able to spend equal time with both parents and have them equally involved in all the different aspects of their lives. The time the Court will order has to be reasonably practicable. For example, travelling long distances to school may be neither practical nor in the best interests of a child.
The Court’s decision will take into consideration foremost, what is in the child’s best interests. For example, unacceptable risks of abuse or harm to the child would outweigh the benefit the child would have from the contact with a parent.
Also important to note, the Court recognises that it is of benefit for a child to have grandparents and other family in a child’s life and, if for no very good reason, grandparents or other relatives are being excluded from the child’s life, the Court will allow Applications to be made for orders to see children by grandparents and others.
As the law does not recognise a parent’s right to spend time with children, Courts do have the power to remove a parent from a child’s life if the child’s welfare requires it, such as if a parent’s access to the child may place the child at significant risk of harm. However, the underlying belief that it is good for children to have contact with both parents, means this only occurs in situations as a last resort.
The Purpose of Coronial Hearings
Following certain kinds of deaths, doctors, and other healthcare professionals, emergency service workers and police are under an obligation to report these deaths to the state specific Coroner.
The Coroner’s role is to determine the identity of the deceased and the date, place, circumstances and medical cause of death. Coroners also investigate the cause and origin of fires and explosions. In short, the Coroner’s role is to find out what happened, not to lay blame. Unfortunately, a number of popular television shows perpetuate the myth that a cause of death can be established quickly and that the coroner can pinpoint the time of death precisely.
Neither of these things is true. The reality is that a coronial investigation is both complex and lengthy. Whilst some cases may be resolved within a few months, the majority of cases take considerably longer, often up to twelve months or more .
Types of Deaths Investigated by the Coroner
- the death was unexpected
- the death was violent or unnatural (for example: homicide; suicide; drug, alcohol and poison related deaths)
- the death resulted, directly or indirectly, from an accident or injury, even if there is a prolonged interval between the incident and death (for example, drowning; deaths caused by an accident)
- the death occurred during or following a health-related procedure where the death is or may be causally related to the procedure and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death
- a Medical Certificate of Cause of Death has not been signed and is not likely to be signed (for example, where an opinion about the probable cause of death cannot be formed)
- the person had not been attended to by a doctor in the last six months
- the identity of the person is unknown
- the death occurred in custody
- the person was in, temporarily absent from, or residing at a declared mental health facility within the meaning of the Mental Health Act 2007 for the purpose of receiving care, treatment or assistance
An inquest is a court hearing conducted by the relevant state coroner to gather more information about the cause and circumstances of a death. Coroners can also make recommendations about matters connected with the death, including matters related to public health and safety or the administration of justice. These recommendations are aimed at preventing similar deaths in the future. Recommendations can only be made if an inquest is held.
An inquest is not a trial and there is no jury. It is not about deciding whether a person is guilty of an offence or civilly liable. Inquests are less formal than conventional court hearings and the coroner can inform themselves in any way they consider appropriate. Although the rules of evidence do not apply, the coroner must ensure that the proceedings are conducted fairly.
The coroner will hear evidence on oath from people who have information about the death. These witnesses can include police officers, family members, doctors, other experts, eye witnesses or members of the public. The inquest is usually held in the closest magistrates’ court to where the death occurred.
An inquiry is a court hearing where the Coroner investigates a fire or explosion which caused damage to property, but did not cause deaths. The Coroner's role is to establish the cause and origin or the fire or explosion.
Following the investigation of a death, there are a number of possible outcomes:
- The Coroner dispenses with an inquest (decides not to hold one)
- An inquest is held and the Coroner delivers findings
- An inquest is held and the Coroner delivers findings with recommendations
- An inquest starts and is suspended by the Coroner
A Coroner may re-open an inquest if the Coroner is of the view that the discovery of new evidence or facts makes it necessary or desirable in the interests of justice to hold the inquest.
You may also make application to the Supreme Court of NSW to review a decision of the Coroner. The Supreme Court can make orders concerning the conduct of a post mortem or the retention of whole organs. It can also direct that an inquest or inquiry be held, where the Coroner has dispensed with one. If a coronial inquest or inquiry has been held, the Supreme Court can direct that a fresh hearing be held if it is necessary or in the interests of justice.
Example of a recent Coronial Hearing
A recent inquest into the death of Anne Christine Brain has recommended the implementation of a real time prescription monitoring system, to assist doctors and pharmacists in controlling unsafe access to drugs obtained by patients who seek the same medications from multiple doctors.
Ms Brain Was a 44 year old woman who was said to have had a complex mental health history including diagnosis of schizophrenia, depression and anxiety. She was also being treated for chronic pain including what she described as headaches, facial pain and lower back pain. In December 2011 Ms Brain was found dead in her home by her daughter. Police found several prescription medications at the home.
A search of the Medicare Pharmaceutical Benefits Scheme (PBS) records indicated that Ms Brain had been prescribed the same analgesic, anti-anxiety and anti-depressant medications from seven different general practitioners. Ms Brain has also regularly attended a number of GPs for treatment for opiate dependence.
The medical cause of Ms Brain’s death was found to be as a result of intoxication by a combination of a number of different prescription medications which she had been prescribed by a number of different practitioner’s shortly before her death.
The investigation and inquest examined the following issues:
- The current Medicare Australia prescription shopping alert system and the fact that it does not allow for real time monitoring of prescriptions
- The value of real time prescription monitoring (RTPM) which links doctors and pharmacists electronically and its potential to prevent people from obtaining medications for non-therapeutic use.
- The current state of affairs in respect of RTPM in Victoria and possible alternatives.
As a result of the inquiry, the Coroner has made a number of recommendations with respect to progressing the implementation of a real time prescription monitoring system in Victoria with urgency to prevent further deaths.
You can find out more about coronial inquests in your state through the following links:
If you have a query you would like assistance with or would like to contact us about legal education, please contact:
Alexis Stonebridge – NSW & ACT:
Monday - Wednesday 02 8267 0640
Olga Gountras - National Manager Social Work Services:
Monday – Friday 03 9949 8713
If you are not on our database and would like to receive information direct from the Social Work Service, please provide your contact details to Olga Gountras.