Watt v State of NSW [2018] NSWSC 1926 is a decision of the Honourable Justice Garling in the NSW Supreme Court which considered the s54 Civil Liability Act 2002 (NSW) defence in the context of alleged negligence by prison officials.
The s54 defence precludes recovery where the plaintiff was injured in the commission of a serious offence or shortly after.
Facts
Adam Watt was being held on remand at Silverwater Correctional Complex. On the day in question Mr Watt had a violent run-in with another prisoner, Django O’Hara, who had a notable history of violence prior to and during his incarceration. Conflicting versions were given of the altercation but it ended in Mr Watt holding Mr O’Hara in a chokehold. A short time later there was a verbal confrontation between the two men in the public area, which ended when they shook hands at the behest of a Corrections Officer. During this incident Mr O’Hara placed an item in a pillowcase under a table, in view of corrections staff.
The main incident occurred shortly after. Mr Watt was seated in the common area when he was approached from behind by Mr O’Hara. Mr O’Hara hit Mr Watt on the head with the pillowcase, which contained a sandwich maker. Mr Watt fell to the floor and was struck again by Mr O’Hara.
Mr Watt suffered numerous injuries as a result of the incident including a brain injury, a psychiatric injury, hearing loss, tinnitus, facial scarring and facial numbness.
The decision
In the case of Watt v State of NSW, the State admitted that it owed Mr Watt a duty of care but contended that the harm suffered was outside the scope of its duty. Garling J found that the risk of Mr Watt suffering physical harm was reasonably foreseeable and not insignificant. Mr O’Hara had a long history of violence, which was known to the prison authorities, and he was therefore not an appropriate prisoner to be allowed to integrate with remand prisoners, especially as this information was not provided to the officers in charge of the relevant area. Garling J also found breach in respect of the failure to either identify or remove the weapon used to strike Mr Watt.
The section 54 defence
The State raised the defence under s54 of the Civil Liability Act. This defence precludes recovery in negligence where the plaintiff was injured in the commission of a serious offence or shortly after. The elements of this defence are as follows:
(a) That there was conduct on the part of the plaintiff which constituted a serious offence, namely one which carried a maximum penalty of 6 months or more;
(b) The … injury occurred at the time of, or following, the criminal conduct in (a); and
(c) That conduct contributed materially to the injury.
Garling J considered the meaning of the words ‘at the time of, or following, the criminal conduct’. While he found that the altercation that ended in the chokehold was not a ‘serious offence’ he went on to state that, even if it was a serious offence, it did not occur at the requisite time, nor did it materially contribute to the assault in which Mr Watt sustained his injuries.
Garling J considered the meaning of ‘following’, relying on earlier comments from McColl J in Wheatley v State of NSW [2018] NSWCA 315 and the second reading speech. He determined that the purpose of the section was to prevent those involved in a serious crime from recovering damages if they were in some way injured during the commission of that crime or while escaping. As such, he found that there was not a sufficient temporal connection between the crime and injury as the two events were separated by time, intervening interactions, and location such that the conduct could be considered to have ceased by the time the injury occurred.
The post Case Study: Watt v State of NSW appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Last week’s Brisbane hearings of the Aged Care Royal Commission highlighted fundamental problems with the regulation of our aged care system.
As well as nursing home residents, their families and staff, it was a respected academic – engaged by the Federal Government previously – whose evidence was most damning.
Professor Ron Paterson said Australia’s “broken” aged care regulatory system was putting older people at grave risk. In his explosive evidence, he said regulators pay lip service to older people’s welfare but are so desensitised to poor care that they allow bad nursing homes to stay open. He said there’s too much consultation and not enough action and raised concerns about the influence of aged care providers.
In 2017, the Government commissioned he and Kate Carnell to examine South Australia’s Oakden Nursing Home scandal. The review made 10 recommendations around consumer protection as the most important element of aged care. Recommendations included consumers being able to engage in relevant aspects of the regulatory framework, protection of rights, compulsory reporting of serious incidents, improved monitoring of aged care facilities and moving towards unannounced visits based on risk profiling of nursing homes.
Whilst giving evidence, Professor Paterson appeared frustrated that those recommendations may have been accepted in principle, but little has been done to implement them.
The one reform that has gone ahead is the merging of complaints and regulation into one organisation. The Aged Care Quality and Safety Commission began operating from January 1. I have previously condemned this new body. The Royal Commission hearings prove that it’s not the tough cop that the Government promised it would be.
We see it here in the Hunter and across the country. Nursing homes that consistently fail basic standards of safety and quality continue to operate with little or no sanctions. The regulators knew of major issues at the Earle Haven nursing home on the Gold Coast – from where residents were recently evacuated – but let it remain open.
My issue with the new body is that it is just a merger of agencies that have been regarded as ineffective because they lacked independence, transparency and accountability. The Royal Commission heard that more than 25 percent of people are dissatisfied with the new body’s handling of their complaint.
Professor Paterson was asked about the issue of transparency. He and Ms Carnell had recommended that Australia adopt a similar system to that which operates in the UK and US where complaints and investigations are made available to the public. The availability of such material allows families to make an educated and informed decision about where to put their loved ones.
“These are publicly-funded providers and they are providers who are caring for the most vulnerable members of our community. Why would the default position be secrecy of information about the providers?” was Professor Paterson’s sensible reply.
Senior Counsel Assisting the Brisbane Royal Commission, Peter Gray, summed up the situation. “The evidence this week has exposed serious defects in the regulation of quality and safety of aged care at both the operational level and the design level. Equally concerning, these defects are old news. Government has been tardy in implementing previously recommended forms.”
Rather than regulator name changes, we need proactive and structural regulatory reform together with measures that prevent inadequate clinical care and neglect of aged care residents. The key reform agenda is the quality of the aged care workforce.
One fundamental problem yet to be considered by the Royal Commission is the Aged Care Act (1997). This Act, brought in by the Howard government, helped make aged care very attractive to investors. Over the course of the last 20 years, we’ve witnessed quality of care compromised by commercial interests. The Act requires a complete overhaul.
We need quality data on the incidence of pressure sores, falls, infection/sepsis rates and medication errors. If such data exists, it is not publicly available. Without it, we’re left with the horror stories, unchallenged. There are many good residential aged care facilities. The problem is being able to locate them.
No government in the past 20 years has been prepared to tackle the aged-care crisis. The Government must act on the Commission’s findings so that this expensive exercise doesn’t go the same way the many inquiries before it have gone.
The Brisbane Aged Care Royal Commission hearing is now complete and hearings commence in Melbourne in September.
If your loved one has been subject to any issues or general poor-quality treatment in an aged care facility you can approach the Royal Commission to provide evidence. Our expert, caring health law and elder law team members can also help you to determine if there is a case to seek justice or compensation. Making formal complaints or litigating is an effective way to force aged care facilities to change poor practices for you, your loved one, and other people.
The post Explosive evidence from the Brisbane Aged Care Royal Commission hearing appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

A family law separation is one of the most significant financial events of your life. Often you will need legal and financial advice for your property settlement.
For example, you might need assistance from:

An accountant, if you are receiving investments which may attract capital gains tax on subsequent sale;
An accountant, if you need to unravel a business e.g. ending a partnership, sorting out loan accounts in a company etc.;
An accountant and/or a financial planner, if there is a self-managed super fund to unravel;
A financial planner, if you are receiving a large sum of money in your property settlement and need advice on what would be the best way to apply the money e.g. buy a property, put money in super etc.;
A financial planner, where you need advice on whether it would be better for you to take a greater amount of super over property, or vice versa;
A mortgage broker, if you need to apply for a loan to refinance a mortgage or payout your ex.

