LSB December 2021 HR

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FAMILY LAW CASE NOTES Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK PROPERTY – PRIVATE CONTACT BETWEEN BARRISTER AND JUDGE WHILE CASE WAS UNDER WAY GIVES RISE TO APPREHENDED BIAS In Charisteas [2021] HCA 29 (6 October, 2021) the High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) considered a recusal application on the ground of apprehended bias. The High Court said (from [14]): “ … [W]hat is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister ‘otherwise than in the presence of or with the previous knowledge and consent of ’ [cf Magistrates’ Court at Lilydale [1973] VR 122 at 127] the other parties to the litigation. … The communications should not have taken place. … [15] A fairminded lay observer … would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. … ( … ) [18] … The apprehension of bias principle is so important to perceptions of independence and impartiality ‘that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined’ (emphasis added) Ebner [2000] HCA 63 (‘Ebner’). … [19] The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications … ( … ) [21] … The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. … [22] It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. … [T]heir contact may be resumed … by a judge making 36 THE BULLETIN December 2021 orders and publishing reasons, thereby bringing the litigation to an end. …” The appeal was allowed and the matter remitted for rehearing with costs. PROPERTY – LITIGATION FUNDING ORDER AGAINST THIRD PARTY – IRREVERSIBILITY OF ORDER AT FINAL HEARING NOT FATAL TO APPLICATION In Lao & Zeng [2021] FedCFamC1A 17 (23 September, 2021) the Full Court (Ainslie-Wallace, Ryan & Austin JJ) considered a litigation funding order that required the wife’s mother to pay $350,000 towards the husband’s legal fees. The wife’s legal fees were funded by her mother, the husband seeking that the mother also pay his fees. As to the reversibility of the litigation funding order, Ryan J (with whom Ainslie- Wallace J agreed) said (from [48]): “( … ) Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought. … [49] It is … significant that in [Zschokke [1996] FamCA 79] … the Full Court said that there must be a question about whether it is possible to make a litigation funding order under s 117(2) even though the order could not be taken into account in a final hearing. For example in parenting proceedings or where no right of action exists under s 79. If their Honours considered that reversibility and the ability to take the amount into account in a final property hearing was an essential element to the exercise of power under s 117(2) it follows that in the examples given such an order could not be made. … [50] … [T]here will be cases where even though the amount paid may not be able to be … taken into account in the final hearing, the interests of justice may nevertheless justify an order under s 117(2) for interim funding or security for costs. ( … )” The majority dismissed the appeal with costs. CHILDREN – PARENTAL RESPONSIBILITY – NO ERROR IN VESTING SOLICITOR WITH PARENTAL RESPONSIBILITY FOR LIMITED PURPOSE OF A TORT CLAIM AGAINST MOTHER In Agambar [2021] FedCFamC1A 1 (2 September, 2021) the Full Court (Strickland, Austin and Baumann JJ) heard a father’s appeal from a decision that vested a solicitor with parental responsibility for the limited purpose of instructing lawyers to act on behalf of the children in tort claims against their mother. Weeks after separation, the mother lost control of her car and crashed while driving the parties’ three children. One child was killed and the other two were injured. The children had personal injury claims against the mother. The mother conceded that she could not act as litigation guardian and sought “Mr B” to be given parental responsibility for the limited purpose of instructing lawyers to act in the tort claims. Dealing with the father’s complaint as to the interference with the parents’ parental responsibility, the Full Court said (from [38]): “( … ) In VR & RR [2002] FamCA 320 (‘VR & RR’) the Full Court … dismissed the aspect of the appeal which concerned the trespass upon parental autonomy by the appealed orders … ( … ) [39] The Full Court … recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. … [T]he primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order
