Australian Family Law

LAW5AFL 2024

Australian Family Law

Final Assignment

The final assignment requires students to complete a response across two parts of a scenario. Part I is a legal problem, and Part II presents a question requiring critical analysis. The questions should be answered by drawing on the slides, the reading materials listed in the LMS, the materials covered as part of tutorial activities, and the information provided in the question itself. You are not expected to do any additional research beyond these materials. The assignment is worth 50% of your final grade.

Instructions

The final assignment is due Thursday, July 25, 11.59 PM

This is an open-book exercise. You may not consult any materials prepared by other students or discuss the assignment with other students or any other person.

There is a word limit of 2250 words, with a 10% leeway permitted in excess. The word limit includes everything but the cover page, footnotes and bibliography. This means headings are included in the word count. Your argument should not be carried out in footnotes, so do not use this as a method of expanding the word limit. Be concise. The assignment is able to be completed to a very high quality well within the word count. You will also find a suggested word count for each question within the assignment, but you are not mandated to adhere to this.

Referencing: students should follow the Australian Guide to Legal Citation, 4th edition, available at http://www.law.unimelb.edu.au/mulr/aglc. La Trobes short guide to the AGLC is available through the library at http://latrobe.libguides.com/law. Particular points I want to emphasise from past years include:

a. Use footnotes

b. Case names can be written in the text, but the rest of the reference should be in the footnote.

Use pinpoint references to paragraphs (or pages) as much as possible.

You should include a reference list or bibliography.

Reread the Guide to Clear Legal Writing available on the LMS and through the law Libguide: https://latrobe.libguides.com/law.

Include a cover page that clearly states your name and your student number. You must also accurately state the number of words of your answer on the cover sheet of your paper.

Submission

Your answers must be submitted via the Turnitin Link under the Assessment Tab on the LAW5AFL subject page on the LMS by the due date. Submit using the link titled Take Home Assignment under the subheading Take Home Assignment (Assessment 3).

Extensions: You may apply for an extension by submitting a request up to 72 hours before the deadline through the following link. I can approve extensions of up to 5 days. For longer extensions you will need to apply for special consideration.

I cannot approve any extension requests made directly to me by email.

Special Consideration

I encourage you to apply for an extension before the due date rather than applying for special consideration after the due date.

You may apply for special consideration through the special consideration website:

https://www.latrobe.edu.au/students/admin/forms/special-considerationSpecial consideration is specifically intended to support students who experience serious short-term, adverse and unforeseen circumstances that substantially affects their ability to complete an assessment task to the best of their potential.

For examples of the types of grounds that will be accepted for special consideration, and those that will not, see the following website:

https://www.latrobe.edu.au/students/admin/forms/special-consideration/allowable-reasonsFeedback

You will receive feedback through the rubric (detailed on the following page). There will also be a general feedback document along with examples of particularly strong submissions that will be made available after results are released.

Assessment Criteria:

Note that the criteria for Part I and Part II differ.

Memos will be assessed on their: A B C Pass Fail

PART I Demonstrated knowledge of the relevant course material, including legislation Assessed in terms of: whether the answer provides relevant legal principles supported by the appropriate legal authority. Application of relevant law to the facts Assessed in terms of: whether and how well the answer identifies the relevant legal issues; how well the answer applies the law to the facts in order to provide the advice requested. Critical judgment Assessed in terms of: Whether answer accurately identifies the parties interests; whether the answer gives well-reasoned arguments and likely outcome. Quality of writing (citation, grammar, spelling, structure) Assessed in terms of: how well expressed and comprehensible the answer is; how well the answer is structured; how well the answer uses scholarly conventions (citation, style of writing). PART II Critical analysis of the question Assessed in terms of: how well the answer addresses the question. An answer will not be satisfactory if it does not address the question asked; whether and how well the answer identifies the relevant issues. Strength of argument (logical and persuasive writing) Assessed in terms of: whether and how well the answer makes an argument; the clarity and logical development of the reasoning and ideas provided in the answer. Quality of writing (citation, grammar, spelling, structure) Assessed in terms of: how well expressed and comprehensible the answer is; how well the answer is structured; how well the answer uses scholarly conventions (citation, style of writing). 2024 Take Home Assignment Question

Read the transcript of an interview between a lawyer and her client, and answer the questions that follow.