Catherine Henry Lawyers is part of the Lake Macquarie Business Hub – a team of professional lawyers, accountants, financial planners and mortgage brokers, all under the one roof. As part of your property settlement we can work collaboratively with you and any of these professionals to provide legal and financial advice that will put you in the best position to rebuild your financial future.
Contact us today to find out more.
The post Why you need both legal and financial advice during a property settlement appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The Australasian Birth Trauma Association and the Centre for Perinatal Psychology hosted the first Australasian Birth Trauma Conference in Brisbane earlier this month.
Guest speakers addressed an interesting range of topics related to both physical and psychological trauma that can be experienced during birth. These included the impact of such trauma on self and relationships, supporting rural and regional areas, debriefing after a birth trauma, the impact of communication, and postnatal pelvic rehabilitation.
The deep and often long-lasting psychological impact of a traumatic birth was discussed from a number of different perspectives – the mother, the father, and even the medical practitioners or other staff involved. The way in which we communicate – verbally and through other non-verbal means – during this time can also have a profound impact for good or bad.
Computational modelling shown by Dr Jenny Kruger from the University of Auckland was a really fascinating way to show the muscles in the pelvic region and get an understanding of the damage that can be done to the pelvic floor during childbirth. This was followed up by Angela James, who talked enthusiastically about the importance of postnatal rehab with pelvic physiotherapy. It would be great to see the Australian health system adopt the French model of six weeks of postpartum pelvic rehabilitation as standard for all mothers.
We were also privileged to hear three very personal birth trauma stories including one from the Amy Dawes, one of the co-founders of the Australasian Birth Trauma Association. Amy’s birth trauma arose 16 months postpartum when she was diagnosed with a bilateral levator ani avulsion (pelvic floor muscle torn off the bone) that eventually resulted in a prolapse and has compromised her quality of life significantly.
Clayton Schmidt talked about his own harrowing experiences during his wife’s pregnancies and birth which ultimately led to him developing post-traumatic stress disorder. It highlighted the need for care and debriefing of not just mums but dads too. Fathers can be affected by the circumstances surrounding birth and may not realise that this can lead to them suffering a psychiatric injury themselves.
The inaugural Australasian Birth Trauma Conference was a well thought out and cohesive event and I look forward to attending the nest one. A second conference is planned for Melbourne later this year and another in Sydney in 2021. It would be great to see one in Newcastle too at some time in the future.
The post Australasian Birth Trauma Conference appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Mildura was host to the Royal Commission into Aged Care Quality and Safety hearing between July 29 and 31. According to senior counsel assisting the commission, Peter Gray, QC,  the town was selected because of the city’s ageing population, opportunity to examine the experiences of carers in a regional area which has a high demand for aged care.
2016 statistics show 19.1 percent of Mildura’s population was made up of people aged 65 years and over, compared to 15.7 per cent of the Australian population over 65.
The public hearing looked at the needs of family, informal and unpaid carers for older Australians, with a focus on:

the extent to which current arrangements meet those needs
how services and supports for carers could be improved
respite care.

Bonney’s and Nicole’s stories
“When Mum dies, I will know I’ve done everything I possibly could.” Bonney cares for her mum Beryl at home. She was one of a number of witnesses who gave evidence to the Commission.
Nicole Dunn, spoke about moving in with her grandmother to care for her for 18 months after she was diagnosed with pancreatic cancer. Nicole said she wanted to and needed to care for her Nana. But it came at a cost with Nicole having to move from full time to part time work. She was in her early 30s and her world shrank because her friends were doing very different things. Nicole also outlined the struggles she encountered seeking financial and care assistance from government agencies.
Negative impacts on carers
Catherine Thomson, research fellow from the Social Policy Research Centre at the University of New South Wales, told the Commission that “carers have much lower social and emotional well-being compared to non-carers”. As women undertake the largest share of unpaid caring work, women disproportionately experience the financial impacts associated with caring.
According to Carers Australia, there are about 2.7 million unpaid carers in Australia. Many primary carers are women in their 50s, although it’s estimated that one in 10 people caring for a family member is under 25. The median weekly income of carers at 42 per cent lower than that of non-carers.
On the second day, a panel outlined the aged care system’s failure to recognise ‘hidden carers’. There was a call for aged care services to be brought under the one umbrella and regulated by one institution in a co-ordinated fashion.
Respite care
On day three of the Mildura Royal Commission hearing, respite care was discussed. A panel of aged care CEOs discussed the importance of respite care to the community, including carers.
Government chief bureaucrats highlighted the need for increasing awareness of the supports available to informal carers.
Counsel Assisting the Royal Commission said the evidence suggested serious shortcomings in the practical effect of Government policies in relation to carers.
Next hearing – Brisbane
The next hearing takes place in Brisbane on August  5-9 and will focus on aged care regulation.
Has this happened to you or a loved one?
If you or a loved one has been subject to any of these issues or general poor-quality care in an aged care facility you can approach the Royal Commission to provide evidence. Our expert, caring health law and elder law team members can also help you to determine if there is a case to seek justice or compensation. Making formal complaints or litigating is an effective way to force aged care facilities to change poor practices for you, your loved one, and other people.
The post Mildura hearing of the Aged Care Royal Commission appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

If you’ve reached a family law property settlement and you are going to be refinancing a property into your sole name, or you need to obtain finance to make a payment to your ex, you may need to make an appointment with a mortgage broker.
A mortgage broker can help you with an assessment of whether a new or increased loan is affordable and whether this can be demonstrated to a new or existing financial institution.
To help you get prepared for the appointment, and to get the most out of your meeting, we’ve prepared this handy checklist of documents your mortgage broker may need in order to assess your ability to obtain finance:

For employees, your last two payslips and last annual PAYG summary.
Your bank statements for the last 3-6 months.
An estimate of your monthly living expenses.
Details of your existing assets and liabilities.
The amount you are required to pay the other party.
A copy of the Financial Agreement or Court Orders (if already made).

