LSB September 2021 LR

FAMILY LAW CASE NOTES
alleged contraventions, which right he
could not be forced to relinquish. He could
not be expected to lead evidence about
the need for further orders to facilitate
implementation of the final property orders
when he was … defending an allegation of
his contravention of those … orders.
[25] … An applicant who prosecutes
a contravention application carries the
burden of adducing evidence to prove the
alleged contravention. … [N]either party
could concurrently carry the burden of
proof and reserve their right to silence.
[26] The procedure adopted by the
primary judge for hearing and determining
the wife’s contravention applications bore
no similarity at all to that prescribed by r
21.08 of the Rules ( … )
[29] ( … ) [T]he husband was improperly
converted from applicant to respondent
when the evidence filed in support of the
contraventions alleged by the wife had not
yet been either formally adduced or tested in
cross-examination. ( … )
[33] Given the denial of procedural
fairness, … the … judge fell into
appealable error.”
CHILDREN – ORDER THAT ROUTINE
NOTIONALLY CONTINUE THROUGH
HOLIDAYS INTERPRETED SO THAT FIRST
WEEK OF SCHOOL WAS ‘WEEK 2’ OF CYCLE
In Nagel & Clay [2021] FamCA 358 (2
June, 2021) Harper J heard two parents’
opposing views as to the interpretation of
a parenting order made by consent.
The order related to the resumption of
time following school holidays, specifically
that at the commencement of school
term, the fortnightly routine resume “as
if the children had been living with the
parties” in accordance with the fortnightly
routine “during the duration of the school
holidays”.
After citing Langford & Coleman [1992]
FamCA 68, the Court said (from [7]):
“The decision in Langford is consistent
with authority … to the extent that it denies
interpretation of court orders by reference
to the parties› subjective intentions. ( …)
[9] In Apoda & Apoda [2013] FamCA
265 at [35] - [41] Le Poer Trench J
concluded that in construing final consent
orders the Court should undertake a three
step process, namely, determining whether
there is ambiguity, identify surrounding
circumstances, other than the subjective
intentions of the parties … and reach a
conclusion in relation to construction. ( … )
[15] … [T]he father construed Order
10 to mean that the question of which
week in the two cycle is applicable at
the commencement of Term 2, 2021
is determined by reference to the
alternating weeks which would have been
notionally applicable as if Order 10(a)
and (b) had been operating during the
… school holidays, and, for the purposes
of calculating the relevant dates, as a
continuation of the fortnightly cycle
initiated by Order 9 on the specified dates
in October 2020.( … )
[23] It is clear … that the opening
words of Order 10 ‘From the
commencement of school in Term 2
...’ mean only that there will be inserted
into the existing fortnightly cycle from
the commencement of Term 2 … the
additional Tuesday night with the father.
They do not mean the fortnightly cycle
is reset to commence with Week 1 to
coincide with the commencement of
Term 2 ( … )
[30] The mother also argued that the
parties could not have intended that Order
10 would operate so that in the week
commencing Term 2, 2021 the children
would have spent the second half of the
immediately preceding school holidays
with the father, then return for only one
night with the mother before returning
again to the father’s care …. Even on the
mother’s construction, such an outcome
would be possible [and] would be entirely
contingent on the dates on which the
school holidays fell. … ” B
3 JULY 2021 – 2 AUG 2021
A MONTHLY REVIEW OF ACTS, APPOINTMENTS,
REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH
OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
ACTS PROCLAIMED
Statutes Amendment (Recommendations of
Independent Inquiry into Child Protection) Act
2021 (No 14 of 2021)
Commencement: 2 August 2021
Gazetted: 22 July 2021, Gazette
No. 49 of 2021
Fire and Emergency Services (Governance)
Amendment Act 2021 (No 15 of 2021)
Commencement: 2 August 2021
Gazetted: 29 of 2021, Gazette No.
50 of 2021
Health Care (Governance) Amendment Act
2021 (No 21 of 2021)
Commencement: 23 August 2021
Gazetted: 29 of 2021, Gazette No.
50 of 2021
ACTS ASSENTED TO
Nil
APPOINTMENTS
Nil
RULES
Nil
REGULATIONS PROMULGATED (3 JULY 2021 – 2 AUGUST 2021)
REGULATION NAME REG NO. DATE GAZETTED
Adelaide Park Lands Regulations 2021 108 of 2021 8 July 2021, Gazette No. 46 of 2021
Firearms (Miscellaneous) Variation Regulations 2021 109 of 2021 8 July 2021, Gazette No. 46 of 2021
Mining (Rules of Warden’s Court) Variation Regulations 2021 110 of 2021 15 July 2021, Gazette No. 48 of 2021
Planning, Development and Infrastructure (General) (Application of Act) Variation Regulations 2021 111 of 2021 22 July 2021, Gazette No. 49 of 2021
46 THE BULLETIN September 2021