Sarah (Lawyer): Good morning. Thanks for coming in today. I just wanted to check, is it pronounced Ri-zia?

Razia (Client): Its Raaz-e-yaSarah: Great, thanks Razia.

Razia: Thank you for giving me this appointment at such short notice. Its been a struggle.

(Razia is visibly shaken)

Sarah: That's absolutely fine. Were here to help. Can I get you some water or tea before we start?

Razia: Water would be nice, thank you.

(Sarah offers Razia a glass of water and sits down, maintaining a calm demeanour.)

Sarah: So how can we help you Razia?

Razia: Im just trying to make sure I dont lose my children, things have been so hard and my partner or I guess, my ex-partner now has just been so difficult to deal with. Difficult isnt adequate, terrifying really, thats a better description. And my son Robbie is so important to me, I dont know what will happen if I lose him.

Sarah: I completely understand how terrifying that thought is. I want to assure you that the fear you are currently feeling is incredibly common and something shared by many of our clients navigating the system.

(Razia nods and takes a big sip of water)

Sarah: Why dont you start by telling me a bit more about your former partner? When did you meet him?

Razia: Her

Sarah: My apologies. When did you meet her?

Razia: First year uni actually. But Lucia and I were just friends for a while. It took us a few years to realise there was something more then.

Sarah: And when was your first year at Uni?

Razia: Oh sorry 2009.

Sarah: Thats alright, just helps to get the timeline in order. So you met Lucia in 2009, and your relationship started a while later?

Razia: Yes, not for another 5 years actually. We worked part time in the same caf at Melbourne Uni. I think we were drawn to each other because of our migrant backgrounds, were both second generation immigrants. Lucias from Sicily, and my family moved here from Delhi. So that was something to bond over. I miss that. I miss who she was back then. I just

(Razia stops as her voice starts to crack)

Sarah: I understand how difficult this. Please take your time. Its going to be a hard process but were here to support you.

Razia: Thank you. Okay. I was saying. We were very close friends, we were inseparable, the three of us.

Sarah: The three of you?

Razia: Oh right, there was Shekhar. He was another student doing part-time work at the caf. Shekhar was also from Delhi. Hed just come over to Australia for Uni, his family was back in India. Hes there with them now, did his little good deed and went back.

Sarah: His what?

Razia: Sorry Im all over the place. Shekhar was our donor. Well, rather, Lucias donor. We finished Uni, Lucia got this high paying job as a Deloitte consultant and decided she wanted a baby. And Shekhar was ready and willing. He didnt really want to be involved in any other way at that point, but he was more than happy to be the donor.

Sarah: And what about you?

Razia: I decided to get an additional qualification in Public Health, and then get a job as a harm reduction practitioner at a medically supervised drug injecting room in the city. I wanted to improve the lives of marginalised people who inject drugs one of my close friends passed away from an overdose and its something that Ive been passionately invested in as a cause since then.

Sarah: I see, thats an extremely challenging line of work but must be quite rewarding too. I also meant, how were you involved at this point with Lucia?

Razia: Wed remained good friends through the years, and then when Lucia began to attempt to conceive she also began to think about how she didnt want to be alone. I suppose it just made her feel vulnerable. And then in May 2014 it all happened.

Sarah: What happened?

Razia: We realised we had romantic feelings for each other at the start of May it was my birthday, wed had a big party. Hilariously, it took us two weeks after that to move in together I moved in to her house. And then, at the end of that very same month, she had a successful conception with Shekhar.

Sarah: How did you feel about it?

Razia: About our child? I was over the moon. Id always wanted children but wasnt sure I would be able to support them financially with my chosen profession. And to then find a partner and realise we would become a family immediately after! What more could I want?

Sarah: I can imagine, Razia. Now, could you tell me about your relationship with Lucia during the pregnancy and after Robbie was born?

Razia: Well, things were good at first. We were both excited and busy getting ready for Robbie. And Shekhar was around to help for a lot of the little tasks. But then, once Robbie was born in February, things began to change.

Sarah: In what manner?

