Category: Family

16
Oct

Schoolyard bullying: your legal options.

A Canberra boy, mentally crushed by regular bullying, came home to his worried parents and held a butter knife to his throat.”

This is one report to come out of the most recent ACT parliamentary inquiry into bullying and violence in schools. The problem is, of course, a widespread and long-running one with research confirming three in five students in Australia experience bullying at some time, one in five experience it weekly, and 80% of students believe it’s a problem at their school.

Our founder Romeo El Daghl has acted in numerous school bullying cases including for the victim in the high profile case Gregory v New South Wales [2009] NSWSC 559. The victim was significantly bullied during his time at Farrer Memorial Agricultural High School in the 90s. He was awarded nearly half a million dollars as a result of his school’s failure to protect him from bullying.

Romeo continues to act in complicated and high-profile school bullying cases. Here, he shares what you can do as a parent of a child who is being bullied or a person who has been bullied in the past.

 

Is it bullying?

Bullying comes in many forms. It might be name calling, teasing, threats or physical acts such as hitting, spitting or breaking someone’s possessions. Spreading rumours about someone or ridiculing them in public can also be a form of bullying as well as deliberately and regularly excluding someone from activities. Of course these days there is also cyberbullying, where someone can use technology to engage in bullying to a much wider and more public audience.

Often though, it’s difficult to distinguish bullying from other behaviour. Bullying generally has these three key features:

  1. There’s a power imbalance between the bully and the victim.
  2. The behaviour is intentional and repeated.
  3. The behaviour causes harm.

 

My child is being bullied at school – what do I do?

If you know or suspect your child is being bullied, the NSW Department of Education recommends following these steps:

  1. Listen and get the whole story. Encourage your child to open up about the bullying and tell them that reporting it is okay. Get all the details: who, what, where and when.
  2. Reassure them that it’s not their fault. Tell them you understand and are glad they’ve told you. Ask them what they want to do and what they want you to do about it. If they’re reluctant to involve the school, reassure them that the school would want to know and will be able to help.
  3. Make an appointment with the teacher or principal. Contact the school immediately if you have a concern for your child’s safety.
  4. Use services such as Kids Helpline if you think the additional support will help.
  5. Ask the school for a copy of their anti-bullying policy and any other relevant information about how they address bullying.
  6. Work with the school to resolve the issue and establish a plan for addressing the bullying.
  7. Keep a record of meetings and the outcomes.
  8. If the bullying continues or increases, contact the school again.
  9. Help your child by practising strategies to respond to bullying. Useful strategies include:
  • keeping their distance from the bully
  • not bullying back
  • tell the bully what they are doing is not ok
  • talk to an adult they trust
  • start an activity to help build resilience.

 

What if the school doesn’t respond adequately?

When you receive your school’s anti-bullying policy, make sure they are following it in response to your complaints. If they don’t, complain again and keep a record of each of your complaints and the responses received.

If the bullying continues you may wish to escalate the matter by making a complaint to the Department of Education or to the controlling body of your school if it is a non-government school. Any serious assaults should be reported to police.

If all else fails, the law may be used as an effective tool to intervene to either make the school take effective action or to compensate your child for the harm caused by bullying. The evidence you’ve collected as you’ve gone through the process of attempting to end the bullying is going to be critical.

 

I was bullied– but it was a while ago.

It doesn’t matter. You may not think you have evidence to prove that you were bullied but you may still have a case and may be in a position to achieve justice and be compensated for any harm caused to you at school in the past.

Courts have increasingly recognised that schools must act to ensure that children are protected from the harm that is caused by bullying. In fact, courts can be a powerful tool to compensate victims where a school has negligently failed to prevent the harm caused by bullying.

The matter of evidence can be addressed by your lawyer. There are a number of effective tools that a good school bullying lawyer can use to obtain evidence in support of your case.

In the Gregory case, the victim was in his 30’s when he made the claim. He continued to suffer the psychological effects of the bullying he suffered at high school many years after he had left. Although his case was brought outside the time limit allowed, he was granted permission by the court to continue with his case and after a hard fought battle and just prior to the hearing, the defendant admitted that it had in fact breached its duty of care to him by failing to protect him from very serious bullying over many years and by failing to adhere to its own anti-bullying policies. The school also failed to adequately act on the complaints of bullying made by the plaintiff.

