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Intrafamily/interspousal immunity

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JuraS View Drop Down
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  Quote JuraS Quote  Post ReplyReply Direct Link To This Post Topic: Intrafamily/interspousal immunity
    Posted: 24/January/2012 at 09:20
I was hoping that someone might be able to help. I am looking for information on intrafamily immunity (tort law) and interspousal immunity in Australia. Google only shows america. Does this law apply in Australia also or did Australia undergo some changes on this? I also would appreciate some cases.

In my understanding, both laws apply in Australia.

How does this aPply to an unborn child? In my understanding, apart from negligent driving while pregnant, the mother can not be held responsable for the unborn child, meaning the inter family law applies. How does the case of negligent driving apply to spouses?

Thank you.

Atikin View Drop Down
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  Quote Atikin Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 14:37
I have no idea what you are talking about. Are you implying that your spouse drove negligently while you (pregnant) were in the car and you are wondering if you have any recourse?

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 14:41
There was a case recently in NSW I believe were the driver of a Pajero was charged (not certain if convicted) for killing his wife's unborn child.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

JuraS View Drop Down
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  Quote JuraS Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 15:57
No, curiosity only, its for uni, having trouble to find anything on it online (from Australia). I heard something about changes in regards to this law (if applicable in Australia to start of with) and I want to make sure what I am writing is correct. That's why I am after some websites and cases.

JuraS View Drop Down
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  Quote JuraS Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 16:02
Basically, does a mother owe a duty of care to her unborn child (exept from negligent driving)? where can I find a case or online information on this? I have heard about something called interfamily immunity (torts), would this apply in this case?
Also, does a husband owe a duty of care to his wife? I have heard about something called intraspousal immunity (torts). This, in my opinion, would apply, but I only found informations on this on US sites. I am after some information and cases from Australia.

iconoclast View Drop Down
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  Quote iconoclast Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 17:57
Hi Jura,
There was a case in WA maybe 5 years ago where a guy and his mate deliberately bashed the pregnant girlfriend causing her to lose the baby. He was convicted - I'll try and find it on austlii. There was another case you will find in I think Dr Thomas Croft's Criminal Law text where the guy was not convicted because apparently he did not realise that stabbing her repeatedly in the abdomen would cause her to lose the baby! Am on hols at the mo so I don't have the text here - I am darned sure there are other cases. Cheers
not legal advice

MartinO View Drop Down
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  Quote MartinO Quote  Post ReplyReply Direct Link To This Post Posted: 24/January/2012 at 19:50
This law (Intrafamily/interspousal immunity) is all about whether a spouse can be compelled to testify against their spouse in a criminal matter.

They cannot be compelled but may if they wish. If is it is a matter of an assault on the spouse, the law was changed a few years ago to permit the police to make the complaint and present the evidence.
I am NOT a lawyer. Anything said is NOT legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks.

JuraS View Drop Down
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  Quote JuraS Quote  Post ReplyReply Direct Link To This Post Posted: 25/January/2012 at 08:11
Sorry, I meant intrafamily tort immunity and this means that one can not sue another. I am wondering if this stil applies. I picked this up somewhere and now I am extremly curious, since I would like to include this into an assigment. On the other hand I looked at Lynch v Lynch (1991).

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 25/January/2012 at 08:35
Originally posted by JuraS

Sorry, I meant intrafamily tort immunity and this means that one can not sue another. I am wondering if this stil applies.


According to the Family law act a married couple can.

s119 Married persons may sue each other








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Please post your legal questions in a forum rather than sending a PM. Thanks

JuraS View Drop Down
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  Quote JuraS Quote  Post ReplyReply Direct Link To This Post Posted: 25/January/2012 at 10:23
Thank you jazzz.

MickOne View Drop Down
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  Quote MickOne Quote  Post ReplyReply Direct Link To This Post Posted: 25/January/2012 at 15:37
Yes they can sue. This occurs often where a family accident, usually motor vehicle, occurs and children are injured. Legal action is taken intrafamily to compel insurance companies to meet the costs associated.

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