LSB September 2019_Web

More documents

Recommendations

Info

FAMILY LAW CASE NOTES Family Law Case Notes ROB GLADE-WRIGHT, THE FAMILY LAW BOOK CHILDREN – THRESHOLD HEARING ON RICE & ASPLUND – APPLICATION DISMISSED In Mahoney & Dieter [2019] FamCAFC 39 (7 March 2019) the Full Court (Alstergren DCJ, Ryan & Kent JJ) dismissed the mother’s appeal against dismissal of her application for variation of a final parenting order made by the Family Court Division of the District Court of New Zealand (NZ) and registered in 2018 in Australia where the father lived with the parties’ child pursuant to that order. The order, made after a finding that the mother posed a risk of harm, removed the child from the mother’s care and permitted the father to relocate with the child from NZ to Australia, the mother to spend supervised time with the child during school holidays in NZ. The mother later obtained a medical report that she was mentally stable, and applied to the Family Court of Australia for the child to spend unsupervised time with her (and ultimately live with her in NZ). Austin J dismissed the application as the mother had failed to establish a sufficient change in circumstances to warrant reconsideration of the order. On appeal, the Full Court said ([10]): “In describing the reason for the child’s removal from the mother’s care … the [NZ] court explained that: ‘ … The transfer was necessary for the welfare and safety of [the child] because of the mother’s intense fixed and wrong beliefs about the father’s behaviour … These beliefs are not related to his parenting … If [the child] learns about these beliefs the damage to her will be adverse and lifelong.’” The Court continued ([12]): “At the final parenting hearing the mother attributed the cause of her 42 THE BULLETIN September 2019 parental difficulties … to … a brain injury and hypothyroidism, which she had addressed. However, the evidence before the [NZ] court revealed that the mother continued to hold fixed and wrong beliefs about the father’s behaviour … (including that the child was conceived through rape). ( … )” The Court concluded ([39]): “A proper reading of the [NZ] judgment demonstrates that … the decision turned not on whether or not the mother had a mental illness, but that [her] fixed beliefs … whatever their genesis or label, posed a risk of harm to the child. … ” CHILDREN – MOTHER’S SECRETLY TAKEN VIDEO OF HAND OVERS ADMISSIBLE – HER AUDIO OF FATHER’S PRIVATE CONVERSATIONS WITH THE CHILDREN INADMISSIBLE In Coulter & Coulter (No. 2) [2019] FCCA 1290 (15 May, 2019) Judge Heffernan heard the father’s application to exclude the mother’s secretly made video recordings of the father’s attendance at her home for hand overs and two audio recordings of conversations between him and the children. After referring to a court’s discretion (under s 135 the Evidence Act 1995 (Cth)) to exclude evidence if its probative value is substantially outweighed by the risk of prejudice, being misleading or wasting time or (s 138) exclude improperly or illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so, the Court said ([10]): “I am satisfied that it was not improper for the mother to make the video recordings of the two hand overs. … Hand overs occur in circumstances where the mother has a legitimate interest in her personal safety … and in preventing the children from being exposed to conflict and unpleasantness between the parties. At the time that the mother made the video recording, it is her evidence that she had been having ongoing difficulties of that sort with the father. The mother had an ongoing concern about the father’s apparent obsessiveness with matters personal to her and his abusive, coercive and controlling behaviours and past episodes of violence. She was in the process of seeking an intervention order against him to deal with those issues. … Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done. In considering the question of impropriety, I also give weight to the conclusion … that the conduct in recording the hand over was not contrary to a relevant Australian law. [11] In my view, it was improper of the mother to make secret audio recordings of private conversations between the father and the children. It involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father irrespective of any motives he may have had to enlist them in his dispute with the mother. The Court found ([12]-[23]) that the video was not illegal but that the audio contravened the Listening and Surveillance Devices Act 1972 (SA) and that ([24]- [25]) discretion should be exercised to exclude the audio recordings because the desirability of admitting that evidence (as relevant to the mother’s case of parental alienation) was outweighed by the undesirability of doing so, having regard to the children’s right to have private conversations with their father. B
RISK WATCH Details, details, details – they matter GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS Checking the details are correct is vitally important for all practitioners. Not doing could land your client, and you in hot water. This month we take a look at another recent case from the South Australian Supreme Court which contains important Risk Management lessons. The case – Monsere Pty Ltd v RDM Nominees Pty Ltd [2019] SASC 126 – shows the critical importance of taking care to ensure that all details are correct and the potentially serious consequences of not doing so. The defendant (RDM) sent a Statutory Demand to the plaintiff (Monsere) on 19 March 2019 in relation to a debt RDM claimed was owed by Monsere. Monsere asserted that there was a genuine dispute and an off-setting claim in relation to the debt claimed by RDM. Monsere instructed its solicitors to make an application pursuant to s.459G