Even though bullying may have occurred years ago, if you suffered harm or continue to suffer harm, you do have options and may find you have recourse to finally get justice.

Bullying has the potential to create devastating long-term psychological problems for victims. It is therefore critical that if your child is the victim of bullying you act to ensure that his or her school takes quick action to protect him or her from it.

We can help you understand and enforce your rights if you or your child has been a victim of bullying. Contact Lawpoint today to discuss your matter.

Kids Help Line in Australia provides telephone counselling for the victims of bullying and is available 24 hours a day, seven days a week (ph: 1800 551 800).

16
Oct

Family law and domestic violence: the facts.

The Australian Government’s announcement of a Joint Parliamentary Committee to conduct a wide-ranging inquiry into the family law system has caused much controversy. Senator Hanson, co-chair of the inquiry, has already made the news over comments implying women who report domestic violence (also known as family violence) in the context of family law cases are often lying.

The enquiry and controversy doesn’t help those in the midst of separating from a partner while dealing with domestic violence.

If you’re wondering how allegations of domestic violence are treated by courts dealing with family law disputes, keep reading.

 

What are the effects of domestic violence on parenting orders?

When making parenting orders, the best interests of children is always the overarching consideration for the court.

The courts take domestic violence very seriously and where an allegation of violence is made or there is an existing domestic violence order, the court is guided in its approach by the following principles:

  • domestic violence affects everyone in a family, including children;
  • the courts are particularly concerned with the immediate and possible long term adverse impacts on a child’s physical and mental wellbeing; and
  • even if children do not directly witness the violence, they can still be aware of it and be impacted by it.

In the process of making parenting orders, the court seeks to build a complete picture of the family taking into account things like the child’s views, the parent’s relationship with the child, the extent to which he or she helped to maintain the child, the capacity of the parent to provide for the child and the parent’s attitude to parenting.

However, in cases of domestic violence or the risk of being exposed to violence, the need to protect children from harm is given greater weight. If the court finds there has been family violence, it will make orders to protect the children. This may mean the court delays making final orders and instead orders an investigation or a report into the allegations but in the meantime, the court will try to make an interim order that protects the children.

If the court believes that children are at risk of domestic violence when in one parent’s care, the court may order that parent spend time with the children only when supervised by another person. This person can be a relative or can be a designated person from a contact service, which is a designated place where children can be dropped off and picked up for the purposes of spending supervised care with a parent.

Sometimes, the court will appoint an independent children’s lawyer who can investigate and make a recommendation to the court about the children’s best interests.

 

Is there anything else the court can do?

Courts recognise that family violence can continue to occur after separation and it may affect the ability of people to make choices about their family law matter and to take part in court events.

Generally, if you’re involved in a dispute about parenting arrangements, you’ll be required to try to resolve the matter by family dispute resolution. However, if family violence is present you may be exempt from attending family dispute resolution services before applying to a court for parenting orders.

If you hold a genuine fear about attending a court appointment at the same time or in the same room as your former partner, the court also can make provisions to assist you, such as allowing you to use available safe rooms and provision can sometimes be made for separate entry and exit points.

Section 67ZBB of the Family Law Act requires the Court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Notice of Child Abuse, Family Violence, or Risk of Family Violence.

 

What are the effects of domestic violence on financial orders?

There can be financial consequences where there is significant evidence of domestic violence. In the case of Kennon v Kennon, the wife asked for a property adjustment in her favour on the basis that she had allegedly endured violence at the hands of her husband.

The court decided that it could take this course if:

  • The wife could establish this alleged violence did in fact occur;
  • She could show it had a “discernible impact” on her; and
  • Her contributions to the relationship had been significantly more arduous because of the domestic violence.

 

What happens if someone makes false allegation of domestic violence?

When asked about the basis of her statements about women making false allegations of violence, Senator Hanson pointed to anecdotal evidence. While the extent of the problem is difficult to gauge, there have been cases that involve a person taking advantage of the domestic violence protections for their own gain. In the case of Kapicic & Bakal, the mother gave evidence about her child showing disturbing and sexualised behaviour on return from the father’s house.

In this case, the court found the mother’s allegations to be without merit and made with malicious intent. The judge granted the father sole parental responsibility.

The court also has the discretion to award costs against a party in family law under the general provision about costs in Section 117 of the Act and in those provisions could be used to order a parent who makes false allegations to pay the other parent’s legal costs.