We recommend you make an appointment with a mortgage broker before you make an offer to the other party, or before you sign off on any agreement, to ensure that you can borrow the amount you need.
Generally, there is no fee to speak to a mortgage broker as they are usually paid by the institution at the end of the process.
As part of our involvement with the Lake Macquarie Business Hub, we can recommend the Hub’s mortgage broker, Tony Pereira of Lake Macquarie Financial Planning, to provide you with expert advice at the Hub’s Belmont office, or Tony’s office in Warners Bay.
Tony says, “There are many reasons people seek home finance and providing support without judgement when people are facing significant life changes is a big part of the job. We have been inspiring and supporting change in peoples’ lives for over 20 years and we are proud to support clients of Catherine Henry Lawyers find a way forward.”
The post Six things to take to your appointment with a mortgage broker appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Having an effective code of conduct is essential for businesses, in part because it is a useful tool in preventing a toxic workplace culture.
Such a culture can lead to disharmony in the workplace, job dissatisfaction, and higher turnover rates. All these issues impact productivity and, ultimately, profitability.
One important and serious area within a code of conduct is harassment, particularly sexual harassment.
If an employer does not meet its obligations to provide a harassment free workplace, it can be held to be vicariously liable if an employee is sexually harassed at work. This means that the employer can be found accountable for the actions of the person who engaged in the sexually harassing behaviour. This liability is set out in section 106 of the Sex Discrimination Act 1984 (Cth).
The Australian Human Rights Commission’s (AHRC) most recent national survey on sexual harassment in Australian workplaces confirms that sexual harassment is widespread and pervasive. One in three people have experienced sexual harassment at work in the last five years – a marked increase in the prevalence rate recorded by previous surveys. Half of victims have experienced similar harassment before. A substantial proportion experience negative consequence as a result, such as impacts on mental health or stress.
Reporting of workplace sexual harassment is low. Only 17% of people who experienced sexual harassment at work in the last five years made a formal report or complaint about the harassment. The survey also shows that while the number of bystanders to sexual harassment is increasing, less of them took action than in previous surveys.
It is vital that, as employers, we take action both to prevent workplace sexual harassment from occurring and respond appropriately when a report is made, including supporting bystanders.
My firm has both a code of conduct and a bullying and harassment policy. The code applies to partners, employees, whether permanent or temporary, contractors, consultants, work experience students and volunteers. All are required to sign it.
For those businesses who do not have policies, or are unsure if what action to take, the AHRC has a useful code of practice and a short guide for employers on effectively preventing and responding to sexual harassment. Businesses help each other by sharing expertise to stamp out this destructive behavior. Employer groups must take a lead role in raising awareness of the issue and the solutions to it.
The post Code of Conduct and Sexual Harassment appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The most recent Royal Commission into Aged Care Quality and Safety hearings in Darwin and Cairns highlighted some of the fundamental problems in Australia’s aged care sector – a lack of staff and inadequate staff training – rather than deliberate misconduct or abuse.
The Commission’s most recent hearings were in Darwin from Monday 8 July to Friday 12 July 2019, and in Cairns from Monday 15 July to Wednesday 17 July 2019.
Bertha’s story
Within three months of entering an aged care facility – with the aid of a walker – one 87 year old woman was dead.
Bertha died from painful and untreated ulcers and skin infections. This included a 14-centimetre long, bone-deep sore on her right shin that turned green with bacteria from lack of appropriate care. Within two days of moving into the facility, in Melbourne, she had the first of three serious falls. The third resulted in a broken arm and caused a largely untreated haemotoma on her right shin that subsequently became infected and contributed to her death.
Shirley’s story
The Commission heard about ongoing diet and nutrition problems in the care of Shirley, a Wollongong aged care resident, and a lack of good wound care practices.
Shirley has Alzheimer’s disease and has special dietary needs, including a lactose intolerance.
Shirley’s daughter Lyndall reported that she frequently communicated with the facility about Shirley’s diet and weight loss, as well as “the inadequacy of staff’s attention to her feeding and nutrition”. Lyndall said that the issue was about whether staffing and staff training was sufficient to meet her mother’s needs, rather than deliberate misconduct.
Young people rotting in aged care facilities – Sarah’s and Angelina’s stories
The Aged Care Royal Commission also heard heartbreaking stories outlining the issues facing the 6000 plus young people forced to live in aged care facilities. Last financial year alone more than 2,500 Australians aged under 65 were admitted into aged care.
Sarah Brady was 39 and could walk, talk and eat solid food when she was put into a nursing home to share a room with someone in their 90s who could no longer communicate. Sarah has a neurodegenerative disease that affects mobility and speech.
After several serious falls at home her parents were told an aged care residence would be the safest place for Sarah. But they say they soon realised the move was a mistake. Sarah lost her speech and was put into continence diapers every day, not taken to the toilet, and was constantly kept in a wheelchair.
58-year-old Angelina has lived in a room in a locked dementia ward in an aged care residence for three years. The Commission heard that, most days, she’s left in bed all day, with only her television for company. She’s rarely taken out of her room and she doesn’t interact with other residents. Angelina does not have dementia. She has schizophrenia and has a disability.
Sadly, the Commission heard that the most common way for young people to leave an aged care facility is by dying.
Nutrition – malnourished aged care residents starving to death
The other major topic explored in the recent Darwin and Cairns Royal Commission hearings was the need for the aged care system to focus on the individual and their nutritional needs because currently residents are malnourished and starving to death.
A panel of experts told the Commission in Cairns about the dire need to improve nutrition in aged care.
Next hearings – Mildura and Brisbane
The next hearing takes place 29-31 July in Mildura, Victoria, and will focus on informal carers and family. The Brisbane hearing follows 5-9 August with a focus on aged care regulation.
Has this happened to you or a loved one?
If you or a loved one has been subject to any of these issues or general poor-quality care in an aged care facility you can approach the Royal Commission to provide evidence. Our expert, caring health law and elder law team members can also help you to determine if there is a case to seek justice or compensation. Making formal complaints or litigating is an effective way to force aged care facilities to change poor practices for you, your loved one, and other people.
The post Darwin and Cairns hearings of the Aged Care Royal Commission appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Every family law situation is unique, so it’s important to ensure your estate planning arrangements have considered your current marital or relationship status and your future wishes.
Consider this scenario… You’re in your second marriage which you entered later in life. The house you are living in is owned by your spouse. Your spouse has dementia and is moving into a retirement home, but you are both still very much in love.
Your spouse’s family were never accepting of you and now that your spouse has gone into the retirement home the family are trying to remove you from the house. Your spouse has a Power of Attorney appointing their child as Attorney.
Where does that leave you? As far as the Power of Attorney is concerned, the Attorney must act in the best interests of your spouse. It will be a matter of the facts in your situation as to whether a decision to sell the property is within their best interests. If the decision is made to sell the house and it is in your spouse’s best interests, you may be forced to leave the home you and your spouse once shared – but you may be entitled to a family law property settlement.
In Stanford v Stanford [2012] HCA 52, the High Court of Australia held that married couples do not need to be separated to make a property settlement order, where it is just and equitable to do so. The Court found that it might be just and equitable to make an order if the needs of one party are unmet and cannot be met by a maintenance order.
So, it’s important to be prepared, and sign a Power of Attorney and Appointment of Enduring Guardian while you have the mental capacity to sign such documents. It is also important to choose your Attorney and Guardian carefully. These don’t necessarily have to be family members, but someone who is trustworthy, and capable of making, or assisting you to make, financial decisions.
In the above scenario, had your spouse nominated you as a second Power of Attorney you would have greater control over the decisions being made on behalf of your spouse, and the possible sale of the home you are living in. Although as an Attorney, you must act in the best interests of your spouse.
Another reason to confirm your estate planning documents are up to date is to ensure that the appropriate person to benefit from your estate is nominated in your Will. If you’re in the process of separating, an existing Will appointing your spouse as executor and beneficiary of your estate will still apply until you are divorced, regardless of whether you have completed a property settlement.
If your defacto relationship is coming to an end and you have made a gift to your partner in your Will, the gift will still apply, despite the separation, unless you revise the document.
Another family law consideration when it comes to estate planning is your super nomination. If your relationship changes, remember to check your nominated recipient on your superannuation fund and amend if necessary.
If you’d like to discuss your estate planning or family law needs with one of our expert lawyers, contact us today.
The post Why is estate planning important in family law? appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Our client was left with very significant physical and psychological injuries, unable to work in her chosen field, needing further surgery, unable to care properly for her family, and at times needing a wheelchair after experiencing maternal birth trauma during the birth of her first child.
We helped our client to successfully settle her claim for damages against a regional NSW health service, claiming a hospital obstetrician and other medical staff breached their duty of care.
A traumatic birth
Our client was admitted to hospital in active labour and found to be 3cm dilated. The baby was in the cephalic position. Her membranes were artificially ruptured, and she was placed on an intravenous Syntocin infusion.
No vaginal examinations were carried out for almost four hours to determine the dilation of the plaintiff’s cervix nor the position of the baby. When a student midwife finally examined her, our client was 9cm dilated and the baby was in a frank breech position.
Our client was prepared for a lower section c-section (LSCS) – the safest means of delivery given the fact that the baby was in the breech position. Our client was consented for the LSCS and given intramuscular pethidine. Twenty minutes later our client was seen by a consultant – the defendant – who decided to deliver the baby vaginally without any consultation with our client.
Disorientated, frightened and anxious – particularly for the safety of her baby – our client’s demands to know why the plan had changed were met with abuse from the obstetrician.
She had her legs forcibly placed into stirrups which caused a right hip labral injury. Without proper pain relief she was left in agony as an episiotomy was performed. Our client suffered perineal tears and needed extensive suturing.
Ongoing trauma and consequences
In the coming months, our client had continuing psychological symptoms and was eventually diagnosed with Post Traumatic Stress Disorder.
The extensiveness of her tearing meant she had to have further gynaecological surgery.
Her hip injury destabilised her gait and at one stage, she fell leaving her with an ankle injury. The two injuries impaired her ability to walk, sit and stand leaving her dependent on a walking stick, walking frame and sometimes a wheelchair.
Our client’s disabilities meant she had to heavily rely on her husband and mother to carry out domestic chores and general activities of daily living as well as the care of her young child.
During the birth she was placed in a terrifying position from which she has never recovered. It was a traumatic incident which totally changed her outlook on life and rendered her almost unrecognisable from the outgoing young woman she had been.
The former childcare worker was no longer able to work in the industry she loved. Socially isolated, she was unable to look after herself, her husband or children. The ordeal severely impacted on her marriage.
Damages for medical negligence
We sought damages in a case brought in the Supreme Court of NSW for non-economic and economic loss including out of pocket expense as well as her need to fund occupational therapy aids, domestic care, and future medical treatment. The case was resolved for a large sum.
If you or a loved one has experienced injuries as a result of birth trauma, our caring, expert female lawyers can help advocate for you and seek justice. Please talk to us about the options available to you.
The post Woman from north east NSW sues after hip labral tear sustained during traumatic birth | Our Client’s Story appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