of the Corporations Act 2001 (Cth) for the Statutory Demand to be set aside. Such an application must be made within 21 days of the service of the Statutory Demand, otherwise the company to which the Demand is directed will be deemed to be insolvent. The Corporations Rules 2003 (SA) provide that an application to set aside a Statutory Demand “must be in accordance with Form 2”. Form 2 is used for a number of different types of applicants and contains a number of parts. One part (Part B) provided for the details of the return date of the application to be filled in and another part (Part C) was a section to be completed if the originating process was seeking an order that the company be wound up in insolvency on the ground that the company had failed to comply with a Statutory Demand. The Court noted that it was common for the wording under Part C to be deleted if it was not applicable. Part C – which contained spaces for the insertion of the details of the service of the Statutory Demand (i.e. something which had already occurred) – was not applicable in this instance because the relief sought was to set aside a Statutory Demand and not wind-up a company. Upon filing of a Form 2 the Registrar must fix a time, date and place for hearing and endorse those details on the document at Part B. What occurred in this case is that on 5 April 2019 (four days before the 21 day period expired) the solicitor for Monsere attended at the Registry himself to file the set-aside application. The Registry Staff filled in the date, time and place of the hearing at Part C of the Form 2, not at Part B. The solicitor did not notice that the Registry Staff had written the return date (“30 April 2019 at 2:15pm”) in the wrong part of the document and did not check that the document was correctly filled out. After attending at the Registry Monsere’s solicitor served the documents himself on RDM’s solicitor. RDM then disputed that an application to set aside the Statutory Demand had been filed because the application did not comply with Form 2 and s.459G by reason of the fact that it did not bear the return date at Part B. RDM said that because the matter was not one to which Part C applied, the date written in Part C could not be read as the return date for the hearing, and that strict compliance was required. Monsere submitted that in the circumstances of this matter, where Part C of the Form was not engaged, and where the date at Part C was a future date, it should have been obvious to RDM that the Registry had made a mistake and that the date in Part C was actually the return date. Monsere submitted that there was therefore substantial and sufficient compliance with the requirements of the Act. Judge Bochner examined a number of the authorities on s.459G, although she acknowledged that none of them specifically related to a situation where the date was on the wrong section of the Form. It was clear from previous cases that it was fatal to the validity of the application if no return date at all appeared on the document, whether or not it was fault of the applicant – see for example Bache Business and Printing Services Pty Ltd v SA Hub Productions [2009] SASC 369 and Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] 211 ALR 293. Judge Bochner concluded that: “It was not for the defendant [RDM] to attempt to ascertain the true meaning of Part C; the time and date for the hearing must be evident on the face of the document, without requiring the defendant to make any assumptions. In my view, this case cannot be distinguished from Cooloola Dairies, despite the factual differences both cases required the defendant to guess, make an assumption or take some other step to ensure that it was aware of the hearing date for the application”. Monsere’s application to set aside the Statutory Demand was therefore dismissed thereby exposing Monsere to being wound up. It is understood that Monsere may be appealing this decision. Even if an appeal is lodged and is successful it is abundantly clear that it would have been better for Monsere and its solicitor had the proper details of the return date been checked and the document corrected before service on RDM. Much of what practitioners do depends greatly on getting the details correct. This case shows that not doing so can cause significant problems. In cases where the solicitor is not primarily responsible for the error the “buck” will often stop with the solicitor. Even when things are busy (perhaps especially when things are busy) stop, take a moment to check and double-check that you have the details correct. September 2019 THE BULLETIN 43
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE Flexibility i
Page 7 and 8: GlobalX Search integrates with your
Page 9 and 10: EVENTS Glen Pearce (left) and Shery
Page 11 and 12: BUILDING & PROPERTY LAW BUILDING IN
Page 13 and 14: BUILDING & PROPERTY LAW The old Z W
Page 15 and 16: PROMOTION Managing the Financial Se
Page 17 and 18: BUILDING & PROPERTY LAW Just as wit
Page 19 and 20: BUILDING & PROPERTY LAW Regulations
Page 21 and 22: CRIMINAL LAW 3. Inviting a jury to
Page 23 and 24: FISHER BRENNAN CONSULTING Building
Page 25 and 26: YOUNG LAWYERS facebook.com/YLCSA re
Page 27 and 28: PROPERTY LAW acting together or hav
Page 29 and 30: PROPERTY LAW are likely to be like
Page 31 and 32: BUILDING & PROPERTY LAW There is no
Page 33 and 34: BUILDING & PROPERTY LAW Vadasz (Tra
Page 35 and 36: SOCIAL MEDIA jurors. 6 Such informa
Page 37 and 38: IN HONOUR Vale Damon Ind: A passion
Page 39 and 40: WELLBEING & SUPPORT Breaking the st
Page 41: FAMILY LAW improper to preclude dec
Page 45 and 46: GAZING IN THE GAZETTE 3 JUL 2019 -
Page 47: We manage one of SA’s largest soc

LSB September 2019_Web

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?