LAW00059 Welfare Law | About Family Law on Violence

1.Linh married Bao ten years ago.  They live in NSW with their two children, Huynh (8 years old) and Gavin (6 years old). When Bao lost his job as an architect three years ago, he began drinking heavily and started berating Linh for her inability to keep the house clean and her lack of culinary skills.  On a few occasions, Bao threw his dinner plate across the dining table yelling at Linh that the food was inedible. Both Huynh and Gavin witnessed these events. Despite Linh increasing her shifts at the local hospital where she worked as a midwife, Bao controlled the family finances spending considerable amounts on his alcohol.  Sometimes they could barely pay the fortnightly rent. This was made harder recently when their landlord, Sandra, increased the rent from $280 a week to $360 a week.

Although the rent increased, Linh continued to have problems with the hot water system failing. Some windows did not open properly, a leak formed after a storm and damaged her lounge and the smoke detector malfunctions every few weeks always sounding its high-pitched alarm in the middle of the night.

With the broken sleep, Bao’s verbal comments have recently become nastier, including one comment threatening Linh’s life.  Bao’s behaviour is becoming more and more erratic.  To make things trickier for Linh, she is 4 months pregnant with their third child.

You work at the local hospital as a social worker and have noticed Linh become increasingly agitated.  After inviting Linh for a cup of tea, Linh reveals her current story and mentions that she is terrified of staying with Bao and terrified of leaving him.  Linh refers to another midwife she works with who was cross-examined by her abusive husband in their contested family law proceedings in the Family Court which was considering where the children would live.  Linh is certain she does not have the strength to survive such an experience.  The midwife Linh knows received victim’s compensation as a result of her abusive relationship.

• What legal remedies are available to protect Linh and her children from Bao’s increasingly violent behaviour? Is Bao entitled to cross-examine Linh if their matter is contested in a future family law action?
  
  
• What services can you recommend to Linh for more assistance and what information can you provide to her about entitlements to victim’s compensation?
  
  
• Can Sandra increase Linh’s rent to $360/week?
  
  
• Can Linh insist Sandra repair the hot water service or repair any of the other faults at the flat?
  
  
• Any other appropriate considerations or referrals.

2.Aidre Wallace is a member of the Stolen Generations.  She was removed from her family as a young child and raised in an institution with considerable brutality.  As a result, she never experienced living in a healthy family nor sound parenting skills.  With her early experiences, Aidre learnt to fear anyone in authority.  Nonetheless, she raised three healthy children with her husband, Ron, who died 10 years ago. Since that time Aidre has been receiving the single age pension.  Soon after Ron’s death and given Aidre’s financial difficulties, a close friend moved into Aidre’s rental accommodation to provide emotional and financial support.  Johnathan and Aidre share household expenses, jointly own their fridge and other household furniture and are often seen out together.  They have separate bedrooms. 

Recently, a Centrelink employee knocked on Aidre’s door, showed her identification and asked if Aidre would answer some questions about her relationship with Johnathan.  Given Aidre’s apprehension when it comes to authority, she invited the employee in.  The following conversation occurred:

Employee: Do you and Johnathan share expenses?

Aidre: Yes

Employee: Do you talk to each other when you have problems?

Answers:

1.

The Australian law acts as the backbone and regulatory body of all the actions and unlawful behavior of people in the country. It constitutes laws which govern the acceptable code of conduct and relationship of individuals in Marriage. In this context, we will discuss the legal system that falls under the family law primarily in the case of abuse or domestic violence.[1] The case for Line and her husband Boa will form the basic framework in this study. The compilation of this assignment will entail the revised family Violence principle of the 4th edition which was amended in December 2016.[2]

About the revised Family law on violence, it distinguishes the types in which domestic violence may be sub-divided into. It gives four categories which include the Coercive controlling violence, separation instigated violence, resistance of violence and situational couple violence.[3] In this context, our study falls under the predominant coercive violence which entails the use of a series of threats, abusing someone emotionally, use of force and any other form of coercive practices.[4] The primary target of this form of this violence is to control, and it does not entail physical harm.