False allegations of domestic violence are always going to be a controversial subject.  There is no doubt that false allegations are sometimes made. However, it’s a sad reality that the majority of allegations of domestic violence are indeed based on fact.  The courts already have a wide range of powers to make orders dealing with claims of domestic violence, whether valid or invalid.

Would you like to speak to one of our experienced and understanding family lawyers about your situation? Contact us now.

If you’re experiencing domestic violence and need help, call 000 in an emergency or Lifeline (13 11 14) or Australia’s National Counselling service (1800RESPECT).

 

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment

20
Aug

“What about me?”: Wills, fairness and family provisions claims

Just a couple of months after Bob Hawke’s death, he was back in the news. This time, it was his will making headlines. Reports suggesting a “legal brawl brewing” between his daughter and widow fuelled water cooler talk all over Australia.

Was it fair that the former PM was leaving his children and step-child a measly $750,000 payout while second wife Blanche d’Alpuget was left $15 million plus? Would his reputedly disgruntled daughter really resort to contesting the will? Does fairness even matter when it comes to contesting a will?

 

Contesting a will in NSW

Contesting a will because you feel you haven’t been treated fairly involves making a family provision claim.

In NSW, a family provision claim is made by applying to the Supreme Court of New South Wales for a share, or a larger share, from the estate of a person who has died.

A report on will making and contestation in Australia noted that contestation “arises from need, greed or entitlement” with evidence revealing there is a “cohort of financially independent adult children who successfully contest estate distributions.”

The report also revealed that while most wills provide for equal shares for children, family complexity, cultural considerations and complex assets can lead to an unequal allocation of assets.

If you’ve been left out of a will entirely or did not receive what you expected you should receive, you can make a family provision claim – provided you are an “eligible person”.

So, who is an eligible person? The definition includes:

  • the wife or husband of the deceased person
  • a person who was living in a de facto relationship with the deceased person
  • a child of the deceased person (including an adopted child)
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, entirely or partly dependent on the deceased, and who is a grandchild of the deceased person or was at that particular time a member of the same household as the deceased
  • a person who was living in a close personal relationship with the ceased person at the time of their death.

 

How do courts decide these cases? Is it all about “fairness”?

Rather than deciding what’s “fair”, courts are looking at these matters from a slightly different angle. The courts can only make a family provision order where there has not been “adequate provision for the proper maintenance, education or advancement in life” of the person making the claim.

If you make a claim, the legislation contains a long list of factors which the court may consider in determining whether to make an order. These are extensive, and include:

  • the nature and duration of your relationship with the deceased person
  • the nature and extent of any obligations or responsibilities owed by the deceased person to you, to any other person who’s made an application and to any beneficiary of the deceased person’s estate
  • the nature and extent of the deceased person’s estate and any liabilities
  • your financial resources and those of the beneficiaries and any other person making a claim
  • the financial circumstances of any person you are cohabiting with
  • whether you (or any other applicant or beneficiaries) have a physical, intellectual or mental disability
  • your age
  • any contribution you made to the deceased person’s estate, their welfare or their family’s welfare
  • any evidence of statements made by the deceased person,
  • your character and conduct (and any other person’s) before and after the date of the death of the deceased person.

The onus of establishing that there has not been adequate provision for the proper maintenance, education or advancement in life rests with the person making the claim.

The court’s power to make an order is discretionary, and although the legislation and a long line of cases gives guidance, ultimately each case is judged on its own individual facts and circumstances, which are diverse and change from case to case.

 

Making a claim: is it worth it?

The articles circulating about Mr. Hawke’s will aired all the dirty laundry, recounting past and ongoing scandals, from drug addictions to divorce and even an embarrassing fracas at Brisbane Airport. The scenario is often repeated on a smaller scale, with researchers confirming will contests to be “problematic with economic, social and relationship costs.”

The incentives to make a claim, though, are also powerful. For most people, financial need can outweigh any potential downsides. There’s also the fact that contestation has a high rate of success – whether that’s through mediation or the courts.

If you do intend to make a claim, it’s important you get legal advice as soon as possible after the death of the person whose will you wish to contest. A family provision claim must be filed with the court within 12 months of the date of death.