We helped an Aboriginal woman to successfully resolve a case against the Mid North Coast Health District for the birth trauma she experienced at a local hospital.
Our client had a very rapid delivery. During the labour, she suffered a perineal tear which a midwife diagnosed as “second-degree.” However, a review by an obstetrics and gynaecology registrar showed she had in fact suffered a fourth-degree tear.
The proper practice following such a significant injury would have been to repair the injury in a hospital operating theatre, but this did not happen. Instead the registrar repaired the tear in the birthing suite leading to a very sub-optimal result.
Three days after the birth, our client was discharged from the hospital. This was inappropriate for a number of clinical reasons. It was not until 10 days after the birth that the extent of the tear that occurred during labour was detected.
On examination, the registrar’s repair of the tear was found to be deficient, the surgical wound broke down and our client developed a rectovaginal fistula. She had to endure several more procedures – both day procedures and operations, and needed a temporary colostomy.
Seeking justice for her injuries
Our in-house nurse had worked as a midwife and was able to assist our health law team to quickly get to the crux of the case. She knew from her midwifery experience that the way in which the tear had been managed was not clinically appropriate. She helped us establish the case in negligence and ask the right questions of the doctors we engaged as experts.
We used the opinions of a colorectal surgeon, a urogynaecologist and a clinical psychologist to prepare the case.
We argued that if the tear had been repaired properly in the first instance that the rectovaginal fistula would probably have been avoided.
Our client claimed that a number of her operations and procedures would not have been necessary had the tear repair been done appropriately. She suffered unnecessary pain and suffering which was often debilitating. She had to learn how to use a colostomy. We also argued that she should be compensated for her psychological distress as her coping mechanisms had been tested to the limit.
Given our client’s youth, the nature and extent of her injuries, the ongoing pain, interference with her enjoyment of life and her work, and the prospect of further surgery and its uncertain outcome, we successfully sought and obtained significant compensation.
If you or a loved one has experienced injuries as a result of birth trauma, our caring, expert female lawyers can help advocate for you and seek justice. Please talk to us about the options available to you.
The post Coffs Harbour woman is compensated for shocking birth injuries | Our Client’s Story appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The Perth hearing of the Royal Commission into Aged Care Quality and Safety inquired into the nature of person-centred care, advanced care planning and palliative care services.
As is the case at each hearing there were harrowing stories from poor handling of complaints of abuse. A young physiotherapist told of being so disheartened with the care she was able to provide to older residents in aged care facilities that she ended up working in another health industry.
A Sydney woman spent the final weeks of her father’s life begging hospital staff not to send him back to his nursing home because it was incapable of providing palliative care.
Researcher says it’s difficult to find good providers
The final day of the Perth hearing of the Aged Care Royal Commission heard from a researcher who found it was difficult to identify who was a good provider of aged care.
Dr Lisa Trigg, Assistant Director of Research, Data and Intelligence at Social Care Wales, said many recommended “good providers”, ended up being very sub-standard in their care.
Her findings are telling. She said there was no way of finding out, no information in the sector. Ninety-eight percent of providers passed accreditation but there was no way of identifying genuinely good providers.
Dr Trigg also refers to person centred care as “relationship-based care”, since person-centred care was not being used appropriately by some providers.
In most of the evidence given throughout the Commission, the main factor of relationship-based care came from community focussed involvement. Alongside this, relationship-based care relies on a whole community involvement, rather than just staff of a facility.
Dr Trigg said a quality aged care system needs to have many people involved.
“I also think it’s unacceptable for us as a society, the public, to not support that,” Dr Trigg said.
She said the Aged Care Funding Instrument (ACFI) is focussed on technical needs and activity-based programs, which may lead providers to deliver less than desirable care.
Dr Trigg said there needs to be a set vision of what quality in aged care is, so that people know what it looks like when it’s there and when it isn’t; a change to the ageist language used around residents; and moving away from clinical models, because it won’t deliver relationship-based care.
The problem of a ‘tick-a-box’ approach to care
The Commonwealth Age Discrimination Commissioner, Kay Patterson said it is clear to her that older people are not always valued.
In her statement to the Royal Commission, she said there are a litany of reasons why we are seeing the mistreatment of elder Australians in aged care, such as poor representation in the media. Education and creating contact between generations can reduce the problem.
She said it is important that people are fully aware of the rights of the elderly to ensure that abuse cannot occur. Educating aged care residents, staff and legal professionals about rights regarding power of attorney is imperative.
“It’s looking at how can we educate older people about what their rights are in terms of what they should expect from the community, and it’s about also educating people about the negative effects of ageism, for example, how it impacts on elder abuse, how it impacts on people’s attitudes to older people and their treatment of older people,” she said.
She said there should be a ranking for best practice and a carrot for best practice.
Closing remarks
The Commission concluded that good relationships with residents is critical for person-centred care and leadership is crucial to positive results throughout an organisation.
Has this happened to you or a loved one?
If you or a loved one has been subject to issues relating to access and inclusion, restrictive or poor-quality care in an aged care facility you can approach the Commission to provide evidence. Our expert, caring health law and elder law team members can also help you to determine if there is a case to seek justice or compensation. Making formal complaints or litigating is an effective way to force aged care facilities to change poor practices for you, your loved one, and other people.
Next hearings: Darwin and Cairns
The Royal Commission will hold a public hearing in Darwin from Monday 8 July to Friday 12 July 2019, and in Cairns from Monday 15 July to Wednesday 17 July 2019. At these public hearings the Royal Commission will inquire into:

aspects of care in residential, home and flexible aged care programs, including:

accessibility and availability
wound, medication and pain management
nutrition and hydration
continence care
mobility
social supports

rural and regional issues for service delivery of aged care
quality of life for people receiving aged care.

The post Perth hearing of the Aged Care Royal Commission appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Australians love their pets. And Catherine Henry Lawyers is a pet friendly law firm. Catherine Henry’s dog, Billie (pictured), can often be found helping around the office. So, we thought we’d provide fellow pet owners and animal lovers with a guide to pets and the law.
We answer the common questions people have about their rights and responsibilities when it comes to their four legged or feathered friends. This is timely because new rules have come into force in NSW about buying and selling cats and dogs.
From 1 July 2019, people advertising kittens, cats, puppies or dogs for sale or to give away in NSW need to include an identification number in advertisements. The identification number can be either:

a microchip number
a breeder identification number
a rehoming organisation number.

The rules apply to all advertisements, including those in newspapers, local posters, community notice boards and all forms of online advertising, including public advertisements on websites and social media sites.
To find out more about the changes visit the Department of Primary Industries website.
Top 10 guide to pets and the law
Q1. Can you include your pet in your will?
Yes. You can:

say in your will how you want your pet to be taken care of
leave money to an animal charity with a legacy program
set up a trust and appoint a trusted carer to care for your pet
leave money in your will to a friend or family member so they can look after your pet.

Q2. What are the rules for keeping pets in strata schemes (units, apartments or townhouses)?
Whether you can keep your pet in the strata scheme depends on the terms of the By-laws which apply to the scheme. You do not need Owners Corporation consent to keep a guide dog or hearing dog in a strata scheme.
The Schedule 1 By-laws for schemes registered before 1 July 1997, permit you to keep an animal, if you have obtained the prior written approval of the Owners Corporation. The approval of the Owners Corporation cannot be unreasonably withheld.
By-law 16 of the Model By-laws for schemes registered on or after 1 July 1997 contains three options for keeping animals. Some Owners Corporations also make “house rules” to be followed by owners and occupiers. These are not enforceable unless they are registered as By-Laws for the scheme with Land and Property Information NSW which is part of the Department of Lands.
Option A
You must obtain the prior written approval of the Owners Corporation, before keeping any animal, except fish in a secure aquarium, on a Lot or the Common Property. The approval of the Owners Corporation cannot be unreasonably withheld. This is the default option.
Option B
You must obtain the written approval of the Owners Corporation, to keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium) on the Lot or the Common Property. The approval of the Owners Corporation cannot be unreasonably withheld. If you keep a cat, small dog or small caged bird on the Lot then you must:

notify the Owners Corporation that the animal is being kept on the Lot
keep the animal within the Lot
carry the animal when it is on the Common Property
clean all areas of the Lot or the Common Property that are soiled by the animal.

Option C
No animals are permitted, except for a guide dog or hearing dog.
Renting with pets
You may have to obtain the consent of the Owners Corporation, even if your landlord agrees that you may keep your pet in the rented premises.
Once you have reviewed the By-Laws, you should ask the real estate agent to speak to the landlord of the property on your behalf about keeping a pet.
You should not sign the lease until you have been informed by your landlord or the landlord’s agent that consent has been granted by both the landlord and the Owners Corporation.
Buying with pets
If you intend to buy into a strata scheme, and wish to keep a pet, you should check with the Owners Corporation as to the terms of the By-Laws. You should check any information you receive from the Owners Corporation with your solicitor. It is very important to make these enquiries before you enter into a contract for sale.
Q3. Can my neighbour or their pets come onto my land?
A neighbour can generally only enter your land if you have told them they can, or if they have a right of way or other right of access to your land (an easement). However, if they have entered your land previously and you have not complained, a court may consider that you have given your permission.
Similarly, their pets cannot come on to your property either. If you have previously told a neighbour they or a pet can enter your land (or did not object previously), you can withdraw your permission whenever you like. Once you do, they must leave immediately, otherwise they are trespassing.
If someone trespasses on your land, or if their pet does, you have the right to sue them for any damage.
Q 4. I am getting divorced ‑ who gets the dog?
Australian family law does not expressly acknowledge the existence and role of pets within family breakdowns. There is no reference to animals within the Family Law Act
Pets are treated as part of the property pool under section 79 of the Act. People can transfer the ownership (and registration) of a pet to one another in much the same fashion that a car might be transferred upon the breakdown of a relationship.
If there is dispute in relation to the ownership of the pet or as to who should receive the pet, Courts consider the merits of each person’s application. This can involve the Court looking at factors such as who the pet is registered to, who cared for the pet and spent more time with the pet and took on responsibilities such as feeding, walking and training the pet.
Courts don’t look at what is in the “best interests” of the pet or who should obtain custody of the pet, as is the case with children.
Q5. What are the laws regarding assistance animals?
An assistance animal is a dog or other animal that has been trained to assist a person with a disability. It is illegal to discriminate against a person because they have an assistance animal. This extends to situations like employment, education, and the provision of goods, services or facilities. If you believe you have been discriminated against because you have an assistance animal, you may make a complaint to the Australian Human Rights Commission.
Q6. What happens if my animal goes to the pound?
Any animal that is found must be either returned to the owner or taken to the local council pound, or any approved premises, and the owner must be notified as soon as possible. A stray or injured animal can be taken to an approved premise such as the local vet.
If the animal is not claimed within 72 hours, that premises is obliged to hand the animal to the local pound. Unclaimed or surrendered animals can be sold or destroyed by the pound after 14 days but if there is no owner or the owner cannot be identified, then the number of days is reduced to 7.
Councils can determine any fees and charges that they wish to charge in relation to the seizure and sale of an animal.
Q7. What can I do if neighbour has complained about my dog or cat?
Each Council has an established procedure for investigating barking dog complaints. It is common practice for Councils in urban areas to require complaints from more than one resident before acting.
Under the Companion Animals Act persistent barking is on par with straying or other anti-social behaviour. If a Council officer identifies a serious or ongoing problem, a Nuisance Dog Order may be issued.
A cat can be declared a nuisance under the Companion Animals Act if it:

repeatedly damages anything outside the owner’s property or
repeatedly interferes with the peace, comfort or convenience of a person by being continuously noisy.