Legal remedies to protect Linh and Her children from Bao

Filling a family violence order. (Section 60CF, Rule 2.05), this requires the party to proceedings to advise the court about the violence and therefore file a copy of the family violence order. By doing this, the safety of Linh and the Children will be guaranteed by the court.

Filling a written notice. This is done where a copy of the family violence order is not available, and it must constitute the attempt of filing a request within a specific period, date of the law and the details to be contained in the order as stated in 2.05(2) rule. This will help Linh be protected by the court from her husband.[5]

Filling a notice and supporting the affidavit setting evidence to the person in which the allegation is made. In this case, Linh will be required to supply an affidavit for the alliterations towards her husband's Abuse.[6] This will be a follow up of finding a solution to the problem of violence.

The services one could support to Linh is to find the right solution with the Family court of law since the judges will guarantee her of the following range of protection

1. Giving her the possession of the home and excluding her husband from the household
   
   
2. Requiring Bao to find an alternative home
   
   
3. Demanding possession of personal property
   
   
4. Ordering the husband Bao to refrain from violence and abuse
   
   
5. Provision of temporary Custody for the children

Can Sandra Increase Linh Rent to $360?

In compliance with the Australian law on tenancies and accommodation act 2008, section 55, provides the circumstances in which the landlord is supposed to increase the rent and how it can be carried out. Generally, the first step in doing this is by providing a legal document not less than two-month notice for the increase in rent. The tenant has the right to object the improvement in adherence to the jurisdiction on Administrative Tribunal (QCAT).[7]

In this case, Sandra is not supposed to increase Linh rent since the legal documentation and notice have not been provided and the statutory time frame for the increase has not been considering.

Can Linh insist Sandra repair the hot water service or repair any of the other faults at the flat?

In consideration to the Administrative Tribunal for jurisdiction, the tenants have the right to object the increase of rent if the state of the premise needs repair.[8] Therefore, in this case, Sandra must repair the flat and maintain the right state of the house if she wishes to exact any increment in rent.

Any other appropriate considerations or referrals

The other concern is to advise linh find a premise that fits her income to help the children and her stay a better life. She is also expected to understand what the family law

Can do and protect and what cannot do to be applying the relevant legal framework in case family issues occur.

2.Where can you refer Aidre for legal advice about possible criminal prosecution?

Legally, one would Advise Aidre to request for assistance from an expert of Criminal law. This will require her to find and pay a lawyer who understands about Criminal prosecution. In case Aidre is not in a position to afford a lawyer, I could advise her to access the free legal aid in the Australian state. This helps the residents have access to legal representations as well as granting those rights to ask questions to lawyers concerning their constitutional rights not only concerning criminal prosecution but also about the other types of offenses or issues.

Whether Aidre can challenge the Centrelink's decision and if so how?

Aidre will have very little to challenge the Centrelink decision simply because in accordance to the interview done by an employee from Centrelink portrayed that she had violated the guidelines or rules that are meant by those who apply for the Single age pension. All this are against the rules of the people accessing single age pension.[9] Thus Aidre cannot challenge the Centrelink decision because of the feedback she gave during the interview.

Other social security payments Aidre might be entitled to?

Aidre will be subjected to the early payment of the single age pension plan; she will also suffer some costs originating from the Centrelink department. Centrelink will require Aidre to sign a vouching document for their relationship status which is termed as offensive.[10] Within two months she will be needed to make single parent payments and also the referee will be required to sign a legally binding form which attracts twelve-month prison sentence during to failing to present the relevant information concerning their current relationship with Jonathanas[11]

Will she be entitled for compensation from National Redress scheme?

The department of Commonwealth in Australia sub-divides those individual for compensation in two categories that is Care –leavers and non-care leavers.[12] Aidre is legible for reimbursement through the current state of payment for Australian Government is well defined and care-levers, as well as the non-care leavers, are seeking to redress the failure of the government to undertake its role in that sector

Will her Pension be subjected to cashless welfare Card?

Aidre will be subjected to a cashless welfare card just because the cashless debit card applies to this individual who is getting any other sources of income. In this case, as stated in the case study it shows that the is a mutual benefit between Aidre and Jonathan. This is evidenced whereby it said that Jonathan provides financial, physical and emotional assistance.