The next chapter in the Hawke saga – the will – highlights common difficulties in modern Australian families, such as step-families. Just what is fair when it comes to dividing up assets? And is it worth resorting to the courts if you feel your share of an estate is inadequate?  Only time will answer these questions for Mr. Hawke’s family.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

 

If you feel you’ve been unfairly treated in a will, make an appointment to see one of our experienced estate lawyers today.

20
Aug

What is marriage separation vs divorce ?

(and every other question we have ever been asked by clients seeking a separation)

No one enters into a marriage expecting or planning for divorce. However, the reality is approximately one third of marriages do end in divorce. The average length of a marriage in Australia is 12 years.

Lawpoint has helped many couples with marriage separation NSW wide. We’ve heard countless different marriage separation stories however, in our initial meetings with clients, we are often asked the same questions. That is because the issues that people find the most stressful following separation tend to be universal.

We’ve decided to collate the most common questions we get asked by those who come to us for their first marriage separation divorce consultation. These are the questions that are playing on the minds of those who have had their fair share of marital problems, have attempted a trial separation or just know that they’re ready to apply for a divorce.

The full list of questions and answers is available for download here. It also offers a general overview of the family law system following separation from a spouse or partner. It should give you a better understanding of the processes involved and the issues which you might have to deal with. It is suitable for those who are going through a marriage separation with children and those who are in a de facto relationship. It should not be relied upon as legal advice or as a substitute for legal advice. If you want advice specific to your circumstances, please contact us to arrange an appointment.

The top three questions asked by those deciding to separate marriage:

Question: Can I get “full child custody”

The term “custody” is no longer used in the family law system. Instead, the issue is who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent.

The most important factor that the court must consider when deciding who a child lives with is what is in the best interests of the child.

Every child has a right to know both their parents and the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility. This doesn’t mean that each parent gets to spend equal time with the child. Instead, it refers to parents having an equal role in the long term important decisions affecting a child, such as where they go to school, or what medical treatment they receive. Day to day decisions, such as what will the child eat or can the child go to the park to play with friends are decisions left up to the parent with whom the child is spending time on a day to day basis.

If the child spending equal time with each of parent is reasonably practicable, and in the best interests of the child, then then the court will seek to make orders that give effect to that ideal.

However, in reality, often equal time is not practical, especially with a child who is younger, because constant changeovers and the instability of having to move from one residence to another on a constant basis causes disruption to the child. If this is something you are considering by agreement, then you should consider an arrangement that results in your child spending blocks of time with each parent (such as one week with you and one week with the other parent) as that is likely to be less disruptive than 2 or 3 days at a time which results in many more changeovers. There are many other considerations that affect whether equal time is practicable such as how far apart will each a parent live, does one parent have work commitments which make equal time impractical, how well do the parents get along and communicate with one another,

If it is not reasonably practicable for a child to spend equal time with each parent, the next question to decide is whether it is practical for the child to spend substantial and significant time with the other parent. Again, this must be in the best interests of the child.

What this means is that whilst you child may live with you, he or she may spend time with the other parent on a mix of weekends and regular days and nights (for example, one night per week from after school until the start of school the next day, plus each second weekend) and also holidays (for example half of each school holiday period).

Another factor that needs to be considered is who has been the primary carer of the child up to the date of separation? This is an important question because it may impact upon whether each parent has the necessary parenting skills for the child to live with them for extended periods of time, but also because it may also cause the child anxiety or distress if his or her routine with the primary caregiver is suddenly significantly changed.

 

It wasn’t my fault we broke up. Does that help me?

It can be emotionally devastating for a person if the breakdown of the marriage is caused by the fault of the other person, such as infidelity.

However, fault is not a factor in whether a divorce is granted. The only question that the law requires the court to be satisfied of is whether the marriage has broken down irretrievably. In other words, if the court is satisfied that there is no chance that the marriage will reconcile and the parties have been separated for 12 months, the divorce will be granted.

There are some other steps that the court will require such as ensuring that proper arrangements for the care of children aged under 18 years have been made before the divorce will be granted. Also, couples whose marriage has broken down within 2 years of the marriage are required to attend marriage counselling to discuss or attempt reconciliation before the divorce will be granted.

Fault is also generally not something the law considers when determining a property settlement or parenting issues. You will not get more of the asset pool simply because your spouse cheated on you.

However, in some cases, the “fault” can be relevant to what orders the court makes. For example, if separation has been caused by domestic violence, that will certainly be a relevant factor in determining what is in the best interests of the children when making parenting orders.