FAMILY LAW CASE NOTES interfering with their existing equal shared parental responsibility … [40] The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here … because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be vested in adults other than the child’s parents (ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes … ( … ) [43] Since the primary judge appreciated the gravamen of the decision … and nevertheless decided to invest Mr B with the discrete portion of parental responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B … ( … )” The father’s appeal was dismissed with costs. B 3 OCT 2021 – 2 NOV 2021 A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA ACTS PROCLAIMED Motor Vehicles (Motor Bike Driver Licensing) Amendment Act 2021 (No 8 of 2021) c Commencement ss 4-8, 10-13: 22 November 2021 Commencement remaining provisions: 7 October 2021 Gazetted: 7 October 2021, Gazette No. 66 of 2021 Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021 (No 30 of 2021) Commencement: 1 November 2021 Gazetted: 14 October 2021, Gazette No. 68 of 2021 Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Act 2021 (No 35 of 2021) Commencement: 21 October 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021 Correctional Services (Accountability and Other Measures) Amendment Act 2021 (No 12 of 2021) Commencement ss 10; 26(1) and (3); 27 to 31; 33 to 35; 37 to 40; 42; 44 to 46; Sch 1 cl 4; Sch 1 cl 5(2): 1 November 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021 Liquor Licensing (Miscellaneous) Amendment Act 2019 (No 28 of 2019) Commencement ss 6, 13 and 14(2): 22 October 2021 Gazetted: 21 October 2021, Gazette No. 69 of 2021 Lotteries Act 2019 (No 41 of 2019) Commencement: 10 December 2021 Gazetted: 28 October 2021, Gazette No. 70 of 2021 ACTS ASSENTED TO Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, No. 38 of 2021 Gazetted: 7 October 2021, Gazette No. 66 of 2021 South Australian Multicultural Act 2021m No. 39 of 2021 (repeals South Australian Multicultural and Ethnic Affairs Commission Act 1980) Gazetted: 21 October 2021, Gazette No. 69 of 2021 APPOINTMENTS Acting Judicial Conduct Commissioner for a term of three months commencing on 7 October 2021 and expiring on 6 January 2022 Honourable Bruce Malcolm Debelle AO QC Gazetted: 7 October 2021, Gazette No. 66 of 2021 Youth Court of South Australia Judge From 8 December 2021 – 16 April 2025 Judge Penelope Anne Eldridge Magistrate – principal judiciary From 23 November 2021 for a term of 2 years Magistrate Alison Frances Adair From 19 April 2022 for a term of 1 year Magistrate Oliver Rudolf Gerhard Koehn Gazetted: 7 October 2021, Gazette No. 66 of 2021 Notification of Assumption of Office of Governor Proclamation Gazetted: 7 October 2021, Gazette No. 67 of 2021 District Court of South Australia Judge From 1 November 2021 Heath David Barklay QC Gazetted: 28 October 2021, Gazette No. 70 of 2021 Master on an auxiliary basis, from 1 November 2021 - 30 June 2022 Christina Rose Flourentzou Gazetted: 21 October 2021, Gazette No. 69 of 2021 Magistrate on an auxiliary basis, from 25 October 2021 - 30 June 2022 Terence Frederick Forrest Gazetted: 21 October 2021, Gazette No. 69 of 2021 Environment, Resources and Development Court of South Australia Judge effective from 1 November 2021 Heath David Barklay QC Gazetted: 28 October 2021, Gazette No. 70 of 2021 State Planning Commission Members for a term of three years commencing on 1 November 2021 and expiring on 31 October 2024 Craig Andrew Holden Stuart Paul Moseley Elinor Rebecca Walker Noelle Margaret Hurley Gazetted: 28 October 2021, Gazette No. 70 of 2021 December 2021 THE BULLETIN 37
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 I look forwar
Page 8 and 9: ANIMAL LAW Animals and intervention
Page 10 and 11: RENTING WITH PETS IN THE DOG HOUSE?
Page 12 and 13: Q&A Know Your Council Member: Melan
Page 14 and 15: IN HONOUR Vale: Mark Glencraig Nich
Page 16 and 17: DISABILITY JUSTICE More collaborati
Page 18 and 19: FEATURE THE NEED TO THINK OUTSIDE C
Page 20 and 21: FEATURE Western Law as having judge
Page 22 and 23: ANIMAL LAW Therapy or assistance an
Page 24 and 25: YOUNG LAWYERS facebook.com/YLCSA Yo
Page 26 and 27: WELLBEING & RESILIENCE It's OK to g
Page 28 and 29: RISK WATCH Culturally and linguisti
Page 30 and 31: FEATURE The existing legal safeguar
Page 32 and 33: FEATURE Turkeys and the law DIANA T
Page 34 and 35: TAX FILES DGRs that are not already
Page 38 and 39: GAZING IN THE GAZETTE REGULATIONS P
Page 40: We manage one of SA’s largest soc

LSB December 2021 HR

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