Council Officers may issue an Order to the owner to prevent the nuisance behaviour. Such Orders are in force for 6 months and cannot be appealed or reviewed.
Q8. What constitutes a dangerous or menacing dog?
A dog may be declared ‘dangerous’ if, without being provoked, it has attacked or killed a person or animal; has repeatedly threatened to attack or repeatedly chased a person or animal; or is kept or used for hunting. A dog may be declared ‘menacing’ if it has shown unreasonable aggression towards a person or animal or has attacked a person or animal without being provoked and without causing serious injury or death.
Council officers must first write to the owner of a dog it wishes to declare as dangerous or menacing. A dog owner has 7 days after receiving a notice to object to the proposed declaration.
The owner of a dog that is declared to be dangerous or menacing must follow ‘control requirements’, which includes de-sexing and keeping the dog properly enclosed. Failing to follow a dangerous dog declaration can result in the dog being euthanised.
Q9. What can I do if my pet has been injured by another animal?
Compensation can be sought for veterinary bills and medications if an animal is injured by a dog.
Owners of dogs that have attacked or injured another animal can be found guilty of a criminal offence if the local Council decides to prosecute.
Dogs may be seized if it is reasonable and necessary to protect any person or animal from injury. Dogs responsible for attacking or injuring can be seized by any person if the dog is on property owned or occupied by that person.
Q10. What are my rights and responsibilities if my dog has injured or killed another person or animal?
When a dog has attacked and injured a person or animal, an owner may be liable to pay damages for veterinary bills, medical bills and possibly the replacement of the victim animal.
An owner can also be open to criminal prosecution under the Companion Animals Act and can be disqualified from owning a dog for up to five years if found guilty.
A person in control of a dog who causes the dog to inflict grievous or actual bodily harm on another person can also be open to prosecution under the Crimes Act.
If a person dies as a result of the injury caused by a dog, the ability to make a claim for damages will be extended to the deceased’s family members.
In some circumstances, home and contents insurance policies may cover damages associated with injury or death caused to a person or animal, even if the injuries occurred away from the insured premises.
Where a dog has injured or killed a person or animal, it is possible for the Council to make an order declaring the dog dangerous.
The post Your Guide to Pets and the Law appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The Broome hearing of the Aged Care Royal Commission has been completed and the Perth hearing is now underway, June 24 to 28.
The Broome public hearing inquired into access and inclusion; specifically:

the unique needs of Aboriginal and Torres Strait Islander people when it comes to aged care services
the perspective and experience of people who access aged care in remote areas including family members and carers
the nature and scope of aged care services for Aboriginal and Torres Strait Islander people living in remote areas
the barriers to accessing aged care services for people living in remote areas
the challenges of maintaining an adequately skilled and culturally appropriate workforce
good practice care models for people living in remote areas.

Themes from the Broome hearing
The hearing heard about a cultural understanding in aged care facilities in regional and remote Australia. One witness said residential care is seen as a death sentence by older Aboriginal people. The need for cultural education to staff was highlighted as essential to building understanding and trust between aged care providers and Indigenous communities.
As is the case in the rest of Australia, the hiring, retention and training of staff was raised as a major issue. Witnesses testified to a distinct shortage of Indigenous people in this workforce.
On top of this, there are specific accessibility and funding challenges in remote communities. Because of these issues, there were calls for a rethink of the model of delivering aged care in regions like the Kimberley.
Has this happened to you or a loved one?
If you or a loved one has been subject to issues relating to access and inclusion restrictive or poor quality care in an aged care facility you can approach the Commission to provide evidence. Our expert, caring health law and elder law team members can also help you to determine if there a case to seek justice or compensation. Making formal complaints or litigating is an effective way to force aged care facilities to change poor practices for you, your loved one, and other people.
Perth hearing
The Perth hearing of the Aged Care Royal Commission will inquire into the nature of person-centred care, advanced care planning and palliative care services. It takes place June 24 to 28.
The post Broome Hearing of the Aged Care Royal Commission appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Yesterday, the High Court handed down a judgement that a sperm donor from Newcastle NSW, known as *Robert, is a legal parent of a girl conceived from his genetic material.
Click here to read our earlier article which provides a summary of the litigation to date.
The High Court of Australia considered the relationship and operation between federal and state legislation as it relates to parentage of children.
The High Court of Australia said, “[T]he Family Law Act proceeds from the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides“.
The Respondents argued that the ordinary meaning of “parent” does not include a “sperm donor”.
Each case is to be decided on its specific facts
The facts of this case were that Robert provided his genetic material with the intention that a child would be conceived, he was noted on the child’s birth certificate as a parent and had a role in the child’s life – spending regular time with the child and identified to the child as her father.
The High Court made it clear that, “It is not necessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word “parent”“.
The result of the Orders made by the High Court of Australia are that previous Orders from 2017 are back in operation which provided in part for Robert to spend time with the child and be notified of, and express his views to be considered by *Susan and *Margaret, on long term decisions for the child.
Yesterday’s decision will no doubt raise issues for both men and women who may be considering embarking on a sperm donor arrangement with someone they know. Questions about parental responsibility, child support and whether the donor’s name should go on the birth certificate must be carefully considered by all parties.
*Pseudonyms were given to all parties
The post Sperm donor considered legal parent appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The founder and Principal of Catherine Henry Lawyers has been named as a finalist in the Newcastle Business Club Awards.
Catherine Henry joins Ian Jones, Ian Tresidder, Jennifer Parkes and Katie Brassil to be in the running for the individual award category.
Catherine said it was an honour just to be selected and wished all of the finalists the very best.
This is one of a number of recent accolades for Catherine and her team.
In 2018 she and senior associate Lucy Wilk made the list of NSW’s top 16 medical negligence plaintiff lawyers in the prestigious Doyle’s Guide. Catherine was also on the list in 2017.
Last year the firm was a finalist in the Equal Futures Project Diversity Awards in the organisation category, and Catherine was a finalist in the national Lawyers Weekly Health Partner of the Year award.
The Newcastle Business Club Award recognises an individual who has made a significant contribution toward the commonweal of Newcastle and the Hunter Region.
Catherine’s nomination said she contributes to the ongoing development of her profession and the Newcastle business community. She is a member and past president of the Newcastle Law Society as well as a past member of the executive committee member of Women Lawyers NSW and the convenor of its Newcastle Chapter. Catherine was the inaugural NSW Branch president of the Australian Lawyers Alliance. She gives many guest lectures each year to other lawyers, community groups, other professional groups and students of the University of Newcastle. Her firm supports its Empower program for young female students.
She has served on business, educational and cultural committees in the Hunter including:

Newcastle Now
University of Newcastle Council
Hunter Women’s Centre
Industry Development Centre
Newcastle City Centre Committee.