 

Everything is in his / her name. What do I do?

Assets acquired by during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. There are many reasons why couples may place a property in only one party’s name.

Regardless of whose name that asset is held in, the law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

In addition, it is not just assets that are acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation interests held in each of the party’s names.

These are all factors that are taken into consideration as a separation agreement is being negotiated.

Marriage, Separation, Divorce eBook

If you are experiencing marriage difficulties and are considering a separation Download the document: I’m separating, what now?! for more frequently asked questions. Or contact our experienced  team at Lawpoint.

 

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

03
Apr

Strategies for parents and children coping with separation and divorce

Separation and divorce can be a very painful and confusing time for parents. How will the children be cared for and by whom? Who will the children live with and how often can the other parent spend time with the children? What happens if one parent does not facilitate and foster the relationship between the children and the other parent?

One of the most common ways that the pain of a separation is felt involves anger, especially when one parent feels that they have been wronged by the other parent. Unfortunately, too often one parent seeks to deal with that anger by denying the other parent a meaningful relationship with the children or refusing to cooperate in the parenting process. Not only is this approach potentially damaging to the children, but ultimately a court will take a dim view of a parent who deliberately seeks to deny the other parent contact with their children.

Often parents see the issue from their own perspective and each parent’s “right” to and in the children results in unnecessary conflict. The law however does not approach the question from that perspective. Instead, the law looks at what is in the best interests of the children, rather than what is in the best interests of the parents.

Thankfully, there are some simple and effective tools that parents can implement to try and avoid conflict after separation and to try and ensure that the confusing and hurtful separation of their parents impacts as little as possible on the children.

Think from your children’s perspective

Approach your discussions and relationship with your former partner from the point of view that the court takes-i.e. what is in the best interests of our children?

For example, is it in their best interests that parents fight all the time and denigrate each other or is it in their best interests to see their parents, whom they both love (even though the parents may not love each other anymore) treat each other respectfully?

Facilitate the children’s relationship with the other parent

Remember, even though you may not love your ex-partner your children still do. Make sure that you facilitate contact with the other parent as this will help your children adjust to your break up, which is already a very stressful situation for them to deal with.

Encourage your children to contact the other parent when they are in your care and if that parent tries to contact the children, allow the children to speak to them. This helps to maintain the bond between parents and their children and will help the children to not feel as though they have lost a parent at a time when many feel they have lost their family.

Above all else, do not denigrate the other parent in front of the children. This is damaging to the children, to the other parent and ultimately will also be damaging to you.

Be flexible

Establishing a regular routine so that the children know what to expect is important. However, inflexibility and stubbornness will create conflict. It pays to be flexible. For example, if your partner asks to extend contact for a special occasion, remember that you too might also have a similar need at some time in the future.
Also, the age of the children is an important factor in determining what will work-for now. However, as children grow, their needs change and your parenting responses must adapt to those changing circumstances.

Respect each other’s differences

Parents sometimes have different parenting styles. Just because your ex-partner’s style differs to yours does not make it wrong.

If the difference does not affect your children’s health and well-being, consider being understanding or forgiving of these differences and instead concentrate on the bigger picture. For example, a child’s medical needs may be non-negotiable whereas one parent’s willingness to let children stay up an extra half hour watching TV might be something that is not worth arguing about.

Communication is the key

Each parent’s time with the children will be more enjoyable and your children will benefit more if each parent is up to date with what the children are doing and coping with.

For example, each parent should be made aware of all medical issues and conditions suffered by a child, the child’s school progress, any behavioural issues that have arisen or any problems that the child is having such as being bullied at school.

This will help each parent meet the changing needs of the child as they arise.

Don’t forget granny and grandad

Parents are not the only significant people in your children’s lives. Before your separation, your children are likely to have had strong and loving relationships with their grandparents, uncles, aunts and relatives. Keep in mind that just because you have separated from your partner does not mean that your children don’t still love your partner’s parents, siblings etc. (and vice versa).

Recognise the important role that these people (especially grandparents) have in your children’s life and think about how their time will be spent with these people so that the relationship can be maintained.

Respect the other parent’s new life

Remember, your ex-partner is just that. That means that each parent has a right to be happy in another relationship. Whilst you may naturally feel some resentment if your partner appears to be moving on before you, avoid the temptation to denigrate or fight with that new person as this will set a bad example for the children. Whatever you may think, your children need to respect that person, especially if they are living in the same home and if you don’t set a good example, the children are unlikely to behave differently to you.