Razia: It started when Lucia began expressing discomfort about my line of work. She was worried that one of my clients would randomly follow me home after work. It was completely irrational because we have very strong procedures in place, but it didnt seem to matter to her, she became increasingly paranoid about Robbies safety.

Sarah: And how did you respond?

Razia: I resisted at first, but she made it so difficult I had to quit. She promised to take care of all the finances, and that was fair because she definitely could. She was making 4 times my pay!

Sarah: So you became a stay at home mother?

Razia: Yes thats right. Shekhar would still come around and help from time to time, but otherwise it was mostly me and Robbie at home, and wed see Lucia in the late evenings when she would come back from work. I was happy to do it, but then Lucia started getting increasingly particular about the finances. She would look over receipts from my visits to our local caf and all the tiniest of expenditures I made and constantly ask if it was necessary for me to spend as much as I was. One day she saw that I had paid for two coffees at the caf and flew into a rage when I told her I had paid for Shekhar who had come to help me with childcare that day. She accused us of having an affair.

Sarah: I see. And did that have an impact on your relationship with Shekhar?

Razia: He was my closest friend. After that happened, he grew increasingly distant from me. I would go from months without hearing from him, until he eventually fell out of touch. The last I heard, hed gone back to India.

Sarah: Im sorry to hear that, it must have been hard.

Razia: It was difficult for both me and for Robbie. Robbie had gotten used to having Shekhar in his life and really struggled afterwards. Anyway, I thought maybe things would get better after that, but it just became a lot worse somehow. Lucia would start each week by making me provide a detailed justification for the weekly expenditure. And then sometimes she would just give me half the money I needed for the household, saying I didnt deserve it.

Sarah: That sounds very stressful. Did she ever threaten you physically or harm you or Robbie?

Razia: She had an incredibly hot temper but would wait till Robbie was asleep before she began to yell at me. One night after she was done yelling, I walked past Robbies room to go to the bathroom and wash my face, and saw that his room lights were on. Sometimes she would throw things, like a family portrait of my parents which she shattered to the floor. I remember Robbie helping me clean up the mess the following morning while I cried.

Sarah: I see. Did Robbie ever say anything about this to you?

Razia: Not then, but he didnt need to. He barely spent any time with Lucia, I might as well have been his only parent. I would go to all his school events, I would help him with studying, I would take him to the playground. I also made sure we spent time connecting with South Asian culture in the city.

Sarah: I notice that youve been speaking in past tense ?

Razia: Oh! Yes, because, because Im sorry, Im just so overwhelmed since she took him away, Im a mess and I cant keep it together I dont know what to do

(Razia starts to cry)

Sarah: Razia, have you considered therapy?

Razia: Excuse me?!

Sarah: No I just meant

Razia: My life is falling apart, what could talking to a shrink possibly fix, I came to you for a solution, not to be talked down to!

Sarah: You are absolutely right. My job is to help you. I mis-spoke, its just been a long day for me, I clearly need a break. Would it be okay if we take a brief moment, and then I can make sure Im better equipped to be of proper assistance to you?

(Razia calms down and nods)

(Ten minutes later)

Sarah: Thanks for your patience Razia. Is it alright if we continue?

Razia: Yes its fine.

Sarah: You mentioned that Lucia had taken Robbie away. Could you please tell me the immediate circumstances that led to this happening?

Razia: At the end of May this year, I decided I had had enough of being cooped up at home and decided to get back into a part-time role as a supervisor at a new safe drug injecting room that had opened up. Robbie is now 10 and is away at school for enough hours to make this workable for me. I applied for the job, got accepted, and only informed Lucia after I finished the first week of work. I thought once she saw I was being able to balance this with taking care of Robbie, everything would be fine.

Sarah: But it wasnt?

Razia: She didnt react when I first told her, just smiled at me strangely. Everything was perfectly normal for a few days. Then, four days after I told her, I got back from work to find that all of Lucias and Robbies things were missing, along with some of our furniture. I almost collapsed from panic. Lucia wouldnt answer her calls. The day after that, I went to Robbies school first thing in the morning and found that he hadnt come in. When I went to my workplace, Lucias cousin, Gary turned up and said had a message from Lucia that if I learnt to behave, she might consider coming back.