Last year Catherine initiated the Margaret Henry Memorial Lecture, in honour of her late mother. The inaugural lecture by founder of Renew Newcastle Marcus Westbury was designed to contribute to policy and discussion about the future of Newcastle.
She has achieved national recognition as an expert lawyer in health law and elder law, as well as an advocate in the aged care and mental health sectors and for women. Catherine has helped to bring health and medical law including medical negligence and other legal services to Newcastle and the Hunter – areas of legal practice that previously were only available in capital cities.
Winners of the Newcastle Business Club Awards will be announced on 18 June, 2019 at the Harbourview Function Centre.
The post Catherine Henry a Finalist in Business Awards appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The Australian Institute of Family Studies has release a paper Elder abuse: key issues and emerging evidence.
The paper provides an overview of elder abuse in Australia. It discusses key issues involved in how elder abuse is defined and examines its prevalence, impact and associated risk factors, with a focus on implications of recent research for policy and practice.
It highlights that elder abuse is a multifaceted and often hidden form of abuse.
There is currently no national data on the prevalence of elder abuse in Australia. Based on international studies, it is estimated that between 2% and 14% of older people in high- or middle-income countries experience elder abuse every year. The term ‘elder abuse’ covers a range of harmful behaviours, including physical, emotional, sexual and financial abuse and neglect.
Hunter elder law specialist and aged care advocate Catherine Henry from Catherine Henry Lawyers, said the Australian Institute of Family Studies Report highlights that elder abuse is, sadly, a growing, complex problem for our community.
Ms Henry agrees with a report finding that research and evaluation on specific prevention and intervention strategies are needed to protect older Australians.
But she says there are things governments should be doing now including making elder abuse a crime, the introduction of an online register of enduring powers of attorney (a common vehicle for abuse), standardised power of attorney legislation across the country, and a dedicated body to crack down on financial abuse of the elderly.
“Everyone in the community needs to do more to ensure respect older people and their rights, to listen to them, and to require our governments and institutions to do more, from a policy and legal perspective, to protect them,” Ms Henry says.
The post Elder abuse: key issues and emerging evidence appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

The concept of mandating the reporting of elder abuse is controversial and draws parallels with mandatory reporting of child abuse. While mandatory reporting has existed in some US states for some time, there still seems to be resistance to mandatory reporting in Australia.
The team at Catherine Henry Lawyers believe that before attention is focussed on mandatory reporting, there should be specific legislation to make elder abuse a criminal offence.
The case against mandatory reporting
Some argue that mandatory reporting undermines the rights of older Australians. And that it casts elders essentially as children – potentially reinforcing ageist attitudes.
The Law Council of Australia does not support mandatory reporting of elder abuse where the victim is still capable of making their own decisions e.g. “From a rights-based approach, it is vital that the older person retains the right to decide whether to report the abuse or not.”
The Legal Services Commission (SA) said it, “supports the reporting of incidents of elder abuse to appropriate authorities such as the police and public advocates.” However, as the mandatory reporting of child abuse has shown, lack of resourcing to triage reports and over reporting of minor matters can paralyse the agencies tasked with taking action. It says there is little point in requiring professionals to report abuse to safeguarding agencies, if safeguarding agencies do not have the resources to respond to the abuse.
State Trustees Victoria says mandatory reporting requirements may be seen by the elderly as ‘intrusive and patronising.’ Some objections to mandatory reporting of ‘elder abuse’ might be met by requiring professionals to report only serious abuse of ‘at-risk’ adults, rather than any abuse of all older people.
Seniors Rights Service does not consider that mandatory reporting of elder abuse would prevent or respond adequately to the abuse of older persons.
National Seniors Australia says a mandatory reporting regime is likely to lead to over reporting from well-meaning individuals worried they might be prosecuted if they do not (14.193).
Aged and Community Services Australia does not support mandatory reporting laws but has noted that they can help put elder abuse ‘on the social agenda’ and provide ‘clear procedures to be followed when abuse is identified.’ It has summarised several objections to laws mandating the reporting of elder abuse:
‘Approaches to elder abuse need to be based on an empowering approach, respecting the older person’s autonomy, right and ability to made decisions for themselves. It is important that paternalistic and stereotypical views of older people as being frail, dependent and cognitively impaired do not high-jack the agenda, treating elder abuse in the same way as child abuse, but rather recognise its greater similarities with other forms of family or domestic violence.
It is important not to take away the right of the older person to make their own decisions thus further dis-empowering them at a time when they may already be feeling vulnerable. Mandatory reporting can lead to older people not seeking help for fear of a report being made whether they want it to be or not.’
The Victorian Interagency Guideline for Addressing Violence, Neglect and Abuse states that the head of an organisation or senior departmental officer should ‘protect whistle-blowers,’ that is, ‘ensure that any person who reports an instance of violence, neglect or abuse is not thereby subject to adverse consequences.’
Australian Law Reform Commission (ALRC) position
Although it says there may be a case for mandatory reporting of some types of serious abuse of at-risk adults, given the widespread concerns about mandatory reporting policies, the ALRC does not recommend that such laws be introduced at this time. Instead it says clear protocols should be created setting out when it might be appropriate for professionals to report abuse to safeguarding agencies.
ALRC Recommendation 14–7
Adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency should not, as a consequence of their report, be:
(a)     liable civilly, criminally or under an administrative process;
(b)     found to have departed from standards of professional conduct;
(c)     dismissed or threatened in the course of their employment; or
(d)     discriminated against with respect to employment or membership in a profession or trade union.
Recommendation 14–8
Adult safeguarding agencies should work with relevant professional bodies to develop protocols for when prescribed professionals, such as medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.
Response to Adult Safeguarding
While the Australian Law Reform Commission (ALRC) Report 131, 2017 recommended the introduction of “adult safeguarding” legislation, only the South Australian Government has passed legislation – presumably as a result of the Oakden aged care facility scandal in that state.
A WA parliamentary committee determined it was not necessary to introduce new elder abuse laws and instead recommended strengthening existing laws to protect older citizens.
The case for mandatory reporting
Financial Services Institute of Australasia says some if its members support the mandatory reporting of financial elder abuse.
‘The vulnerability of this sector of the population to cognitive decline and abuse by family members or persons in caring or decision-making roles presents a compelling argument to establish mandatory reporting for professionals, including those in financial services.’
Elder abuse laws and mandatory reporting – the Californian case study
With growing awareness of the problem of elder abuse, the California Legislature enacted the Elder Adult and Dependent Adult Civil Protection Act (EADACPA, or the Elder Abuse Act) in 1991 to help protect elders and dependent adults from physical abuse, mental abuse, financial abuse, as well as neglect and false imprisonment.
Mandatory reporters include caregivers, front line police officers, priests and bank tellers. The legislation, added to existing procedures for reporting elder abuse to enforcement authorities, was intended to assist interested persons hire lawyers on behalf of elderly or dependent adults. However, these protections have remained unfamiliar to many lawyers.
Under the Elder Abuse Act, a dependent adult is any Californian resident between the ages of 18 and 64 who has physical or mental limitations that restrict the ability to carry out normal activities or to protect his or her rights, or who is an inpatient at a 24-hour health care facility.
Abuse is defined broadly. It can mean physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering, or it can mean a care custodian’s deprivation of goods or services that are necessary to avoid physical harm or mental suffering.