Appropriate consideration and referrals

The other consideration, in this case, is to request Aidre to hire a lawyer who will help her defend her rights in the court of law from the violation of the terms contained in the single age pension plan. She will also need financial support from Jonathan which will help her get enough money to pay a lawyer.

Conclusion

The concept of welfare has to be well understood, and an individual should also understand how the law operates and what it can do and what it cannot do in case it’s violated.  The two incidences have exhausted a significant need for this law and formulated some of its importance to the Australian Citizens.

References

Chunn, Dorothy E., and Shelley AM Gavigan."Welfare law, welfare fraud, and the moral regulation of the ‘never deserving’poor." Social & legal studies 13, no. 2 (2009): 219-243.

Denniss, Richard, and Tom Swann. Boosting retirement incomes the easy way. September, The Australia Institute, Canberra, 2014.

Hunter, Wendy, and Tony Worsley."Understanding the older food consumer. Present day behaviours and future expectations." Appetite 52, no. 1 (2009): 147-154.

Kline, Marlee. "Child welfare law," best interests of the child" ideology, and First Nations." Osgoode Hall LJ 30 (2009): 375.

Lim-Applegate, Hazel, Peter McLean, Phil Lindenmayer, and Ben Wallace. "New age pensioners—trends in wealth1." Improving the lives of Australians (2009).

Madden, Kelly, and Margie Law. Tasmanian community survey: financial hardship. Anglicare Tasmania, 2011.

Novak, William J. The people's welfare: law and regulation in nineteenth-century America. Univ of North Carolina Press, 2010.

Soldatic, Karen, and Barbara Pini. "The three Ds of welfare reform: disability, disgust and deservingness." Australian Journal of Human Rights 15, no. 1 (2009): 77-95.

Super, David A., Sharon Parrott, Susan Steinmetz, and Cindy Mann. "The new welfare law." Center on Budget and Policy Priorities (2010).

[1] Teubner, Gunther, ed. Juridification of Social Spheres: A Comparative Analysis in the Areas ob Labor, Corporate, Antitrust and Social Welfare Law. Vol. 6. Walter de Gruyter, 2012.

[2] Lim-Applegate, Hazel, Peter McLean, Phil Lindenmayer, and Ben Wallace. "New age pensioners—trends in wealth1." Improving the lives of Australians (2009).

[3] Webb, R., 2008. The Intervention: A Message from the Northern Territory. Indigenous Law Bulletin, 7(9), p.18.

[4] Soldatic, Karen, and Barbara Pini. "The three Ds of welfare reform: disability, disgust and deservingness." Australian Journal of Human Rights 15, no. 1 (2009): 77-95.

[5] Walter, Maggie, Natalie Jackson, and Bruce Felmingham."Keeping Australia's older workers in the labour force.A policy perspective." Australian Journal of Social Issues 43, no. 2 (2008): 291-309.

[6] Walter, Maggie, Natalie Jackson, and Bruce Felmingham."Keeping Australia's older workers in the labour force.A policy perspective." Australian Journal of Social Issues 43, no. 2 (2008): 291-309.

[7] Chunn, Dorothy E., and Shelley AM Gavigan."Welfare law, welfare fraud, and the moral regulation of the ‘never deserving’poor." Social & legal studies 13, no. 2 (2009): 219-243.

[8] Super, David A., Sharon Parrott, Susan Steinmetz, and Cindy Mann. "The new welfare law." Center on Budget and Policy Priorities (2010).

[9] Denniss, Richard, and Tom Swann. Boosting retirement incomes the easy way. September, The Australia Institute, Canberra, 2014.

[10] Hunter, Wendy, and Tony Worsley."Understanding the older food consumer. Present day behaviours and future expectations." Appetite 52, no. 1 (2009): 147-154.

[11] Novak, William J. The people's welfare: law and regulation in nineteenth-century America. Univ of North Carolina Press, 2010.

[12][12] Madden, Kelly, and Margie Law. Tasmanian community survey: financial hardship. Anglicare Tasmania, 2011.