Sarah: Were you able to get in touch with Robbie?

Razia: Throughout June, Gary would show up outside my workplace and check to see if I was there. He would glare at me and then walk away. It happens less frequently now, but it hasnt stopped and its been terrifying. I would occasionally get messages from Lucia saying looks like the lesson hasnt sunk in. But no contact from Robbie, he doesnt have a phone and he wouldnt show up at school. Two nights ago, I got a message from Lucias phone.

(At this point, Razia passes her phone over to Sarah to show her the message. It reads:

mum I miss you so much please come get me Im scared. she says shes going to take me to New Zealand next week and that shell never let me see you again. Yesterday I said something in Hindi and she grabbed and screamed at me and said if I used that language again she would throw me out of the house. I dont want to go away I want to stay at my school with my friends and with you. Please come get me please I hate staying with her. Were staying at Nonnas place)

Sarah: So do you know where they are right now?

Razia: Yes it turns out theyve been at Lucias mothers house in the Dandenongs. Lucia is serious about taking them to New Zealand, shes even got a job lined up there. Apparently she had been planning a change for a while. Anyway, she cant go, she cant take Robbie, I wont let her. I know its not my name on the birth certificate

Sarah: Its not?

Razia: No, we put Shekhars name on there, it was a gesture of goodwill. But that shouldnt matter should it, I was there from the very start, Im Robbies mother, more than she will ever be.

Sarah: Razia, were going to do everything we can to help.

Razia: Thank you. I just I dont know if this is possible, but I had a request.

Sarah: Of course, tell me?

Razia: I I dont ever want to have to be in the same room as Lucia or her family again. I dont think I could handle it. Just repeating all of this Im shaking.

Sarah: Of course. I assure you, we will do everything we can. I wanted to circle back to a point Id raised earlier if thats alright?

Razia: Yes

Sarah: Ive found during my family law practice that many of my clients have benefited enormously from talking to a counsellor colleague of mine. We have a long and difficult road ahead of us, and my clients often tell me how much speaking to him has helped them navigate the journey with more resilience. Just let me give you his name and number and you can decide whether youd like to see him or not. Meanwhile, well get started on making sure you get to see Robbie again at the earliest. Does that sound okay?

Razia: Yes, yes it does. Thank you, I can see how it would be nice to talk to someone.

Sarah: Thank you for coming in and taking this first step. Im going to get back to you at the earliest with a plan of action. Well make sure you have a sense of all the ways forward, and well figure out a plan together.

Razia: Thank you so much Ive been feeling so powerless. That helps.

PART I:

35 Marks

You are an intern at Sarahs law firm. She sends you the transcript of the client interview, and asks you to prepare a detailed note examining whether Razia might be able to obtain parenting orders for Robbie to come and live with her. Sarah expects you to apply the 2024 Amendments to the Family Law Act to prepare your note. (30 marks, Suggested word count: 1300 words)

Sarah is impressed with the note you prepared for her under Part A. She calls you into her office and says: Many of our lawyers here are struggling to understand the impact of the 2024 amendments to Act as they pertain to parenting orders. They seem to have understood how the amended Section 60 CC functions in relation to a best interests analysis, but are a bit confused about the subsequent steps in a Goode and Goode legislative analysis. Could you draft me a short note that explains how parental responsibility and care/time arrangements would have been allocated in this case prior to 6 May, 2024? Its fine if you conclude we would have ended up with the exact same result. I just need to illustrate to the other lawyers how the reasoning process has changed. (5 marks, Suggested word count: 250 words)

PART II:

15 Marks

In many ways, Sarahs interview with Razia displays a keen understanding of the best practices in relation to Client Interviews and Family Violence Lawyering that we have studied in the Family Law Course. Provide an analysis of the interview using the materials and lectures we have covered in the course. Within your analysis, include the ways in which Sarah has adhered to best practice, as well as the ways in which she might be able to improve her interview skills. (10 marks, Suggested word count: 450 words)

Razia is justifiably quite nervous about having to encounter Lucia and her cousin again. Beyond any potential injunctions or protection orders, could you note some of the things that Sarah could do to minimise any continued impacts on Razia? (5 marks, Suggested word count: 250 words)