Physical abuse is defined to include unreasonable physical constraint, or prolonged or continual deprivation of food or water.
Financial abuse includes a situation in which a person or entity takes, secrets, appropriates, or retains the money or property of an elder or a dependent person for wrongful use, with intent to defraud, or in bad faith.
Potential defendants thus include banks, trust and insurance companies, lenders, and financial planners.
Neglect includes the negligent failure by any caretaker to exercise the degree of care that a reasonable person would exercise, including assistance in personal hygiene; provision of food, clothing, shelter, and medical care; and protection from health and safety hazards.

San Diego and the case for mandatory reporting – Paul Greenwood
Former San Diego District Attorney Paul Greenwood prosecuted more than 750 cases — including 10 cases of murder and hundreds of cases of financial abuse — during his 20 years with the elder abuse unit. Now an elder abuse consultant, Mr Greenwood is a big supporter of the elder abuse laws and said they are a big deterrent to would-be exploiters of the elderly. He says they were particularly effective in San Diego because of the collaboration between police, prosecutors and social service workers who specialised in older adult protection.
Mr Greenwood has said that once the UK and Australia get to the point where they agree elder abuse is a crime, like domestic violence and stalking or child abuse, then there will be a significant improvement in the response by local police.
He points out that most of his victims never reported the crime or wanted their relatives to get in trouble with the police. This is where elder abuse law is important because with that law comes mandatory reporting.
Our view
This firm has assisted several individuals who have been affected by elder abuse or whose aged family member has been exploited. This abuse can take many forms including physical, psychological, sexual, neglect or, the most common form, financial.
We believe before attention is focussed on mandatory reporting, there should be specific legislation to make elder abuse a criminal offence.
Our current legal system does not adequately support people who want to blow the whistle on potential financial exploitation. Police have been shown to typically respond by saying, “This is a family matter… see a lawyer.”
Many feel elder abuse is at the same stage as domestic violence and child abuse was 20 years ago. Many perpetrators think they are above the law.
Elder abuse should be viewed as a crime. Police need greater authority to act in elder abuse cases. New elder abuse laws would significantly improve the response by local police and act as a deterrent to would be exploiters of the elderly.
You can read more articles on this topic in the blog section of our website.
The post Should reporting of elder abuse be mandatory? appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

Here at Catherine Henry Lawyers, our experienced family law team are often asked a variety of questions related to parenting matters. In this blog post, we’ve complied a few of the most frequently asked questions on this topic.
We signed a Parenting Plan but my ex isn’t complying with the terms. What do I do?
A Parenting Plan is an agreement setting out arrangements for the children. It is not binding on a court. If your ex is not complying with the terms, you will not be able to enforce the Parenting Plan via the court. In most cases, you will have to go to mediation as a first step. If that is unsuccessful, you will need to commence court proceedings for parenting orders.
We don’t have orders, what happens if my ex doesn’t return the children?
If you are the primary carer of the children and your ex doesn’t return them, you will probably need to commence court proceedings in order to have the children returned to you. Usually, you have to try mediation before commencing court proceedings. But, if you are the primary carer, you will probably be an exception to that rule.
I want to commence court proceedings so I can see my child, what do I need to do?
In most cases, before you can commence court proceedings for parenting matters you need to attend mediation. If mediation is not successful, the mediator will issue you with a certificate (called a section 60I certificate). This certificate needs to be attached to your court documents.
There are some circumstances where a section 60I certificate may not be required, but that is up to the discretion of the Court. Examples of where a s60I certificate may not be required are where there is serious family violence, or urgency.
My ex says they are entitled to 50/50 care of the children. Is that true?
There is no ‘entitlement’ to any particular parenting order. The Court can make an order that the children live with the parties equally but only if it is in the children’s best interests. There are several factors that the Court will consider before making an order that the children live with you and your ex equally. Some of those things include:

how far apart you and your ex live
the level of co-operation between you and your ex
the age of the children.

What is an ICL?
ICL is short for Independent Children’s Lawyer. An ICL can be appointed by the Court to represent your child’s interests in your matter. The ICL will meet privately with your child. Your child will not attend the Court but rather the ICL will present information to the Judge about their welfare and views. The ICL can also make its own recommendations to the Court as to what it believes is in the best interests of the child.
What is a Family Report or Single Expert Report?
A Family Report or Single Expert Report are reports that are obtained from a family consultant/psychologist/psychiatrist to be used in the proceedings. The Family Report or Single Expert writer will meet with each party and the child separately and form a view as to what would be the most appropriate outcome to meet the best interests of the child.
My ex used to use drugs but says they no longer do. I’m concerned, what can I do?
If the matter is in Court, you can seek that your ex undergo hair, drug and alcohol testing. These tests can detect a number of drugs in the system including cocaine, opiates, phencvclidine, amphetamines, cannabinoids, benzo diazepines, synthetic cannabinoids and alcohol up to a period of 90 days.
I have a lot of texts from my ex which will be useful in my court case, how do I get them to you?
There are apps which allow you to extract SMS and call logs from your phone, and transport them in an easy to read format to your email address. One of those apps is called OnePlus Switch.
Are there any phone apps which will make co-parenting with my ex easier?
There are a number of applications which allow you to share calendars and make notes. A couple of examples include Cozi and 2Houses. These apps may me it easier for both parties to know when the children have school or sporting commitments and events. These apps could even replace the traditional communication book. However, you should ensure that you can download the notes and that data cannot be deleted by one party before you rely on this instead of a communication book. You should always remember that anything you write in an application like this can (and most likely will) be used as evidence in your parenting matter.
If you need assistance with parenting matters, our experienced team are here to help. Contact us today to arrange an appointment.
The post Parenting Matters FAQs appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.

If you are involved in, or you know someone involved in, a parenting dispute before the family law courts you might have heard the statement ‘the child’s best interests are of paramount consideration’.
The statement refers to a concept in the Family Law Act which requires decision makers to consider what is in the child’s best interests as priority in parenting disputes. But what does it mean?
The legislation lists 16 factors which are considered when deciding what is in the child’s best interests
These include:

The benefit to the child of having a meaningful relationship with both parents.
The need to protect the child from harm.
Views expressed by the child.
The nature of the relationship between the child and the parents.
The effect on the child of a change in circumstances.
The practicality of the child spending time with the parents.
The extent the parents have taken (or have not taken) to spend time and communicate with the child.
The specific circumstances and characteristics of the child.

To gather the information that it needs, the Court may take certain steps
These steps may include:

ordering that the parties participate in a court ordered Family Report where the parties will usually be interviewed and observed by a psychologist
ordering that one or both parents undertake drug and/or alcohol testing, if it is concerned that there is a substance abuse issue which puts the child at risk of harm.

When making Orders, the Court may:

limit a parent’s time with the child or order that their time be supervised
structure the Orders in a manner which means that there is limited contact between the parents if there is a risk of exposing the child to conflict/family violence between the parents at changeover.

The Australian Law Reform Commission has recommended changes to the way the Court decides parenting disputes. One of those recommendations is to simplify the factors to be considered when deciding what is in the child’s best interests. You can read a short two-page summary of the proposed changes to decisions regarding parenting arrangements on its website here.
If you need assistance with a family law matter, our experienced team are here to help. Contact us today to arrange an appointment.
The post The child’s best interests are of paramount consideration appeared first on Lawyer Newcastle | Catherine Henry Lawyers Health and Relationship Lawyers.