Abuse is not acceptable

Physical or verbal abuse of your ex-partner or of the children is not and will never be acceptable. No matter how angry you are or how justified you feel, it is never acceptable to verbally or physically abuse your ex-partner. This can have harmful effects on your children and can lead to you being charged with a criminal offence. It may also impact upon a court’s willingness to allow you to spend time with your children.

If conflict is unavoidable

Sometimes, one parent may be attempting to be cooperative whilst the other is combative. If you find yourself in a similar situation where the other person is not working with you, you should seek legal advice. Our lawyers will help you understand your legal rights and responsibilities, and explain how the law applies to your case. We can also help negotiate an agreement with your former partner without going to court. If court is unavoidable, we will fight for your rights and the rights of your children.

Romeo El Daghl, Solicitor Director, Lawpoint

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment via Facebook, email reception@lawpointlawyers.com.au or by calling our office on 9517 1887.

17
Mar

Understand and manage bullying

Australia’s National Day of Action against Bullying and Violence was held on 17 March 2017. Bullying is a hot topic in Australia right now, particularly given the controversy surrounding the Safe Schools Programme and recent reports of entrenched bullying in the medical profession.

Bullying is a significant issue for many people and can occur in various contexts although most frequently it occurs at school or in the workplace. For example, 30% of children between the ages of 8 and 13 report being bullied frequently at school.

Bullying can take many forms, the most obvious of which involves physical violence. However bullying does not need to involve violence and can take other forms including:

    • name-calling which can be based on appearance, race, gender or sexuality etc.
    • deliberate and repeated exclusion of a person from workplace/school activities or social activities.
    • harassment in the form of emails, text messages, social media etc. with the intent that the words used will insult, ridicule or embarrass the person.
    • abuse such as repeated swearing at a person or belittling a person (whether in front of others or not).
    • unjustified criticism or complaints about a person.
    • excessive or unfair scrutiny or performance management at work.

It is important to understand that normal disagreements between people whether in the workplace or at school is not sufficient to justify the term ‘bullying’ nor is it appropriate to describe an employee’s unhappiness with work colleagues as bullying. The term is misused too frequently these days, which diminishes the seriousness of genuine bullying and the harm that it causes to victims.

There are three important elements which must be established before workplace behaviour will be deemed to constitute bullying. These elements are that the behaviour must be:

  1. unreasonable;
  2. repeated; and
  3. a risk to health and safety.

Employers must take complaints of bullying by employees very seriously. They should have strong anti-bullying policies and procedures in place to prevent and deal with bullying should it occur. Every employee should be aware of the contents of the anti-bullying policy and should understand the serious consequences to that employee should they breach the policy.
Employees should respond appropriately and fully investigate all complaints of bullying. A failure to respond to a bullying complaint quickly and thoroughly could place an employer at risk of legal action by a bullied employee.

Apart from the legal consequences of bullying to an employer, a failure to respond to bullying in the workplace can have serious impacts upon the morale of employees as a whole and can significantly damage the culture and productivity of a workplace.

Responding to a bullying complaint in a professional manner and with haste is also vital to prevent a business being subjected to legal action by an affected employee.

For example, a worker may seek the protection of the Fair Work Commission which since 2014, has had the power to make an order requiring the bullying behaviour to stop.

More seriously, employers who fail to protect their employees from bullying can be subjected to large compensation payouts arising from their inaction. For example, in a recentQueensland case a court awarded an employee $240,000.00 in damages as a result of bullying that she was subjected to over a relatively short period of time. In another case, the Victorian Supreme Court awarded a woman $1.36 million dollars as a result of sustained and shocking abuse at the hands of co-workers in circumstances where repeated complaints to her employer were either ignored or not acted upon.

Employees should be aware that there are potentially a number of remedies available to them if they are the victim of workplace bullying which include action in the Fair Work Commission or civil proceedings seeking damages. Time limits apply to certain applications so an affected employee should seek immediate legal advice to ensure that their rights are preserved and protected.

Should you, as either an employer or employee, require any further information on workplace bullying please contact us on 02 9517 1887.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment via Facebook, email reception@lawpointlawyers.com.au or by calling our office on 9517 1887.